# Royal Sundaram Alliance Insurance v. Smt. Shakuntla Devi & Ors

- **Citation:** (2020) 1 ILRA 897
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** FAFO No. 2011 of 2014
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/royal-sundaram-alliance-insurance-v-smt-shakuntla-devi-ors-45295
- **Pages:** 10

## Headnote

A. Employee's Compensation Act, 1923 -
Claim - Liability of Employer - Necessity of
proving negligence - Employer shall be liable
to pay compensation for personal injuries
caused to the employee by an accident
arising out of and in the course of his
employment - To hold the liability, it is not
necessary to prove negligence on the part of
employer - It is to be established only that
the injured or deceased employee, at the
time of accident was in the employment and
was engaged in employer's work - Liability
of the employer to pay compensation is
absolute subject to those three exceptions
viz. first employee was under the influence
of drinks or drugs, second he has wilfully
disobeyed an order given and third where
the workman has wilfully removed a safety
guard or other devices provided for his
safety - (Para 12 & 18)

B. Employee's Compensation Act, 1923 -
Section 2 (n) and 3 - Determination of
'course of employment' - The words in the
course of 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 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. (Para 13)

C. Claim - Procedure - Non-framing of issue -
Effect
-
Not
framing
of
issues
by
Commissioner will not vitiate the decision
unless it caused prejudice to the affected
party - Non-framing of issues is not regarded
as fatal where parties had gone to trial fully
knowing the rival case and had led evidence
in
support
of
their
contentions
-
Commissioner discussed all the pleas raised
and opportunities were given to adduce
evidence - No prejudice caused to the
appellant by non-framing of issue. (Para 23)

First Appeal From Order dismissed. (E-1)

List of cases cited :-

## Text

1 All. Royal Sundaram Alliance Insurance Vs. Smt. Shakuntla Devi & Ors.
897
deposited by the appellant to the learned
Tribunal to be adjusted against the
awarded compensation.
----------
(2020)1ILR 897

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 2011 of 2014

Royal Sundaram Alliance Insurance
 ...Appellant
Versus
Smt. Shakuntla Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Mehrotra, Sri Archit Mehrotra

Counsel for the Respondents:
Sri B.N. Pathak, Smt. Kiran Gupta, Sri
Dharmendra Kumar Gupta, Sri Pawan Giri

A. Employee's Compensation Act, 1923 -
Claim - Liability of Employer - Necessity of
proving negligence - Employer shall be liable
to pay compensation for personal injuries
caused to the employee by an accident
arising out of and in the course of his
employment - To hold the liability, it is not
necessary to prove negligence on the part of
employer - It is to be established only that
the injured or deceased employee, at the
time of accident was in the employment and
was engaged in employer's work - Liability
of the employer to pay compensation is
absolute subject to those three exceptions
viz. first employee was under the influence
of drinks or drugs, second he has wilfully
disobeyed an order given and third where
the workman has wilfully removed a safety
guard or other devices provided for his
safety - (Para 12 & 18)

B. Employee's Compensation Act, 1923 -
Section 2 (n) and 3 - Determination of
'course of employment' - The words in the
course of 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 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. (Para 13)

C. Claim - Procedure - Non-framing of issue -
Effect
-
Not
framing
of
issues
by
Commissioner will not vitiate the decision
unless it caused prejudice to the affected
party - Non-framing of issues is not regarded
as fatal where parties had gone to trial fully
knowing the rival case and had led evidence
in
support
of
their
contentions
-
Commissioner discussed all the pleas raised
and opportunities were given to adduce
evidence - No prejudice caused to the
appellant by non-framing of issue. (Para 23)

First Appeal From Order dismissed. (E-1)

List of cases cited :-
1. Mackinnon Mackenzie & Co.(P). Ltd v
Ibrahim Mahammad Issak, AIR 1970 SC 1906
2. Talcher Thermal Station v Bijuli Naik, 76
(1993) CLT 699 (Orrisa)
3.
Shakuntala
Chandrakant
Shreshti
v
Prabhakar Maruti Garvali AIR 2007 SC 248
4. Employees' State Insurance Corporation v
Francis De Costa, 1997 (1) TAC 646 (SC)
5. S.D. Manager, National Insurance Company
v Shaibarani Mohanta, 2019 (2) TAC 115
6. S.D. Manager, National Insurance Company
v Suresh Kumar Behera, 2019 (2) TAC 461
7. New India Assurance Company v Braja
Kishore Sutar, 1992 ACJ 715
8. Nedupuri v Sampati, AIR 1963 SC 684

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)
898 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Shri. S.K. Mehrotra, learned
counsel for the appellant and Shri Pawan
Giri, Advocate holding brief of Shri B.N.
Pathak, learned counsel for the respondent.

2. This appeal has been filed against
judgement and award dated 31.05.2014
passed
by
Workmen's
Compensation
Commissioner/
Assistant
Labour
Commissioner, Bulandshahr in E.C.A
Case No. 24 of 2011 (Smt. Shakuntla Devi
and another Vs. Veerpal Singh and
another)
by
which
the
learned
Commissioner has compensation of Rs.
4,42,740/- along-with 12% simple interest
from the date of filing of the petition.

3. Before the learned Commissioner
an application was given under Section 3⁄4
Workmen Compensation Act (Employee
Compensation Act), 1923, stating that the
son of the claimant Naresh Kumar
Sharma, aged about 22 years was
employed as conductor/cleaner on TATA
LPT No. U.P 75-A/4115 and he was given
a salary of Rs. 4,000/- per month with Rs.
50 per day for diet. The accident took
place on 24.01.2009, when as per direction
of the vehicle owner the deceased after
loading vegetables on the said vehicle was
going to Noida with the driver Bhanu
Prakash. The vehicle reached in between
Kasna-Tuglakpur,
some noise
started
coming from the gear box of the vehicle
whereupon driver Bhanu Prakash stopped
the vehicle on the road side and sought
direction from the vehicle owner on
telephone and on his direction sent the
deceased to village Tuglakpur to bring
mechanic. The deceased took lift on a
motor-cycle and while going to Tuglakpur,
when the motor-cycle reached close to Pari
Chauk,
some
unknown
motor-cycle
dashed on the motor-cycle and the motorcycle slipped on the road side and the
deceased sustained serious injuries on his
head. He was taken to Kailash Hospital,
Noida. His condition was serious and
when the family members of the deceased
reached, he was admitted to Sharda
Hospital, Noida and on 24.01.2009 in the
midnight the head of the deceased was put
to serious operation and during treatment
on 01.02.2009, he died in the hospital. FIR
was lodged, inquest was prepared and the
other police papers were submitted with
the application. The deceased died during
the course of employment of the vehicle
owner and the said vehicle was insured at
the time of accident, therefore, this petition
has been filed.

4. Defendant no. 1 filed written
statement and admitted the contents of
para no. 1 to 4 and denied the contents of
para no. 6 to 7. He admitted that the
deceased was in his employment and on
his direction he and the driver along-with
the said vehicle went to Sikandraband and
after loading vegetables they were going to
Noida, when the accident took place and
the deceased died because of injuries
sustained in the accident and he was in the
course of employment. He was paid Rs.
4,000/- a month. The RC, Insurance,
fitness and driving license were valid at
the time of accident. If the claimant is
entitled
for
compensation,
the
responsibility to pay compensation is on
the Insurance Company.

5. Insurance Company filed written
statement denying the allegations of the
petition and also denying the employment
of the deceased, his age and his salary. The
Insurance Company has further stated in
order to obtain compensation in a planned
way, the deceased have been shown to be
conductor/cleaner in the said vehicle. The
accident has not been caused by the said
1 All. Royal Sundaram Alliance Insurance Vs. Smt. Shakuntla Devi & Ors.
899
vehicle but by some unknown motor-cycle
and therefore, the petition is liable to be
dismissed.

6. After taking evidence and hearing
both the sides the learned Commissioner
has passed the impugned award and the
same has been challenged by the appellant.

7. The appellant has challenged the
impugned award on the ground that the
award is arbitrary, illegal and against the
evidence on record. There was no
evidence regarding the deceased being in
the employment of the car owner.
Substantial questions of law was raised on
the basis of which it was requested that the
impugned award is liable to be set aside.

8. Vide order dated 08.07.2014 of
this Court the appeal has been admitted on
the following substantial questions of law:

1. Whether in the absence of any
evidence in regard to employment of
deceased as Cleaner on truck in question,
the relationship of employer and employee
between the owner of truck in question
and deceased could be assumed?

2. Whether it was mandatory on
the part of Commissioner to have first
frame the issues before deciding the claim
filed by respondent-claimant?

3. Whether in the absence of any
evidence in regard to relationship of
employer and employee the claim petition
was entertain-able before the Workmen's
Compensation Commissioner?

9. Heard the learned counsel for the
both the side and perused the lower court
record.

10. The first ground of attack has
been that the deceased was not employee
of the car owner and he was not even
driving the car at the time of incident.
Section
2
(n)
of
the
Employee's
Compensation
Act,
1923
defines
'employee' as below:

"(n)
"workman"
means
any
person (other than a person whose
employment is of a casual nature and who
is employed otherwise than for the
purposes of the employer's trade or
business) who is -

(i) a railway servant as defined
in Section 3 of the Indian Railways Act
1890 (9 of 1890) not permanently
employed in any administrative district or
sub-divisional office of a railway and not
employed in any such capacity as is
specified in Schedule II or

(ia)(a) a master seaman or other
member of the crew of a ship.

(b) a captain or other member of
the crew of an aircraft

(c) a person recruited as driver
helper mechanic cleaner or in any other
capacity in connection with a motor vehicle

(d) a person recruited for work
abroad by a company and who is
employed outside India in any such
capacity as is specified in Schedule II and
the ship aircraft or motor vehicle or
company as the case may be is registered
in India or;

(ii)
employed
in
any
such
capacity as is specified in Schedule II
whether the contract of employment was
made before or after the passing of this
Act and whether the contract is expressed
or implied oral or in writing; but does not
include any person working in the capacity
of a member of the Armed Forces of the
Union; and any reference to a workman
who has been injured shall where the
workman is dead includes a reference to
his dependants or any of them."
900 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Item XXV of Schedule II
includes driver within the definition of the
employee and it has been admitted by the
vehicle owner that the deceased was
employed by him as conductor/cleaner on
the said vehicle Tata on payment of Rs.
4000/- as monthly wages. Section 3 of the
Act deals with the Employer's liability for
compensation and provides as below:

(1) If personal injury is caused
to a workman 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 -

(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 or permanent total
disablement caused by an accident which
is directly attributable to -

the workman having been at the
time thereof under the influence of drink
or drugs or 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 the
wilful removal or disregard by the
workman of any safety guard or other
device he knew to have been provided for
the purpose of securing the safety of
workman. (2) If a workman employed in
any employment specified in Part A of
Schedule
III
contracts
any
disease
specified therein as an occupational
disease peculiar to that employment or if a
workman whilst in the service of an
employer in whose service he has been
employed for a continuous period of not
less than six months (which period shall
not include a period of service under any
other employer in the same kind of
employment) in any employment specified
in Part B of Schedule III contracts any
disease
specified
therein
as
an
occupational disease peculiar to that
employment or if a workman whilst in the
service of one or more employers in any
employment specified in Part C of
Schedule III for such continuous period as
the Central Government may specify in
respect of each such employment contracts
any disease specified therein as an
occupational disease peculiar to that
employment the contracting of the disease
shall be deemed to be as injury by accident
within the meaning of this section and
unless the contrary is proved the accident
shall be deemed to have arisen out of and
in the course of the employment :

Provided that if it proved -

that a workman whilst in the
service of one or more employers in any
employment specified in Part C of
Schedule III has contracted a disease
specified therein as an occupational
disease peculiar to that employment
during a continuous period which is less
than the period specified under this subsection for that employment; and that the
disease has arisen out of and in the course
of the employment the contracting of such
disease shall be deemed to be an injury by
accident within the meaning of this section
: Provided further that if it is proved that a
workman who having served under any
employer in any employment specified in
Part B of Schedule III or who having
served under one or more employers in
any employment specified in Part C of that
Schedule for a continuous period specified
under this sub-section for that employment
and he has after the cessation of such
service contracted any disease specified in
the said Part B or the said Part C as the
1 All. Royal Sundaram Alliance Insurance Vs. Smt. Shakuntla Devi & Ors.
901
case may be as an occupational disease
peculiar to the employment and that such
disease arose out of the employment the
contracting of the disease shall be deemed
to be injury by accident within the
meaning of this section.

(2A) If a workman employed in
any employment specified in Part C of
Schedule III contracts any occupational
disease peculiar to that employment the
contracting whereof is deemed to be an
injury by accident within the meaning of
this section and such employment was
under more than one employer all such
employers shall be liable for the payment
of the compensation in such proportion as
the
Commissioner
may
in
the
circumstances deem just.

(3) The Central Government or
the State Government after giving by
notification in the Official Gazette not less
than three months' notice of its intention
so to do may by a like notification add any
description
of
employment
to
the
employments specified in Schedule III and
shall specify in the case of employments so
added the diseases which shall be deemed
for the purposes of this section to be
occupational diseases peculiar to those
employments respectively and thereupon
the provisions of sub-section (2) shall
apply in the case of a notification by the
Central Government within the territories
to which this Act extends or in case of and
notification by the State Government
within the State as if such diseases had
been
declared
by
this
Act
to
be
occupational diseases peculiar to those
employments.

Save as provided by sub-sections
(2), (2A) and (3) no compensation shall be
payable to a workman in respect of any
disease unless the disease is directly
attributable to a specific injury by accident
arising out of and in the course of his
employment. Nothing herein contained
shall be deemed to confer any right to
compensation on a workman in respect of
any injury if he has instituted in a civil
court a suit for damages in respect of the
injury against the employer or any other
person; and no suit for damages shall be
maintainable by a workman in any court
of law in respect of any injury - (a) if he
has instituted a claim to compensation in
respect
of
the
injury
before
a
Commissioner; or

(b) if an agreement has been
come to between the workman and his
employer providing for the payment of
compensation in respect of the injury in
accordance with the provisions of this Act.

12. Thus, section 3 incorporates that
the employer shall be liable to pay
compensation for personal injuries caused
to the employee by an accident arising out
of and in the course of his employment. To
hold the liability, it is not necessary to
prove negligence on the part of employer
and as such, the liability of the employer
to pay compensation is absolute subject to
those three exceptions which have been
carved out in the section itself. The
employer is absolved from the liability of
paying compensation if the employee at
the relevant time was under the influence
of drinks or drugs or who has wilfully
disobeyed an order given or rule framed
for the safety of workman, or in cases
where the workman has wilfully removed
a safety guard or other devices provided
for his safety. In this case, there is nothing
on record to show that the case is covered
under any of the exceptions.

13. Now, the next question is with
regard to the determination of 'course of
employment' and whether the deceased
employee
was
in
the
course
of
902 INDIAN LAW REPORTS ALLAHABAD SERIES
employment when the accident took place.
In Mackinnon Mackenzie & Co.(P). Ltd
v Ibrahim Mahammad Issak, AIR 1970
SC 1906, the Supreme Court held:

"The words in the course of
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
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. 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 as
such to its nature, 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 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."

14. In Talcher Thermal Station v
Bijuli Naik, 76 (1993) CLT 699 (Orrisa),
the Court has observed:

"The
pre-conditions
for
attracting the provisions of section 3(1) of
the Act are that death or injury must be
caused to a employee; the said injury must
have been caused by accident; and the
accident must have arisen out of and in
course of his employment. A casual
connection between the employment and
the injury caused by the accident must
exist. If after looking the at the entire facts,
a fair inference can be drawn that the
employment caused the injury, then the
employer would be liable to pay the
compensation. The liability under section
3(1) of the Act would accrue, if it is
established that an injury has been caused
to an employee and the accident arose out
of and in the course of his employment."

The Court further laid down
following principles to determine the course of
employment and arising out of employment:

"(i) there must be a causal
connection between the injury and the accident
and the accident and the work done in the
course of employment; (ii) the onus is upon the
appellant to show that it was the work and the
resulting strain which contributed to or
aggravated the injury; (iii) it is not necessary
that the workman must be actually working at
the time of his death or that death must occur
while he was working or had just ceased to
work; and (iv) where the evidence is balanced,
if the evidence shows a greater probability
which satisfies a reasonable man that the work
contributed to the causing of personal injury, it
would be enough for the workman to succeed.
But where the accident involved a risk
common to all humanity and did not involve
any peculiar or exceptional danger resulting
from the nature of the employment, or where
the accident was the result of an added peril to
which the workman, by his own conduct,
exposed himself and which peril was not in the
normal performance of the duties of his
employment, then the employer will not be
liable under section 3 of the Act."

15. In Shakuntala Chandrakant
Shreshti v Prabhakar Maruti Garvali
AIR 2007 SC 248, it has been reiterated
by the Court that there has to be a
1 All. Royal Sundaram Alliance Insurance Vs. Smt. Shakuntla Devi & Ors.
903
proximate nexus between cause of death
and employment instead of a stray mention
that death took place during the course of
employment.
The
Court
laid
down
following principles to determine the
course of employment:

"1.There must be a causal
connection between the injury and the
accident and the accident and the work
done in the course of employment.

2. The onus is upon the appellant
to show that it was the work and the
resulting strain which contributed to or
aggravated the injury.

3. If the evidence brought on
records establishes a greater probability
which satisfies a reasonable man that the
work contributed to the causing of the
personal injury, it would be enough for the
workman to succeed, but the same would
depend upon the fact of each case."

16. Section 30 of the Act provides
for appeal against order of Commissioner.
It lays down as follows:

"(1) An appeal shall lie to the
High Court from the following orders of a
Commissioner namely :-

(a) an order as awarding as
compensation a lump sum whether by way
of redemption of a half-monthly payment
or otherwise or disallowing a claim in full
or in part for a lump sum;

(a) an order awarding interest
or penalty under section 4A;

(b) an order refusing to allow
redemption of a half-monthly payment;

(c) an order providing for the
distribution of compensation among the
dependants of a deceased workman or
disallowing any claim of a person alleging
himself to be such dependant;

(d)
an
order
allowing
or
disallowing any claim for the amount of an
indemnity under the provisions of subsection (2) of section 12; or

(e) an order refusing to register
a
memorandum
of
agreement
or
registering the same or providing for the
registration of the same subject to
conditions :

Provided that no appeal shall lie
against any order unless a substantial
question of law is involved in the appeal
and in the case of an order other than an
order such as is referred to in clause (b)
unless the amount in dispute in the appeal
is not less than three hundred rupees :

Provided further that no appeal
shall lie in any case in which the parties
have agreed to abide by the decision of the
Commissioner or in which the order of the
Commissioner gives effect to an agreement
come to by the parties :

Provided further that no appeal
by an employer under clause (a) shall lie
unless the memorandum of appeal is
accompanied by a certificate by the
Commissioner to the effect that the
appellant has deposited with him the
amount payable under the order appealed
against.

The period of limitation for an
appeal under this section shall be sixty
days.

(3) The provisions of section 5 of
the Limitation Act 1963 (36 of 1963) shall
be applicable to appeals under this
section."
904 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In Shakuntala Chandrakant
Shreshti (supra), the Supreme Court has
explained the expression 'question of law'
which
is
inherently
required
for
maintaining an appeal against the order of
compensation passed under the Act. The
Court laid down as follows:

"A question of law would arise
when the same is not dependent upon
examination of evidence, which may not
require any fresh investigation of fact. A
question of law would, however, arise
when the finding is perverse in the sense
that no legal evidence was brought on
record or jurisdictional facts were not
brought on record."

18. It is clear from the scheme of the
Act that for extending the benefit of the
beneficial provision, the contract of
employment may be express, implied,
written or oral and to succeed in the claim
for compensation, it is to be established
only
that
the
injured
or
deceased
employee, at the time of accident was in
the employment and was engaged in
employer's work or for the furtherance of
the employer's work and was not doing
something
for
his
own
benefit
or
accommodation. It was found established
by the learned Commissioner that, in
absence of any otherwise evidence on
record and in view of admission of the
employer, the the accident took place in
the course of employment and the
probabilities are more in the favour of the
deceased to infer that the accident arose
out of and in the course of employment.
The learned counsel to appellant has
referred the judgement in Employees'
State Insurance Corporation v Francis
De Costa, 1997 (1) TAC 646 (SC) and
has submitted that the employee cannot
succeed in a claim based on employment
injury unless the claimant establishes that
the injury or death was caused in the
course of employment and had its origin in
the employment. In this referred case, the
injury was sustained while the employee
was on his way to his factory where he
was employed from his home and the
accident took place one kilometre away
from his factory. Therefore. It was held
that the said injury was not caused by an
accident arising out of his employment.
The facts of this instant case is seemingly
different as the nature of the employment
of the deceased was not confined to a
premises and the very nature of his
employment was based on a vehicle
movement
on
the
road
as
cleaner/conductor.

19. The learned counsel to the
respondent-claimant has referred to two
judgements, both of Orissa High Court,
namely,
S.D.
Manager,
National
Insurance
Company
v
Shaibarani
Mohanta, 2019 (2) TAC 115 and S.D.
Manager, National Insurance Company
v Suresh Kumar Behera, 2019 (2) TAC
461 to show that in both the cases, driver
of the truck died when he stopped the
truck and stepped down to take food and
was dashed by another truck and the Court
applying the doctrine of notional extension
and held that there was casual connection
between the employment of the deceased
and his accidental death and the accident
took place in the course of employment.

20. Clearly, it was found on the basis
of evidence on record that as per direction
of the employer, the deceased was going
on the said vehicle after loading vegetables
from Sikandrabad to Noida at the time of
accident when some noise started coming
from the gear box of the vehicle which
was got broken whereupon driver Bhanu
1 All. Royal Sundaram Alliance Insurance Vs. Smt. Shakuntla Devi & Ors.
905
Prakash stopped the vehicle on the road
side and sought direction from the vehicle
owner on telephone and on his direction
sent the deceased to village Tuglakpur to
bring mechanic. The deceased took lift on
a
motor-cycle
and
while
going
to
Tuglakpur, when the motor-cycle reached
close to Pari Chauk, some unknown
motor-cycle dashed on the motor-cycle
and the motor-cycle slipped on the road
side and the deceased sustained serious
injuries on his head. During treatment, he
died. Despite several opportunities given,
the Insurance Company did not give any
evidence to rebut this evidence.

21. The fact that the deceased was
not inside the vehicle on which he was
working as cleaner/conductor will not
make any difference as the deceased
would certainly continue to be in course of
employment as he went to bring mechanic
on the instruction of driver so that vehicle
could be repaired. Unless he returned after
completing the assigned work for which
repair of the vehicle was necessary, he was
in the course of employment. There was
no occasion for him to take lift on the
motor-cycle which was passing through
nor he was to be at the place of occurrence
unless he was asked by the driver to bring
mechanic. When a vehicle gets out of
order, it is the responsibility of the
employee to get the same repaired and
effort to bring mechanic is very much
covered in the employment condition
particularly when the driver had sought
telephonic instruction from the owner.

22. The next question raised from the
side of the appellant is that there was no
FIR in respect of of incident. In the
impugned
judgement,
the
learned
Commissioner has mentioned that photoestate copy of GD and inquest report was
on record and from the perusal thereof, it
is clear that a report was given in the PS
Kasana and the police took the dead body
in possession and inquest report was
prepared. For the purpose of claim
petition, I find it enough as registration of
offence and FIR is the responsibility of the
police. It has been found sufficient by the
learned Commissioner and the Insurance
Company, by any evidence, has not been
able to show that no such accident took
place. It is also pertinent to mention that to
succeed under Act, it is not necessary to
show and prove negligence. The driver has
been examined to prove the event and to
prove that when the accident took place he
was involved in a work which was in the
course of his employment. No evidence
was given by the Insurance Company and
even a surveyor was not deputed to bring
facts as alleged to contradict the version of
claim. As such, I find no force in the
argument.

23. It has been also argued from the
side
of
appellant
that
the
learned
Commissioner disposed of the claim
without framing issues and this error leads
to illegality. A support from judgement in
New India Assurance Company v Braja
Kishore Sutar, 1992 ACJ 715 has been
sought, but, in the referred judgement, the
law has been clarified that not framing of
issues by Commissioner will not vitiate the
decision unless it caused prejudice to the
affected party. In Nedupuri v Sampati,
AIR 1963 SC 684, it has been held that
non-framing of issues is not regarded as
fatal where parties had gone to trial fully
knowing the rival case and had led
evidence in support of their contentions. In
this case, the learned Commissioner has
discussed all the pleas raised by the
appellant and opportunities were given to
adduce evidence. Therefore, no prejudice
906 INDIAN LAW REPORTS ALLAHABAD SERIES
has been caused to the appellant by nonframing of issues and this argument has no
force.

24. On the basis of above discussion, I
find that the learned Commissioner has given
finding on the basis of evidence that at the time
of accident, the deceased was performing his
duties and was in the course of his
employment. He was employed on the vehicle
as cleaner/conductor on payment of 4000/-
rupees
monthly
wages.
The
learned
Commissioner has rightly calculated the
compensation after applying multiplier and
making due deduction against personal
expences. The issues raised as substantial
question of law relate to facts and they have
been duly considered disposed in the
impugned judgement on the basis of facts
evidence and after applying correct law. There
is no perversity or illegality in the impugned
judgement and award nor any substantial
question of law is involved in this appeal. The
appeal lacks merit and is liable to be dismissed.

25. Accordingly, the first appeal
from order is dismissed.
----------
(2020)1ILR 906

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 3397 of 2013

Reliance General Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Warishan & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Sahai
Counsel for the Respondents:
Sri Ved Mani Sharma

A. Employee's Compensation Act, 1923 -
Claim - Liability of Employer - Necessity of
proving negligence - Employer shall be
liable to pay compensation for personal
injuries caused to the employee by an
accident arising out of and in the course of
his employment - To hold the liability, it is
not necessary to prove negligence on the
part of employer - It is to be established
only
that
the
injured
or
deceased
employee, at the time of accident was in
the employment and was engaged in
employer's work - Liability of the employer
to pay compensation is absolute subject to
those three exceptions viz. first employee
was under the influence of drinks or drugs,
second he has wilfully disobeyed an order
given and third where the workman has
willfully removed a safety guard or other
devices provided for his safety - (Para 12 &
17)

B. Employee's Compensation Act, 1923 -
Section 2 (n) and 3 - Determination of
'course of employment' - The words in the
course of 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 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. (Para 12)

First Appeal From Order dismissed. (E-1)

List of cases cited :-
1. Mackinnon Mackenzie & Co.(P). Ltd v
Ibrahim Mahammad Issak, AIR 1970 SC 1906

2. Talcher Thermal Station v Bijuli Naik, 76
(1993) CLT 699 (Orrisa)

3.
Shakuntala
Chandrakant
Shreshti
v
Prabhakar Maruti Garvali AIR 2007 SC 248