IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
MA No.366 Of 1988
Divisional Forest Officer Territorial
...Petitioners
VERSUS
Fagua Sai
...Respondents! Shri Sanjay S. Agrawal, counsel for the appellant/State
^ Shri P.S.Koshy, Advocate appears as amicus curiae
Hon’ble Shri Dilip Raosaheb Deshmukh J
Dated: 07/08/2007
: Order
Miscellaneous Appeal under Section 30 of the Workmen’s
Compensation Act, 1923:
ORAL ORDER
(Passed on 7th August, 2007)
Heard.
(2) This appeal is directed against the order dated 21-
07-1988 passed by the Court of Commissioner for Workmen’s
Compensation, Labour Court, Bilaspur, M.P. (hereinafter
referred to as the lower Court) in case No.99-WC-Fatal/85
awarding compensation of Rs.27,165-60 along with interest
@ 6% per annum from the date of accident till deposit.
(3) Brief facts are as under:
The applicant Fagua Sai being the father of the
deceased Dhaneshwar Sai filed an application before the
lower Court for compensation. Pleading in para-1 of the
application is as under:-
_/kus’oj lk; iq= Qxqok lk; vukosnd ds fu;kstu esa
lgk;d ou ifj{ks= vf/kdkjh] euksjk ds varxZr dk;Zjr
,d deZdkj Fkk ftldh e`R;q dk;Z ds nkSjku rFkk dk;Z
ls mRiUu nq?kZVuk esa fnukad 01-09-1984 dks gqbZA
nq?kZVuk dk laf{kIr fooj.k fuEu izdkj gS %&Ek`rd yq[kh igkM+ ds taxy esa lksy dVkbZ ds dk;Z esa
dqyh ds :Ik esa vukosnd }kjk fu;ksftr FkkA fnukad 01-
09-1985 dks dk;Z ds nkSjku yxHkx pkj cts lk;a tc
o”kkZ gks jgh Fkh rc vdk’k ls fctyh fxjh ftlls e`rd
xaHkhj :Ik ls vkgr gqvk rFkk ?kVuk LFky ij gh mDr
nq?kZVuk ds QyLo:Ik mldh e`R;q gks xbZA
(4) The appellant/non-applicant submitted the following
reply to para-1 is as under:-
_;g fd vkosnu i= dafMdk 1 ds laca/k esa ;g dguk gS
fd e`rd /kus’oj lk; oYn Qxqok lk; tkfr daoj] lkfdu
yq[kh eLVj jksy Oekad 13] 514@47 O- 07 esa ntZ Fkk
mls yq[kh 12 dwi esa fMekjds’ku dk;Z ls lacaf/kr
ckmaM&h ykbZu ,lksy ykbZu+ dh lQkbZ dk;Z dj jgk Fkk]
euksjk lgk;d ifj{ks=kf/kdkjh ds v/khu dk;Z djk;k tk
jgk Fkk A brus esa fctyh oztikr ds dkj.k nq?kZVuk
LFky ij gh /kus’oj lk; dh e`R;q gks xbZ A e`rd
/kus’oj lk; 19-08-1984 ls dk;Zjr Fkk mlds igys
dk;Zjr ugh Fkk A ,oa fnukad 01-09-1984 dks lk;adky
3%30 cts ;g nq?kZVuk gqbZ ,oa mldh e`R;q gks xbZ A(5) Recording that there was no dispute on facts, the
lower Court framed the sole question of law as under:-
_D;k dkexkj _xkta fctyh fxj tkus ds dkj.k e`r gksus
ls vukosnd {kfriqfrZ gsrq nk;h ugha gS \a(6) Taking into consideration the admitted fact that the
deceased was under employment under the appellant herein,
the lower Court placing reliance on a decision of the
Privy Council in AIR 1933 PC 225 held that where a
workman while being under employment dies due to vis
major i.e. a natural calamity like lightning,
the employer is liable to pay compensation.
(7) Shri Sanjay S. Agrawal, learned counsel for the
appellant submitted that in order to succeed in a claim
for compensation in case of death resulting from injury,
it has to be established that personal injury resulting
in death was caused to the workmen by accident arising
out of and also in the course of his employment . No
material was placed by the claimant/non-applicant to show
that the act of lightning was an act which arose out of
the employment, and therefore, the appellant was not
liable to pay compensation. No other point was urged in
this appeal by learned counsel for the appellant.
(8) Having considered the submission of Shri Sanjay S.
Agrawal, learned counsel for the appellant, I have
perused the record. Section 3 (1) of the Workmen’s
Compensation Act, 1923 reads as under:
“3. Employer’s liability for compensation- (1) If
personal injury is caused to a workman by accident
arising out of and in the course of his employment,
(underlined by me)his employer shall be liable to
pay compensation in accordance with the provisions
of this Chapter:
It is thus clear that in order to succeed in a claim
for compensation in case of death resulting from the
injury, the applicant has to prove that not only the
accident arose out of his employment but was also in the
course of his employment.
(9) Lightening is an act of god i.e. vis major. In
Divisional Controller, KSRTC vs. Mahadeva Shetty and
another (2003) 7 Supreme Court Cases 197, the Apex Court
described an act of God as under:-
“The expression “act of God” signifies the operation
of natural forces free from human intervention, such
as lightning, storm etc. It may include such
unexpected occurrences of nature as severe gale,
snowstorms, hurricanes, cyclones, tidal waves and
the like. But every unexpected wind and storm does
not operate as an excuse from liability, if there is
a reasonable possibility of anticipating their
happening. An act of God provides no excuse unless
it is so unexpected that no reasonable human
foresight could be presumed to anticipate the
occurrence, having regard to the conditions of time
and place known to be prevailing. For instance,
where by experience of a number of years, preventive
action can be taken, Lord Westbury defined the act
of God (damnum fatale in Scotch Laws) as an
occurrence which no human foresight can provide
against and of which human prudence is not bound to
recognize the possibility. This appears to be the
nearest approach to the true meaning of an act of
God. Lord Blancaburgh spoke of it as “an
irresistible and unsearchable providence nullifying
our human effort”.
(10) In Margaret Brooker vs. Thomas Borthwick & Sons
(Australasia), Ltd. A.I.R. 1933 Privy Council 225, the
standard of proof required to establish liability of the
employer to compensate in a case of injury by natural
force i.e. lightning their Lordships of the privy council
observed as under:
” Whether an accident arises out of the employment
depends on the particulars facts. 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 connexion with employment, he cannot
recover compensation 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. So that if the
roofs 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.”
(11) In State of Rajasthan vs. Ram Prasad and another
(2001) 9 Supreme Court Cases 395 while considering the
claim made under the Workmen’s Compensation Act, 1923 for
compensation in respect of death due to lightning, the
Apex Court held as under:-
“The accident, it is stated, took place on account
of lightning. The contention put forth on behalf of
the appellant is that the mishap of death of Smt.
Gita due to lightning is an act of God and,
therefore, it is not liable to pay compensation.
This contention has been rejected not only by the
Commissioner for Workmen’s Compensation but also by
the learned Single Judge in appeal and thereafter by
a Division Bench in a further appeal. The view taken
is that the concept of the liability under the Act
is wide enough to cover a case of this nature
inasmuch as death had taken place arising as a
result of accident in the course of employment. It
is, no doubt true that accident must have a casual
connection with the employment and arise out of it.
If the workman is injured as a result of natural
force such as lightning though in itself has no
connection with employment, she can recover
compensation by showing that such employment exposed
her to such injury. In this case the finding is that
the said Smt. Gita was working on the site and would
not have been exposed to such hazard of lightning
striking her had she not been working so.
(12) In Regional Director, E.S.I. Corporation and another
vs. Francis De costa and another (1996) 6 Supreme Court
Cases 1, the Apex Court was considering the provisions
contained in the section 2 (8) of the Employees’ State
Insurance Act, 1948 which reads as under:
” 2. (8) ` employment injury’ means a personal
injury to an employee caused by accident or an
occupational disease arising out of and in the
course of his employment, being an insurable
employment, whether the accident occurs or the
occupational disease is contracted within or outside
the territorial limits of India; “
In the case of Dover Navigation Co. Ltd. vs.
Isabella Craig [1940 AC 190: (1939) 4 ALL ER 558 HL], it
was observed by Lord Wright that-
“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 causality. 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.”
(13) The Apex Court laid down the following principles-
upon proof of which a employee can succeed in a claim for
compensation in case of injury resulting from accident,
it was held that 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 the course of
employment.
The words “arising out of and in the course of his
employment” used in section-2(8) of the Employee State
Insurance Act, 1948 are in pari materia with the
provision contained in the section-3(9) of the Workmen’s
Compensation Act, 1923 and, therefore, the principles
laid down by the Apex Court can be applied to the present
case also.
(14) Applying the principles laid down by their Lordships
of the Privy Council as also by the Apex Court, I find
that it is an admitted fact that Dhaneshwar Sai was
working in the course of his employment when lightning
struck at 4 P.M. Since Dhaneshwar Sai was working in the
open field while it was raining, the nature of employment
exposed Dhaneshwar to such hazards of lightning. The
concept of liability under the Workmen’s Compensation
Act, 1923 is wide enough to cover a case of this nature
since the accident had causal connection with the
employment and also arose out of it because if he had not
been working in the open while it was raining the
lightning could not have struck him.
(15) In this view of the matter, no illegality or
manifest error of law is seen in the impugned order.
(16) In the result, the appeal being devoid of any merit
is dismissed.
(17) Copy of this order be sent forthwith to the
Commissioner for Workmen’s Compensation, Labour Court,
Bilaspur for releasing the amount of compensation
deposited by the appellant, in favour of the claimants.
(18) The valuable assistance rendered by Shri P.S.Koshy,
learned counsel, who appeared as amicus curiae as also by
Shri Sanjay S. Agrawal, learned counsel for the appellant
is acknowledged.
JUDGE