1. This is an appeal preferred against the order passed by the Ld. Commissioner, Employee's Compensation Act, 1923 Ajmer District Ajmer dated 28.03.2013 whereby the Commissioner has passed an award of an amount of Rs.4,19,840/- alongwith the interest @ 12% p.a.
2. Learned counsel appearing for the appellant submits that the Insurance Company cannot be said to be liable for payment of compensation to an individual who cannot be said to have died out of an accident but has died 10 months later on account of some injuries which has not been proved to have caused by way of an accident. Learned counsel submits that Insurance Company does not in any manner challenge the employer-employee relationship but so far as deceased is concerned he was involved in smuggling drugs and was caught by the Police while driving the insured vehicle and was arrested on 03.06.2006 and remained in jail for 6 months. The claimants have set up a case that he died out of injuries which occurred on account of accident that occurred while he was being followed by the Police and was arrested. The injuries continued for which he underwent treatment and ultimately died after 10 months. Learned counsel submits that no proof relating to accident has been placed on record nor any documentary proof has been shown that the accident resulted in injuries caused to the deceased. In fact in cross-examination, the claimant herself states that she does not know whether the injuries were caused on account of accident or on account of being beaten up by the police or on account of having fallen while in Jail. Learned counsel submits that on account of the driver having committed an imprudent act, compensation ought not be awarded to him.
3. Learned counsel relies on the judgment passed by the Bombay High Court in the case of Laxmanrao Versus Maharashtra State Electricity Board in First Appeal No.296/2013 decided on 20.01.2015 which relies on earlier judgment passed by the Supreme court in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. versus Ibrahim Mahmmod Issakreported in 1969 ACJ 422. Learned counsel therefore submits that the Commissioner has failed to examine the case in the right perspective and has given perverse findings.
4. Per contra, learned counsel appearing for the respondents submits that the question regarding the manner in which an accident may have occurred and in what manner the injuries were caused are pure question of fact. He relies on the judgment passed by the Apex Court in the case of North East Karnataka Road Transport Corporation Versus Smt. Sujatha reported in AIR 2018 SC 5593.
5. I have considered the submissions and perused the record.
6. An FIR was registered by the Police under Section 8 (15) of the NDPS Act and Sections 25 & 27 of the Arms Act as against the deceased-Ajay Singh. The Police received the information of contraband material he carried in the Jeep bearing no. RJ 01 T 0744 and they attempted to stop the vehicle which was being driven by the accused-Ajay Singh who did not stop at the police barricade and also opened fire by a local pistol on the police. He was later on arrested under the aforesaid offences and remained in jail. There is no postmortem report and there is only information that he died on 15.04.2007. As to the incident which occurred on 03.06.2006, it is the only claimants who have placed documents of treatment of the deceased to submit that injuries were caused at the time when he was attempting to run away from the police barricade resulting in an accident of the vehicle.
7. Question arises whether such an act on the part of the driver of a vehicle would bring him within the ambit of the Employee's Compensation Act 1923 for the purpose of grant of compensation of having suffered injuries while on duty.8. It would be apposite to quote the observations of the Supreme Court in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. (supra) as under:-
"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it."
The words "arising out of employment" are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, when, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered.
In other words, there must be a causal relationship between the accident and the employment.
The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such-- to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises "out of employment."
To put it differently, If the accident had occurred or account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own Imprudent act. In Lancashire and Yorkshire Railway Company v. Highley 1917 A.O. 362 Lord Sumner laid down the following: test for determining whether an accident "arose out of the employment":
There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the Injured person's employment to hazard, to suffer, or to do that which caused his Injury ? If yes, the accident arose out of his employment. If ray, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident of the workman was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained Injury"
9. In the case of Laxmanrao (supra), the Bombay High Court taking cue from the aforesaid judgment observed as under:-
"7. Considering the proposition of law laid down by the Hon'ble Supreme Court, it cannot be said that the incident in the present case had any nexus with the employment of the deceased employee. Moreover, the appellant has not even pleaded that the incident which resulted in the death of the deceased employee had any nexus with the employment of the deceased. Apart from the fact that the judgments given by this Court in the case of Conservator of Forests, Nagpur and another, vs. Kusumtai wd/o Ganpatrao Dhote and others and in the case of State of Maharashtra, vs. Arti wd/o Ashok Kapshikar and others are based on the facts of those cases, the judgment given by the Hon'ble Supreme Court in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Ibrahim Mahmmod Issak was not brought to the notice of this Court. Similarly, the other judgments relied upon by the learned Advocate for the appellant are of no assistance to the appellant considering the proposition of law laid down by the Hon'ble Supreme Court in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Ibrahim Mahmmod Issak."
10. In the opinion of this court, there is no reason to depart from the aforesaid observations. The claimants have also not been able to prove that the injury was caused while he was employed to perform work of transporting contraband in the insured vehicle. A driver of a Jeep who uses arm for trying to escape from police and also breaks police barricade cannot be said to be performing duties assigned to him as a driver of the vehicle.
11. Keeping in view thereto, the compensation as envisaged under Employee's Compensation Act, 1923 cannot be awarded to such persons as it is a beneficial legislation not meant for helping persons involved in crime.
12. In the present case, it cannot be also said that the deceased died on account of injuries caused during an accident infact he died after a period of almost 10 months and remained in jail for 6 months in between.
13. Keeping in view thereto, this court finds that the Ld. Commissioner has committed an error. In North East Karnataka Road Transport Corporation(Supra). the Supreme court has held as under:-
"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue/s his employer to claim compensation under the Act.
10. The afore-mentioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once they a
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re proved either way, the findings recorded thereon are regarded as the findings of fact."14. From above, it is true that these are essential questions of fact as to how accident occurred and in what manner it occurred. However, it becomes a question of law as to whether in the course of duty the accident had taken place. The submission of learned counsel for the respondents, therefore, stands rejected that it is only a pure question of fact and this court would not examine it in appeal. 15. Accordingly, this court finds that there is an illegality committed while passing the award by the Ld. Commissioner Employee's Compensation Act, 1923 and award passed deserves to be set aside accordingly. 16. The appeal is accordingly allowed. The award passed by the Commissioner is accordingly set aside. The amount, if any, deposited by the Insurance Company shall be returned. The Insurance Company shall also be entitled to get recovery done from the claimants for the amount which has been received by the claimants. 17. All pending applications, if any, shall stand disposed of.