JUDGMENT
Ramakrishnan, J.
1. The Short question arising for consideration in this appeal filed under Section 30 of the Workmen’s Compensation Act (for short “the Act”) is whether the killing of a workman while he was in the course of his employment, by an unknown person, can be considered as death paused as a result of an accident arising out of his employment?
2. Briefly the facts relevant are thus: The second opposite party in W.C.C.No. 85 of 1992 on the file of Commissioner for Workmen’s Compensation (Deputy Labour Commissioner) Ernakulam is the appellant in this appeal. The application filed was for compensation for the death caused to one Mr. Thomas, husband of the first respondent and the father of respondents 2 to 4 in this appeal. According to the applicants the deceased Thomas was the driver of Tourist Taxi Car KRV 5250 owned by the first opposite party. On June 16, 1991, the deceased was engaged by the first opposite party to drive the taxi car with passengers for hire. Accordingly the deceased went to Valliyoor, near Kuttalam, taking the tourists in the taxi car. He did not return after the tour and it was reported that he was killed and the car was stolen by somebody. In the application, the monthly income and age of the deceased were shown as Rs, 2,000/- and 45 respectively. A total amount of Rs. 1,00,000/-was claimed as compensation. The first opposite party admitted that the deceased was the driver of his tourist taxi and that he was paying a monthly salary of Rs. 2,000/- to the deceased. There was also no dispute regarding the age of the deceased. It was submitted that the taxi car has been duly insured with the second opposite party and the policy was in force at the time of the death of the driver. The appellant as second opposite party denied the allegation that deceased Thomas has sustained fatal injuries by the accident arising out of and in course of his employment. It was contended that the incident is not an accident and that it was a cold blooded murder and that the murder by a third party cannot be an accident and hence it was not liable to pay any compensation. After taking evidence and hearing the arguments, the! Commissioner rejected the contentions taken by the appellant and awarded a sum of Rs. 67,776/- as compensation to the claimants together with interest from June 16, 1991 onwards. It is aggrieved by the said order that the appellant has preferred this appeal.
3. In the appeal, the learned counsel for the appellant has not pursued the contentions taken by the appellant as second opposite party before the Commissioner to the effect that the incident in question is not an accident and even if it is an accident it is not one which arose in the course of the employment. We think that the learned counsel for the appellant was justified in not pursuing them in the light of the decision of this Court reported in Varkeyachan v. Thomman (1979-I-LLJ-373)where a Division Bench of this Court has held that “the term ‘accident’ for the purpose of the law relating to compensation for personal injuries sustained by workmen and the employer’s liability in that behalf, includes any injury which is not designed by the workman himself and it is of no consequence that the injury was designed and intended by the person inflicting the same.” In the light of the admitted fact that the deceased was engaged as a driver by the first opposite party and that he was killed while he was in the course of performing his duties as a driver, there may not be any justification in law to contend that the accident has not occurred in the course of his employment.
4. As regards the question to be considered in the appeal it was contended that the accident cannot be considered as one which arose out of the employment and as such neither the first opposite party nor the appellant can be legally made liable to pay compensation to the applicants under the Act. It is in evidence that the deceased had accepted the offer of the tourists to occupy the room hired by them to spend the night. It was while the deceased was in the room occupied by the tourists that he was killed. It was a case of cold blooded murder committed with the motive of stealing the car. In a case like the one on hand, the claimants must show that the injury caused was due to the fact that the workman was specially exposed to such peril because of his employment or that the injury was due to some special risk that the workman had to undergo. There was no such evidence in the case, The burden of proof primarily rests on the workman or the claimants to prove that the accident arose out of the employment. In the absence of any evidence to show that the injury caused was due to the fact that the workman was specially exposed to the peril because of his employment or that the injury was due to some special risk that the workman had to undergo, the Commissioner ought to have rejected the claim. The words ‘arising out of employment’ should be 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.’ It was submitted that there was no causal relationship between the accident and the employment. The immediate cause which put the deceased to the peril in this
case was the acceptance of the offer by the deceased to share the room occupied by the tourists and as such the deceased should be held to be responsible for placing himself in the situation in which he has suffered the fatal injuries. On that ground also the claim is liable to be rejected.
5. In the decision reported in Varkeyachan v. Thomman (supra) referred to already by us, this Court has accepted the test laid down by Lord Sumner in Lancashire and Yorkshire Railway v. Highley 1917 AC 352 and approved by the Supreme Court in M.Mackenzie v. I.M. Issak (1970-I-LLJ-16) in the case of a claim by the legal representatives of a deceased workman which we may quote here usefully, at p. 19
“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 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 this 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”
6. Dealing with identically similar contentions raised in a case where compensation was claimed by the legal representatives of a deceased workman, Chagla C.J. speaking for a Bench of the Bombay High Court has laid down the law pithily in the following terms:
“Now it is clear that there must be a causal connection between the accident and the employment in order that the Court can say that
the accident arose out of the employment of the deceased. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The authorities have clearly laid down that if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connection is established between the accident and the employment. It is now well settled that the fact that the employee shares that peril with other members of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him; the peril must be incidental to his employment. It is also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do with his own action or his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril, a causal connection is established between the employment and the accident.”
(Bhagubai v. General Manager, Central Rly. AIR 1955 Bombay 105)
As regards the burden of proof lying on the applicant, the learned Judge has observed thus in the same decision:
“…Once the peril is established, it is for the employer then to establish either that the peril was brought about by the employee himself, that he added or extended the peril or that the peril was not a general peril but a peril personal to the employee….”
Similar views have been expressed by the Madhya Pradesh and Calcutta High Courts in P.W.D. Bhopal v. Kama AIR 1966 Madhya Pradesh 297 and Kartick Chandra v. State AIR
1968 Calcutta 127
7. Applying the principles laid down in the above decisions with which we respectfully agree, to the facts of this case, we are convinced that the view taken by the Commissioner in this case is fully justifiable. But for the engagement as the driver of the taxi, the deceased would not have been in the place and in the situation where has was at the time when he was killed. The causal connection is complete and we have no doubt in our mind to hold that the accident which has resulted in the death of the workman has arisen out of the employment.
8. The contention that the claimants have failed to discharge their burden to prove the causal relationship between the accident and the employment is only to be rejected in the light of the observations contained in Bhagubai v. General Manager, Central Rly. AIR (Supra) with which we respectfully agree.
9. Similarly, the contention that the deceased was really responsible for placing himself in peril by accepting the invitation of the tourists to share their room to spend the night is also totally untenable. As the tourists were halting at that particular place to spend the night, the deceased was also bound to stay there for the night. The first opposite party as employer of the deceased had not made any special arrangements for the stay of the driver at the halting place. Hence the deceased was bound to find out for himself a place to stay for the night and sleep there. In the circumstances, the fact that the deceased had accepted the suggestion of the tourists and stayed along with them in their room will not furnish a reasonable ground to record a finding that the deceased was solely or mainly responsible for placing himself in peril. As such the accident can only be considered as an accident which arose out of his employment.
We would accordingly dismiss the appeal in limine.