1970 PLP 600 (PLC)

Held: Merely because the deceased workman did not put on the prescribed dress while operating a machine arid that was the reason why the accident occurred, it cannot be contended Lingam that he was not in the employment of the employer when the accident happened. The proviso to section 3(1)(6) of the Workmen's Compensation Act, 1923, which exonerates the employer from liability Brahma‑ to pay workmen's compensation when the accident is the result of the negligence or wilful disregard of the regulations intended for the safety of the workmen on duty by the injured workman, is not applicable to cases where the injury results in the death of the workman. R. V. Subba Rao for Appellant. A. V. Koteswara Rao for K. Suryanarayana for Respondent. This appeal is directed against an order dated 17th October 1965, of the Commissioner for Workmen's Compensation, Andhra Pradesh, at Hyderabad. The respondent before the Commissioner is the appellant. Purushotham, the husband of the respondent, was in the employment of the appellant as an engine driver in the latter's rice mill at Kurnool. He died on 9th December 1964, and his widow, the respondent, later applied to the Commissioner for Workmen's Compensation in W. C. Case No. 124 of 1965 for compensation alleging that her husband died as a result of the injuries sustained by him in the course of his employment under the appellant. The appellant resisted this claim on the ground that the accident, which resulted in the death of Purushotham, was the outcome of Purushotham's failure to comply with dress regulations while on duty, that contrary to standing instructions and in spite of the fact that he was provided with particular type of dress he tried to work the engine wearing the ordinary dhoti and shirt and that as a result of the shirt getting stuck up on the machine, he died and that the petitioner is, therefore, not entitled to claim any amount by way of compensation. It was also pleaded in the counter filed by the appellant that the deceased was receiving a monthly wage of Rs. 100 alone and not Rs. 150 as alleged by his widow. This case stood posted to 17th September 1965, in the Commissioner's Guntur camp after due notice to both the parties. But the appellant sent a petition to the Commissioner by post on 13th September 1965, seeking an adjournment of the case on the ground that it would be inconvenient for him to attend at the Guntur camp as his witnesses reside in Kurnool. The Commissioner did not, however grant this request and proceeded with the enquiry on the appointed day and awarded Rs. 6,022 in all by way of compensation to the respondent. Hence this appeal. Sri Subba Rao, learned counsel, for the respondent, urged that this is a fit case in which an opportunity should be afforded to his client to have the matter disposed of on merits, particularly because no intimation was sent to him by past or otherwise by the Commissioner, that his application dated 13th September 1965, for adjournment was rejected. I am, however, not impressed with this contention having regard the peculiar facts of this case. The order under appeal would show that every aspect of the defence raised in the counter filed by the appellant was dealt with by the Commissioner before the order awarding compensation was made by him. There is nothing in the counter filed on behalf of the appellant suggesting that Purushotham did not die in the course of employment under him. A feeble attempt in this direction was no doubt made before me by the learned counsel for the appellant but there is absolutely no merit in this contention. It is an undisputed fact that Porushotham died while operating the engine of the mill belonging to the appellant. Assuming, as contended by the appellant, that he did not put on the prescribed dress while operating the machine and that this was the reason why he got involved in the accident and died, it can still not be said that he was not in the appellant's employment when he met with the fatal accident. The mere fact that the deceased violated certain dress regulations while on duty would not at all justify the contention that he could not be deemed to have been in the employment of the appellant at the f relevant time when it is an accomplished fact that death overtook the employee while he was engaged in working the milt belonging to the appellant. It was next contended that the failure of Purushotham to put on the prescribed dress amounted to negligence on his part and that therefore the Commissioner should have refused to grant compensation to his widow. But the Commissioner rightly pointed out that the proviso to section 3(1)(b) of the Workmen's Compensation Act, which exonerates the employer from liability to compensate employees receiving injuries in the course of employment as a result of their own negligence or wilful disregard of regulations intended to ensure their safety while on duty lies only to cases where the employees are simply injured and not to cases in which the injuries so sustained result in the death of the employee. The learned counsel for their appellant has not been able to challenge the correctness of this finding of the Commissioner, obviously because proviso (b) refers in unmistakable terms to an injury not resulting in the death of the employee alone and does not contain anything to support the contention that even in the case of death of the employee, no compensation would be payable if that death was the direct result of any negligence or violation of regulations on the part of the deceased. He has also not been able to refer me to any authority in support of his contention that in the case of the death of an employee as a result of his own negligence, no compensation is payable to his widow. I am, therefore,, convinced that the Commissioner was perfectly correct when he ruled that the petitioner before him was entitled to compensation having regard to the fact that her husband died as result of the injuries received by him in the course of and out of the employment under the appellant. There can be no complaint against the quantum of compensation awarded in view of the fact that the Commissioner accepted the wage as indicated In the result, therefore, the appeal fails and is dismissed with costs.