- (1.) THIS is an employer's appeal against an order of the Workmen's Compensation Commissioner granting compensation to one Navia, father of the deceased workman Moda.
(2.) THE application for compensation was filed by Navia and Mst. Motki and Mst. Jagee who claimed to be the father, mother and widow respectively of the deceased workman Moda. It was alleged in application that Moda was removing stones and earth to extricate a truck which had got stuck and was run over by the truck and was killed during the course of his employment on 25th June, 1962. Further it was alleged that the applicants were the dependants of the deceased workman. On behalf of the employer it was alleged that the accident in which Moda was killed did not arise out of his employment and that the applicants were not dependants of the deceased workman. In the written statement it was alleged that the version of the accident given in the application was false. According to the employer Moda tried to board a running truck from behind when he fell down. It was stated that Moda was employed only to dig earth and it was not the part of his job either to load the earth on the truck or to go with the truck and unload the earth at the bite of the dam where it was being taken. It was denied that Moda was run over by the truck. One of the issues framed by the Workmen's Compensation Commissioner in the case was whether the accident arose out of and in the course of Moda's employment. The Commissioner came to the finding that it did so arise. The first contention on behalf of the appellant is that this finding is erroneous in law. No evidence was produced in the case on behalf of the applicants. On behalf of the employer two witnesses were examined. One was Harlal and the other was Bhanwarlal employer. The Compensation Commissioner did not rely on the evidence of Bhanwarlal, so I shall refer only to the evidence of Harlal whom the Compensation Commissioner has believed. He stated that it was the duty of Moda only to dig earth and that other persons were employed for loading the earth on the truck and for unloading it at the site of the dam after it was transported there. He stated that Moda was sitting on the truck towards the left and fell down when the truck was in motion. The question which arises is whether the accident can be said to arise out of the employment of Moda in the circumstances of the present case. As was pointed out in G. Powell & A. Ghany Co. vs. Panchu Mokadam (l) - "because a man is injured during the time of his employment it does not follow that the accident arose out of or in the course of such employment. " In Central Glass Industries Ltd. vs. Abdul Hossain (2) it was held as follows - "where a workman receives an injury while he is playing in the ground of the factory when he is obliged to remain in idleness while another shift was working and before his turn of beginning work had arrived, it cannot be said that the injury had arisen out of his employment. " This case was cited with approval in M/s. Mewar Textile Mills, Bhilwara vs. Kushali Bai (3 ). In the latter case the workman was killed in the premises of the mills during recess. It was found that he was stabbed by some one for some motive which had nothing to do with the employment of the workman concerned with mills. It was held that the mills was not liable to pay compensation. In Knowles Vs. Southern Railway Company (4) the driver of a horse-van while on duty dismounted from his box-seat and went to a neighbouring public house for the purpose of drinking a glass of beer. In doing so he was committing a breach of one of the rules issued by his employer, of which he had full knowledge, that "employees must not consume intoxicating liquor while on duty". The driver subsequently returned to his van, and was in the act of mounting the box-seat when he slipped, fell under a wheel of the van, and was fatally injured. It was held: - " (i) the accident did not arise out of and in the course of the driver's employment, (ii) as the act which caused the accident was not done for the purpose of and in connec tion "with the employer's trade or business, the accident could not be deemed to have arisen out of and in the course of the employment. . . . . . " In Edwards Vs. London Passenger Transport Board (5) the appellant who was a bus conductor was going from one place of duty to another. But he did not go straight to the second place of duty. He went to transact some business of his own when he met with an accident. It was held that the accident did not arise out of and in the course of his employment. On behalf of the respondent reliance was placed on the following two cases - (1) Works Manager, Carriage and Waggon Shop E. I. Rly. Vs. Mahabir (6), (2) Shaik Jafari Hiptullah Bhoy Gin and Press Factory, Amraoti vs. Shaik Ismail (7) In the Allahabad case a railway employee was killed while crossing a railway line on his way home from the place of work. It was held that the accident arose out of and in the course of his employment. That is because of a notional theory of extension of employment. This decision is of no help in the present case. In the Nagpur case the workman met with an accident as he was negligent in performing his duty. It was held that the employer was liable. This case is also of no help as the accident clearly arose out of and in the course of the employment. I accordingly find that in the present case it cannot be said that the accident arose out of and in the course of the employment of Moda. The employer is therefore not liable. The next contention on behalf of the appellant is that there is no evidence on record to show that Navia the father of the deceased to whom compensation was awarded by the Commissioner was a dependant of the deceased workman. The expression "dependant" is defined in sec. 2 (d) of the Workmen's Compensation Act. A father can only be considered to be a dependant if it is shown that She was wholly or in part dependant on the earning of the workman at the time of his death. In the application it was alleged that the applicants were dependants. This was denied in the written statement. The Compensation Commissioner however failed to frame any issue on the point.
(3.) IN result, the appeal is allowed and the order of the Workmen's Compensation Commissioner is set aside. The amount of Rs. 1,500/- deposited by the employer shall be refunded to him. In the circumstances of the case I direct that parties shall bear their own 'costs of these proceedings. .;