JUDGMENT
P.K. Misra, J.
1. The insurer has filed this appeal under Section 30 of the Workmen’s Compensation Act.
2. Claimant-respondent No. 2 filed claim application claiming compensation on account of death of her husband, who was the driver of the truck bearing registration number O.S.S. 5551 belonging to the owner-respondent No. 2. The truck was returning from Ahmedabad to Cuttack via Nagpur. It seems that on the way there was homicidal death of the driver. The claim application was initially filed before the Judge, First Labour Court, Nagpur, but subsequently, the case was transferred to the Commissioner for Workmen’s Compensation at Rourkela (in short, the “Commissioner”).
3. The owner in her written statement stated that the accident had not arisen out of employment as the workman died on account of homicidal death which has got no connection with employment. The Insurer denied in general its liability.
4. The Commissioner found that the deceased was a workman and had died in an accident arising out of and in course of employment. Since there was valid insurance, he directed the Insurer to pay the compensation.
5. In this appeal, the learned counsel for the appellant first contended that the deceased driver had no valid driving licence and as such, the Insurance Company should not be made liable. I have carefully perused the records including the written statement filed by the Insurance Company. This plea had not at all been whispered in the written statement, nor any evidence had been adduced before the Commissioner; For the first time, such submission is being made in this Court by producing documents relating to driving licence. The question being a mixed question of fact and law cannot be raised for the first time in an appeal under Section 30 of the Workmen’s Compensation Act, where the scope of appeal is limited to consideration of substantial questions of law only. As such, this contention raised by the learned counsel for the appellant cannot be accepted.
6. The learned counsel for the appellant then contended that there is no material on record to show that the accident had arisen out of and in course of employment. The learned counsel for the appellant has placed reliance upon the decision of the Supreme Court reported in Regional Director, E.S.I. Corporation and Anr. v. Francis De Costa and Anr., AIR 1997 SC 432 : 1996 (6) SCC 1 : 1997-I-LLJ-34 in support of his contention. In the aforesaid case, the employee met with an accident one kilometre away from the place of his employment while he was on his way to the factory where he was employed and application claiming disablement benefit was allowed. While interpreting the meaning of the expression “arising out of and in course of employment” the Supreme Court observed as follows at p. 43 of LLJ:
“29. ……….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 course of employment…….”
7. In the decision reported in Mackinnon Mackenzie and Co Private Ltd. v. Ibrahim Mahommad Issak, AIR 1970 SC 1906 : 1969 (2) SCC 607 : 1970-I-LLJ-16 it was observed at p. 18 of LLJ:
“5. 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 the 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’. 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 applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those 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 employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act……”
There cannot be any dispute regarding the principle of law to be applied in such cases, in view of the plethora of decisions of the Supreme Court including the decisions noticed above. In the present case, there is no doubt that the deceased was a driver who had taken the vehicle to Ahmedabad for the purpose of delivering goods and was returning via Nagpur to Cuttack. In such view of the matter, there cannot be any doubt that the accident was in course of employment as it must be taken that the driver was discharging his duties on behalf of the employer.
8. The next question is as to whether it can be said that the accident arises out of employment. In the facts and circumstances of the present case, it has to be seen as to whether there was a causal connection between the accident and the employment. In the above context, it has to be remembered as observed by the Supreme Court in the decision reported in Mackinnon Mackenzie case (supra), the expression “arising out of employment” is not confined to the mere nature of employment, the expression applies 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’.
In the decision reported in Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, AIR 1958 SC 881 : 1958-II-LLJ-249 it was observed at p. 251 of LLJ:
“It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public, and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. ”
9. If the deceased would have been travelling on his own and would have been killed due to some incident, there cannot be any doubt that the accident could not have been taken to be one arising out of employment. However, in the present case, the very nature of the employment of the deceased made it imperative for him to drive the vehicle and put it at the spot where he was killed. Thus, it can be concluded that by virtue of the nature of his employment, the deceased had to undertake the journey which exposed him to the fate which ultimately befell upon him.
10. Almost under similar circumstances, when a driver of a taxi was killed for the purpose of stealing the taxi by miscreants while the deceased was driving the taxi, it was held by a Division Bench of the Kerala High Court in United India Insurance Co. Ltd. v. Philo reported in 1997-I-LLJ-76 (Ker-DB) that the accident arose out of the employment. Similarly a Division Bench of the Bombay High Court presided by CHAGLA, C.J. in a decision Bhagubai v. General Manager, Central Railway reported in 1954-II-LLJ-403 (Bom-DB) observed at p. 404:
“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 prominent 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, causal connection is established between the employment and the accident.”
11. The learned counsel for the appellant contended that it is quite possible as per the F.I.R. that the driver was killed by the conductor of the truck because of the private feud between the two. From the materials on record, it is not possible to come to a conclusion that the killing took place because of any private feud between the deceased and the conductor. In a case like this, when it is difficult to come across direct evidence, the Courts have to make reasonable inferences from proved facts. The facts proved in this case indicate that while the driver was returning with the vehicle, on the way due to some unknown reason, he had been killed. It is evident that he happened to be there because he was discharging his duties on behalf of the owner. Merely because in the F.I.R. it is indicated that he was killed by the conductor, it cannot be assumed that he had exposed himself to the additional peril.
12. The Commissioner has directed for payment of interest by a subsequent order. In the present case, the owner was disputing the liability. The awarded amount has been deposited in this Court which has been invested in fixed deposit after disbursing certain amount to the claimant. The claimant would be entitled to the benefit of interest on the fixed deposit. In such view of the matter the direction regarding payment of interest from the date of award is waived. However, the amount deposited in this Court along with entire accrued interest shall be paid to claimant-respondent No. 2.
13. Subject to the aforesaid direction, the Miscellaneous Appeal is dismissed. There will, however, be no order as to costs.