BABULAL MULCHAND Vs. ALI MOHAMMAD RAJJAB

JUDGEMENT

(1.) THIS appeal is by the employer under section 30 of the Workmen's Compensation Act against the order,, dated 3 -7 -1959 passed by Shri H. N. Singh, Commissioner, acting under the Workmen's Compensation Act, Chhatarpur, in Compensation Case No. 4 of 1957. The respondent, as a cleaner working on a motor bus of the appellant -firm, had to accompany the bus on 15 -2 -1957. On the way, some dacoits attacked the bus, as a result of which the respondent received injuries. The dacoits fired shots on the bus, and consequently the respondent received injuries on the face. He was occupying the front seat by the side of the driver. However, no life was lost. The respondent's eye -sight was permanently lost on account of the injuries he received in the encounter. Therefore, he claimed compensation amounting to Rs. 2,940 for total loss of the eye -sight. The appellant's defence was that the respondent was not a workman within the meaning of the Workmen's Compensation Act. He was a temporary and a casual employee. Moreover as a cleaner, he was expected to occupy a back seat. He was responsible for the injuries, as he had occupied the seat by the side of the driver contrary to the general practice. It was admitted that some dacoits attacked the bus and that the injuries were received in that accident. It was further alleged that the appellant had spent Rs. 200 towards the medical treatment of the respondent and also advanced some amount so as to make up a total of Rs. 700. The learned Commissioner awarded an amount of Rs. 1,680 out of which advances made by the appellant to the respondent to the extent of Rs. 581 -1 -0 were deducted. Therefore, the compensation payable was fixed at Rs. 1,131 -15 -0. The learned Commissioner held that the respondent was a workman entitled to compensation and that the accident arose out of and in the course of his employment. Two questions arise in the present case whether the respondent is a workman within the meaning of section 2(1)(n) of the Workmen's Compensation Act. I am in agreement with the view of the learned Commissioner that the employment of the respondent was not casual. He was working as a cleaner. The mere fact that wages for the period of absence might be deducted would not convert him into a casual employee. Therefore, I affirm the conclusion of the learned Commissioner on the point. The further question arises whether the respondent was a workman. In the Pollachi Transport Ltd., Coimbatore v. Arumvga Koundar, ILR 1838 Mad. 636 :, AIR 1938 Had. 480, a Division Bench held that the conductor of a motor bus would be a workman within the meaning of section 2(1)(n) of the Act. The learned Judges relied on the case of Nanda Kumar v. Pramatha Nath, 42 CWN 123.

(2.) IN Padam Debi v. Raghunath Raw : AIR 1950 Ori 207, a Division Bench of the Orissa High Court held that a driver of a motor bus would be a workman within the meaning of section 2(1)(n) of the Act. A cleaner of the bus is also required to accompany the bus and there is no reason to think that a cleaner of a bus will not be a workman within the meaning of section 2(1)(n) of the Act. The said Division Benches have already held that a driver or a conductor of a motor boa is a workman. I am of opinion that a cleaner would undoubtedly be a workman within the meaning of the section, as he has to accompany the bus. The further question arises whether the accident arose out of and in the course of the employment. In this connection, it is to be noted that the respondent on account of his duties was required to accompany the bus in his capacity as a cleaner. It was not that be voluntarily took a life in the bus. If it was his duty to accompany the bus, it could not be a matter of his choice and he would certainly be considered to be on duty and the accident, no doubt, took place in the course of his employment. We have to consider whether the accident arose out of the course of employment. That is the only question relevant in the present appeal. It was also the appellant's defence that the respondent as a cleaner was expected to occupy a rear seat, and not the front seat by the side of the driver. As such, it was contended that he was responsible, as he had committed an act in contravention of the general practice or the regulation. In this connection, I might observe that the mere negligence of an employee in the matter of carrying out regulations will not disentitle him to compensation, as laid down by a Division Bench of this Court consisting of Stone C. J. and Niyogi J. in Mt. Champi w/o Shiwa Mahar v, Messrs. Shaw Wallace and Co. : AIR 1937 Nag. 397. Therefore, the fact that the respondent had occupied a front seat voluntarily will not disentitle him to claim compensation.

(3.) IN Margaret Brooker v. Thomas Borthwick and Sons, AIR 1933 PC 226, their Lord -ships of the Privy Council laid down the following tests: - Their Lordships however cannot agree to this. The illustration appears to be of the essence of the argument. In the course of the discussion the House of Lords had been referred to four cases of injury by natural forces,, the two cases of lightning, Andrew v. Failsworth, (1904) 2 KB 32 and Kelly v. Kerry County Council, (1908) 1 BWCC 194 and the two cases of frost bite, Karemaker v. S.S. Gorsican, (1911) BWCC 295 and Warner v. Couchman, 1912 AC BIS, where the principle had been adopted that where the injury was directly caused by such a natural force it has to be shown that the workman was especially exposed by reason of his employment to the incidence of such a force. Lord Haldane's exposition was obviously intended to comprise these decisions. The principle which emerges seems to be clear. The accident must be connected with the employment, must arise 'out of it. If a workman is injured by some natural force such as lightning, the heat of the sun, or extreme cold, which in itself has no kind of connation with employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further need be considered. Bo that if the roof or walls fall upon him, or he slips upon the premises there is no need to make further inquiry as to why the accident happened.