P L D 1967 Karachi 547 (PLP)

Z. A. Suhrawardy for Appellant. S. A. Channa for Respondent. Dates of hearing: 19th September and 3rd October, 1966. This appeal has been filed by the Divisional Superintendent, Pakistan Western Railway, Karachi, against the order dated 5‑4‑1965, passed by the Commissioner for Workmen's Com pensation in Case No. 172 of 1964, whereby a sum of Rs. 2,240 as compensation and Rs. 51.50 as costs were awarded to the respondent.

2. The material facts briefly stated are as follows. Ali Zaman respondent, was employed as a Gangman with the Pakistan Western Railway at Karachi. He joined his duty at 7‑00 a. m. of 27th June 1964. At 9‑30 a. m. he was asked to obtain a medical fitness certificate from the Railway's Medical Examiner. While going to the hospital for this purpose, Ali Zaman was bit by an engine and received injuries in his leg which bad to be ultimately amputated. On his recovery, he filed an application under section 10 of the Workmen's Compensation Act, and was, on this application, awarded compensation and costs as aforesaid by the impugned order.

3. Mr. Z. A. Suhrawardy, has raised two contentions before me, namely, that (I) the respondent was not at all in the employ ment of the Railway at the time he received injuries ; (2) that the injury did not arise in the course of the respondent's employment with the Railway.

4. The first contention cannot be allowed to be raised at this stage. The stand of the appellant before the Commissioner was that the respondent was only a temporary employee and, therefore, was not entitled to any compensation for amputation of his leg. It was, however, rightly pointed out by the learned Commissioner that the respondent was covered by the definition) of "workmen" given in section 2 (n) (i) of the Workmen s Compensation Act, 1923, under which a "workman" includes any person who is a Railway servant as defined in section 3 of the Railways Act, 1890. Under section 3 (7) of this latter Act "Railway servant" means any person employed by a Railway administration in connection with the service of a Railway. It is not contended that the employment of the respondent as a Gangman was not in connection with the service of the railway. Nor is it the cast of the appellant that the respondent's employment was a casual nature. The case presented before the Court below was that the respondent was in temporary employment and had been required to obtain medical fitness certificate to confirm him as permanent employee. The appellant's cannot, therefore, be heard now to say that the respondent was not at all employed by the railway on the date of the accident.

5. The only question which requires examination is whether the respondent received injury in the course of his employment with the railway, because under section 3 of the Workmen's Compensation Act, 1923, the employer is liable to pay compensation only if the injury caused to the workmen by accident arising out of and in the course of the workman's employment with the employer. The facts which have been proved are that at 9‑30 a. m. on 27th June, 1964, while the respondent was working in his Gang, he was asked to go to Hasan Railway Hospital at Karachi Cantonment for medical examination. It was while he was going there and while he was still within the Railway premises, that the respondent was hit by a moving Railway engine and received injury in his leg. Mr. Z. A. Suhrawardy contended that the errand on which the respondent was going was personally to the respondent, in that the respondent was going to the hospital to obtain medical fitness certificate for permanent employment in the Railway and therefore, the injury could not be paid to have arisen in the course of the employment with the railway. But the question is whether the presence of the respondent at the place where the accident happened could be attributed to any cause other than his employment with the Railway. It cannot be denied that the accident took place within the premises belonging to the Railway, and that but for the respondent's employment as Gangman, he would not have been present at this place in the morning of 27th June 1964. The accident, therefore, arose from a peril of the place where the respondent happened to be at the time of the accident. It has been observed by Swinfen Eady, L. J., in Marsh v. Pope do Pearson Ltd. ((1917) 86 L J K B 1349), that "if the workman's employment compels him 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 by the nature of the employment". The expression "arising out of the employment" as appearing in section 1 of the English Workmen's Compensation Act, 1906 (Corresponding to section 3 of our Act) has been discussed by the House of Lords in Mrs. Margaret Thom or Simpson v. Sinclair (1917 A C 127). I would quote the following extract from the speech of Lord Shaw of Dunfermline in this case :‑ "The expression, in my opinion, 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 so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply."

6. The peril of being exposed to a moving engine is no one which would ordinarily involve the public at large. Such kinds of perils are attached to particular locations, i. e., Railway Yards where there is frequent shuntings of the Railway engines. The nature of the respondent's employment required him to be present at such place. The injury received by the respondent, therefore, an injury attached to the particular location in which the respondent's employment required him to be present, I am. therefore, of the view that the respondent's injury can properly be said to have arisen out and in the course of his employment.

7. Mr. Suhrawardy, however, argued that notwithstanding the fact that the accident happened within the Railway premises, the injury could not be said to have arisen out of or is the course of' the employment of the respondent. According to him, at the particular time of the accident the respondent was on his way to the hospital, not for any duty connected with his employment, but for his own personal benefit, which was to obtain a medical fitness certificate to be absorbed permanently in the Railway service. In my opinion. however, the fact that the respondent was on his way to obtain fitness medical certificate would not in any way change the legal position. What has to be determined, as has been stated above, is only this whether the peril of collusion with a moving engine is or is not attached to the Railway yard where the respondent was required to be present due to his employment as a Gangman. In this connection reference may be made to the decision of the English Court of Appeal in Fearaley (Annie) v Bates & Northcliffe. Ltd. ((1917)86 L J K B 1000), where a woman employee, while returning to her work froth a women's convenience, slipped on a small piece of wood lying in the yard which was common to her employer's premises and the adjoining premises. It was held that the accident arose out of and in the course of the employment, because the peril was a peril attached to a particular location in which by her obligation of service the employee was placed. It will be noted that the act of returning from the women's convenience, could not be connected with the woman's employment, but evertheless, she was held entitled to compensation because the accident of slipping over a piece of wood 'was held to be a peril attached to the place of employment. Likewise, collision with a moving engine is a peril peculiar to Railway yards and is, therefore, a peril attached to such places. Injuries to railway employees caused by such collisions should, therefore, be treated as injuries arising out, and in the course, of employment.

8. For the reasons given above. I am of the view that the 'injury received by the respondent, which resulted in the amputation of his leg arose out of and in the course of his employment with the Railway. Accordingly, this appeal is dismissed and the app; flint is directed to pay to the respondent costs of these proceedings. K. B. A. Appeal dismissed.