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Miscellaneous Civil Appeal. No. 22 of 1960, decided on 2nd January 1961.
Ss. 3 & 4--- Workman at time of accident not discharging duties of employment, but just going to take his afternoon meal---Not entitled to any compensation.
P L D 1953 Lah. 312; (1945) 6 A E R 241; 1942 Bom. 175 and A I R 1935 Rang. 173 ref.
Faizanul Haq for Appellants.
Mubarak Hussain Siddiqi for Respondent.
Deceased Asghar Ali met with an accident on 6-10-59, at 1-30 p.m. outside Bungalow- No. 75, N. 1. Lines, Garden Road, Jahangir Park with a truck bearing K. A. P. S 162. It is alleged that the truck concerned collided against the side gate of the said Bungalow and its pillar fell on the chest of the deceased causing instantaneous death. The appellant, widow of the deceased, claimed compensation under sections 3 and 4 of the Workmen's Compensation Act, clause 23, on the ground that the deceased met with the accident during the course of his employment with the respondent Co. The learned Chief Judge, Small Causes Court on the evidence of the parties came to the conclusion that at the time of the accident the deceased was not in actual employment of the employee and was not entitled to any compensation.
Mr. Faizanul Haq the learned counsel foe the appellant cited before me P L D 1953 Lah. 312, 6 A E R (1945) 241, 1942 Bom. 175, 1933 S C489 (sic) and A I R 1935 Rang. 173 to show that, the words "accident arose out of employment" has been given a very literal interpretation. He contended that the principle applied in such cases 'is that if the accident is shown to have happened while the deceased was in the course of his employ ment and at a place where he was discharging the duties .of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the court should ordinarily in the absence of any contrary evidence infer that the accident arose out of the employ ment. There can be no dispute about this principle. In my opinion this principle is to be applied on the facts of each case.
In the present case the learned Subordinate Court finding is that the deceased at the material time was not doing any job for the respondent Co. and was going to take after-noon meal. This finding is fully supported by the evidence on this record.
The two witnesses examined on behalf of the appellant were rightly disbelieved. The appellant's contention that deceased at the material time was carrying the Post Bag of respondent Co. for delivery outside the office is not supported by any independent evidence. The appellant could easily produce Police Mashirnama of the place from where the deceased body was recovered to show that the respondent Co. Post or Post Bag was lying on the spot. In the absence of this evidence, no reliance can be placed on the oral testimony of chance of inter ested witnesses. After considering the evidence on the record I am satisfied that the deceased at the time of the fatal accident was not on duty for the respondent Co. and was not on any outdoor job. Accordingly I see no ground to interfere in this matter. The learned Subordinate Judge was perfectly justified in disallowing the appellant's claim for compensation.
For the reasons given above the appeal is dismissed with no order as to costs.
K. B. A. Appeal dismissed.
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