JAYA BISWAL & ORS.versusBRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE

                       (2016] 1 S.C.R. 299


                     JAYA BISWAL & ORS.                               A
                                v.

BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE
            COMPANY LTD. & ANR.
                  (Civil Appeal No. 869of2016)                        B
                      FEBRUARY 04, 2016
  ' [V. GOPALA GOWDA AND UDAY UMESH LALIT, JJ.]
        Employees 'Compensation Act, 1923- s.3-Employer :~liability
for compensation - Death of truck driver aged 26 years during the
course of employment with employer.,, Claim petition by the parems
                                                                      c
- Case of employer that he was not liable to compensate since the
truck driver died on the spot due to his own negligence - Award of
Rs. 10, 75,2531- as compensation by Commissioner - However, Single
Judge of High Court reduced the compensation to Rs.6,00,0001- as
also waived the award of 50% penalty with interest @l 2% pa - On      D
appeal, held: It is clear that the truck driver died in an accident
which arose in and during the course of employme111 - Though no
negligence on part of the deceased made out as he was merely trying
his best to stop the truck from moving unmanned, even if there were
negligence on his part, it would not disentitle his dependents from
                                                                      E
claiming compensation under the Act '- Commissioner had passed a
well reasoned and elaborate order of award of compensation -
Interference by the High Court by reducing the compensation
amount by more than half by merely mentioning that ii is in the
 'imerest of justice' was uncalled for when the. poor parents have
lost their elder son and became destitute - Rs.10,92,8501- awarded    F
as compensation along with interest @l 2% pa from the date of
accident.
       Allowing the appeal, the Court
      HELD: 1.1 The Employees' Compensation Act, 1923 is a
social welfare legislation enacted to secure compensation to the      G
poor workmen who suffer from injuries at their place of work.
The Act is meant to benefit the workers and their dependents in
case of death of workman dne to accident caused during and in
the course of employment should be construed as such. The
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                               299
300                  SUPRE!'v!E COURT REPORTS              [2016] I S.C.R.



 A    liability of the employer arises when the workman sustains
      injuries in an accident which arises out of and in the course of his
      employment. [Para 18, 19](310-E-F; 311-C-D, F]
            1.2 The submission that the appellants are not entitled to
      any compensation because the deceased died as a result of his
 B    own negligence, cannot he accepted. Section 3 of the Employees'
      Compensation Act does not create any exception of the kind,
      which permits the employer to avoid his liability if there was
      negligence on part of the workman. The Act does not envisage a
      situation where the compensation payable to an injured or
      deceased workman can be reduced on account of contributory
 c    negligence. Mere negligence does not disentitle a workman to
      compensation. [Para 2111312-E-H]
            1.3 On facts, no negligence on part of the deceased has
      been made out as he was merely trying his best to stop the truck
      from moving unmanned, even if there were negligence on his
 D    part, it would not disentitle his dependents from claiming
      compensation under the Act. Thus, it is clear that the deceased
      died in an accident which arose in and during the course of
      employment. [Paras21 and 22] [313-E-FI
            1.4 Since neither of the parties produced any document on
 E    record to prove the exact amount of wages being earned by the
      deceased at the time of the accident, to arrive at the amount of
      wages, the Commissioner took into consideration the fact that
      the deceased was a highly skilled workman and would often be
      required to undertake long journeys outside the state in the line
 F    of duty, especially considering the fact that the vehicle in question
      had a registered National Route Permit. The wages of the
      deceased were accepted as Rs.4,000/- per month + daily bhatta
      of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-
      . The High Court did not give any reason on which basis it
      interfered with the finding recorded by the Commissioner on the
 G    aspect of monthly wages earned by the deceased. The impugned
      judgment does not even mention what according to the High
      Court, the wages of the deceased were at the time of the accident.
      In the light of the well reasoned and elaborate order of award of
      compensation by the Commissioner, the High Court could not
 H
      have reduced the compensation amount by more than half b)·
  JAYA BlSWAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                     301
             INSURANCE CO. LTD. & ANR.

  merely mentioning that it is in the 'interest of justice'. It was   A
  upon the High Court to exp~ain how exactly depriving the poor
  appellants, who have already lost their elder son and become
  destitutes, of the rightful compensation would serve the ends of
  justice. Such an unnecessary interference on part of the High
  Court was absolutely uncalled for. From a perusal of Section 13-
                                                                      B.
. A of the Payment of Wages Act, 1936, it becomes clear that the
  onus to maintain the register and records of wages was on the
  employer-respondent No.2. Since the employer failed in his duty
  to maintain the proper records of wages of the deceased, the
  appellants cannot be made to suffer for it. [Para 22, 23] (314-A-
  E; 315-A-B]                                                         c
        1.5 The monthly wage of the deceased arrived at by the
 Commissioner was Rs.10,000/-. The 'completed years of age on
 the last birthday of the employee immediately preceding the date
 on which the compensation fell due', is 27 years, the factor for
 which is 213.57. Hence, the amount of compensation payable to        D
 the appellants is calculated as under: Rs.10,000/- x 50% x
 Rs.213.57 = Rs.10,67,850/-. Funeral expenses to the tune of
 Rs.25,000/- are also awarded. The total amount of compensation
 payable thus comes to Rs.10,92,850/- along with interest at the
 rate of 12% per annum from the date of accident. The judgment
 .of the High Court suffers from gross infirmity and therefore, the   E
 same is set aside [Paras 25, 26, 24] (315-B-:F]
       T.S. Shylaja v. Oriental Insurance Co. & Am: 2014 (1)
       SCR 35:(2014) 2 SCC 587 - relied on.
       National Insurance Co. Ltd " Mastan & Am: 2005 (5)             F
       Suppl. SCR 704:(2006) 2 SCC 641 - distinguished.
       Pratap Narain Singh Dea v. Srinivas Sabata 1976 (2)
       SCR 872: (1976) 1 SCC 289; Oriental Insurance
       Company Ltd v. Siby George & Ors. 2012 (6) SCR
       1079:(2012) 12 SCC 540; Hariian Mcaw.ri Siddakka
                                                                      G
       & Ors. 1' Oriental Insurance Co. Ltd. & Am: 2008 (10)
       SCR 1099: (2008) 16 SCC 115; Macki1111011 Mackenzie
       & Co. (P) Ltd. v. Ibrahim Mohd. Issak 1970 (1) SCR
       869: (1969) 2 SCC 607; Khenyei v. New India
       Assurance Co. Ltd. 2015 (5) SCRJ58: (2015) 9 SCC
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302                   SUPREME COURT REPORTS                [2016] I S.C.R.


 A           273; Ved Prakash v. Premi Devi & Ors. 1997 (4) Suppl.
             SCR 250: (1997) 8 SCC 1; Regional Direct01: E.S.I.
             Corporation & Anr. v. Francis De Costa & Anr. 1996
             (5) Suppl. SCR 797: (1996) 6 SCC 1; Janaki Ammal v.
             Divisional Engineer (1956) 2 LLJ 233 - referred to.
 B           Harris v. Associated Portland Cement Manufacturers
             Ltd. 1939 AC 71 - referred to.
                             Case Law Reference
      1976 (2) SCR 872                     referred to      Para 11

 c    2912 (6) SCR 1079                    referred to       para 11
      2008 (10) SCR 1099                   referred to      Para 12
      1970 (1) SCR 869                     referred to      Para 13
      2015 (~) SCR 158                     referred to      Para 14
 D    1997 (4) Suppl. SCR 250              referred to      Para 16
      1996 (5) Suppl. SCR 797              referred to      Para 19
      (1956) 2 LLJ 233                     referred to      Para 21
      2005 (5) Suppl. SCR 704              distinguished    Para 21
 E    2014 (1) SCR 35                      relied on        Para 22
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 869 of
      2016
           From the Judgment and Order dated 13.08.2014 of the High Court
 F    ofOrissa at Cuttack, in the FAO No. 472 of2013
             Alakh Alok Srivastava, Kedar Nath Tripathy, M.A. Aleem Majid
      for the Appeal Ian ts.
             K. K. Bhat, Ranjan Kumar Pandey for the Respondents.
             The Judgment of the Court was delivered by
 G
             V. GOPALA GOWDA, J. 1. Leave granted.
            2. The present appeal arises out of the impugned judgment and
      order dated 13.08.2014 passed in F.A.O. No. 472 of2013 by the High
      Court of Orissa at Cuttack, wherein the learned single Judge reduced
 H    the amount of compensation awarded to the appellants by the learned
 JAYA BJSWAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                              303
     INSURANCE CO. LTD. [Y. GOPALA GOWDA. J.]

Commissioner for Employees' Compensation from Rs.10,75,253/- to               A
Rs.6,00,000/- and also waived the award of 50% penalty with interest.
      3. The brief facts of the case required to appreciate the rival legal
contentions advanced on behalf of the parties are stated here under:
       The elder son of appellant Nos. I and 2 worked as a truck driver
                                                                         B
with one Bikram Keshari Patnaik (respondent no. 2 herein). On
19.07.2011, he met with an accident while on his way to deliver wheat
bags in the truck from Berhampur, Orissa to Paralakhemundi, Andhra
Pradesh. He sustained severe injuries on the back of his head and died
on the spot.The cleaner of the truck, who was present at the time of the
accident; gave information regarding the accident tb the Mandasa Police       c
Station, Srikakulam, whose personnel reached the spot and conducted
the inquest, prepared the panchnama and sent the body of the deceased
for post mortem. The cleaner also informed the father of the deceased
(Appellant No. I herein), who made arrangements for taking the dead
body of his son back to the native village for cremation. On 03.11.2011,
the appellants, being the father, mother and younger brother of the D
deceased, filed claim petition W.C. Case No. 61 of 2011 before the
Court of the Commissioner for Workmen's Compensation, Berhampur,
Ganjam District. The claim of the appellants was that the deceased was
aged around 26 years at the time of death and had died while he was in
and during the course of employment of respondent no. 2 herein. They
claimed that he was getting monthly wages at Rs.4,000/- per month,
daily bhaita (allowance) at Rs.200/- which comes to Rs.6,000/- per
month, along with additional trip benefit amounting to Rs.3,000/-, the
total amounting to Rs.13,000/- per month. On this basis, they claimed a
 lump sum of Rs.18,00,000/- as pecuniary damages towards loss of past
and future wages and loss of earning. They claimed additional amount     F
of Rs.20,000/- towards funeral expenses, Rs.30,000/- towards mental
agony, physical shock and pain, and Rs.50,000/- towards expectation
of life and Rs.1,00,000/- towards loss of estate, inconvenience and
 hardships caused to the family members of the deceased on account of_
the death of deceased.                                     ·             G
       4. In response, the owner of the truck, respondent no.2 herein
filed a Written Statement and denied his liability. He claimed that he was
not liable to compensate the deceased as h.e had died on the spot due to
his own negligence, as he had tried to enter the vehicle while it was 1n
motion. Respondent no. 2 also contended that in any case he is not liable
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304                   SUPREME COURT REPORTS                    [2016 J I S.C.R.



 A to pay the amount as claimed by the appellants. He submitted in the
      Written Statement that he has been paying only Rs. I 00/- per day as
      wages, and Rs. SO/- per day as bhatta. Further, he had already given
      financial assistance to the father of the deceased for the cremation. The
      learned Employees Compensation - cum- Assistant Labour
      Commissioner considered the above aspect of the matter at length and
 B
      arrived at the conclusion that the deceased was working in the
      employment of Respondent no.2 at the time of his death and that he had
      lost his life in an accident caused during and in the course of his
      employment with Respondent no.2. The learned Commissioner relied
      upon the testimony of the witnesses to construct the following chain of
 c    events leading up to the accident:
            "The deceased was working as a driver in truck No. OR I SJ-
            1047 owned by the O.P.I. ..... On 19-07-2011 at about 4.30 A.M.,
            the deceased received personal back head injury near Sandhigam
            village by vehicular accident arising out of and in course of his
 D          employment as a driver of the truck No. OR I SJ- I 04 7 which was
            loaded with wheat bags. He along with the cleaner Sarada Prasana
            Patnaik loaded the said wheat bags on 18-07-2011 at about 11.30
            P.M. at godown. On the way, they stopped and kept the vehicle
            and took the rest and slept there on 18-07-2011. Another truck
            bearing No. OR 078-8791 which was also followed with the
 E          offending vehicle had also halted and stopped there along with
            them. They all had taken rest and slept there and got up early
            morning at about 4.30 A.M. on 19.07.2011 and started to proceed
            to Paralakhemundi for unloading the goods. While to proceed, the
            deceased had started the vehicle but the vehicle did not start.
 F          Hence, the deceased and the cleaner got down from the vehicle
            and checked the battery box and removed the wooden log piece
            kept for obstructing the right wheel of the said truck. After removal
            of the wooden log piece, the vehicle moved to run down. The
            deceased saw that the vehicle was moving ahead, he immediately
             climbed into the vehicle through the iron stepping of the truck, but
 G           unfortunately, he fel I down from the truck and sustained severe
             and grievous bleeding injuries on the back side of the head and
            died at the spot. The vehicle proceeded few distance on the public
             road and capsized in the field. Thereafter, he and the cleaner of
            the vehicle saw the condition of the deceased and had consulted
 H           with the village Revenue OfficerofSandigam village and told the
  JAVA BIS WAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                                305
       INSURANCE CO. LTD. [V. GOPALA GOWDA. J.]

       fact. They immediately reported the matter to the police, Mandasa          A
       Police Station and informed the same to the O.P.l as well as to
       the father of the deceased."
       5. Further, Respondent no.2 had also admitted before the learned
Commissioner that the death of the deceased had occurred due to an
accident arising out of and during the course of the employment for               B
which a compromise was sought to be reached by Respondent no.2
with the appellants, to the amount of Rs.3,50,000/-. Accordingly, the
learned Commissioner came to the conclusion that the deceased was an
'employee' within the meaning of the Employee's Compensation Act,
1923 (hereinafter referred to as the "E.C. Act") and had died in an
accident arising out of and in the course of his employment under                 c
Respondent no.2. The learned Commissioner, relying on the date of birth
of the deceased as 0 I .07.1984, as mentioned in the driver's license and
Transfer Certificate, came to the conclusion that the age of the deceased
was 27 years at the time of the accident. On the question of the monthly
wages being earned by the deceased at the time of his death, the learned          D
Commissioner concluded that the contentions advanced by Respondent
no.2 that he was being paid wages of Rs. I 001- per day and bhatta of
Rs. 50/- per day cannot be believed. The vehicle in which the accident
had occurred possessed a National Route Permit, and the deceased
often drove the vehicle to destinations outside the state. He was also a
highly skilled workman. In the light of the said fact stated by the appellants,   E
the wages of Rs.4,000/- per month and bhatla of Rs.200/- per day and
trip charges of Rs.3,000/- per month (i.e.Rs.13,000/- per month) seemed
genuine. Accordingly, the learned Commissioner calculated the
compensation as under:
       Rs.3,000/- (wage limited to) x 50% x 213.57 (27 years of age               F
factor)
       = Rs.8,54,280/-

 -, · The learned Commissioner fu11her awarded an interest @ I 2%
per annum to the appellants from the date of accident, as well as
                                                                                  G
Rs.20,000/- as the cost of proceedings, the total amount of compensation
thus coming to Rs. I 0, 75, 253/-.        + .

       6. Aggrieved by the same, the Insurance Company filed an appeal
  <der Section 30 of the E.C. Act before the High Court of Orissa at
  uttm:k. The learned single Judge allowed the appeal and set aside the
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306                   SUPREME COURT REPORTS                    [2016] I S.C.R.



 A    award passed by the learned Commissioner. The learned single Judge
      of the High Court held as under:
            "Considering the submissions made by the learned counsel for
            the parties and keeping in view the findings of the Commissioner
            as given in the impugned award with regard to the quantum of
 B          compensation amount awarded and the basis on which the same
            has been arrived at, I feel, the interest of justice would be best
            served, if the awarded compensation amount of Rs. I 0, 75,253/- is
            modified and reduced to Rs.6,00,000/- However the award of
            50% penalty with interest @12% per annum is not proper and
            justified and the same is accordingly waived. Accordingly, the
 c          claimants are entitled to modified compensation amount of
            Rs.6,00,000/- on which no penalty or interest is payable. The
            impugned award is modified to the said extent only."
             7. The present appeal has been filed by the appellants challenging
      the correctness of impugned judgment and order passed by the High
 D    Court.
             8. Mr. Alakh Alok Srivastava, the learned counsel appearing on
      behalfofthe appellants contends that the High Court committed a grave
      error in entertaining an appeal under Section 30(1) of the E.C. Act,
      which reads as under:
 E
            "30. Appeals (l) An appeal shall lie to the High Court from the
            following orders ofa Commissioner namely:-
            (a) an order as awarding as compensation a lump sum whether
            by way of redemption of a half-monthly payment or otherwise or
            disallowing a claim in full or in part for a lump sum;"
 F
                       *************************************
            The proviso to the Section reads as under:
            "Provided that no appeal shall lie against any order unless a
            substantial question of law is involved in the appeal and in the
 G
            case of an order other than an order such is referred to in clause
            (b) unless the amount in dispute in the appeal is not less than three
            hun~red rupees ... "

                                                 (emphasis laid by this CoU1i)

 H
     JAYA BISWAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                            307
          INSURANCE CO. LTD. (V. GOPALA GOWDA, J.]

       9. The learned counsel contends that the High Court could not            A
have entertained the appeal under Section 30( I) of the E.C. Act in the
light of the fact that no substantial question of law was involved in the
appeal. The learned counsel places reliance on a decision of this Court
in the case of T.S. Shylaja v. Orie11tal /11sura11ce Co. & A11r. ', wherein
this Court held that the High Court committed an error in entertaining an
appeal against the decision of the Compensation Commissioner without            B
answering or framing any substantial question of law. In that case, this
Court held as under:
          "10. The only reason which the High Court has given to upset the
          above finding of the Commissioner is that the Commissioner could
          not blindly accept the oral evidence without analysing the c
          documentary evidence on record. We fail to appreciate as to what
          was the documentary evidence which the High Comt had failed
          to appreciate and,what was the contradiction, if any, between
          su.ch documents and the version given by the witnesses examined
          before the Commissioner. The High Court could not have, without D
          adverting to the documents vaguely referred to by it have upset
        · the finding of fact which the Commissioner was entitled to record.
          Suffice it to say that apa1t from appreciation of evidence adduced
          before the Commissioner the High Court has neither referred to
          nor detennined any question oflaw much less a substantial question
          of law existence whereof was a condition precedent for the E
          maintainability of any appeal under Section 30. Inasmuch as the
          High court remained oblivious of the basic requiren1ent of law for
          the maintainability of an appeal before it and inasmuch as it treated
          the appeal to be one on .facts it committed an error which needs.
          to be corrected."                                                     -~F

           1O.The learned counsel further places reliance on the decision of
. this Court in the case of N11tio1111/ /1mm111ce Co. Lf<l v. Must<m &
  A11r.', wherein it was held.that an appeal under Section 30 of the E.C.
  Act would be maintainable subject to the limitations placed under Section
 30~[                                                                            G
      . 11.The learned counsel further contends that the High Court
 patently erred in waiving off the 50% penalty alongwith the 12% interest


 I   (2014) 2 SCC.587
 '(2006) 2 sec 641                                                               H
308                      SUPREME COURT REPORTS                  [2016] I S.C.R.



 A    payable by Respondent No. I in case of default without assigning the
      cogent reason. The learned counsel places reliance on a Four Judge
      Bench decision of this Court in the case of Prlltllp Nllrlli11 Si11::1t Deo
      v. Srinivas Sllhata-', wherein this Court held that the amount of
      compensation is payable from the date of accident and not from the date
      of award. The same was reiterated by a Division Bench of this Court in
 B
      the case of Orie11tlll Insurance Compllny Ltd. v. Sihy George & Ors.',
      wherein after referring to several decisions of the Court, it was held
      that:
             "In the light of the decisions in Pratap Narain Singh Deo and
             Valsala K., it is not open to contend that the payment of
 c           compensation would fall due only after the Commissioner's order
             or with reference to the date on which the claim application is
             made."
             12. The learned counsel further contends that the High Court
      committed an error in reducing the amount of compensation awarded by
 D    the learned Commissioner without assigning any cogent reasons. Further,
      there was no discussion in the impugned judgment as to whether there
      was any connection between the death of the deceased and the use of
      the offending vehicle. The learned counsel places reliance on the decision
      of this Court in the case of H11rijan Mangri Sidd11kka & Ors. v.
 E    Oriental Insurance Co. Ltd. & A11r. -', wherein it was held as under:
             "We find that there is practically no discussion on the factual
             scenario as to whether there was any connection between the
             death and the use of the vehicle. It would depend upon the factual
             scenario in each case and there cannot be any straitjacket formula
 F           to be applied."
               13.The learned counsel further contends that the deceased had
      died as a result of an injury sustained in an accident arising out of and in
      the course of employment. He placed reliance on the decision of this
      Court in Mackinnon Mackenzie & Co. (P) Ltd. v. lhraltim Moltd.
 G
      Jssak 6 , wherein it was held as under:


      '(1976) 1 SCC289
      '(2012) 12 sec 540
      '(2008J 16 sec 11s
 H    '· t 1969) 2 sec 607
  JAYA BISWAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                                    309
       INSURANCE CO. LTD. [V. GOPALA GOWDA. J.]

       "To come within the Act the injury by accident must arise both                A
       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 the employment. injury has resulted from
                                                                                     B
       some risk incidental to the duties of the service, when, 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
                                                                                     c
       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 or           D
       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
       itnprudent act."
       14. The learned counsel contends that the judgment of the High                E
 Court thus being wholly and patently erroneous is liable to be set aside
 and the order of award of compensation passed by the learned
 Commissioner be restored.
          1S.On the other hand. Mr. K.K. Bhat. the learned counsel
  appearing on behalf of the respondent Insurance Company contends            F
  that the High Court has·been compassionate and reasonable in allowing
. even the amount of compensation it did award, considering the fact
  situat_ion of the case on hand. In fact, the appellants are not entitled to
  any compensation whatsoever when the deceased himse If was solely
  negligent and responsible for the accident ;vhich resulted in his death.
  The learned counsel places reliance on the three judge Bench decision G
  of this Court in the case of Khe11yei v. New buliu AH11ra11ce Co. Ltd.', .
  wherein it was held as under:


 '1201s19 sec 273
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310                     SUPREME COURT REPORTS                  [2016) I S.C.R.



 A          "In the case of contributory negligence, a person who has himself
            contributed to the extent cannot claim compensation for the injuries
            sustained by him in the accident to the extent of his own
            negligence ...... "
             16.The learned counsel further contends that the Insurance
 B    Company is not liable to pay the penalty in any case. He places reliance
      on the decision of this Court in the case of Ved Prakash v. Premi Devi
      & Ors.•, wherein this Court held as under:
            "In other words the insurance company will be liable to meet the
            claim for compensation along with interest as imposed on the
 c          insured employer by the Workmen's Commissioner under the
            Compensation Act on the conjoint operation of Section 3 and
            s,ection 4-A Sub-section (3)(a) of the Compensation Act. So far
            as additional amount of compensation by way of penalty imposed
            on the insured employer by the Workmen's Commissioner under
            Section 4A(3)(b} is concerned, however, the insurance company
 D          would not remain Iiable to reimburse the said claim and it would
            be the liability of the insured employer alone."
             Ii'. We h.ive heard the learned counsel appearing on behalf of
      both the parties. We are unable to agree with the contentions advanced
      by the learned counsel appearing on behalf of the respondent Insurance
 E    Company.
            18. The E.C. Act is a welfare legislation enacted to secure
      compensation to the poor workmen who suffer from injuries at their
      place of work: This becomes clear from a perusal of the preamble of
      the Act which reads as under:
 F
            "An Actto provide forthe payment by certain classes of employers
            to their workmen of compensation for injury by accident."
            This further becomes clear from a perusal of the Statement of
      Objects and Reasons, which reads as under:

 G           " ...... The growing complexity of industry in this country, with
            the increasing use of machinery and consequent danger to
            workmen, alongwith the comparative poverty of the workmen
            themselves, renders it advisable that they should be protected, as
            far as possible, from hardship arising from accidents.

 H    '(1997) s sec 1
 J_AYA BISWAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                              3I1
      INSURANCE CO. LTD. [V. GOPALA GOWDA, J.]

      An additional advantage of legislation of this type is that by           A
      increasing the importance for the employer of adequate safety
      devices, it reduces the number of accidents to workmen in a manner
      that cannot be achieved by official inspection. Further, the
      encouragement given to employers fo provide adequate medical
      treatment for their workmen should mitigate the effects to such
                                                                               B
      accidents as do occur. The benefits so conferred on the workman
      added to the increased sense of security which he will enjoy, should
      render industrial life more attractive and thus increase the available
      supply of labour. At the same time, a corresponding increase in
      the efficiency of the average workman may be expected."
                                           (emphasis laid by this Court)       c
      Thus, the E.C. Act is a social welfare legislation meant to benefit
      the workers. and their dependents in case of death of workman
      due to accident caused during and in the course of employment
      should be construed as such.
                                                                               D
     Section 3 of the E.C. Act provides for employer's liability for
compensation and reads as:
      " 3 (1) If personal injury is caused to a workman by accident
      arising out of and in the course of his employment his employer
      shall be liable to pay compensation in accordance with the provisions    E
      qf this Chapter"
                                           (emphasis laid by this Court)
       19. The liability of the employer, thus, arises, when the workman
sustains injuries in an accident which arises out of and in the course of .
his employment. In the case of Regional Director, E.S.I. Corporation F
& Anr. " Francis De Costa & Anr. ', a Three Judge Bench of this
Court held as under:
      "In the case of Dover Navigation Company Limited v. Isabella
      Craig 1940 A.C. 190, it was observed by Lord Wright that-
      Nothing could be simpler than the words "arising out ofand it\.the _: G
      course of the employment." It is clear that there are two conditions
      to be fulfilled. What arises "in the course of the employment is to
      be distinguished from what arises "out of the employment." The

'(1996)6SCC I                                                                  H
312                    SUPREME COURT REPORTS                    [2016] I S.C.R.



 A           former words relate to time conditioned by reference to the man's
             s,ervice, the latter to causality. Not every accident which occurs
             to a man during the time when he is on his employment, that is
             directly or indirectly engaged on what he is employed to dq, gives
             a claim to compensation unless it also arises out of the employment.
             Hence the section imports a distinction which it does not define.
 B
             The language is simple and unqualified.
             Although the facts of this case are quite dissimilar, the principles
      laid down in this case, are instructive and should be borne in mind. In
      order to succeed, it has to be proved by the employee that (I) there was
      an accid1~nt, (2) the accident had a causal connection with the employment
 c    and (3) the accident must have been suffered in course of employment."
             20. The learned counsel appearing on behalf of the appellants has
      also rightly placed reliance on the decision of this Court in the case of
      Mackinnon Mackenzie (supra). In the facts of the instant case, the
      deceased was on his way to deliver goods during the course of
 D    employment when he met with the accident. The act to get back onto
      the moving truck was just an attempt to regain control of the truck,
      which given the situation, any reasonable person would have tried to do
      so. The accident, thus, fairly and squarely arose out of and in the course
      of his employment.
 E        21. The next contention which needs to be dispelled is that the
   appellants are not entitled to any compensation because the deceased
   died as a result of his own negligence. We are unable to agree with the
   same. Section 3 of the E.C. Act does not create any exception of the
   kind, which permits the employer to avoid his liability if there was
 F negligence on part of the workman. The reliance placed on the decisions
   of this Court on Contributory negligence like the Three Judge Bench
   decision in the case of Mastaan (supra) is wholly misplaced as the
   same have been passed in relation to the Motor Vehicles Act, 1988, and
   have no bearing on the facts of the case on hand. The E.C. Act does not
   envisage a situation where the compensation payable to an injured or
 G deceased workman can be reduced on account of contributory negligence.
   It has been held by various High Courts that mere negligence does not
   disentitle a workman to compensation. Lord Atkin in the case of Harris
   v. Assosciated Portland Cement Manufacturers Ltd. '"observed as
   under:
 H
      ''' 1939 AC 71
· JAYA BISWAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                               313
      INSURANCE CO. LTD. (Y. GOPALA GOWDA. J.]

         "Once you have found the work which he is seeking to be within·        A
         his employment the question of negligence, great or small, is
         irrelevant and no amount of negligence in doing an employment
         job can change the workman's action into a non-employment job
         ... In my opinion if a workman is doing an act which is within the
         scope of his employment in a way which is negligent in any degree
                                                                                 B
         and is injured by a risk incurred only by that way of doing it he is
         entitled to compensation."
      The above reasoning has been subsequently adopted by several
High Courts. In the case of J11n11kiAmm11h Division11/ Engineer 11 ,the
High Court of Madras held as under:
                                                                                c
          "Men who are employed to work in factories and elsewhere are
          human beings, not machines. They are subject to human
          imperfections. No man can be expected to work without ever
       .. allowing his attention to wander, without ever making a mistake,
          or slip, without at some period in his career being momentarily
          careless. Imperfections of this and the Iike nature form the ordinary · D
         .hazards of employment and bring a case of this kind within the
          meaning of the Act."
       While no negligence on part of the deceased has been made out
from the facts of the instant case as he was merely trying his best to
stop the truck from moving unmanned, even ifthere were negligence on             E
his part, it would not disentitle his dependents from claiming compensation
under the Act.
       22. Thus, what becomes clear from the preceding discussion is
that the deceased died in an accident which arose in and during the
course of employment. The learned counsel for the appellants has rightly         F
placed reliance on the decision of this Court in the case of T.S. Slry/11j11
(supra), wherein referring to proviso of Section 30 of the E.C. Act, this
Court held as under:
         "What is important is that in terms of the 1st proviso, no appeal is
         maintainable against any order passed by the Commissioner unless        G
         a substantial question oflaw is involved. This necessarily implies
         that the High Court would in the ordinary course formulate such a
         question or at least address the same in the judgment especially


II   (1956) 2 LLJ 233                                                            H
314                    SUPREME COURT REPORTS                    (2016] I S.C.R.


 A          when the High Com1 takes a view contrary to the view taken by
            the Commissioner."
             In the light of the well reasoned and elaborate order of award of
      compensation, the High Court could not have reduced the compensation
      amount by more than half by merely mentioning that it is in the 'interest
 B    ofjustice ·. It was upon the High Court to explain how exactly depriving
      the poor appellants, who have already lost their elder son, of the rightful
      compensation would serve the ends of justice.
              23. Since neither of the parties produced any document on record
      to prove the exact amount of wages being earned by the deceased at
 c    the time of the accident, to arrive at the amount of wages, the learned
      Commissioner took into consideration the fact that the deceased was a
      highly skilled workman and would often be required to undertake long
      journeys outside the state in the line of duty, especially considering the
      fact that the vehicle in question had a registered National Route Permit.
      The wages of the deceased were accepted as Rs.4,000/- per month +
 D    daily bhalla of Rs.6,000/- per month, which amounts to a total of
      Rs. I 0,000/-. The High C()urt did not give any reason on which basis it
      interfered with the finding recorded by the Commissioner on the aspect
      of monthly wages earned by the deceased. The impugned judgment
      does not even mention what according to the High Court, the wages of
 E    the deceased were at the time of the accident. Such an unnecessary
      interference on part of the High Court was absolutely uncalled for,
      especially in light of the fact that the appellant Nos. I and 2 are old and
      have lost their elder son and they have become destitutes. Further, under
      the Payment of Wages Act, 1936, the onus is on the employer to maintain
      the register and records of wages, Section 13A of which reads as· under:
 F
             "13-A. Maintenance of registers and records-
             ( I) Every employer shall maintain such registers and records giving
             such particulars of persons employed by him, the work performed
             by them, the wages paid to them, the deductions made from their
 G           wages, the receipts given by them and such other particulars and
             in such form as may be prescribed.
             (2) Every register and record required to be maintained under this
             section shall, for the purposes of th is Act, be preserved for a
             period of three years after the date of the last entry made therein."
 H
 JAYA BISWAL v. BRANCH MANAGER, IFFCO TOKIO GEN.                              315
     INSURANCE CO. LTD. [V. GOPALA GOWDA J.]

       From a perusal of the aforementioned section it becomes clear          A
       that the onus to maintain the wage roll was on the employer, i.e .
     . Respondent No.2. Since. in the instant case, the employer has
       failed in his duty to maintain the proper records of wages of the
       deceased, the appellants cannot be made to suffer for it.
       24. In view of the foregoing, the judgment and order of the High       B
Court suffers from gross infirmity as it has been passed not only in
ignorance of the decisions of this Court referred to supra, but also the
provisions of the E.C. Act and therefore, the same is liable to be set
aside and accordingly set aside.
      25.The monthly wage of the deceased arrived at by the learned           c
Commissioner was Rs. I 0,000/-. The date of birth of the deceased
according to the Driver's License produced on record is 01.07.1984.
The date of death of the deceased is 19.07.2011. Thus, according to
Schedule IV of the E.C. Act, the 'completed years of age on the last
birthday of the employee immediately preceding the date on which
the compensation fell due', is 27 years, the factor for which is 213 .57.     D
Hence, the amount of compensation payable to the appellants is calculated
as under:
       Rs. I 0,000/-x 50% x Rs.213.57 =Rs. I 0,67,850/-.
       Funeral expenses to the tune of Rs.25,000/- are also awarded.
                                                                              E
      The total amount of compensation payable thus comes to
Rs.10,92,850/-.
       26. Further, an interest at the rate of 12% per annum from the
date ofaccident, that is 19.07.2011, is also payable to the appellants over
the above awarded amount. In light of the unnecessary litigation and the      F
hardship of the appellants in spending litigation to get the compensation
which was rightly due to them under the Act, we deem it fit to award the
appellants costs as Rs. 25,000/-.
       27. Appeal is accordingly allowed. The respondent-Insurance
Company is directed to deposit the amount within six weeks from today         G
with the Employees Compensation Commissioner. On such deposit, he
shall disperse the same to the appellants.
Nidhi Jain                                                  Appeal allowed.