JUDGMENT
B.N. Dash, J.
1. This is an appeal filed by the insurer under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) against the decision of the Workmen’s Compensation Commissioner, Cuttack (for short ‘the Commissioner’) awarding a compensation of Rs. 1,03,990/- to respondent No. 1, Nanguli Singh, and directing the appellant to pay the same.
2. Respondent No. 1 was working as a driver under the respondent No. 2. On May 19, 1987, at about 9 a.m., while he was driving the car bearing registration No. ORS 4462 belonging to his master on National Highway No. 5 at Satapolia Bridge, the truck bearing registration No. AEK 6393 coming from the opposite direction at a very high speed dashed against the car due to which he sustained injuries all over his body including in his right eye and fractured both the 2 bones of his right leg. Claimant aged 25 years and getting a wage of Rs. l,200/-p.m. claimed compensation of Rs. 1,00,000/-.
3. Both the appellant and Respondent No. 2 2 entered contest. The respondent No. 2 while admitting the accident and the injuries received by respondent No. 1 in the accident, denied the allegation of respondent No. 1 that he was getting a monthly wage of Rs. l,200/-.According to 2 her, the monthly wage of Respondent No. 1 was Rs. 1,000/-. She claimed to be indemnified by the appellant in the matter of payment of compensation to Respondent No. 1 on the ground that the vehicle had been validly insured with the appellant. The appellant, while denying the allegations of the respondent No. 1, called upon him to prove the same, but it did not dispute that the car in question had been validly insured with it.
4. Respondent No. 1 besides examining himself, examined Dr. Birakishore Das, a Specialist in Orthopaedics and Dr. Udhab Charan Behera, a retired Professor in Ophthalmology. The Orthopaedician on examining the respondent No. 1 found that in spite of operation of the tibia and fibula of the right leg, the said leg was shortened by 11/2 inches and the respondent No. 1 was having difficulty in standing, walking and squatting. The doctor assessed the percentage of disability of the leg at 40 per cent and opined the same to be permanent in nature. The Eye Specialist, on examining the respondent No. 1, found that there was dropping of right upper eyelid, lateral deviation of the right eyeball and pupillary reaction. According to him, in spite of treatment, the respondent No. 1 has developed diplopia i.e. double vision and the same will remain throughout his life. He was of the view that a person having diplopia should not be allowed to drive any fast moving vehicle. On consideration of such evidence, the Commissioner came to the conclusion that the Respondent No. 1 had suffered 100 per cent permanent total disability and, taking his age to be 30 years at the time of the accident and his monthly wage to be Rs. 1,000/-, assessed the compensation as stated above and directed the appellant to pay the same inasmuch as the policy bond for the car issued by it was covering the date of accident. He also found that the above injuries were caused to Respondent No. 1 by accident arising out of and in course of his employment. This decision of the Commissioner is assailed in this appeal.
5. Mr. S.S. Basu, the learned counsel for the
appellant, has raised two contentions. His first contention is that the accident having occurred due to the rash and negligent driving of the truck, it cannot be said that the injuries sustained by Respondent No. 1 were caused by accident arising out of his employment, although it can be held that the accident arose in course of his employment and as such, the finding of the Commissioner that the accident arose out of his employment cannot be sustained. According to the learned counsel, a claimant under the Act for personal injury will be entitled to compensation only on his proving that his injury was caused by accident arising out of and in course of his employment and if it is found that the accident did not arise out of his employment, he will not be entitled to any compensation. His second contention is that the injury is a specified injury being covered by Item 26 of Part II of Schedule I of the Act which prescribes the percentage of loss of earning capacity at 30 and when this percentage of earning capacity is added to the percentage of loss of earning capacity for the injury on the right leg, the total loss of earning capacity comes to 70 per cent and as such, the finding of the Commissioner that the percentage of loss of earning capacity is 100 cannot be sustained in law. Both these points being on the question of law need examination of this court.
6. As regards the first point, it is not disputed by Mr. R.N. Mohnaty, the learned counsel for the Respondent No. 1, that unless it is proved by the claimant that the personal injury is caused to him by accident arising out of and in course of his employment, he is not entitled to any compensation, but it is strenuously urged by him that on the facts of the case it is liable to be held that the respondent No. 1 sustained the injury by an accident both arising out of and in course of his employment. Since there is no controversy at the Bar that the accident took place in course of employment of respondent No. 1 the point that falls for adjudication is whether the accident arose out of the employment. The expression. ‘arising out of in Section 3(1) of the Act came up for consideration in many cases which may now be examined. In Nawab All v. Hanuman Jute Mill AIR 1933 Cal 513, the decision in the case of Lancashire and Yorkshire Rly. Co. v. Highly, (1917) AC 352, was followed and it was
observed as under:
“The question as to whether the accident arose out of the employment cannot be determined on any general view of facts. It is dependent on the facts of each particular case. There is one test which is always applicable. 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 say it did not, because 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. And the question whether the workman did his duty negligently or not arises only where the workman was doing something which it was his duty to perform?”
(quoted from placitum)
7. In Central Glass Industries Ltd. v. Abdul Hussain AIR 1948 Cal 12, after referring to Lancashire and Yorkshire Rly. Co. v. Highly (supra) and Pomfret v. Lancashire and Yorkshire Rly. Co., (1903) 2 KB 718 and the decisions in two other cases of a Bench of the Calcutta High Court observed as follows:
“The phrase ‘arising out of employment’ in Section 3 indicates that the workman’s employment must be distinctive and proximate cause of his personal injury. It does not mean only that the personal injury must have resulted from the mere nature of his employment and is not limited to cases where the personal injury is referable to the duties which he has to discharge. Thus a workman who is injured in the course of his employment would be entitled to claim compensation only if his employment has given rise to the circumstance of injury by accident and in testing a case from that point of view, the word ’employment’ is not to be confined in a narrow manner by reference only to the duties of a workman, but the character, conditions, incidents, and special risks involved would have to be taken into consideration,”
(quoted from placitum)
8. In Mackinnon Mackenzie and Co Pvt. Ltd. v. Ibrohim Mohammad Issak, (1970-I-LLJ-16), after referring to the aforesaid two English decisions and some other decisions, the Supreme Court has held: (pp18-19):
” To come within the Act the injury by accident must arise both out of and in the 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’. There must be a casual relationship between the accident and the employment. 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.”
(quoted from piacitum)
9. In Laxmibai Atmaram v. Chariman and Trustees, Bombay Port Trust, AIR 1984 Bom 180, the following observation has been made:
“If the workman dies as a natural result of the disease from which he was suffering, then it could not be said that his death was caused out of his employment. If a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be fixed upon the employer. But if the employment is a contributory cause or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased.”
(quoted from piacitum)
10. In Ravuri Kotayya v. Dasari Nagavaradhanamma, 1958-65 ACJ 193 (AP), it has been held that in order that an accident could be held to have arisen out of and in the course of the employment of the victim by the employer, the following conditions would require to be established:
(1) that the workman was in fact employed on, or performing the duties of, his employment at the time of the accident;
(2) that the accident occurred at or about the place where he was performing these duties, or where the performance of these duties required him to be present;
(3) that the immediate act which led to or resulted in the accident had some form of causal relation with the performance of these duties, and such causal connection could be held to exist if the immediate act which led to the accident is not so remote from the sphere of his duties or the performance thereof, as to be regarded something foreign to them.”
(quoted from piacitum)
11. On an analysis of the aforesaid decisions, it is quite clear that the expression ‘arising out of employment’ means that there must be casual relationship between the accident and the employment. If the accident has occurred on account of a risk which is an incident of the employment, it has to be held that the accident has arisen out of the employment. In this case, the claimant, respondent No. 1 was a driver and since in driving a motor vehicle, risk of accident is incidental, I hold, rejecting the contention raised on behalf of the appellant, that the accident by which the respondent No. 1 received personal injuries arose out of his employment.
12. Coming to the second contention, it is seen that there is no controversy at the Bar regarding the assessment of percentage of loss of earning capacity in relation to the injury in the right leg. As regards the injury to the eye, the assessment of percentage of loss of earning capacity as made by the Commissioner at 100
seems to have been made on two grounds. The first ground is that the injury is covered by item 4 of Part I of Schedule I and the second ground is that the claimant-respondent No. 1 will be unable to perform the job of a driver, which he was doing, for all times to come. There is no controversy at the Bar that if the said injury is covered by any of the items of Schedule I of the Act, then the assessment of percentage of loss of earning capacity cannot be made in any other way. So, the assessment made by the Commissioner on the ground that the claimant-respondent No. 1 sustained permanent total loss and as such, there was 100 percent loss of earning capacity will not hold good if the injury is either covered by item 4 of Part I Schedule I as claimed by the Commissioner or item 26 of Part II of Schedule I as contended on behalf of the appellant or any other item in Schedule I. According to item 4 of Part I of Schedule I, there shall be 100 per cent loss of earning capacity, if there is loss of sight to such an extent as to render the claimant unable to perform any work for which eyesight is essential. When the left eye is normal, it can hardly be said that the injury to the right eye of Respondent No. 1 is covered by item 4. The learned counsel for the Respondent No. 1 is also unable to support this finding of the Commissioner. According to item 26 of Part II of Schedule I, percentage of loss of earning capacity is 30, if there is loss of vision of one eye, without complications or disfigurement of eyeball the other being normal. As already noted above, the left eye of the respondent No. 1 is normal but it is to be seen whether he has suffered loss of vision of one eye without complications or disfigurement. The evidence of Eye Specialist does not show that after treatment, respondent No. 1 is having complications or disfigurement of eyeball. But he says, as noted above, that he is having diplopia (double vi-sion)for which he shall be unable to drive any fast moving vehicle. With such evidence, it can hardly be said that the respondent No. 1 is having loss of vision in the right eye. As such, the injury to the right eye is not covered by item 26. Item 25 of Part II of Schedule I says that the percentage of loss of earning capacity is 40 when there is loss of one eye without complications, the other being normal. As already stated above, the left eye of the Respondent No. 1 is normal and he is having no complications internally for the injury in his right eye. That being so, it remains to be seen whether it can be said that there has been loss of the right eye because the Respondent No. 1 is suffering from diplopia (double vision). The answer to the question seems to be available in the note appearing at the foot of Part II of Schedule I. This note was added by repealing and amending Act 58 of 1960. According to this note, complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent to the loss of that limb or member. As already indicated above, the respondent No. 1 is having diplopia (double vision) and so he has to close that eye by putting some flap to enable him to see everything perfectly in the other eye, which is normal. So according to the above note, it will mean that respondent No. 1 has suffered loss of one eye, i.e., the right eye. That being so, the percentage of loss of earning capacity is 40 as prescribed against item 25. When the percentage of loss of earning capacity is ascertainable for the injury to the right eye, the assessment made by the Commissioner that the percentage of loss of earning capacity is 100 holding the injury to be a permanent total disablement cannot be sustained in law. The percentage of loss of earning capacity in respect of both the injuries is thus assessed at 80 and compensation should be assessed and paid accordingly.
13. In the result, the appeal is allowed in part but in the circumstances without costs.