Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9084 OF 2012

(@ SLP (C) NO. 16063 OF 2007)

Mst. Param Pal Singh Through Father ….Appellant

VERSUS

M/s National Insurance Co. & Anr. .…Respondents

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.Leave granted.

2.This appeal is directed against the judgment of the High

Court of Delhi passed in FAO No.184/2005 dated

23.05.2007. The said appeal before the High Court arose

out of an award passed by the Workmen’s Compensation

Commissioner in its order dated 29.12.2004 in

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Page 2 WCD/113/NWD/02. The Workmen’s Compensation

Commissioner determined the compensation payable to

the appellant herein in a sum of Rs.2,20,280/- along with

another sum of Rs.2500/- as funeral charges under

Section 4(4) of the Workmen’s Compensation Act. A

separate show-cause-notice was issued for payment of

interest and penalty. The respondent herein preferred the

abovesaid appeal in FAO No.184/2005 in which the High

Court passed the impugned order setting aside the order

passed by the Commissioner. It is in the abovesaid

background the appellant-claimant has come forward with

this appeal.

3.At the very outset, it is required to be stated that the

appellant claimed himself to be the adopted son of the

deceased Jeet Singh @ Ajit Singh. According to the

claimant the deceased Jeet Singh @ Ajit Singh was

employed as Truck Driver by the second respondent

herein to drive truck bearing No.DL-IG-8255. It is stated

that in July 2002 the deceased Jeet Singh @ Ajit Singh

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Page 3 was assigned the duty of driving the abovesaid truck in

connection with the trade and business of the second

respondent from Delhi to Nimiaghat, that on 17.07.2002

when the vehicle reached near about the destination

Nimiaghat, District Giridih, the deceased suffered a health

set-back and therefore he parked the vehicle on the road

side of a nearby hotel. It is further stated that immediately

after parking the vehicle he fainted and the persons

nearby took him to the hospital where the doctors

declared that he was brought dead. An FIR was stated to

have been lodged with the police and thereafter the

postmortem was conducted at Civil Hospital, District

Giridih. The said truck was insured with the first

respondent herein. In the abovesaid background the

appellant preferred the application before the

Commissioner of Workmen’s Compensation, Delhi

contending that the death of the deceased was in the

course of his employment with the trade and business of

the second respondent and that his death was due to

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Page 4 stress and strain while driving the said truck continuously

over a period of time. It was further claimed that at the

time of his death the deceased was drawing wages at the

rate of Rs.3091/- per month apart from a sum of RS.50/-

per day as allowances and in all a sum of Rs.4591/- per

month. The age of the deceased was stated to be 45 years

at the time of his death. Appellant also claimed interest @

12% p.a from the date of accident till realization apart

from claiming penalty.

4.The claim of the appellant was resisted by the first

respondent substantively on two grounds. In the first

place it was contended that the appellant had no locus to

file the claim petition inasmuch as he was not a

dependant. It was then contended that the death of the

deceased was due to natural causes and that there was no

CAUSAL CONNECTION between the death of the deceased

and that of his employment. The specific stand of the first

respondent was that the deceased was an unmarried

person, that on that day he was not driving the vehicle

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Page 5 and that one Bhure Singh s/o Dharam Pal Singh was

driving the truck in question and that no accident took

place. The jurisdiction of the Commissioner was also

questioned.

5.Before the Commissioner the biological father of the

appellant examined himself as a witness who was cross-

examined on behalf of the respondents. One Anil Sharma

s/o the second respondent gave evidence on his side who

was cross-examined by the counsel for the appellant. On

behalf of the first respondent one A.B. Dutta was

examined. On behalf of the appellant Exhibits AW1/1 to

AW1/7 and AW1/R were marked. AW1/1 is the copy of

FIR, AW1/2 is the copy of postmortem report, AW1/3 is

the copy of insurance policy, AW1/4 is the copy of

registration certificate, AW1/5 and AW1/6 are copies of

ration card, AW1/7 is the copy of affidavit of Sh. Santokh

Singh regarding the age and name of the deceased and

AW1/R is the Adoption Deed.

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Page 6 6.The Commissioner repelled both the contentions of the

respondents, namely, about the locus of the appellant as

well as the CAUSAL CONNECTION of the death of the

deceased with that of his employment and awarded the

compensation as mentioned above. The learned Judge,

however, held that the death of the deceased was due to

natural causes and it had no CAUSAL CONNECTION with

his employment and also held that the adoption of the

appellant was not proved.

7.We heard Mr. R.K. Nain, learned counsel for the appellant

and Shri M.K. Dua, learned counsel for the respondent(s).

Learned counsel for the appellant strenuously contended

that the impugned judgment of the High Court is liable to

be set aside on both the grounds. According to learned

counsel when once the employment of the deceased with

the second respondent was proved there was every

justification for the Commissioner in having held that the

death of the deceased was in the course of his

employment in an accident arising out of such

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Page 7 employment. It was then contended that the learned

Judge failed to consider the evidence which was placed

before the Court relating to valid adoption of the appellant

by the deceased in a ceremony held for that purpose

where the biological father gave appellant in adoption

when he was three years old which was accepted by the

deceased to be his adopted son. The learned counsel

relied upon the decisions in Lakshman Singh Kothari V.

Smt. Rup Kanwar - AIR 1961 SC 1378, Messrs

Mackinnon Mackenzie & Co. Pvt. Ltd. V. Ritta

Farnandes - 1969 A.C.J. 419, Mackinnon Mackenzie &

Co. Pvt. Ltd. V. Ibrahim Mahmmod Issak 1969 A.C.J.

422, State of Rajasthan V. Ram Prasad and another -

2001 A.C.J. 647, Anand Bihari and others V.

Rajasthan State Road Trans. Corpn. and another -

1991 A.C.J. 848, Lalo Devi V. Superintendent of Mines

-1988 ACJ 886 and Shakuntala Chandrakant Shreshti

V. Prabhakar Maruti Garvali & another - IV (2006)

ACC 769 (SC) in support of his submission.

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Page 8 8.Though notice was duly served on the second respondent,

he did not evince any interest in contesting this appeal.

Learned counsel for the first respondent in his submissions

contended that the judgment of the High Court does not

call for any interference. According to learned counsel

since there was no accident and the death of the deceased

was due to natural causes, no compensation was payable

under the Workmen’s Compensation Act. Learned counsel

also contended that the adoption of the appellant by the

deceased was not proved in the manner known to law.

9.Having heard learned counsel for the respective parties

and having perused the judgment of the learned Judge as

well as that of the Workmen’s Compensation

Commissioner and all other material papers placed before

us, we find that the judgment of the learned Judge cannot

be sustained.

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Page 9 10. In the first instance we wish to deal with the issue

relating to validity of the adoption of the appellant since if

only his adoption is held to be valid there is scope for

examining his right to claim compensation over the death

of the deceased as his adopted son. In Hindu Law in the

celebrated decision of this Court reported in Lakshman

Singh Kothari (supra), the legal requirement for a valid

adoption has been succinctly stated in paragraph 10 which

reads as under:

“10. The law may be briefly stated thus: Under the

Hindu law, whether among the regenerate caste or

among Sudras, there cannot be a valid adoption

unless the adoptive boy is transferred from one

family to another and that can be done only by the

ceremony of giving and taking. The object of the

corporeal giving and receiving in adoption is

obviously to secure due publicity. To achieve this

object it is essential to have a formal ceremony.

No particular form is prescribed for the ceremony,

but the law requires that the natural parent shall

hand over the adoptive boy and the adoptive

parent shall receive him. The nature of the

ceremony may vary depending upon the

circumstances of each case. But a ceremony there

shall be, and giving and taking shall be part of it.

The exigencies of the situation arising out of

diverse circumstances necessitated the

introduction of the doctrine of delegation; and,

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Page 10 therefore, the parents, after exercising their

volition to give and take the boy in adoption, may

both or either of them delegate the physical act of

handing over the boy or receiving him, as the case

may be, to a third party.”

11. The said legal position has been consistently

followed by this Court which can be mentioned by referring

to a recent decision of this Court reported in M. Gurudas

and others V. Rasaranjan and others - 2006 (8) SCC

367. Paragraphs 26 and 27 are relevant for our purpose

which read as under:

“26. To prove valid adoption, it would be

necessary to bring on record that there had been

an actual giving and taking ceremony.

Performance of “datta homam” was imperative,

subject to just exceptions. Above all, as noticed

hereinbefore, the question would arise as to

whether adoption of a daughter was permissible in

law.

27. In Mulla's Principles of Hindu Law, 17th Edn.,

p. 710, it is stated:

“488. Ceremonies relating to adoption.—(1)

The ceremonies relating to an adoption are—

(a) the physical act of giving and receiving,

with intent to transfer the boy from one family

into another;

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Page 11 (b) the datta homam, that is, oblations of

clarified butter to fire; and

(c) other minor ceremonies, such as putresti

jag (sacrifice for male issue).

(2) The physical act of giving and receiving is

essential to the validity of an adoption.

As to datta homam it is not settled whether its

performance is essential to the validity of an

adoption in every case.

As to the other ceremonies, their

performance is not necessary to the validity of an

adoption.

(3) No religious ceremonies, not even datta

homam, are necessary in the case of shudras. Nor

are religious ceremonies necessary amongst Jains

or in the Punjab.”

12. In this context, it will be worthwhile to note the

requirement of registration of an Adoption Deed. Section

17 of the Registration Act specifically refers to the

documents of which registration is compulsory. The deed

of adoption is not one of the documents mentioned in sub-

section 1 of Section 17 which mandatorily required

registration. Sub-section 3 of Section 17 only refers to the

mandatory requirement of registration of an authorization

that may be given for adopting a son executed after

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Page 12 01.01.1872 if such authorization was not conferred by a

Will. Dealing with the said provision relating to

authorization, it has been held in the decision reported in

Vishvanath Ramji Karale V. Rahibai Ramji Karale

and others - AIR 1931 Bombay 105 by a deed of

adoption as distinguished from authority to adopt does not

require registration.

13. Keeping the above statement of law in mind as

regards the procedure to be followed for a valid adoption

and the statutory stipulation that an adoption deed does

not require registration, the claim of the appellant as the

adopted son of the deceased requires to be considered.

We find from the record that the appellant has produced

Exhibit AW1/R which is the copy of the Adoption Deed. To

appreciate the claim of the appellant in the proper

perspective the contents of the said document can be

usefully referred to which reads as under:

“TRUE TRANSLATION IN ENGLISH

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Page 13 Stamp

ADOPTION DEED

1.Ajit Singh son of Surta Singh son of Deva Singh,

am residing at village Dhariwal Kalan, Tehsil &

Distt-Gurdaspur, Punjab (hereinafter called the

first party). That I am unmarried so I have no

children. Keeping in mind that in absence of the

children one becomes without any care. Hence,

for the purpose of proper maintenance a son is

necessary. So, I have thought it fit to take

Master Parampal son of Sh. Santokh Singh and

Smt. Nirmal Kaur (hereinafter called the second

party) resident of village Dhariwal Kalan in

adoption and they have decided to give. Master

Parampal’s date of birth is 8-12-1996. His

bringing up is being done by me and I am

planning to send him to school. For the interest

of his health and medication I myself do care.

Parampal Singh is a very obedient boy and he

always remains obedient to me and show me

utter respect. I always have a great affection for

him. I want that whatever I leave behind be

owned by Parampal Singh. I, in the presence of

all respected persons and Panchayat, adopt

Master Parampal Singh as my son and in the

ceremony goods and sweets are distributed for

the happiness of one and all.

Adoption Deed is reduced in writing for the

purpose of proof.

First party Second party

Ajit Singh LTI Sd/-

Sd/- Gurbax Singh Nirmal Kaur

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Page 14 Sarpanch 15/2/1999 Sd/-

Gram Panchayat Seal & Stamp

Dhariwal Kalan

Witnesses:- Witnesses:-

Sd/- Sd/-

Nishan Singh Tarsem Singh

S/o-Dayal Singh S/o-Bawa Singh

Vill- Chhina Retwala R/o-Dhariwalkalan

15/2/1999 Sd/-

Karnail Singh

Nambardar

Vill-Kallu Sohal”

14. The biological father of the appellant filed his proof

affidavit on behalf of the appellant and offered himself for

cross-examination. In the said affidavit it was specifically

mentioned that the appellant was the dependent of the

deceased workman as his adopted son. In the course of

the cross-examination of the appellant by the

respondents, the witness produced the original Adoption

Deed along with the photocopy and after verifying with the

original the photocopy was marked as Exhibit AW1/R. The

relevant part of cross-examination as regards the adoption

of the appellant can be extracted which are as under:

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Page 15 “……It is correct that Ajit Singh is my elder brother.

At the time of writing of this Adoption Deed there

were 15-20 persons present. Those who were

present were known to me. This Adoption Deed

was written by “SARPANCH OF THE VILLAGE” Shri

Gurbux Singh. At the time of writing of this

‘Adoption Deed’ no mantra ceremony was done. It

is wrong to say that at the time of writing of this

‘Adoption Deed’ Ajit Singh was not present.

‘Adoption Deed’ exbt. AW1/R at point ‘A’ my

signatures are there. At point ‘B’ & ‘C’ there are

signatures of witnesses. At point ‘D’ there was

signature of SARPANCH. At point ‘E’ there are

signatures of another witness. Signatures are of

only five persons. Apart from 15-20 people there

were some women as well. It is wrong to say that

this ‘Adoption Deed’ has been written afterwards.

At the time of writing of this ‘Adoption Deed’

Parampal was 3 years old. It is wrong to say that I

am deposing falsely.”

15. Conspectus consideration of the deed of adoption

and the oral evidence led on behalf of the appellant, we

find that there was a simple ceremony though not a

mantra ceremony held in which the deceased participated

wherein it was expressed that the deceased being a

bachelor thought it fit to take the appellant in adoption for

which the biological parents of the appellant were also

willing to give him in adoption. In the Adoption Deed it was

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Page 16 specifically mentioned that the process of adoption was

carried out in the presence of respected persons of the

Panchayat in a ceremony where goods and sweets were

distributed in commemoration of the function of adoption.

It has come in evidence that the Adoption Deed was

written by Gurbux Singh on 15.02.1999 who was the

Sarpanch of the village at that point of time. The left

thumb impression of the deceased was found affixed in the

Adoption Deed which was signed both by the biological

parents apart from three witnesses, namely, Nishan Singh

s/o Dayal Singh of village Chhina Retwala, Tarsem Singh

s/o Bawa Singh r/o Dhariwalkalan and Karnail Singh

Nambardar of village Kallu Soha. It was stated that about

15 to 20 persons apart from women folk were present at

the time when the adoption ceremony was held. The

suggestion, that the deed was written later on, was duly

denied by the witnesses. It was also stated that the

appellant was just three years old at the time when the

adoption took place. Further Exhibits AW1/5 and AW1/6

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Page 17 are the copies of ration cards in which it is mentioned that

the father of the appellant is Ajit Singh.

16. All the above factors which are born out by records

as well as in the oral version of the witnesses, examined

on behalf of the appellant, in our considered opinion

conclusively proved that the appellant was the adopted

son of the deceased having been adopted as early as on

15.02.1999 i.e. long before the death of the deceased,

namely, 17.07.2002. Unfortunately, the learned Judge in

the impugned judgment has completely misled himself by

rejecting the claim of adoption by holding that the

document was not registered with the Tahsildar, that no

ceremony was held, that the adoptive father was not

present, that there was no giving and taking of the

adopted son and, therefore, the adoption of the appellant

by the deceased not proved. On the contrary, as stated

above, we find that everyone of the prescription required

for a valid adoption were very much present in the form of

both oral and documentary evidence on record and

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Page 18 consequently the conclusion of the learned Judge in having

held that the appellant was not the adopted son of the

deceased cannot be sustained and the same is set aside.

Having reached the above conclusion, we proceed to deal

with the claim of the appellant on merits.

17. On merits to retrace the facts, the deceased Jeet

Singh @ Ajit Singh was employed as truck driver by the

second respondent. His services were utilized for driving

the truck belonging to the second respondent bearing

No.DL-IG-8255. The deceased was driving the said truck

in connection with the commercial transport operation of

the second respondent from Delhi to Nimiaghat on

17.07.2002. According to the claimant when the truck

reached the near about of Nimiaghat, District Giridih, the

deceased felt giddy and, therefore, parked the vehicle on

the road side near a hotel and soon thereafter he stated to

have fainted. The deceased was removed to a nearby

hospital where the doctors declared him brought dead. An

FIR was lodged with the Police Station, Nimiaghat in FIR

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Page 19 No.7/2002 dated 18.07.2002. The postmortem was stated

to have been conducted on 19.07.2002 and thereafter the

dead body was taken to his native place for performing

last rites. The claimant in his application before the

Commissioner submitted that the death of the deceased

was due to the strain and stress of continuous driving in

the course of his employment with the second respondent,

that the vehicle which he was driving bearing No.DL-IG-

8255 was insured with the first respondent vide covering

note No.0968499 for the period of 14.02.2002 to

13.02.2003 and that an additional premium was also paid

for coverage of compensation payable under the

Workmen’s Compensation Act. The claimant, as an

adopted son of the deceased, claimed compensation as his

dependant.

18. As far as the merits of the claim was concerned,

the stand of the first respondent in its written statement

was that the deceased was not in the employment of the

second respondent, that no accident took place in the

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Page 20 course of the employment of the deceased with the

second respondent, that the deceased was not holding a

valid license at the time of alleged accident, that the

deceased was under the influence of alcohol or drug at the

time of alleged accident and, therefore, no compensation

was payable and the first respondent was not liable to pay

any compensation. The second respondent also took the

stand in his written statement that the deceased was not

in his employment and that he was not in his professional

visit in the truck bearing No.DL-IG-8255 to Nimiaghat. It

was also stated that one Bhure Singh s/o Dharam Pal

Singh was driving the said truck and that in all possibilities

the said Bhure Singh might have given lift to the deceased

and the deceased might have died due to heavy dose of

drug with tea.

19. On behalf of the first respondent its Divisional

Manager filed his proof affidavit while on behalf of the

second respondent one Anil Sharma was examined. As far

as the employment of the deceased was concerned, the

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Page 21 Commissioner has noted that the FIR which was marked

as Exhibit AW1/1 disclose that the second driver Bhure

Singh himself admitted therein that the deceased was the

senior driver who was driving the vehicle at the time of his

death. As regards the said piece of evidence contained in

AW1/1 nothing was brought out in his evidence either by

way of trip sheet or attendance register or payment of

wages register or any other document to show that the

deceased was not in the employment of the second

respondent at any point of time or on the fateful day. The

Commissioner also noted that there was no cross-

examination of WW1/A Santokh Singh on that issue. On

the other hand RW.1 Anil Sharma in his cross-examination

admitted that a sum of Rs.10,000/- was given to the

family of the deceased for cremation purposes. Therefore,

the issue relating to the employment of the deceased by

the second respondent as found to have been established

before the Commissioner cannot be assailed.

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Page 22 20. Once we cross the said hurdle only other question

to be considered is whether death of the deceased was in

an accident arising out of and in the course of his

employment with the second respondent? It is common

ground that the vehicle which was driven by the deceased

did not meet with any road accident on 17.07.2002. As a

matter of fact, the deceased while driving the vehicle from

Delhi to Nimiaghat when reached near the destination,

namely, Nimiaghat felt giddy and thereafter stated to have

collapsed as he was found in a faint condition in the

vehicle which he managed to park on the road side.

21. The entitlement to claim compensation is therefore

dependent on fulfillment of the stipulations contained in

Section 3(1) of the Workmen’s Compensation Act, which

read as under:

“3. Employer’s liability for compensation .-(1)

If personal injury is caused to an employee 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 of

this Chapter:

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Page 23 Provided that the employer shall not be so

liable –

(a)…… …… ……

(b)…… …… ……

(i) …… …… ……

(ii)…… …… ……

(iii)…… …… ……”

22. However, there are decisions of the English Court

as early as of the year 1903 onwards stating that

unlooked-for mishap or an untoward event which is not

expected or designed should be construed as falling within

the definition of an “accident” and in the event of such

“untoward” “unexpected” event resulted in a personal

injury caused to the workman in the course of his

employment in connection with the trade and business of

his employer, the same would be governed by the

provisions of Section 3 of the Workmen’s Compensation

Act. Such a legal principle evolved from time immemorial

got the seal of approval of this Court and for this purpose

we can refer to the celebrated decision in Ritta

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Page 24 Farnandes (supra). After referring to the decision of

House of Lords in Clover Clayton & Co. V. Hughes

reported in 1910 A.C. 242 this Court referred to the

relevant passage in the decision of House of Lords in

paragraph 4, which reads as under:

“4. Even if a workman dies from a pre-existing

disease, if the disease is aggravated or accelerated

under the circumstances which can be said to be

accidental, his death results from injury by

accident. This was clearly laid down by the House

of Lords in Clover Clayton & Co. v. Hughes where

the deceased, whilest tightening a nut with a

spanner, fell back on his hand and died. A post

mortem examination showed that there was a

large aneurism of the aorta, and that death was

caused by a rupture of the aorta. The aneurism

was in such an advanced condition that it might

have burst while the man was asleep, and very

slight exertion or strain would have been sufficient

to bring about a rupture. The County Court Judge

found that the death was caused by a strain

arising out of the ordinary work of the deceased

operating upon a condition of body which was such

as to render the strain fatal, and held upon the

authorities that this was an accident within the

meaning of the Act. His decision was upheld both

by the Court of Appeal and the House of Lords:

“No doubt the ordinary accident,” said Lord

Loreburn, L.C. “is associated with something

external: the bursting of a boiler or an

explosion in a mine, for example. But it may

be merely from the man’s own miscalculation,

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Page 25 such as tripping and falling. Or it may be due

both to internal and external conditions, as if

a seaman were to faint in the rigging and

tumble into the sea. I think it may also be

something going wrong within the human

frame itself, such as straining of muscle or

the breaking of a blood vessel. If that

occurred when he was lifting a weight, it

would properly be described as an accident.

So, I think, rupturing an aneurism when

tightening a nut with a spanner may be

regarded as an accident.”

With regard to Lord Macnanghten’s definition of an

accident being “an unlooked for mishap or

untoward event which is not expected or designed”

it was said that an event was unexpected if it was

not expected by the man who suffered it, even

though everyman of commonsense who knew the

circumstances would think it certain to happen.”

23. In a recent decision of this Court in Shakuntala

Chandrakant Shreshti (supra), the factors to be

established to prove that an accident has taken place have

been culled out and stated as under in paragraph 28:

“28.In a case of this nature to prove that accident

has taken place, factors which would have to be

established, inter alia, are:

1.stress and strain arising during the

course of employment

2.nature of employment

C.A. No…………../2012 @ SLP(C) No.16063/2007 25 of

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Page 26 3.injury aggravated due to stress and

strain”

24. In Mallikarjuna G. Hiremath V. Branch

Manager, Oriental Insurance Co. Ltd. and another

reported in AIR 2009 SC 2019 the principles to attract

Section 3 of the Workmen’s Compensation Act have been

stated as under in paragraph 14:

“14.There are a large number of English and

American decisions, some of which have been

taken note of in ESI Corpn’s case (supra) in regard

to essential ingredients for such finding and the

tests attracting the provisions of Section 3 of the

Act. The principles are:

(1) There must be a casual connection

between the injury and the accident and

the accident and the work done in the

course of employment.

(2) The onus is upon the applicant to show

that it was the work and the resulting

strain which contributed to or aggravated

the injury.

(3) If the evidence brought on records

establishes a greater probability which

satisfies a reasonable man that the work

contributed to the causing of the personal

injury, it would be enough for the

workman to succeed, but the same would

depend upon the fact of each case.”

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Page 27 25. The Madhya Pradesh High Court in Smt.

Sundarbai V. The General Manager, Ordnance

Factory, Khamaria, Jabalpur reported in 1976 Lab I.C.

1163 in paragraph 10 the principles have been culled out

as under:

“10.On a review of the authorities, the principles

insofar as relevant for our purposes may be stated

as follows:

(A)Accident means an untoward mishap which is

not expected or designed by the workman.

“Injury” means physiological injury.

(B)“Accident” and “injury” are distinct in cases

where accident is an event happening externally to

a man; e.g. when a workman falls from a ladder

and suffers injury. But accident may be an event

happening internally to a man and in such cases

“accident” and “injury” coincide. Such cases are

illustrated by bursting of an aneurism, failure of

heart and the like while the workman is doing his

normal work.

(C)Physiological injury suffered by a workman

due mainly to the progress of disease unconnected

with employment, may amount to an injury arising

out of and in the course of employment if the work

which the workman was doing at the time of the

occurrence of the injury contributed to its

occurrence.

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Page 28 (D) The connection between the injury and

employment may be furnished by ordinary strain

of ordinary work if the strain did in fact contribute

to or accelerate or hasten the injury.

(E) The burden to prove the connection of

employment with the injury is on the applicant, but

he is entitled to succeed if on a balance of

probabilities a reasonable man might hold that the

more probable conclusion is that there was a

connection.”

26. Again in yet another celebrated decision of this

Court in Ibrahim Mahmmod Issak (supra) this Court

has set down the principles applied in such cases as under

in paragraph 5:

“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 the 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 “arising out of employment” is again

not confined to the mere nature of the

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Page 29 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. Highley,

Lord summer laid down the following test for

determining whether an accident “arose out of the

employment.”

(Emphasis added)

27. Applying the various principles laid down in the

above decisions to the facts of this case, we can validly

conclude that there was CAUSAL CONNECTION to the

death of the deceased with that of his employment as a

truck driver. We cannot lose sight of the fact that a 45

years old driver meets with his unexpected death, may be

due to heart failure while driving the vehicle from Delhi to

a distant place called Nimiaghat near Jharkhand which is

about 1152 kms. away from Delhi, would have definitely

undergone grave strain and stress due to such long

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Page 30 distance driving. The deceased being a professional heavy

vehicle driver when undertakes the job of such driving as

his regular avocation it can be safely held that such

constant driving of heavy vehicle, being dependant solely

upon his physical and mental resources & endurance,

there was every reason to assume that the vocation of

driving was a material contributory factor if not the sole

cause that accelerated his unexpected death to occur

which in all fairness should be held to be an untoward

mishap in his life span. Such an ‘untoward mishap’ can

therefore be reasonably described as an ‘accident’ as

having been caused solely attributable to the nature of

employment indulged in with his employer which was in

the course of such employer’s trade or business.

28. Having regard to the evidence placed on record

there was no scope to hold that the deceased was simply

travelling in the vehicle and that there was no obligation

for him to undertake the work of driving. On the other

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Page 31 hand, the evidence as stood established proved the fact

that the deceased was actually driving the truck and that

in the course of such driving activity as he felt

uncomfortable he safely parked the vehicle on the side of

the road near a hotel soon whereafter he breathed his

last. In such circumstances, we are convinced that the

conclusion of the Commissioner of Workmen’s

Compensation that the death of the deceased was in an

accident arising out of and in the course of his

employment with the second respondent was perfectly

justified and the conclusion to the contrary reached by the

learned Judge of the High Court in the order impugned in

this appeal deserves to be set aside. The appeal stands

allowed. The order impugned is set aside. The order of the

Commissioner for Workmen’s Compensation shall stand

restored and there shall be no order as to costs.

…..……….…………………………...J.

[T.S. Thakur]

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Page 32 …………….

………………………………J.

[Fakkir Mohamed Ibrahim Kalifulla]

New Delhi;

December 14, 2012

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