Dismissed

K R Rajegowda v. Nagamma

Karnataka HC26 Jun 2023MFA/8195/2012

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenged a Workmen's Compensation award regarding the death of a field worker murdered by a co-employee. The High Court held that the death arose out of employment due to risks incidental to night crop watching, dismissing the appeal and upholding joint and several liability.

What did the court decide?

The appeal was dismissed and the impugned order and award dated 27.04.2012 was confirmed.

K R Rajegowda Vs Nagamma — Karnataka HC (2023) — LawSathi Research

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NC: 2023:KHC:22118 MFA No. 8195 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF JUNE, 2023 BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.8195 OF 2012 (WC)

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BETWEEN:

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K R RAJEGOWDA S/O K.P. RAMABHADREGOWDA, AGED ABOUT 59 YEARS, KOWRI VILLAGE, BIKKODU HOBLI, BELUR TALUK, HASSAN DISTRICT.

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…APPELLANT

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(BY SRI. KAVITHA H. C., ADVOCATE)

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AND:

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NAGAMMA

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W/O LATE HALAPPA, AGED ABOUT 48 YEARS,

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA

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GIRISHA S/O LATE HALAPPA, AGED ABOUT 28 YEARS,

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PURNA S/O LATE HALAPPA, AGED ABOUT 28 YEARS,

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ALL ARE RESIDING AT NARVE PETE, AREHALLI HOBLI, BELUR TALU, HASSAN DISTRICT.

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RAFEEQ S/O ABDUL, AGED ABOUT 30 YEARS, R/O NARVE VILLAGE & POST,

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NC: 2023:KHC:22118 MFA No. 8195 of 2012

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AREHALLI HOBLI, BELUR TALUK, HASSAN DISTRICT.

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…RESPONDENTS

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(BY SRI. H.P.LEELADHAR, ADV. FOR R1 TO R3; SRI PRAKASH H.C., ADV. FOR R4)

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THE MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 27.04.2012 PASSED IN PÁ¥ÀPÁ/G¥sï/J¸ïDgï28/2008 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, HASSAN SUB DIVISION, HASSAN, AWARDING A COMPENSATION OF Rs.2,98,526/- WITH INTEREST @ 12% FROM AFTER 30 DAYS OF ACCIDENT TILL DEPOSIT IN COURT.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the owner of the Estate under Section 30(1)(A) of the Employees Compensation Act, 1923, (for short 'the Act' ) challenging the impugned order and award dated 27.04.2012 passed by the Commissioner, Workman Compensation, contending that the appellant/owner of the estate is not liable to pay compensation.

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Brief facts of the case are that:

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One Halappa, the husband of the 1st respondent and

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father of 2nd and 3rd respondents, was working as a

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coolie in the estate of the appellant and the 4th respondent. He was entrusted with the work of harvesting the pepper crop during the day time and watching the pepper crop during the night time on a salary of Rs.3,000/- for the day time and Rs.3,000/- for the night time. When such being the case, on 10.04.2008 there was a quarrel with the appellant and the 4th respondent with regard to salary. When the owners stated that they would pay only Rs.3,000/- for both day and night shift, there was oral trifle between both the parties. In this regard, Halappa was orally threatened that he would be killed, if he demands Rs.6,000/- salary. Later that night when Halappa was on duty, one Narayana committed the offence of murder of Halappa.

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Hence, a claim petition was filed by the legal representatives of the deceased Halappa before the Labour Commissioner. The Commissioner on appreciating the material on record, allowed the claim petition in part, and awarded a compensation of Rs.2,98,526/- along with

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interest at 12% per annum. The Commissioner held respondents 1 and 2 therein jointly and severally liable to pay the compensation.

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Heard the learned counsel for the appellant and

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learned counsel for the respondents and perused the material on record.

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Learned counsel for the appellant submits that the death of the Halappa is not 'out of and in the course of employment', as the deceased was murdered by a coemployee Narayana. Therefore, learned counsel contends

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the death is not out of and in the course of the employment. Further it is submitted that just because the deceased was engaged in harvesting the pepper crop during the day time and watching the pepper crop during the night time. Halappa was murdered by someone else and that cannot be held that the death is 'out of and in the course of employment'. Therefore, submitted that finding of the learned Commissioner that the relationship of

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employer and employee is proved is not correct. Therefore prays to allow the appeal.

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On the other hand, learned counsel for

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respondents 1 to 3 justifies the impugned order and award.

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[ 7. On hearing the arguments of learned counsel for both the sides, the following substantial questions of law arises for consideration by this Court:-

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a. Whether in the facts and circumstances of the case, the death of one Halappa is proved to be 'out of and in the course of employment' ?

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b. Whether in the facts and circumstances of the case, the impugned order and award made by the Commissioner holding the appellant and 4th respondent herein jointly and severally liable to pay the compensation, requires any interference.

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Answer to the above substantial question No.1 is in the 'affirmative' and question No.2 is in the 'negative' for the discussion and reasons narrated herein.

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Learned counsel for the appellant submitted

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that in the present case, the death of deceased is ‘murder simpliciter’ as there was a quarrel between deceased and Narayana. As such, Narayana had murdered the deceased. Therefore, it is not in connection with the employment much less to say that the murder is not arisen ‘out of employment’. Therefore, it is submitted that the appellant is not liable to pay compensation as the death of deceased is not ‘out of employment’. Therefore, the ingredient in arising ‘out of employment’ is not proved. Hence, the learned Commissioner is not correct in observing this aspect. As such, she prays to allow the appeal.

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In support of the argument, the learned counsel for appellant places reliance on the following judgments of Hon'ble Supreme Court of India:

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(1) Mackinnon Mackenzie and Co.(P)Ltd. versus Ibrahim Mahmmed Issak reported in 1969 (2) SCC 607

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(2) Rita Devi (Smt) and others Versus New India Assurance Co.Ltd. and another reported in 2000(5) SCC 113

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(3) AIR 2007 SC 248- Shakuntala Chandrakant Shresthi Vs Prabhakar Maruthi Garvali & others.

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(4) 2018 SCC Online All 5621 - Oriental Ins Co., Ltd, Vs Somdutt Sharma and others

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(5) 1959 SCC Online Raj 133-M/s. Mewar Textile Mills, Bhilwara Vs Smt. Kushali Bai

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(6) 1994 SCC online Mad-63-Special Officer, Periyakulam Anna Polythere Workers Industrial Co-operative Society Ltd., Vs Smt. Ayyammal and another .

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On the other hand, learned counsel for the respondent No.4 accepted the submission made by the learned counsel for the appellant that the death is not due to ‘out of employment’ or ‘in the course of employment’. Further, he submitted that there is no relationship of employer and employee between the deceased and respondent No.4 since the appellant had earlier sold the crop to respondent No.4. The deceased was working under the appellant. Therefore, there is no connection between the deceased and respondent No.4. Hence, he

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prays to set aside the order passed by the Tribunal by allowing the appeal.

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The Hon’ble Supreme Court of India by its judgment in the case of Mackinnon Mackenzie and Co.(P)Ltd. versus Ibrahim Mahmmed Issak¹ while interpreting the words ‘out of employment’ and ‘in the course of employment’ was pleased to deliberate at para Nos.5 and 6 as follows:

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“5. To come within the Act the injury by accident must arise both out 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 casual relationship between the accident and the employment. The expression

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1 reported in 1969 (2) SCC 607

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“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 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. In Lancashire and Yorkshire Railway Co. V. Highely Lord Summer laid down the following test for determining whether an accident “arose out of the employment”.

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6. In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident."

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While applying the principle of law laid down by

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the aforesaid judgment to the present set of facts and circumstances of the case, the complaint at Ex.P1 lodged by the appellant himself before the police after the death of deceased which narrates the incident of death. The deceased was working in the estate of appellant. Respondent No.4 had purchased pepper crop from the

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appellant. Both the appellant and respondent No.4 have engaged the deceased and another person Narayana for harvesting the crop during day time and watching the crop during night time by paying salary of Rs.3,000/-each to the deceased and Narayana totaling to Rs.6,000/- p.m. The accused in the criminal case is also one of the coemployee working under the appellant and respondent No.4. Both the deceased and Narayana were engaged for watching the crop during night time. Even though the appellant has stated that there might have been quarrel between the deceased and Narayana, there is no evidence that the said Narayana had motive and intention to kill the deceased. In the complaint, it is averred that both the deceased and Narayana were under influence of alcohol and in order to put fire on the land during night time for watching crop, then the squabble took place between the deceased and Narayana. Narayana had assaulted the deceased with reaper and consequently the deceased died and the same is narrated in the complaint lodged to police. Therefore, the murder of the deceased is ‘accidental

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murder’ but not murder having motive or intention. Therefore, in this regard, the principle of law laid down by the Hon’ble Supreme Court of India in the case of Rita Devi (Smt) and others Versus New India Assurance Co.Ltd. and another² is squarely applicable. The Hon’ble Supreme Court in the said case while discussing the aspect of difference between ‘murder simpliciter’ and ‘accidental murder’ was pleased to explicate at para Nos.10 and 11 which reads as under:

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" 10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a

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2 reported in 2000(5) SCC 113

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12 -

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murder simpliciter, while if the cause of murder or act of murder was originally felonious act then such murder is an accidental murder."

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11. In Challis V. London and South Westerm Rly. Co., the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held:

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The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer."

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In the above said case, the reliance is placed

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on various decisions of the Hon'ble Supreme Court of

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India and in the present case, it is proved that the deceased died in the course of employment at the time of watching pepper crop during night hours along with Narayana. When it is canvassed that the death of the deceased was not out of employment but considering the

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evidence placed before the learned Commissioner by the claimant that the compliant lodged before the police reveals that in order to put fire on the estate during night hours for watching pepper crop, the bicker took place. Therefore, putting fire is nothing but and out of and 'in the course of employment'. It is for the benefit of watching the crop of the appellant and respondent No.4. Moreover, the death of the deceased is referred to as 'accidental murder'. There is no evidence in this proceeding that Narayana had motive or intention or both in committing the murder of deceased. Therefore, it is proved that the death of deceased is out of and in the course of employment as discussed above elaborately.

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In the instant case, it is not in dispute that the appellant is owner of the estate. In the said estate, the appellant had grown pepper crop and appellant had sold the pepper crop to respondent No.4. Therefore, both the appellant and respondent No.4 had engaged Halappa for harvesting the pepper crop in the day time and watching

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the pepper crop in the night time, promising to pay salary of Rs.3,000/- for day time by the appellant herein and Rs.3,000/- for night time by the 4th respondent herein. Since Halappa was engaged for dual work i.e., for harvesting the pepper crop in the day time and watching the pepper crop in the night time along with another employee by name Narayana, who was also engaged for the same work as that of Halappa. When this being the case, the complaint lodged before the police as per Ex.P.1 that when Halappa and Narayana were working in the estate of the appellant as stated above and on 10.04.2008 it is stated that there was exchange of words between Halappa and the appellant herein with regard to salary that they would pay Rs.3,000/- and not Rs.6,000/- and it was alleged that the appellant and respondent No.4 have threatened the deceased stating that they would kill if Halappa did not work in the field. But complaint is given before the police stating that one Narayana has committed murder of Halappa.

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Upon considering the claim petition and the complaint lodged before the police, one thing is proved that the deceased died in the estate of the appellant. When the appellant and the 4th respondent had engaged the services of Halappa for harvesting the pepper crop in the day time and watching the pepper crop in the night time. It is not for this Court to go into question of who committed the offence of murder since it is not the task in this proceedings. But the fact remains that Halappa was murdered. Accordingly charge sheet is filed by the Investigating Officer stating that Halappa was murdered by Narayana in the Estate of the appellant. Even as per the complaint given by the appellant before the police that there was fight between Halappa and one Narayana in the night, while watching the pepper crop. But Halappa was murdered on the estate of the deceased, while he was in the course of employment, i.e., while watching the pepper crop during the night time. Therefore, the question of 'who committed murder', is immaterial to the present proceedings, but the death of Halappa took place while he

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was 'out of and in the course of employment' as he was engaged to watch the pepper crop. Therefore, it can be held that death of Halappa took place 'out of and in the course of employment' and in this regard, the Tribunal has rightly held that the death has taken place 'during and out of employment' and granted compensation, by fastening the liability on both the appellant and respondent No.4 jointly and severally liable to pay compensation and which does not warrant interference by this Court. Therefore, the appeal is liable to be dismissed. Hence I pass the following:-

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ORDER

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a. The appeal is dismissed .

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b. The impugned order and award dated 27.04.2012 passed in No.KAAPAKA/F/SR/28-2008 on the file of the Labour Officer and the Commissioner for Workmen's Compensation at Hassan Sub Division, Hassan, is confirmed.

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