JUDGMENT
R.K. Patra, J.
1. This is an appeal under Section 30 of the Workmen’s Compensation Act, 1923 (for short, “the Act”), in which the insurer challenges the judgment and order of the Commissioner for Workmen’s Compensation-cum-Assistant Labour Commissioner, Jeypore (hereinafter referred to as “the Commissioner”), awarding compensation of Rs. 29,949 in favour of respondent No. 1.
2. Respondent No. l filed an application before the Commissioner alleging that G.Irrama, his deceased wife, was working under Bhagirath Engineering Limited, respondent No. 2, as a labourer at Loliguda, in the construction of railway line and residing in one of the huts provided by the employer at the site Loliguda. In the midnight of April 11, 1988, there was fire in the site which engulfed the hut in which the deceased was sleeping and was burnt alive. On the basis of the aforesaid allegations, respondent No. l claimed compensation of Rs. 50,000 on account of the death of his wife. Bhagirath Engineering Limited (respondent No. 2) filed counter saying that the deceased, G. Irrama, was not working Under it and it disclaimed the liability to pay any compensation. It was, however admitted in the said counter that there was fire in the night of April 11, 1988, in which the deceased died. It also pleaded that its work was insured with the appellant and, as such, the insurer is liable to pay compensation if respondent No. l was held entitled for the same. The appellant filed its written statement disclaiming the liability on the pleas that the deceased was not working under respondent No. 2 and the death of the deceased was not within its knowledge.
3. At the threshold it was urged on behalf of respondent No. 1 that appeal filed by the insurer is not maintainable in view of the fact that it has not deposited the amount of compensation as required under the third proviso to Sub-section (1) of Section 30 of the Act. Shri Roy for the appellant submitted that at the relevant time there were conflicting views of this court in the matter; one view was that the pre-condition of deposit of money would be applicable only to the employer and not to the insurer and the other view was that the condition precedent provided by law was to be complied with by the party who filed the appeal. He submitted that in view of such divergent opinion no deposit was made. As a matter of fact, the aforesaid difference of opinion continued till it came to be resolved by a Division Bench of this court in Koili Bewa v. Akshaya Kumar Misra, (1994-II-LLJ-71). In view of this position, the preliminary objection raised against the maintainability of the appeal is overruled.
4. Respondent No. l examined three witnesses including himself. On the basis of the evidence, the Commissioner held that the deceased was a workman working under respondent No. 2 which had constructed some huts at Loliguda site for its workmen and the said huts caught fire in the night of April 11, 1988, and the deceased died in the said accident. The Commissioner further held that she died out of and in course of her employment. By taking into account the age, daily wages earned by her, he determined the compensation at Rs. 29,949.
5. Shri Roy submitted that the insurance policy in question covered the work site at Parvat-inagar and not Loliguda where the accident took place and, as such, no liability can be fixed on it. In this connection, he drew my attention to the insurance policy which is on record. In the schedule of that policy, the following finds mention:
“Insured : Bhagirath Engineering Ltd.,
H.C. Cochin,
Site-Parvatinagar,
Via-Rayagada-765001.
Business : Engineering Works and Construction.”
6. This argument is not tenable in view of the fact that what is mentioned in the policy as extracted above is the address of the employer and not the site of work. In that policy there are other columns dealing with other particulars and the sixth column deals with place or places of employment. It is seen that the said column is left bank. In my considered opinion had there been mention of the place of employment in the said column that could have been determinative to hold as to which site of work was insured. In the absence of any entry in the said column, it cannot be said that Loliguda was not the site of work and it did not cover the insurance.
7. It was next contended by Shri Roy that as the death by accident was not out of and in the course of employment, no liability can be fastened on the insurer. Section 3 of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of employment, his employer shall be liable to pay compensation in accordance with the provisions contained in Chapter II of the Act.
8. It is trite law that to come within the purview of the Act, the injury (or death) by accident must arise both out of and in the course of employment. Lord Sumner in Lancashire and Yorkshire Rly. Co. V. Highley, (1917) AC 352, lucidly laid down the test for determining whether the accident arose out of employment. He opined (at page 372):
“There is, however, in my opinion, one test which is always in 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 the accident 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.”
9.The Supreme Court in Mckinnon Mckenzie and Co. Private Ltd. v. Ibrahim Mahommad Is-sak, (1970-I-LLM6) observed pp 18-19.
“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 the employment’ injury; has resulted from some risk incidental to the duties of the service, which unles 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 applied 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 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 had exposed himself to an added peril by his own imprudent act.”
10. There is no dispute that the accident took place in the night when the deceased was asleep, Respondent No. l got himself examined as PW-1. He stated that in the night of occurrence after taking dinner, his wife slept in the camp house constructed by the employer and as there was not enough accommodation, he slept outride the house. At about 1 a.m. fire broke out which gutted the house resulting in the death of his wife. The provision made by the employer for residence of the concerned workman may be an incidence of service and the deceased might have slept in the house made available to her by the employer. Such accommodation by itself cannot from the basis to claim compensation on the ground that death by accident was caused out of and in course of the employment. The accident caused by fire had no nexus with the employment of the deceased nor was it incidental to her duties. In the circumstances, no reasonable or legitimate inference can be drawn that the accidental death arose out of and in the course of employment of the deceased. For the aforesaid reasons the employer cannot be held liable to pay compensation under the Act. As a necessary corollary it follows that no liability can be fastened on the appellant.
11. In the result, the order of the Commissioner cannot be supported which is hereby set aside. The appeal is accordingly allowed. No costs.