JUDGMENT
A. Subbulakshmy, J.
1. Appeal is filed as against the order of the Deputy Commissioner of Labour in W.C. No. 85 of 1987.
2. Claimants/appellants filed petition under Section 10(1) of the Workmen’s Compensation Act claiming compensation for the death of one Kuppusamy, husband of the first claimant and father of claimants 2 to 4. The claimants contend that while the deceased Kuppusamy was employed in the first respondent’s enterprises, during the course of employment, on 4.1.1986, the deceased was involved in an accident as a result of which he died on 8.1.1986 and so, respondents 1 and 2 are liable to pay compensation.
3. First respondent filed counter contending that the accident did not occur during the course of employment and it was due to the negligent act of the deceased himself, but, anyhow, on humanitarian grounds the Insurance Company paid Rs. 25,000/- as compensation to the family of the deceased and the first respondent is not liable to pay any compensation.
4. Second respondent did not file any counter. The Deputy Commissioner of Labour, after due enquiry, found that the deceased himself out of his own will voluntarily involved in the accident which occurred in the seepage well and it was not in the course of employment and the deceased was not at all concerned with the seepage well and as he himself involved in the accident out of his own volition, the first respondent cannot be held liable, but, anyhow, the Insurance Company, under the group insurance scheme, has paid a sum of Rs. 27,000/- to the claimants and the first respondent also agreed to pay a sum of Rs. 10,000/- on humanitarian grounds and he directed the first respondent to deposit a sum of Rs. 10,000/- within two weeks.
5. Aggrieved against that order, the claimants/appellants preferred the present appeal contending that the accident had occurred only in the premises of the first respondent and it arose (sic) f during the course of employment and so, the applicants’ claim has to be (sic)..
6. Counsel for the appellants is absent today. Counsel for the first respondent is present and advanced his arguments. He submitted that the deceased was employed as a building contractor to carry out the building work of second and third floors of the first respondent hospital premises and he had no work or business at the ground floor and when the accident had occurred, he was not called upon to do any work at the ground floor which resulted in his death. He further submitted that the deceased casually went to the ground floor to take tea and he heard some noise there and he came to know that while cleaning the seepage water at the ground floor, due to unforeseen circumstances, one hospital staff and another worker from outside had fallen into the well and the deceased, out of enthusiasm and with a view to rescue the persons who had fallen into the well, had broken the security cordon, pushed the security staff and voluntarily jumped into the well without knowing the consequences and the deceased had no work in that place and he was also not directed or called upon to participate in the rescue operations and as the accident to the deceased was the result of an added peril to which the workman by his conduct exposed himself which peril was not involved in the normal performance of the duties of his employment, the first respondent is not liable to pay any compensation. He relies upon the decision of the Rajasthan High Court in R.B. Moondra and Co. v. Bhanwari , and the decision of the Patna High Court in Bhurangya Coal Co. v. Sahebjan 1956 Patna 299. Relying upon the above decisions, the Counsel for the respondent strenuously argued that the deceased out of his own accord involved himself in the accident and out of his own enthusiasm he has fallen into the well and he did not even obey and yield to the words of the security staff and so, the first respondent cannot be held liable.
7. Admittedly, the accident had occurred in the seepage well when it was being cleaned and the deceased had come down to the ground floor during the tea-break to take tea and the deceased heard some noise from one of the seepage wells that were being cleaned and he immediately went there and while rescuing the workers from the well, he fell inside the well and fell unconscious and he was taken out and admitted in the first respondent hospital and there he died. The Deputy Commissioner of Labour relied upon the evidence of R.Ws. 1 and 2 who had spoken that the deceased, out of enthusiasm and with a view to rescue the persons who had fallen into the well, involved himself in the accident and died. The first respondent contends that the deceased was engaged in the specific business of carrying out the construction work in the additional floors of the hospital and he had volunteered to help somebody and he need not have run to the rescue of the persons engaged in the drainage cleaning work when there were several others attending on the rescue work near the seepage water tank and the deceased without foreseeing the dangers of entering the seepage water well and without adopting the precautions had just volunteered and acted according to his wish at that time and involved himself in the accident and the act which caused the death of the deceased is a voluntary one of the deceased when the deceased was never called upon to do such work and so, the first respondent cannot in any way be held liable to pay compensation to the death of the deceased in that accident.
8. Admittedly, the deceased was employed only for the construction work in the additional floors of the hospital and only when he came to the ground floor to take tea, he heard the noise from the seepage well and he went to rescue the persons who had fallen into the seepage well which was not warranted and the deceased was not at all concerned with that work. While attending the construction work for which the deceased was employed if the accident had occurred, then, of course, it can be contended that the first respondent is liable. During the tea-break, the deceased had come to the ground floor and he heard some noise and voluntarily attended to the rescue work in the seepage well and the accident which occurred at that time cannot, at any rate, be said to have occurred during the course of employment.
9. The Rajasthan High Court has held in R.B. Moondra and Co. v. Bhamvari (supra), that–
The expression ‘arising out of employment’ is not confined to the ‘nature of employment’ but applies to the employment as such to its nature, its conditions, its obligations, and its incidents. Therefore, to find whether the death was caused by added peril, the relevant enquiry to make e is whether the thing was within the sphere of employment and incidental to it, whether it was in the interest of the work of the employer and was simply done Carelessly or negligently. If the answer to the above is in the affirmative, then the accident would be said to be out of and in the course of employment and the plea of added peril would fail. On the other hand if the answer is in the negative and if it is found the thing was foreign to the scope of employment, i.e., something to which the workman voluntarily exposed himself not about the business of the employer but about his own business then it would not be out of employment and it would be a case of added peril.
The Patna High Court has held in Bhurangya Coal Co. v. Sahebjan (supra), that:
The principle of added peril contemplates that if a workman while doing his master’s work undertakes to do something which he is not ordinarily called upon to do and which involves extra danger he cannot hold his master liable for the risks arising therefrom. This doctrine, therefore, comes into play only when the workman is at the time of meeting the accident performing his duty.
10. The decisions cited supra enunciates that if a workman, while doing his work undertakes to do something which he is not ordinarily called upon to do and which involves extra danger he cannot hold his master liable for the risks arising therefrom. In the case on hand, the deceased, out of his own volition went and attended to the rescuing work in the seepage well which he was not called upon by the employer and with which kind of work the deceased was not at all concerned and as the deceased out of his own volition voluntarily attended to do the rescuing work in the seepage well it is a case of added peril and he cannot hold the first respondent liable to pay compensation. But, anyhow, as seen from the order of the Deputy Commissioner of Labour, the Insurance Company, under the group insurance scheme has already paid a sum of Rs. 25,000/- to the claimants and out of humanitarian grounds, the first respondent has also agreed to deposit a sum of Rs. 10,000/- and the Commissioner has rightly directed the first respondent to deposit the said sum.
11. I find that the finding of the Deputy Commissioner of Labour does not warrant t any interference of this Court. The finding of the Deputy Commissioner of Labour imperfectly justified. I see no merit or substance in the appeal.
In the result, the appeal fails and is dismissed. No costs.