Delineating the critical importance of establishing a causal connection between accidents and employment in workmen's compensation claims the Jammu and Kashmir and Ladakh High Court has ruled that in case of an employee's death, claimants must demonstrate a clear link between the accident and the course of employment to be eligible for compensation under Section 3 of the Workmen Compensation Act, 1923.

To be eligible to claim compensation under Section 3 of 1923 Act in case of death of a workman, his legal representatives, the Claimants, are required to prove before the Commissioner that the death by accident has arisen both out of and in the course of employment, Justice Sanjeev Kumar recorded.

A Bench of J&K High Court comprising Justice Sanjeev Kumar observed that;
The claimants have not discharged the burden of proving that death of the deceased driver was on account of accident arising out of his employment. The causal connection between his death and employment is completely missing. Neither the Truck was stolen by the assailants, nor the goods, if any, loaded therein were stolen. Possibly, the deceased driver was murdered because of some old enmity or for reasons not connected with the use of vehicle under his control.

Observations of High Court
Emphasising the need for Claimants to prove not only that the accident occurred during the course of employment but also that it arose out of the employment Justice Kumar observed,

..The word and used between the expression arising out of and in the course of employment is conjunctive and, therefore, it is incumbent upon the claimants to prove by leading cogent evidence that death of their predecessor-in -interest occurred both, 'out of' and 'in the course of employment.

These observations came in a plea under Miscellaneous Appeal No. 9/2009 titled National Insurance Co Ltd. Vs Rakesh Kumar Sharma & Ors., wherein, an Award dated 24.10.2008 passed by the Commissioner under Workmen's Compensation Act (Assistant Labour Commissioner), Udhampur ['the Commissioner'] in File No.DWC/2006/10 titled 'Rakesh Kumar Sharma & Ors. Vs. Shamsher Singh & Anr', was subject matter of challenge in an appeal filed under Section 30 of the Workmen Compensation Act, 1923.

Background of the case
The case involved Suraj Parkash Sharma, a driver who was found murdered in the cabin of his truck. His dependents filed a claim for compensation under the Act, arguing that his death arose out of and in the course of his employment..

The Commissioner awarded an amount of Rs. 3, 68, 340/- in favour of the Claimants, directing the National Insurance Co. Ltd. (the Insurance Company of the employer) to indemnify the employer by depositing the awarded amount in the Court. This was done by the Commissioner Vide Award dated 24.10.2008.

The Insurance Company assailed the Award arguing that Driver's death was not due to an accidental murder arising out of his employment. They contended the murder was intentional and not a fortuitous event as there was no causal connection of death of the deceased with his employment viz. the use of Truck and, therefore, the death of the deceased cannot be said to be on account of 'accident arising out of and in the course of his employment' with the employer and that there is not even an iota of evidence on record to show that the deceased, who was found murdered in the Truck, was killed by an accident in respect of use of the Vehicle which, at the relevant time, was under his control as its Driver.

Substantial Questions of law

1. Whether the employer and the insurer are liable to compensate the Petitioners / Dependents of the deceased even if the deceased has not suffered any injury/died in an accident when admittedly the deceased was found murdered and had neither died because of any injury directly attributable to his employment?; and
    
2. Whether there is/was any nexus with the nature of employment and the murder and the cause of death, when there is no finding of the Commissioner under workmen's Compensation Act in this respect?

High Court observed that the Claimants have failed to establish that death was an accidental murder arising out of his employment duties and remarked;

The claimants have though amply proved that the at time of his death, the deceased driver was in the course of employment of respondent No.7, yet there is no evidence brought on record to show that the death was an accidental murder occurred out of his employment. The co-relation of death of the deceased driver and nature of his employment is completely missing.

Legal Provisions
Relevant to set out Section 3 (1) of the Workmen's Compensation Act, 1923 which reads thus:

3. Employer's liability for compensation:

1. If personal injury is caused to a employee by accident arising out of and in the course of his employment, 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 –

1. in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;
2. in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to:
   1. the employee having been at the time thereof under the influence of drink or drugs, or
   2. the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or
   3. the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employees.

From a plain reading of Section 3 of the Workmen's Compensation Act, 1923, it clearly transpires that the employer shall be liable to pay compensation in accordance with the 1923 Act only if personal injury caused to a workman resulting into total or partial disablement or death is caused by an accident arising out of and in the course of his employment. The expression accident is not defined in the 1923 Act. However, the dictionary meaning of the accident is an untoward mishap which is not expected or designed.

In the book Law of Insurance by Raoul Colinvaux, (Fifth Edition), the author defines the word as under:

Definition of accident
The definition of the risk insured against under accident policies occasions peculiar difficulty. Many of the questions on them arise concerning the true meaning of the word accident, and it is difficult so to define the word as to include the innumerable mishaps which happen in the daily course of human life: and it is often equally difficult to decide whether a mishap comes within the risk taken, or the exceptions made, by the terms of a particular Policy.

Accident excludes intentional act of assured Nor is an intentional act of the assured an accident however unforeseen an injury may he which results from it. There was held to be nothing accidental in the assured pushing and pulling a drunken man from his premises, even though, unknown to him, his heart was in so weak a condition that he died from the exertion. Thus, there is no accident where a person with a weak heart injures it by running to catch a train. In a Scottish case the assured was putting on his stockings when he felt something give way in his inside, and soon died. He was held not to be covered by an accident policy. In South Africa a drunken man intentionally driving dangerously was held not to have been killed as a result of an accident.

In the book [Law of Motor Insurance by Robert Merkin & Jeremy Stuart - Smith, First Edition], the term 'accident' has been defined as:

The word 'accident' is ambiguous, and might refer to what has happened from the point of view of the victim (in that he has suffered unexpected injury) or from the point of view of the driver (in that the victim's injuries were caused unintentionally). The difference between these two possibilities is brought into sharp focus in a deliberate running down case: injuries inflicted may be regarded as an accident in the former sense but not in the latter sense.

The point divided the Court of Appeal in Charlton Vs Fisher, the majority view being that a deliberate running down could be classified as an accident for the purposes of policy coverage. It may be that the point is of no real significance, as a direct action under the 2002 Regulations is probably unavailable on the separate ground that the rights of the victim as against insurers are the same as those of the assured, but that public policy precludes any action by the assured.

The term 'accident' caused controversy. Did it imply as in criminal jurisprudence, absence of mens rea or was mens rea irrelevant as in insurance contract. Lord Macnaghten in [Fenton's Vs. Thorely Case [(1903) A.C. 443] observed that the Act used 'accident' in its popular sense as denoting an unlooked for mishap or an untoward event which is not expected or designed. (1972) A.C.J. 492, Para. 13.

In Halsbury's Law of England, Fourth Edition at Para 569, the term 'accident' has been defined as under:

569. Meaning of 'accident'. the event insured against may be indicated in the policy solely by reference to the phrase 'injury by accident' or the equivalent phrase 'accidental injury', or it may be indicated as 'injury caused by or resulting from an accident'. The word 'accident', or its adjective 'accidental', is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital or insidious disease or the natural progression of some constitutional physical or mental defect; but the of what is included by the word is not entirely clear. It has been said that what is postulated is the intervention of some cause which is brought into operation by chance so as to be fairly describable as fortuitous.

The idea of something haphazard is not necessarily inherent in the word; it covers any unlooked for mishap or an untoward event which is not expected or designed or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence, it being irrelevant that a person with expert knowledge, for example of medicine, would have regarded it as inevitable. The standpoint is that of the victim, so that even wilful murder may be accidental as far as the victim is concerned.

In Para 575 of the Halsbury's Law of England, it is mentioned that injury caused by a wilful act is not an accident. Paragraph 575 reads as under:

575. Injury caused by a wilful act. An injury caused by the wilful or even criminal act of a third person, provided the insured is not a party or privy to it, is to be regarded as accidental for the purposes of the policy, since from the insured's point of view it is not expected or designed. Injuries sustained by a gamekeeper in a criminal attack upon him by poachers, by a cashier who was murdered by a robber, and by a master at an industrial school who was murdered by the boys, have been held to be accidental. However, if the immediate cause of the injury is the deliberate and wilful act of the insured himself, there would seem to be no accident, and no claim will lie under the policy, at any rate if the insured is not mentally disordered at the time of his act.

The word Accident as expressed by Lord Halsbury, LC in [Hamilton Frazor & Co. Vs. Pandrof & Co., (1887) 12 APP Case 518, 524, is the idea of something fortuitous and unexpected. Therefore, an injury is said to be accidentally caused when so ever it is neither wilfully nor negligently caused.

According to Willes, J in Fenwick Vs. Schmalz (1868) LR 3 CP 313, 316, an accident is not the same as an occurrence, but is something that happens out of the ordinary course of the things. According to Oxford Dictionary, accident 'is an unfortunate event which is unintentional and unexpected. An effect is said to be accidental when the act by which it is caused is not done with the intention to causing it.

To be eligible to claim compensation under Section 3 of 1923 Act in case of death of a workman, his legal representatives, the Claimants, are required to be prove before the Commissioner that the death by accident has arisen both out of and in the course of employment. The word and used between the expression arising out of and in the course of employment is conjunctive and, therefore, it is incumbent upon the Claimants to prove by leading cogent evidence that death of their predecessor-in-interest occurred both, 'out of' and 'in the course of employment'.

The expression in the course of employment would mean during the period of work which the workman is employed to do or which is incidental to it. The words arising out of employment would mean that injury or death has resulted from some risk associated or incidental to the duties of service. In other words, there must be causal connection between accident and employment. In such cases, the burden of proof rests upon the Claimants to prove that accident arose out of employment as well as in the course of employment.

Supreme Court Rulings
The Supreme Court in [Union of India & Ors Vs Sunil Kumar Ghosh, (1984) 4 SCC 246] defined the term accident in the following manner:

An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident……………... But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident.

The Supreme Court in the case of [Mackinnon Mackensie & Co. (P) Ltd Vs. Ibrahim Mohd Issak (1969) 2 SCC 607] has, in Paragraphs 5 & 6 has dealt with the issue elaborately leaving no scope for any further debate. Para 5 and 6 for facility of reference are set out below:

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, which unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. Insofar 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 these factors the workman is brought within the scene of special danger the injury would be one which arises' out of employment'. To put it differently if the accident had occurred on 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 Co. Vs. Highley (1) 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 yea, the accident arose out of his employment. If nay, 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 was within the 10 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.

6. In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove: it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but' the evidence must be such as would induce a reasonable man to draw it. Lord Birkenhead L.C. in Lancaster v. Blackwell Colliery Co. Ltd., (1) observed:

If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour.

Similarly, the Hon'ble Supreme Court of India in [Shivaji Dayanu Patil & Anr Vs Smt. Vatschala Uttam More, AIR 1991 (3) SCC 530], held as under;
The words 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. `Caused by' connotes a `direct' or 'proximate' relationship of cause and effect. 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence.

To the similar effect is the judgment of the Supreme Court rendered in the case of [Regional Director ESI Corporation& Anr Vs Francis De Costa & Anr, (1996) 6 SCC 1], Paragraphs 7 & 29 whereof, for facility of reference, are reproduced hereunder

7.Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on Section 2 (8) of the Act. The words accident….. arising out of…..his employment indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment.

29. Although the facts of this case are quite dissimilar, the principle laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident,(2) the accident had a causal connection with the employment and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any causal connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment.

Whether, in the given facts and circumstances, a 'murder' is an accidental murder or an intended murder has been explained beautifully by the Supreme Court in [Rita Devi & Ors. Vs. New India Assurance Company Ltd & Anr, (2000) 5 SCC 113]. In the aforesaid case, a driver of an auto-riksha was murdered by his fare-paying passengers. The passengers intended to steal the auto-rikshaw and to do so, they had to eliminate the driver. In the said case, the Supreme Court held that murder of the driver was not an intended murder, but happened accidentally in the process of committing theft of the auto-rikshaw.

It is in these circumstances, the Supreme Court held that murder of the deceased-auto-rikshaw driver was due to an accident arising out of use of the motor vehicle and the claimants were held entitled to claim compensation under the1923 Act. The Supreme Court, thus, drew clear distinction between a murder which is not an accident and a murder which is an accident. The Supreme Court laid down the test that if the dominant intention of the act of felony is to kill any particular person, then such killing is not an accidental murder, but is a murder simpliciter. However, if the murder was not originally intended, but occurred to accomplish any other felonious act then such murder is an accidental murder. What was stated by the Supreme Court in paragraph10 of the Judgment is noteworthy and is set out below:

10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that murder, as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts . The difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.

The distinction between the two terms 'arising out of' and 'in the course of employment' has been drawn by the Supreme Court by deriving inspiration from [Dover Navigation Co. Ltd Vs. Isabella Craig, (1940) AC 190], wherein, it has been held thus

Nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course of the employment' is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to casualty. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence, the section imports a distinction which it does not define. The language is simple and unqualified.

Conclusion
Consequently, while setting-aside the Award passed by the Commissioner, Justice Sanjeev Kumar, upon hearing the arguments from both sides and perusing the record, delved into the legal framework discussed the evolution of the law and highlighted the legal preposition of law as under;

24............the Claimants have not discharged the burden of proving that death of the deceased driver was on account of accident arising out of his employment. The causal connection between his death and employment is completely missing. Neither the Truck was stolen by the assailants, nor the goods, if any, loaded therein were stolen. Possibly, the deceased driver was murdered because of some old enmity or for reasons not connected with the use of vehicle under his control.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
[email protected], [email protected]