This appeal under section 30 of the Workmen's Compensa--petition Act, 1923 (hereinafter referred to as the Act) is directed against the order dated 31-3-1969 passed by the Commissioner for Workmen's Compensation Karachi (hereinafter referred to as the Commissioner) whereby he awarded an amount of Rs. 7,000.00 (Rupees seven thousand) as compensation and Rs. 62.00 as costs to respondent Abdul Aziz father of the deceased workman.
2. Deceased Abdur Rashid was an employee of the appellant Messrs Datsun Service Station. On 26- 5-67 he received an injury on his eye as a result of which he died on 28-5-1967 in the Jinnah Post Graduate Medical Centre Karachi. Respondent Abdul Aziz his father filed an application under section 10 of the Act wherein it was alleged that the deceased was a workman employed by the appellant and on 26-5-1967 while he was repairing a motor vehicle he was accidentally hit on the eye with an oil-can which resulted in "Govvenous Sinus Thrombosis" causing his death on 28-5- 1967. It was alleged that the injury was received by the deceased by an accident arising out of and in the course of his employment. Consequently, a consolidated amount of Rs. 7,000.00 was claimed as compensation.
3. In the written statement filed by the appellant it was denied that the deceased workman sustained any injury by an accident arising out of and in the course of employment with the appellant. It was accordingly contended that respondent Abdul Aziz was not entitled to receive any compensation.
4. On the pleadings of the parties the following issues were framed :-
(1) Whether the deceased was a workman within the meaning of the Act?
(2) Whether deceased received any injury arising out of and in the course of employment with the opponent?
(3) What were the monthly wages of the deceased?
(4) Whether notice was served?
(5) Whether dependents are entitled to compensation?
5. The learned Commissioner for Workmen's Compensation accepted the assertion of the respondent that the monthly wages of the deceased were Rs. 220.00. On all other issues also his findings were in favour of the respondent. He accordingly awarded the entire amount of compensation claimed in the application.
6. Mr. Abdul Fateh Memon, the learned counsel for the appellant took me through the entire evidence recorded in the case and contended that the proviso to section 30 of the Act does not bar the High Court from examining findings of facts in an appeal which otherwise lies under section 30 of the Act. In other words, it is contended that once an appeal is admitted on a substantial question of law, the whole case is open to investiga--petition by the High Court. In support of this contention the learned counsel relied on a Division Bench case of the Calcutta High Court, namely, Central Glass Industries Ltd. v. Abdul Hossain (AIR 1948 Cal. 12) and in particular on the following observations in that judgment "Section 30 of the Act gives an appeal to this Court if a substantial question of law is involved, but once that condition is satisfied we are entitled to consider the whole case, and for that purpose to review the evidence on the record and to decide questions of fact.
This is the view taken by a Division Bench of this Court which we respectfully follow : 37 C W N 81. In this case we propose to decide the question of fact ourselves."
7. As pointed out by Rupchand Belaram A. C. J. In a Division Bench case of the Sind Chief Court reported as Pestonji Bhicaji v. Farid Khan Pir Muhammad (AIR 1933 Sind 273) this argument is based on the fact that the proviso to section 30 of the Act is not happily worded and is capable of being construed in two different ways. The case of Central Glass Industries Ltd. v. Abdul Hossain relied upon by Mr. Abdul Fateh Memon, is based on an earlier case of the same High Court reported as Gouri Kinkar Bhakat v. Messrs Radha Kissen Cotton Mills (AIR 1933 Cal. 220) which was explained in detail in Cooling Equipment Co. Lid. v. Mst. Zainab Bibi and another (AIR 1943 Lab. 52). While dealing with an argument similar to the one advanced before me their Lordships observed as follows :- ---It is of course, clear that the finding of the Commissioner to this effect is a pure question of fact, but it has been contended on behalf of the appellant that the proviso to section 30, Workmen's Compensation Act, does not bar the High Court from examining findings of fact in an appeal which otherwise lies under section 30. In other words, it is contended that once an appeal is admitted on a substantial question of law, the whole case is open to investigation by the High Court we are unable to agree with this contention---------------------------------------.
Since it is clear that the intention of the Legislature was that on the questions of fact the finding of the Commissioner should not be challenged, the proper interpretation to be put upon the proviso is to limit the power of the Court to interfere only in such findings of fact as may be necessary for the determination of the questions of law involved---------------------------------------------.
Where the question of fact is wholly independent of any question of law, the High Court in appeal is, in our view bound by the finding of fact, arrived at by the Commissioner.---
8. Similar views were expressed by Wahiduddin Ahmed, J (as his Lordship then was) in Aftab Flour and Allied Industries Ltd. v. Nasim Akhtar (PLD 1964 Kar. 406), and by the High Court of Dacca in Muslim Cotton Mills v. Din Islam (PLD 1959 Dacca 599).
I have, accordingly no doubt that in an appeal under section 30 of the Act the High Court cannot review a finding o fact unconnected with law arrived at by the Commissioner on A evidence.
Consequently it is not open to learned counsel for the appellant to agitate all questions of fact in this appeal.
9. It is, however, not disputed that issues Nos. 1 and 2 framed by the Commissioner are both substantial questions of law. I have, therefore, heard the parties at length on both these issues.
10. That deceased Abdur Rashid was employed as a workman can hardly be doubted. In fact he has been referred to as such in paragraphs 1 and 2 of the written statement filed by the appellant himself. The evidence of respondent Abdul Aziz shows that the deceased was employed as a mechanic in Datsun Service Station where about 40-45 persons were working. There is also a petrol pump and a service station at the said premises where repairs of motor vehicles are regularly carried out. This position is not disputed.
11. Under section 2 (1) (n) of the `Act' "workman" is defined as any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is
(i) a railway servant as defined in section 3 of the Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or
(ii) employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing ; but does not include any person working in the capacity of a member of the Armed Forces of Pakistan and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."
Under Clause (ii) of Schedule II, any person who is employed in any premises wherein, or within the precincts whereof, on any one day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, as defined in clause (g) of section 2 of the Factories Act, 1934, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water or other mechanical power or electrical power is used but not persons employed solely in a clerical capacity in any room or place where no manufacturing process is being carried on, is a workman within the meaning of section 2 (1) (n) of the Act.
The expression "manufacturing process" is defined in section 2 (g) of the Factories Act, 1934 which reads as follows :- "(g) Manufacturing" process means any process-
(i) for making, altering, repairing, ornamenting, finishing or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or
(ii) for pumping oil, water or sewage, or
(iii) for generating, transforming or transmitting power."
It would thus be seen that Datsun Service Station where 40-45 persons are employed in a manufacturing process, namely, that of repairing motor vehicles propelled by mechanical power is covered under clause (ii) of Schedule II of the Act and, therefore, B deceased Abdur Rashid was a workman under section 2(1)(n) of the Act.
12. The most important question involved in this appeal is whether the deceased received any injury arising out of and in the course of employment with the appellant. There is conflicting evidence on this point. The case of the respondent is that the deceased received the injury by a screw driver while working on a motor vehicle and his witness Shakir A.I supported him on this point. On the other hand, the version of the appellant's witnesses may be stated in the words of D.
W. Siraj :- "It was Friday and the time was about 1-30 p.m. The workers had gone for lunch. After lunch the electrician Aziz Punjabi and Rashid the deceased and I were there. There was a vehicle for service.
We were working. Rashid the deceased sprinkled petrol on Abdul Aziz Punjabi during the work.
Abdul Aziz then came and tried to snatch the oil can from the hands of deceased Abdul Rashid.
Rashid raised his hand with the can up and Abdul Aziz pulled it down when the pin hit Abdul Rashid over his eye brew, Abdul Rashid fell down. I called Shamshad, Foreman and I narrated the whole incident to him. Shamshad took Abdul Rashid to the hospital. The injury was caused to the deceased while joking with Abdul Aziz Punjabi and not as a result of work."
13. The learned Commissioner disbelieved the respondent's case and accepted the version of the appellant as the following observations would show :- "I am of the view that the defence evidence on this point is correct and hold that the deceased received injury by an oil-can in a scuffle with him and Abdul Aziz Punjabi, a co-worker which was the result of some joke exchanged between them."
These findings are based on good reasons and are not challenged by the learned counsel for the respondent. Nor can these findings be controverted in an appeal under section 30 of the Act. It has, accordingly to be seen whether on these findings the learned Commissioner was right in coming to the conclusion that the injury received by the deceased was one arising out of and in the course of employment with the appellants.
14. This question is often not free from difficulty and has to be decided after a careful consideration of all the relevant facts C and circumstances of the case. There can be no hard and fast rules for its determination. In the words of Lord Sumner in Lancanshire and Yorkshire Railway Company v.
Highley (1917 A C 352 = (1917) 86 L J K B 715 ---My Lords, whether in any given case an accident arises on the one hand out of the injured person's employment, although he has conducted himself in it carelessly or improperly, or, on the other hand arises not out of his employment but out of the fact that he has gone outside the scope of it, or has added to it some extraneous peril of his own making, or has temporarily suspended it while he pursues some excursion of his own, or has quitted it altogether, are all questions which, often as they arise, are susceptible of different answers by different minds, and are always questions of some nicety. So it is here. I doubt if any universal test can be found. Analogies, not always so close as they seem to be at first sight, are often resorted to, but in the last analysis each case is decided on its own facts. There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. 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 yea, the accident arose out of his employment. If nay, 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. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury.--- The deceased workman in that case who was employed on a railway was under orders to travel by train to a place further down the line to work there. The men arrived at a station where they had to change, and having sometime to wait for the next train they started to cross the lines to a mess- room on the opposite side of the station where they could get hot water for their breakfast, which they had brought with them. On his way to the mess--room the deceased attempted to pass under the trucks of a standing goods train. The train moved and he was killed. The mess-room could have been reached without crossing the lines, but this way took longer, and the men for their own convenience habitually used the way across the lines. It was on these facts held by the House of Lords reversing the decision of the Court of Appeal that the deceased in attempting to pass under the trucks, was exposing himself to an added peril and was not acting within the sphere of his employment.
15. In Halsbury's Laws of England (Third Edition), Vol. 27, paragraph 1418 (page 804) the position is neatly summarised thus . --- ---A person is only in the course of his employment while doing something which he is under an obligation express or implied, to his employers to do or something reasonably incidental thereto. It does not follow that, because an accident happens on an employer's premises, it necessarily arises in the course of the employment,---
16. In paragraph 1423 of the same Volume under the heading of "Acts done for personal purposes", numerous cases are cited to show that where the incident arose out of an act which the injured person was doing for his own benefit and not out of his employment or was caused by drunkenness, skylarking or by an assault unconnected with his employment, the presump-- petition that the incident arose in the course of the employment would be held to have been rebutted. Thus a labourer assaulted by fellow worker whom he had called "a lazy swine"; a woman director and secretary of tea company attacked by youths while travelling in a train ; a cowman wounded by immediate superior with a shot-gun, who then shot himself ; an insurance agent stabbed by a man to whom he gave a lift on the road ; a claimant whose leg was broken by fellow workers who had been drinking to celebrate the Christmas and a bus conductor attacked by youths who were members of a gang, were all held not to have sustained the injury arising out =of and in the course of their employment.
17. The right of a workman to receive compensation from his employer for any personal injury caused to the workman by accident arising out of and in the course of his employment, has been recognized under section 3 of the Act which is couched in similar language as that used in section 1 of the English Workmen's Compensation Act of 1906 and the corresponding D section of the later Act, namely, the Workmen's Compensation Act, 1925 Before Oat also the language used in Workmen's Compensation Acts of 1897 and 1900 was similar. In the National Insurance (Industrial Injuries) Act of 1946 which was substituted for all previous Workmen's Compensation Acts up to 1945, the same language was retained. The decisions of the English Courts would, therefore, be of considerable value in decid--ing the cases under the Workmen's Compensation Act, 1923. This point has been considered and elaborately explained by Harries, C. J. In Becharam Mallk v. Khas Joyrampur Colliery (AIR 1940 Pat. 599) and the position is not disputed before me.
18. There is also no dearth of decisions of the Courts in the sub-continent on this point. As it would be neither practical nor necessary to discuss all such cases on the subject I may refer to just a few of them.
19. In Nawab A.I v. Hanuman Jute Mill (AIR 1933 Cal. 513) the applicant for compensation was a viceman whose duty was to mend the Roving machine when it went out of order and was not working. The workman, however, interfered with the moving machine for the purpose of finding out a screw driver which he required for the purpose of his work and sustained injuries as a result of which three fingers of the applicant had to be amputated. Their Lordships reiterated the test laid down by Lord Summer, in Lancashire & Yorkshire Railway Company v. Highley referred to in paragraph 14 above and held that the workman was not entitled to compensation as the accident had not arisen in the course of his employment. Clarifying the point further Mitter J. Observed as follows :- ---A distinction has been drawn between the cases where there has been negligence by the workman in the performance of his duty and where the workman had been doing some work which he was not employed to do and met with the accident fn the course of such outside work.
That distinction seems to be a good distinction. It appears to us that in the present case there was no justification for the workman to interfere with the moving machine for the purpose of finding out a screw driver which he required for the purpose of his work. In doing so we do not think that he was within the sphere of his employment as a viceman.---
20. In Gouri Kinkar Bhakat v. Messrs Radha Kissen Mills the duties of the applicant who was working as a piercer in the Spinning Department of a cotton mill, were to join ends of threads when the machine was in motion. The workman, however, interfered unnecessarily with a fenced-off part of the machine while it was working, as a result of which his arm had to be amputated. It was held by a Division Bench that the workman was not entitled to any compensation for this injury, as, to quote the words of Rankin C. J., "the injury was occasioned by an added peril which the lad brought about by interfering unnecessarily with a fenced-off part of the machine while it was working.
21. In Bombay Burma Trading Corporation Ltd. v. U. Po Hlaing (AIR 1936 Rang. 250) the workman whose duty was to attend as cooly upon the driver of an elephant, was ordered to go and find out the whereabouts of the elephant, let loose to grave in the jungle and was expressly warned not to attempt to catch the animal or unshackle or ride him, but he wilfully disobeyed the orders and unshackled and rode him and was thrown off and attacked by the elephant, as a result of which he died. It was held that the employer was not liable to pay compensation as the injury caused to the workman was not due to an accident arising out of and in the course of his employment.
22. In Central Glass Industries Ltd. v. Abdul Hossain where a workman received an injury while he was playing in the ground of the factory where he was obliged to remain in idleness while another shift was working and before his turn of beginning work had arrived, it was observed that it could not be said that the injury had arisen out of his employment.
23. Coming nearer home, the guiding principles have been laid down by Kayani, J. In Chaudari Muhammad Iqbal v. Mst. Sardar Begum (PLD 1952 Lah. 84) in the following words :- "(1) If the injury is occasioned by doing something which has no relation to the workmen's assigned work, it does not arise out of his employment.
(2) But if what he does is reasonable, necessary and incidental to the work entrusted to him, although belonging to another department, it arises out of his employment, unless it is excluded by an express or implied prohibition.
(3) A mere prohibit does not, by itself, disentitle him to compensation, if he receives an injury by disobeying it, provided that in his disobedience he follows a recognised practice.
(4) There must be something in the nature of a casual relation between the accident and the duty assigned to the workman.
(5) The term `employment' should not be confined to the duties of a workman, but should extend to the character, conditions and incidents of the employment and the special risks involved therein."
24. As I have already stated it is neither possible nor necessary to discuss all the case-law on the subject. A survey of the decided cases would, however, show that an employer would not be liable to pay compensation for an injury sustained by the worker unless the accident leading to injury arose not only in the course of discharge of his duties but also when it arose out of his employment or in other words as a direct result of discharge of his duties. It does not follow that because a man was injured during the time of his employment, the accident arose out of or in the course of such employment. There must be a casual connection between the accident and the employment in order that the Court can say that the accident arose out of the employ--ment of the deceased.
The cause contemplated is a proximate cause and not any remote cause, that is to say, the immediate act which led to the accident should not be so remote from the sphere of the duties of the workman as to be regarded as some--thing foreign to it. In other words, the employee must, in order to bring his case within the Act, show that he was at the time of the injury engaged in the employee's business or in furthering that business and was not doing something for his own benefit or accommodation.
25. An accident in order to give rise to a claim for compensation must be due to a risk incidental to that employ--ment as opposed to which all members of the public are alike exposed. The ambit and scope of the workman's employment has to be looked at in relation to the contract which he made with the employer. The test in fact applicable in such cases is whether it was or was not a part of the injured persons employment to hazard or suffer or do that which caused his death.
26.- Judged in the light of the principles enunciated above, the test laid down by lord Sumner, in Lancashire & Yorkshire Railway Company v. Highly which has been consistently followed by the High Courts of the sub-continent, and the guiding principles laid down by Kayani, J. In Chaudhri Muhammad Iqbal v. Mst. Sardar Begum, it is obvious that the instant case is not one in which the deceased workman could possibly be said to have died as a result of an accident arising out of and in the course of his employment. The learned Commissioner has disbelieved the version of the respondent and accepted that of the appellant's witnesses. In this connection I have already reproduced the relevant portion of the deposition of D. W. Siraj on this point. Another witness examined on behalf of the appellant was Muhammad Khan S. H. O. Civil Lines Police Station Karachi. He stated that the respondent had reported to him about the death of his son as a result of injuries sustained by the latter in a scuffle with one Abdul Aziz. Thus, even according to the respondent at that stage, this was not a case of death as a result of an accident arising out of the employment of the deceased but a case of murder committed in a scuffle by one of his fellow workers. The respondent obviously changed his version in the application under section 10 of the Act as he realized that in the event of this correct version being brought before the Commis-- sioner, he would not be able to claim any compensation. He was, however, lucky that in spite of his new version being disbelieved by the learned Commissioner and that of the appellant being accepted, the respondent was awarded a compensation of R9. 7,000.00.
27. To illustrate the point further let us consider a case of a workman being murdered or grievously injured by a fellow worker or some outsider on account of some previous enmity. Would the dependents of the deceased workman or the injured person be entitled to receive any compensation from the employer in that case? In my humble opinion, the answer has to be in the negative, for the simple reason, that the death or injury was not the result of any accident ; nor did it arise out of employment of the workman. In R. v. National Insurance (Industrial Injuries)
Commissioner ((1958) 2 All E R 689) the applicant, an omnibus conductor, was in uniform on the platform of his bus when he was injured in an assault by one of a gang of youths. It was not shown that he was singled out because of any circumstance connected with his employment. The youths had previously assaulted other persons. The applicant's claim for disablement benefit under the National Insurance (Industrial Injuries) Act, 1946, was disallowed by the National Insurance (Industrial Injuries) Commissioner on the ground that, though the injury was sustained in the course of his employment, it did not arise out of his employment as the attack was made on him as a person in the street. By section 7(4) of the Act, "an accident arising in the course of an injured person's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment". The applicant applied for certiorari on the ground that the Commissioner misdirected himself in law by not having treated the onus as being on the insurance officer to prove that the accident did not arise out of the employment. It was held that the facts in evidence before the Commissioner amounted to "evidence to the contrary" within section 7 (4) of the National Insurance (Industrial Injuries) Act, 1946 ; there was therefore, no presumption as to the burden of proof, and, no error in law being apparent on the face of the decision, certiorari would not be granted.
28. The present case is not much different. Obviously deceased Abdur Rashid could not be said to be acting in the course of his employment when he started joking with Abdul Aziz and even sprinkled oil on the latter's clothes. Abdul Aziz naturally resisted and in the scuffle deceased died as a result of an injury. It is clear that the deceased was not a helpless victim of the assault but he had himself initiated the scuffle by delibe--rately sprinkling oil on the clothes of Abdul Aziz as a joke. In other words the deceased contributed by his own action and conduct to the peril which had no casual connection with his employment ; and on these findings of facts arrived at by the Commissioner, the employer could by no stretch of imagination be held liable to pay compensation for an injury sustained in such circumstances.
29. Mr. S. A. Channa, the learned counsel for the respondent has invited my attention to the case of Clayton v. Hardwick Colliery Co. Limited ((1915) 85 L J K B 292) which has also been relied upon by the Commissioner. The case is, however, distinguishable on facts. The applicant workman was a boy employed at the respondents' Colliery to pick stones out of coal. Another boy in the same employment threw a stone which struck the applicant in the left eye. The boys employed there threw stones to attract the attention of others and there was in fact a notice prohibiting this practice. The circumstances of the applicant's employment were, therefore such as to expose him to special risk of stone throwing by other boys. What is more the injured workman was not himself responsible for disobeying these instructions, but he lost one eye while attending to the duties entrusted to him, on account of the special risk involved in the employment itself. On these facts the applicant was obviously entitled to compensation.
30. The next case relied upon by Mr. A. S. Channa, namely, that of Allied International Corporation v.
Mst. Rashida Bibi and others (PLD 1969 Lah. 710) is similarly distinguishable. In that case the deceased workman died as a result of accidental death by taking Sodium Nitrite, a poisonous chemical, resembling white sugar. The chemical was lying at an open place near his place of duty and was easily accessible to the workmen. It was also a fact that the hazardous nature of the chemical was not known to the deceased. What is more the quantity taken was so small that it could not by any stretch of imagination be regarded as an offence under the Penal Code and the findings of the learned Judge were that "the eating might have also been the result of curiosity or just forgetfulness." The case is, accordingly, distinguishable on facts. The last case relied upon by the learned counsel was Mohanlal Parbhuram v. Fine Knitting Mills Company Ltd. (AIR 1960 Bom.
387). This case is also distinguishable, as the deceased was a helpless victim of an assault while be was engaged in carrying out his day to day duties in the department of his employer's mill. In this case, however, reliance was placed on an earlier judgment of Chagla, C. J. In Bhagubai v. General Manager, Central Railway (AIR 1955 Bom. 105) wherein the learned Chief Justice observed as follows :- ---Now, it is clear that there must be a causal connection between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The authorities have clearly laid down that if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connection is established between the accident and the employment. It is now well settled that the fact that the employee shares that peril with other members of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him ; the peril must be incidental to his employment. It is also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do with his own action or his own conduct but it is a peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril, a causal connection is established between the employment and the accident.--- With these initial observations the learned Chief Justice went on to consider the case of the deceased workman who was an employee of the Central Railway at Kuria Railway Station and was living in the railway quarters. He left his quarter a few minutes before mid-night in order to join duty and immediately thereafter he was stabbed to death by some unknown person. It was on these facts held by the learned Chief Justice that this was an "accident" which had occurred in the course of the employment, even though the attack on the deceased had taken place outside the premises of the railway. With great respect, I fail to see as to how the learned Chief Justice could treat a deliberate and pre-planned murderous assault as an "accident" much less an accident arising out of the employment of the workman. On this point the case of R. v. National Insurance (Industrial Injuries) Commissioner cited in paragraph 27 above is also a complete reply.
Though the term "accident" has nowhere been defined in the Act it is settled law that the term means some unexpected event happening without design i.e. An unlooked for mishap or untoward event. This would obviously not include a deliberate and proceeds murderous assault as the learned Chief Justice assumed. As the case of Mohanlal Parbhuram v. Fine Knitting Mills Co. Ltd.
Produced on the basis of the earlier case of Bhagubai v. General Manager, Central Railway it is not necessary to discuss these cases further.
31. As observed by Beaumont C. J. In Vishram Yesu Haldankar v. Dadabhoy Hormasji & Co. (AIR 1942 Bom. 175) the burden is upon the workman or his dependent to prove that the accident arose out of the employment as well as in the course of the employment In the instant case the respondent obviously failed to discharge that burden as he gave a false account of the incident which was disbelieved by the learned Commissioner for good reasons. On the contrary on the findings of facts arrived at by the Commis--sioner it was an injury sustained in a scuffle which started on account of jokes played by the deceased himself. It is accordingly, doubtful whether this would at all be a case of accident. In any case it could not be considered as an accident arising out of employment of the deceased workman.
32. Mr. S. A. Channa, the learned counsel for the respondent lastly contended that the provisions of the Act should be liberally construed in favour of the workman and the Court should lean in his favour while considering the question of compensation at least in cases of fatal accidents as the dependents who have lost their bread earner should not be deprived of compensation. In this connection it may be mentioned that the Workmen's Compensation Act, as was pointed out by Page C. J. In the matter of Maung Kyan (AIR 1931 Rang.173) and Roberts, C. J. In Bombay Burmah Trading Corporation Ltd. v. Ma E Nun (AIR 1937 Rang. 45) is a quasi penal statute and must not be interpreted with sympathetic leniency but must be construed strictly. It can always be altered by the Legislature but until the Legislature protects persons who may be and are protected in some other countries, the duty of the Courts is to interpret the Act as the Courts find it.
33. Mr. Abdul Fateh Memon, the learned counsel for the appellant raised two further contentions before me. The learned counsel contended that the respondent should have examined the Medical Officer who issued the certificate to prove that the death of the deceased workman was the result of an injury received by him and the learned Commissioner should not have arrived at this conclusion on evidence of witnesses based on visual observations. In this connection the learned counsel relied on a decision of my learned brother Ghulam Safdar Shah, J. In Pandeaman v. Messrs Mir Qadirbux & Bros. (PLD 1968 Quetta 55). The other contention of Mr. Memon was that inasmuch as there was no material on record that the respondent was a dependent on the deceased workman within the definition of word "dependent" in section 2 (d) of the Act, a mere allegation to that effect in the application filed by the respondent was not sufficient to entitle him to relief. It is, however, not necessary for me to go into both these questions as in view of my findings recorded above the appeal has to succeed on the other point involved in the case.
34. For the reasons given above this appeal is allowed and the order of the learned Commissioner for Workmen's Compensa--petition, Karachi is set aside. The amount deposited by the employer/appellant shall be refunded to him. In the circumstances of this case, however, there shall be no order as to costs.