- (1.) BY this appeal under section 30 of the Workmen's Compensation Act (No. VIII of 1923) (for short 'the Act' hereafter), the appell-ants have assailed the order dated November 21, 1979 of the Workmen's Compensation Commissioner (hereinafter referred to as 'the Commissioner' Bikaner, Churu and Nagaur, by which, he awarded a sum of Rs. 19,200/- as compensation and Rs. 100/- as expenses to the respondent, who is father of the deceased Multanaram.
(2.) A few facts leading to this appeal may briefly be stated. The respondent Heeraram, father of deceased Multanaram filed an application dated January 16, 1978 before the Commissioner for the award of compensation amounting to Rs. 19,200/- with costs to him from appellants No. l and 2. It was stated that deceased Multanaram was employed as a Workman by appellants No. 1 and 2 on February 12, 1977 as pipe fitter. It was alleged that on March 12, 1977, the deceased Multanaram was going on duty in Jeep No. RJK 5398 with Junior Engineers Sarva Shri Dwarka Dass Vyas, D. K. Joshi and Vinod Kumar Mathur from R. D. 900. A trouble arose in the Jeep and it became out of order at R. D. 888. It was made in order As the Jeep was not being driven satisfactorily Shri D. K. Joshi ordered to return to the headquarters at R. D. 900. It again went out of order at R. D. 895. The driver Amarsingh and the fitter Multanaram got out of the Jeep and attempted to check it and to remove the defects. The deceased Multanaram is said to have put his hand on the carburettor to start the engine. When he was doing so, there was a mis-fire with the result that the clothes of Multanaram caught fire and started burning. Despite the efforts being made to set out the fire, Multanaram was partially burnt. He was removed to the head-quarters at R. D. 900 and was given first aid. Subsequently on March 15, 1977, he was removed to the hospital. There he was reported to be dead. After his post-mortem on March 16, 1977, his dead body was taken to village Bhundana by his nearest relative J. E. N. Shri Sitaram and it was handed over to respondent Heeraram, father of the deceased Multanaram. In the application, it was stated that respondent, Heeraram, father of the deceased Multanaram, his mother and old grand mother were wholly dependent Upon Multanaram, and that the deceased Multanaram was unmarried, that at the time of the accident he was 22 years old and that he was getting Rs. 330/- as monthly wages. An application was submitted to the appellants No. 1 and 2 for grant of compensation but neither any reply was received nor any compensation was paid to the respondent. Thereafter, the respondent filed the application for grant of compensation as aforesaid. The application was contested by appellants No. 1 and 2. It was admitted that the deceased Multanaram was employed on the post of a fitter and that he expired on March 15, 1977. The work which Multanaram was required to do was to do pipe fitting and not to repair the jeep. It was stated that neither appellants No. 1 and 2 nor JEN Ranjeetsingh nor D. P. Joshi ordered him to repair the jeep, as it was not his duties. It was mentioned that it was not expected from him to do the repair of the jeep. It was admitted that the accident had taken place in the course of employment but it was denied that it has arisen out of the employment. It was also contended that the wages of the deceased Multanaram of the full month in accordance with the provisions of the Minimum Wages Act were only Rs. 286/- and therefore, the amount of compensation claimed on the basis of the allegation that his monthly wages were Rs. 330/-cannot be awarded. The Commissioner framed six issues on March 28, 1978. The evidence was recorded and the Commissioner recorded the following findings : (1) that the deceased Multanaram was a workman ; (2) that Multanaram died on account of the accident, which has arisen out of and in the course of his employment ; (3) that the respondent is entitled to compensation in accordance with his claim ; (4) that the Assistant Engineer, (appellant No. 2) is liable to pay compensation ; (5) that the monthly wages of the deceased Multanaram were between Rs. 300/-to Rs. 400/-; and (6) that the respondent is entitled to Rs. 19, 200/- as compensation and Rs. 100/- as costs of the application. In view of the findings aforesaid, the application of the respondent for the award of the compensation was allowed by the Commissioner vide his order dated November 21, 1979. Feeling aggrieved, the appellants have come up in appeal under section 30 of the Act to this Court. I have heard Mr. N. M. Lodha, learnd Deputy Government Advocate and Mr. B. N. Calla, learned counsel for the respondent and have also gone through the record. It was strenuously contended by the learned Deputy Government Advocate that the injuries on the body of deceased Multanaram which have ultimately resulted in his death did not arise out of the employment and, therefore, the award of compensation by the Commissioner was illegal. In other words, the learned Deputy Government Advocate has challenged finding No. 2 mentioned hereinabove of the learned Commissioner to the extent that Multanaram has died on account of the accident which has arisen out of the employment. It was not disputed that the injuries which were caused to Multanaram by accident were in the course of his employment. On the other hand, learned counsel for the respondent vehemently argued that the injuries which were caused by accident to Multanaram arose out of and in the course of his employment. In these circumstances, the substantial question of law that emerges for my consideration is whether the accident arose out of the employment. It will be useful to notice the relevant evidence in this reeard Shri D. K. Joshi, JEN RCP has stated that the driver and the deceased Multana Ram began to repair the Jeep and the driver asked the deceased Multana Ram to do pumping an carburettor and for that he placed his hand and while doing so there was mis-fire and his clothes caught fire. Shri V. C. Mathur has deposed *** ***
(3.) RATNA Ram has supported Shri V. C. Mathur and Shri Sita Ram In this state of evidence it is to be examined whether the injuries which resulted in death were caused by the accident which arose out of employment. The relevant portion of section 3 of the Act is as under : " Employer's liability for Compensation. (1) If personal injury is caused to a workman by accident arising out of and in the course of his employ ment his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days: (b) in respect of any (injury, not resulting in death, caused by) an accident which is directly attributable to (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen; " Section 3 (1) of the Act requires (i) that a personal injury must be caused to workman; (ii) that the injury must have been caused by accident; and (iii) that the accident must have arisen out of and in the course of his employment. The third element of the section "arising out of and in the course of employment has been taken from the English Act of 1897. ;