JUDGMENT This is an appeal against the order dated 14-7-66 of Commissioner for Workmen's Compensation, Lyallpur whereby Ata Mohammad, respondent, was awarded compensation of Rs.
2,520. This appeal was pending in the High Court, but in view of Labour Laws (Amendment)
Ordinance XII of 1974 it was transferred to this tribunal for disposal.
2. Ata Mohammad, respondent, was employed as Cone Winder in the Colony Thai Textile Mihs, Bhakkar. The Chief Officer, District Council, Mianwali sent a letter to the Management of 'the appellant-Mills to send their *Kabbadi' team to participate in the annual fair from 16-2-66 to 20-2-66. The Management accepted the requisition and sent a Kabbadi team consisting of 13 players including Ata Mohammad, respondent, to play matches during the fair. The transportation and other sundry charges were borne by the Management in respect of all the members of the team from Bhakkar to Mianwali. The members were also informed by the Management that they would be considered on Duty and would be marked present and paid wages for the period they remained at Mianwali to participate in the fair. On 16-2-1966 when the team reached Mianwali it was declared-that they would play a Kabbadi match against Mianwali Police. The match started on 17-2-1966. During the match Ata Mohammad, respondent, while struggling with the opponent fell on the ground and broke his left arm. Thereafter he was sent to the hospital for treatment. Vide certificate dated 12-4-1966 it was found that the radious bone had been fractured and there was a permanent deformity in the union of fragments. In the opinion of the Medical Superintendent of the District Headquarters Hospital, Mianwali, the respondent had suffered permanent disability to the extent of 30%. Thereafter the respondent filed an application for compensation before the Commissioner for Workmen's Compensation, who gave an award as stated above.
3. Aggrieved by the above award the respondent has preferred this appeal. - 4. The learned counsel for the appellant contended that playing of a Kabbadi match was not arising out of and in the course of the employment of the respondent and, therefore, he was not liable to receive any compensation. In this connection the learned counsel referred to section 3 of the Workmen's Compensation Act, according to which the employer is liable to pay compensation if injuries are caused to a workman by an accident arising out of and in the course of employment. In support of his contention he relied on the judgment of the Calcutta High Court in the case Nawab Ali v. Hanuman Jute Mills (1), wherein it was observed :-- "The question as to whether the accident arose out of the employment cannot be determined on any general view of the facts. It is dependent on the facts of each particular case. There is one test which is always applicable. It is this : Was it part of the injured person's employment to hazard, to suffer or to do that which caused -his injury ? If yes, the accident arose out of his employment. If may, it did not, because* what it was not part of the employment to hazard, to suffer, or to do,' cannot well be the cause of an accident arising out of the employment. And the question whether the workman did his duty negligently or not arises only when the workman was doing something which was his duty to perform." I (1) AIR 1933 Cal. 513 1975 529In the above case the appellant was a Viceman of the Fitter Roving Department employed by the respondent in the mills and while he was tightening one slack ring in a wheel in the Roving Department No. 1, he sustained several injuries as a result of which 3 fingers of his hand had to be amputated. It was held that the work in which he received injury was not in the sphere of his employment as a Viceman and as such he was allowed no compensation. The learned counsel for the appellant also relied on the judgment of Rangoon High Court in the case U Yan Shin v. Ma E Sain and others (1) wherein it was observed:-- "In claims for compensation under Workmen's Compensation Act the onus lies on the applicant to prove that the accident arises out of employment, and if the evidence is not sufficient to establish this, the claim fails'*. An accident arises out of employment where it results from a risk incidental to the employment, as distinguished from a risk common to all mankind although the risk incidental to the employment may include a risk common to all mankind. While the workman was going back to the camp in the mining area where he was working, a dead tree fell on him and killed him. The workman was employed for cutting and clearing jungles or bushes or even trees; tbe tree was at some distance from the place where the workman actually bad to work and the accident was of the kind which any one who happened to pass by the tree at the time would have met with. Held that the falling of the tree on the deceased could not be said to be inherent in the nature of the employment and the casual relationship between the employment and the falling of the tree could not be properly inferred. Therefore, the accident which caused the death of the workman did not arise out of his employment and hence compensation to dependent of deceased could not be awarded.'* 5. There is no dispute in the principles enunciated in the above rulings. Therefore ordinarily speaking playing of a Kabbadi match by the respondent could not be regarded as arising out of and in the course of the employment of the respondent. But the facts in the present case are quite different. Mr. Abdul Majid Khan, Assistant Labour Officer of tbe appellant-Mills, who appeared on behalf of the appellant, clearly stated that the conveyance and other charges of the team were borne by the Management and the members of the team including Ata Mohammad were treated to be on duty and they received wages for the period for which they were deputed to participate in the fair. He also stated that the accident took place when Ata Mohammad 4 was playing Kabbadi match as deputed by the Management for the purpose. Therefore it is clear that the playing of Kabbadi match by the respondent was part of the additional duty assigned to him by the Management of the appellant-Mills. Hence the personal injury was caused to the respondent by an accident arising out of and in the course of his employment.
6. In the result I find no merit in this appeal, which is hereby dismissed with costs. (1) AIR 1940 Rang. 18