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Civil Review Petition No. 6-R of 1977, decided on 10th March; 1981.

(Review of the judgment of this Court passed in Civil Appeal No. 5 of 1974, on 17-9-1976).

----S. 2 read with Workmen's Compensation Act (VIII of 1923), S. 3 and North Western Railway, Way and Works Manual, 1928, para. 167-Fatal accident-Compensation-Fitter required by his superior authorities to fix sheets on roof of a newly constructed room but after performing such job his foot slipping while getting down by means of a ladder and worker dying as a result of bead injury-Award made in favour of deceased's defendants being not acceptable to them, their case being that a higher amount was payable under S. 2 of Fatal Accidents Act, 1855, and such claims having not been accepted by Courts below, Supreme Court on special leave holding superior officers of deceased having not been negligent within purview of S. 2 of Act XIII of 1855 in not providing safety measures to deceased Held, on review: Departmental interpretation of cl. (c) of para. 167 as to belts being not provided for climbing on ladder but being provided for climbing poles neither unreasonable nor unfair-No convincing reason given how deceased while climbing down ladder could have effectively used a lifeline for purposes of his personal safety till he reached floor--Petition for review dismissed in circumstances but Department advised to provide relief/grant to petitioners.-[Compensation].

Bashir Ahmad Ansari, Advocate for Petitioners.

Hafiz S. A. Rehmon, Advocate for Respondents.

Date of hearing : 8th March, 1981.

Review has been sought of the judgment of this Court, dated 17-9-1976, whereby the petitioner's appeal arising out of the dismissal of a civil suit for recovery of compensation regarding the demise of Nazir Ahmad, their predecessor-in-interest, who during his employment with Railway died on account of an accident.

Nazir Ahmad was a Steam Engine Fitter in the Loco Shed. He was required by his superior authorities to fix sheets on the roof of a newly constructed Battery Charging Room in the Loco Shed. After performing that particular job on the day of accident, he was getting down the roof by means of a ladder when his foot slipped he fell down on the ground and suffered a head injury which proved fatal.

Proceedings were taken under the Workmen's Compensation Act and an award of Rs. 6,000 was made in favour of the plaintiffs-petitioners: Their case, however, was that an amount of Rs. 69,085 should have been awarded as compensation by virtue of section 2 of the Fatal Accidents Act, 1855 (Act No. XIII of 1855).

The same not having been accepted by the learned Courts below, the question was considered by this Court on appeal through special leave to appeal, which was dismissed with the following findings:-

"In any case there is no averment in the plaint or statement by any witness that there was any defect in the ladder. It did not move, snap or give way while Muhammad Nazir fixed the iron sheets or while he was climbing down. On the contrary, the plaintiff's own witnesses have stated that as Muhammad Nazir was climbing down his foot slipped and be fell down. The slipping of the foot is not associated with any defect in the ladder or the position in which the ladder was fixed. It cannot, therefore, be said that the superior officers of Nazir Ahmad were in any manner negligent within the purview of section 2 of the Fatal Accidents Act in providing safety measures which would have avoided the accident resulting in his death."

On facts, it was also held that the unfortunate accident could not be attributed to the job on which Nazir Ahmed was employed outside the charter of his duty "Had fallen down while engaged in fixing the iron sheets on the roof of the Battery Charging Room it could at least be argued that the accident was the result of his assignment on a job which was outside the charter of his normal duties. A nexus could then be established between the assignment of the job and the accident. However, as we know the job had been completed and Nazir Ahmad was climbing down when his foot slipped and be fell down."

Mr. Ansari, learned counsel for the review petitioners contended that after fixing sheets, Nazir Ahmad, on account of normal sequence and necessity, was to climb down through the ladder to the floor and that during this exercise he would be deemed to have been on his job and assignment. Therefore, the accident would be deemed to have taken place during the performance of the job. Proceeding further on this assumption, learned counsel relying on clause (c) of para. 167 of North Western Railway, Way and Works Manual, 1928, contended that it was necessary for the Railways to provide safety measures to the deceased and because they had failed to do so, therefore, this failure should have been held as negligent act on their part. Relevant provisions of para. 177 read as follows:-

"167. Prevention of accidents.-(a) All Engineering Officers, subordinates and others, who are responsible for the supervision of labour, must take every possible precaution to prevent the occurrence of an accident in connection with any work in progress, whether to the labour working under them or the general public. Although contractors are, vide paras. 17 and 30 of Part II of the Works Hand book, responsible for the protection of the works they undertake and the safety of their labour, this in no way absolves effacers or subordinates from drawing a contractor's immediate attention to any unprotected obstruction, defective structure or other condition which is likely to be dangerous to human life, or from seeing that adequate action is taken at once to obviate such danger.

(b) . . . .

(c) Particular attention should be paid to the soundness of all planking, ropes, bailies and other material in scaffolding and any defective member must be replaced at once. Where men are required to work at dangerous heights above ground level, life lines or safety nets must be carefully tested before the work is started."

Learned counsel contended that although it was not possible to provide a net, under the ladder, the deceased should have been provided with a life line, the use of which could have saved him. A question in this behalf was asked from, Mr. Nayyarul Haq, in Divisional Mechanical Engineer (D. W. 1), who stated that "the deceased had not tied the belt with his waist, because it was not essential. The belt is not provided to climb on the ladder. The belts are provided for climbing on the poles".

The departmental interpretation given by the Divisional Mechanical Engineer (D. W. 1) of clause (c) of para. 167 is neither unreasonable not unfair. When working on the roof, if it is on a dangerous height, the hands of the workman would not be free so as to ensure his own safety, therefore, it might be necessary in that position to provide a workman with a life line safety belt, but when he is climbing down the ladder, his hands would be free to keep himself secured on the ladder. It is in consonance with the provision in clause (a) of para. 167, where under the authorities are required to take every possible precaution to prevent the occurrence of an accident in connection with any work in progross. Otherwise too, learned counsel has not been able to convince us that when climbing down the ladder (and not a pole) of the type mentioned in the order under review, the deceased could have effectively used a lifeline for purpose of his personal safety till he reached the floor. The argument of the learned counsel has no force.

The petition for review accordingly fails.

Before parting with this case, which appears to be one of hardship, it will not be out of place to note and record that the Department and the petitioners were afforded opportunity to settle the question of compensation amicably through mutual agreement. The petitioners stuck to their original demand and it is in line with this attitude that they have not- withdrawn till now the amount of Rs. 6,000 deposited by the Department as compensation. On the other hand, the Department also, presumably on account of rigid attitude of the petitioners, adopted a hard line (which but for the attitude of the petitioners could also be treated as harsh). Counsel were not prepared on the question as to whether the petitioners would, when now withdrawing the amount of Rs. 6,000, be entitled to interest on it. Be that as it may, there does not seem to be any impediment, at least none has been shown, for the Department to provide relief/grant to the petitioners; notwithstanding the fact that this Court has not accepted the contention of the learned counsel for the review of the Judgment of this Court it being well known that the scope of review by this Court of its judgments is indeed very limited:

With the foregoing observations, this petition for review is dismissed, but there shall be no order as to costs.

Petition dismissed.

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