1984 PLP 870 (PLC)

(c) Workmen's Compensation Act (VIII of 1923)- -- S. 30-Appeal-Only substantial, questions of law can be agitated in appeal-Plea that legal heirs of deceased workman had already received amount towards group insurance hence no further compensation was payable-Such plea, held, raises no substantial question of law. Choudhry Rasheed Ahmed for Appellant. Izzat Khan Jokhio for Respondent. Date of hearing : 30th August, 1983. The facts leading up to this appeal briefly stated are that one Ahmed ton of Imam was employed as a helper with the appellants at Jhampir Railway Station. His duty was to work on the water supply pump and draw water from the well. Along with one Muhammad son of Jummo, Water Pump Driver. On the night between 28th and 29th of March, 1980 at about 12-15 a. m., he was found having fallen into the well and when his body was taken out on the following morning, he was found to be dead. His father, the respondent Imamuddin was called and informed about the incident. Subsequently, he was paid Rs. 7 500 as dues towards group Insurance of his deceased son by the Railway Administration.. Imamuddin, the respondent then filed an application before the Com missioner, Workmen's Compensation on 18th March, 1981 under the Workmen's Compensation Act for payment of compensation, claiming to be the dependent of the deceased. The Commissioner, vide his order, dated 28th May, 1983 directed the appellants to deposit Rs. 15,000 towards the payment of compensation to the respondent and allowed the application accordingly. The appellants aggrieved by this order have come up in this appeal under section 30 of the Workmen's Compensation Act, 1923. 2. 1 have persued the relevant evidence adduced by the parties before the learned Commissioner and have also heard the learned Advocates of the parties, Mr. Chaudbry Rasheed Ahmed for the appellant and Mr. Izzat Khan Jokhic for the respondent. The respondent in support of his claim examined himself as well as his two witnesses, Muhammad son of Jummo Jokhio, the Water Pump Driver at Jhampir Railway Station and Abdul Aziz, the Gateman, whereas the appellant have examined Muhammad Naeemuddin, U. D. C. working in the office of the Divisional Superintendent, Raiiway, Karachi.

3. The learned Advocate appearing on behalf of the appellants, Mr. Choudhry Rasheed Ahmed has raised three-fold contention ; firstly, that the accident resulting in the death of the deceased, Ahmed son of Imamuddin did not arise out of and in the course of his employment within the meaning of section 3 of the Workmen's Compensation Act, and therefore the appellants are not liable to pay compensation ; secondly, that the deceased was nol a workman within the meaning of section 2 (n) of the Workmen's Compensation Act, 1923 and thirdly, that since the respondent has already been paid Rs. 7,500 towards group insurance, he would not be entitled to be paid more towards the compensation.

4. As regards the first contention raised on behalf of the appellant Railway Administration's counsel, Mr. Choudhry Rasheed Ahmed, there is no dispute that the deceased! Ahmed died as a result of falling into the well during the night in between 28th and 29th of March, 1980. His co worker Muhammad a Driver or. the Water Pump machine, examined by the respondent has deposed that on the night of the incident be got up from sleep on a cry and found deceased Ahmed missing from his quarter and when he went to the well found some thing inside and on reporting to the authorities, his dead body was taken out the next morning. He has further deposed that the nature of the duty of deceased Ahmed as a helper and drawing water from the well and supplying the same to the offices at the Railway Station was such that usually he used to be present at the well and some time even during night tinge. Similar is the evidence of the Gateman. Abdul Aziz, a co-worker at the Railway Station, examined by the respondent in support of his claim. Muhammad Naeemuddin examined by the appellants admittedly working in the office of the Divisional Superintendent of Railway, Karachi has no personal knowledge of the incident which resulted in the death of the deceased. He has given his evidence from what was reported to him. His version to the effect that deceased Ahmed fell into the well as he was sleeping on the surface of the well with the result that he fell down into the well through the hole, is not supported by any direct evidence on the record, though so many other employees of the Railway administration available at the Railway Station, Jhampir could have direct knowledge of the incident, but no body has come forward to depose in support of the version of the appellants of that effect. Accordingly, the version of the respondent and his witnesses Muhammad and Abdul Aziz appears to me more reliable and worthy of credit to the effect that the deceased Ahmed had happened to be present at the well at the time of the incident due to the nature of his duties so as to supply water to the Railway Station and its offices, otherwise no other earthly reason can possibly be imagined for his such presence at the well at the time. Mr. Choudhry Rasheed Ahmed appearing on behalf of the appellants has mainly contended that in case the deceased was negligent or there was a deviation of rules or disobedience of specific orders of the employer on his part, the employer would not be liable to pay compensa tion in such circumstances. As already discussed by me above, in view of the evidence available on the record, neither there appears any negligence on the part of the deceased nor there is any allegation that he in any manner either denied or disobeyed the specific rules or the orders from his superiors while being present at the well, where he usually used to be available not only during his duty hours, but even outside such duty hours in view of the nature of his duties. The learned counsel has also contended that according to the Roster or duties, the deceased was not required to be available at the well at the alleged time of the incident. What I find from the direct evidence available which I have already discussed to be reliable in the circumstances of the present case, that the deceased used to be present at the well in view of the nature of his duties even outside his prescribed duty hours and very often even during night time. In such a situation, I would find that the deceased died by an accident as result of falling into the well, arising out of and in the course of his employment. The learned counsel appearing on behalf of the respondent, Mr. Izzat Khan Jokhio has relied on the case of: Divisional A Superintendent, Pakistan Raliways, Karachi, v. Ali Zaman (P L D 1967 Kar. 547).in support of his contention in that respect. The facts in that case appear to be identical to the facts in the instant case. In that case the facts were that a Gangman working in Railway Yard while going. to hospital for obtaining fitness certificate required for his permanent employment met with a accident resulting in an injury from a collusion with Engine can. It was held in that case that if a workman's employment compels himself to be at a particular place where an accident happens the accident must be taken to arise out of the employment, although it is not being contributed to in any way 6y the nature of the employment. The expression "arising out of the employment" applies to the employment as such to its nature. its conditions, its obligations and its incidents. If by reason of any of these, the workman is brought within the Zone of special danger and injured or killed, the broad words of the statute "arising out of the employment" apply. 1 am, therefore, of the view that the death of the deceased Ahmed can properly be said to have arisen out or and in the course of his employment. The contention raised on behalf of the appellant, in that respect, therefore, is without substance.

5. As regards the second contention raised on behalf of the appellant by their counsel to the effect that he was not a workman within the meaning of section 2 (n) or the Workmen's Compensation Act, a plain reading of the provision itself, in the facts and the circumstances m which the deceased was admittedly working with the Railway administration the appellants, would clearly show that it has no substance. However, under section 30 of the Workmen's Compensation Act, only substantial questions of law can be agitated in appeal/and not the questions of fact. Mr. Izzat Khan Jokhio, the learned counsel appearing on behalf of the respondent C has contended that the question as to whether the deceased was a work man or not within the meaning of section 2 (n) of the Workmen's Compensation Act, is a question of fact and not of law, and it cannot be agitated appeal under section 30 of the Workmen's- Compensation Act. In support of his contention to that effect, he has relied on two decisions, reported in P L D 1964 (W. P.) Kar. 406 and P L D 1961 Dacca

550. Accordingly, this contention of the learned counsel of the appellants is equally without substance.

6. As regards the third contention raised on behalf of the appellants by their learned counsel, it would be clear on the case of it that the amount of Rs. 7,500 paid to the respondent was admittedly due from the appellants towards group insurance of the deceased Ahmed and was paid to the respondent on that account, and not towards compensation under the provisions of the Workmen's Compensation Act. However,' Mr. Izzat Khan Jokhio for the respondent has contended that this plea raises no substantial question of law and therefore, would not arise in this appeal under section 30 of the Workmen's Compensation Act. Accordingly this contention raised on behalf of the appellants also appears to have no force.

7. For the foregoing reasons, this appeal has no substance and is accordingly dismissed. A. E. Appeal, dismissed.