Decided on November 21,1972



Kantawala, C.J. - (1.) This appeal arises out of an application made by Gajanan Bhan Magat the appellant, under the Employees' State Insurance Corporation (Act No. 34 of 1948) (hereinafter referred to as "the Act") for benefit in respect of employment injury. The appellant was employed as an assistant electrical forman in India United Mills Nos. 2 and 3 at Bombay. On December 9, 1956 he was working on the day shift and a coolie named Shankar Bhiva was working under him. The appellant happened to reprimand Shankar for not discharging his duty properly. Nothing happened between the appellant and Shankar till December 16, 1956. On that day, the appellant was on duty in the second shift and his hours of duty were from 3 p.m. to 11 p.m. His reliever Fernandes, however, arrived in the mill by about 10-15 p.m. and relieved him. After handing over charge to Fernandes the appellant left the mill. As soon as he came out of the mill compound he was assaulted and beaten with a bamboo stick by some assailants and the case of the appellants is that one of the persons who so assaulted him was Shankar. The appellant was thereafter removed to the hospital and as a result of the injuries sustained on the left side of his face, his left eye was completely lost.
(2.) On December 10, 1957, the appellant filed an application being application No. 129 of 1957 before the Insurance Court claiming benefit from the respondent. That application was dismissed by the Insurance Court. On appeal by the appellant to this Court the order of dismissal by the Insurance Court was set aside and the appellant was given permission by this Court to file a fresh application in regard to his claim. Accordingly, on September 6, 1961 a fresh application was filed by the appellant in the Employees' State Insurance Court. In this application he made a claim for permanent disablement benefit at the rate of Rs. 1.50 paise per day from February 20, 1957 to the date of the application. The application was dismissed by the Insurance Court. The Insurance Court took the view that the appellant failed to prove that the accident which resulted in the injury arose out of the employment. The Court also felt a doubt whether Shankar was one of the assailants of the appellant. According to the Court the appellant had not proved his case beyond reasonable doubt and it dismissed the application.
(3.) An appeal against this decision of the Insurance Court was heard by Gatne, J. Upon scrutinising the evidence on record the learned Judge took the view that the case must be decided on the basis that the person who assaulted the appellant on the night of December 16, 1956 was Shankar. The learned Judge also took the view that the appellant was so assaulted by Shankar by reason of a previous incident which had taken place a few days earlier. He accordingly found no difficulty in holding that the assault arose out of the employment of the appellant as an Assistant Electrical Foreman. The learned Judge, however, felt that as the appellant was assaulted on the road outside the mill compound it could not be said to be in the course of his employment. In view of this finding the learned Judge dismissed the appeal that was filed by the appellant.;

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