P.K. Tare, J.

This appeal is by the employer under section 30 of the Workmens Compensation Act against the order,, dated 3-7-1959 passed by Shri H. N. Singh, Commissioner, acting under the Workmens Compensation Act, Chhatarpur, in Compensation Case No. 4 of 1957.

The respondent, as a cleaner working on a motor bus of the appellant-firm, had to accompany the bus on 15-2-1957. On the way, some dacoits attacked the bus, as a result of which the respondent received injuries. The dacoits fired shots on the bus, and consequently the respondent received injuries on the face. He was occupying the front seat by the side of the driver. However, no life was lost. The respondents eye-sight was permanently lost on account of the injuries he received in the encounter. Therefore, he claimed compensation amounting to Rs. 2,940 for total loss of the eye-sight.

The appellants defence was that the respondent was not a workman within the meaning of the Workmens Compensation Act. He was a temporary and a casual employee. Moreover as a cleaner, he was expected to occupy a back seat. He was responsible for the injuries, as he had occupied the seat by the side of the driver contrary to the general practice. It was admitted that some dacoits attacked the bus and that the injuries were received in that accident. It was further alleged that the appellant had spent Rs. 200 towards the medical treatment of the respondent and also advanced some amount so as to make up a total of Rs. 700.

The learned Commissioner awarded an amount of Rs. 1,680 out of which advances made by the appellant to the respondent to the extent of Rs. 581-1-0 were deducted. Therefore, the compensation payable was fixed at Rs. 1,131-15-0. The learned Commissioner held that the respondent was a workman entitled to compensation and that the accident arose out of and in the course of his employment.

Two questions arise in the present case whether the respondent is a workman within the meaning of section 2(1)(n) of the Workmens Compensation Act. I am in agreement with the view of the learned Commissioner that the employment of the respondent was not casual. He was working as a cleaner. The mere fact that wages for the period of absence might be deducted would not convert him into a casual employee. Therefore, I affirm the conclusion of the learned Commissioner on the point.

The further question arises whether the respondent was a workman. In the Pollachi Transport Ltd., Coimbatore v. Arumvga Koundar ILR 1838 Mad. 636 : AIR 1938 Had. 480, a Division Bench held that the conductor of a motor bus would be a workman within the meaning of section 2(1)(n) of the Act. The learned Judges relied on the case of Nanda Kumar v. Pramatha Nath 42 CWN 123.

In Padam Debi v. Raghunath Raw : AIR 1950 Ori 207 [LQ/OriHC/1949/69] , a Division Bench of the Orissa High Court held that a driver of a motor bus would be a workman within the meaning of section 2(1)(n) of the Act. A cleaner of the bus is also required to accompany the bus and there is no reason to think that a cleaner of a bus will not be a workman within the meaning of section 2(1)(n) of the Act. The said Division Benches have already held that a driver or a conductor of a motor boa is a workman. I am of opinion that a cleaner would undoubtedly be a workman within the meaning of the section, as he has to accompany the bus.

The further question arises whether the accident arose out of and in the course of the employment. In this connection, it is to be noted that the respondent on account of his duties was required to accompany the bus in his capacity as a cleaner. It was not that be voluntarily took a life in the bus. If it was his duty to accompany the bus, it could not be a matter of his choice and he would certainly be considered to be on duty and the accident, no doubt, took place in the course of his employment. We have to consider whether the accident arose out of the course of employment. That is the only question relevant in the present appeal.

It was also the appellants defence that the respondent as a cleaner was expected to occupy a rear seat, and not the front seat by the side of the driver. As such, it was contended that he was responsible, as he had committed an act in contravention of the general practice or the regulation. In this connection, I might observe that the mere negligence of an employee in the matter of carrying out regulations will not disentitle him to compensation, as laid down by a Division Bench of this Court consisting of Stone C. J. and Niyogi J. in Mt. Champi w/o Shiwa Mahar v, Messrs. Shaw Wallace and Co. : AIR 1937 Nag. 397. Therefore, the fact that the respondent had occupied a front seat voluntarily will not disentitle him to claim compensation.

The question whether the accident arose out of and in the course of employment is a question of law, as laid down by a Division Bench of the Bombay High Court consisting of Be amount C. J. and Sen J. in Vishram Yesu Baldankar v. Dadabhoy Hormasji and Co. ILR 1912 Bom. 226 : AIR 1842 Bom.175. Therefore, this question can certainly be examined at the appellate stage.

The question whether the accident arose out of the course of employment depends on the particular circumstances of each case, as laid down by the Division Bench in Mt. Champi w/o Shiwa Mahar v. Messrs. Shaw Wallace and Co. : AIR 1937 Nag.397. Therefore, we have to examine the circumstances of the present case-

It is beyond doubt that the respondent in his capacity as a cleaner was required to accompany the bus and had to travel in dacoity infested area. Of course the risk may not be individual or personal, but may be general. But, during the course of his employment, the respondent was required to accompany the bus through dacoity infested areas. As such, it was his duty, which took him there and the accident, no doubt, arose in the course of his employment,

In Margaret Brooker v. Thomas Borthwick and Sons AIR 1933 PC 226, their Lord-ships of the Privy Council laid down the following tests:-

Their Lordships however cannot agree to this. The illustration appears to be of the essence of the argument. In the course of the discussion the House of Lords had been referred to four cases of injury by natural forces,, the two cases of lightning, Andrew v. Failsworth (1904) 2 KB 32 and Kelly v. Kerry County Council (1908) 1 BWCC 194 and the two cases of frost bite, Karemaker v. S.S. Gorsican (1911) BWCC 295 and Warner v. Couchman 1912 AC BIS, where the principle had been adopted that where the injury was directly caused by such a natural force it has to be shown that the workman was especially exposed by reason of his employment to the incidence of such a force. Lord Haldanes exposition was obviously intended to comprise these decisions. The principle which emerges seems to be clear. The accident must be connected with the employment, must arise out of it. If a workman is injured by some natural force such as lightning, the heat of the sun, or extreme cold, which in itself has no kind of connation with employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further need be considered. Bo that if the roof or walls fall upon him, or he slips upon the premises there is no need to make further inquiry as to why the accident happened.

A Division Bench of the Rangoon High Court in Bombay Burma Trading Corporation Ltd. and Another v. Daw Chi AIR 1938 Rang. 349, held that where the case of death of the employee was a matter of guess work, the heir of the employee could not claim compensation, as it would be on him to establish that the death took place out of and in the course of employment. So far as that proposition is concerned, I am in agreement with the same. The initial burden, no doubt, lies on the claimant to establish the circumstances which will show that the accident took place out of and in the course of employment. There must be some sort of connection established between the employment and the accident. If there be no connection established, the claimant cannot be entitled to any compensation. He can only claim compensation, if he is able to establish some sort of connection.

However, the connection to be established is not that the accident should take place on account of a result which emerges from the nature of the work done by the employee. It is sufficient if the accident takes place due to some unforeseen event, but during the course of employment and when the employee is actually performing his duty as an employee. In National Iron and Steel Co, Ltd. v. Monorama Dassi : AIR 1953 Cal. 143 [LQ/CalHC/1951/308] , the deceased was employed as a boy for catering tea in the canteen. While he was taking some cups to some of the customers, the police had to fire on the mob of workers near the mill; and as a result of the fire, the boy died. The learned Judges constituting the Division Bench held that the death took place out of the course of employment, as it was the duty of the boy to take tea to the customers and the mob riot took place within the mills. Therefore, the learned Judges granted compensation to the heir of the deceased.

In Vishram Yesu Haldankar v. Dadabhoy Hormasji and Co, ILR 1942 Bom. 226 : AIR 1942 Bom. 176, it was the duty of the workman to be on a barge; while sleeping, he fell down in the water. The learned Judges constituting the Division Bench held that the accident arose in the discharge of his duty and out of the course of the employment.

In Trustees of the Port of Bombay v. Smt. Yamttnabai : AIR 1952 Bom. 382 [LQ/BomHC/1951/159] , a Division Bench of the Bombay High Court made the following observations with reference to the expression arising out of his employment :-

The expression arising out of his employment suggests both the time as well as the place of employment. The expression out of conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman as a result of the accident. That, to my mind, is the literal and strict construction of the section. But, in my opinion, the words arising out of his employment are wide enough BO as to cover a case, where there may not necessarily be a direct connection between the injury caused as a result of an accident and the employment of the workman. And there may be circumstances attending the employment, which would go to show that the workman received personal injury as a result of the accident arising out of his employment.

In Bhogubai v. General Manager Central Railway V.T. Bombay AIR 1965 Bom. 106, a Division Bench consisting of Chagla C. J. and Dixit J., elaborating the phrase arising out of the employment, made the following observations :-

Mr. Desai would have an applicant prove not only that the employee was murdered, but that in murdering him the murderers had no personal motive against the murdered man but he would have murdered any other employee of the railway company as well. We refuse to hold that the law casts any such intolerable burden upon the applicant. Once the peril is established, it is for the employer then to establish either that the peril was brought about by the employee himself, that he added or extended the peril, or that the peril was not a general peril bat a peril personal to the employee. It is because of this that the authorities have made it clear that the casual connection between the accident and the employment which the applicant bag to establish is not a remote or ultimate connection, but a connection which is only proximate.

Once that proximate connection is established the applicant has discharged the burden and in this case the proximate connection between the employment and the injury is the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death. In our opinion the learned Commissioner was in error in coming to the conclusion that the applicant had failed to discharge the burden that the deceased died of injury by accident arising out of his employment.

In Works Manager, Carriage and Wagon Shop E. I. Railway v. Mahabir : AIR 1954 All. 132 [LQ/AllHC/1953/99] , a special Bench made the following observations with reference to the phrase out of and in the course of employment:-

Indeed the words in the course of employment mean not only the actual work which the man is employed to do but what is incident to it, in the course of his service. The expression is not to be regarded as confined to the nature of the employment. The expression applies to employment as such i. e. to its nature, its conditions, its obligations, and its incidents per Lord Shaw in Simpson v. Sinclair 1917 AC 127 at p.142. I think that the view of Misra J. that it is legitimate to infer from what has been said above that, what may be called environmental accidents i. e, accidents resulting from the surroundings in which the workman is employed or through which he has to reach his place of work in order to carry out his obligations to his employer, also fall within the scope of the phrase arising out of or in the course of employment. This rule, of course, is subject to the exception that where the accident occurs, as pointed out by Misra J. in a public place, and the risk faced by the workman is not due to his employment but to his being on the spot as a member of the public; the employer will be liable only if the presence of the workman on the spot can be found traceable to an obligation imposed upon him by the employer. There is no difficulty, however, with cases where the accident takes place while the workman is on the spot in his capacity as an employee.

In Bai Diva Kaluji v. Silver Cotton Mills Ltd. : AIR 1956 Bom. 424 [LQ/BomHC/1955/323] , a Division Bench consisting of Chagla C.J. and Dixit J. held that where a workman who was suffering from heart disease died after working for eight hours on a hot day in the mills, his death was arising out of and in the course of his employment.

In Parwatibai w/o Kalu v. Manager, Rajkumar Mills, Indore, : 1959 MPLJ 548 [LQ/MPHC/1959/13] , Dixit J. (as he then was) held that where the cause of injury or death was not known, the Court ought to draw inferences from the facts established on record. The learned Judge further expressed the opinion that any injury or death, which was unexpected or without design would be injury or death caused by accident. As regards the phrase accident arising out of employment, the learned Judge opined that there must be some casual connection with the employment and the injury. In this connection, the learned Judge relied on the Privy Council case of Margaret Brooker v. Thomas Borthwick and Sons : AIR 1933 PC 225 [LQ/PC/1933/67] and Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust : AIR 1954 Bom. 180 [LQ/BomHC/1953/83] .

So far as the view propounded by Chagla C. J. in the three Division Bench cases of the Bombay High Court is concerned, the same finds support from a Court of Appeal case presided over by Slesiaer, Mackinnon and Goddard L. JJ. in Powell e. Great Western Railway Co. 1940(1) A11 E L R 87 where a fireman employed by a railway company while at the engine and while carrying out his duty was hit by a pellet from an air gun deliberately aimed at the engine by a mischievous boy of nineteen years of age. The learned Judges held that it was the firemans duty that brought him to the place where ho had to face the risk of being injured by a pellet from the air gun. Therefore, the learned Judges held that the accident arises out of the course of employment,

22 In this connection, I might also refer to another English case decided by the House of Lords, namely Price and Cadzow Goal Co. Ltd. v. Murphy (1044) 1 All ELR 54. The respondents in that case were working on a coal cutting machine in a coal mine. The part of the mine where the respondents were working was known to be one in which there was a likelihood of inflammable gas. While they were working, an ignition on account of firedamp was caused; as a result, there was an explosion and the respondents were injured. The learned Law Lords held that the accident arose out of and in the course of employment, unless it be established that the employees were guilty of serious and willful misconduct.

In Bhaguhai v. General Manager, Central Railway V.T. Bombay : AIR 1955 Bom. 105 [LQ/BomHC/1954/11] , the view propounded by Chagla C. J. certainly finds support from Powell v. Gnat Western Railway Co. (1940) 1 All ELR 87 I had an occasion to consider the view of Chagla G. J. in Met. Kantamma v. The General Manager, Central Railway through the Divisional Superintendent, Jabalpur M.F.A. No. 69 of 1960, D/- 26-9-1961, when I followed his view. Upon further consideration, I am of opinion that the view propounded by Chagla C. J. is the correct view to be followed. Therefore, even if a casual connection between the employment and the accident is established, that is sufficient to entitle the claimant to compensation under the Workmens Compensation Act. Therefore, 1 am in respectful agreement with the view as propounded by Chagla C. J. in the said cases. That was also the view taken by Dixit J. in Parwatibai w/o Kalu v. Manager, Rajkumar Mills, Indore 1969 MPLJ 648. For this reason, I agree with the conclusion of the learned Commissioner that the accident took place out of and in the course of the respondents employment.

As a result, there is no reason to interfere with the award of the learned Commissioner. This appeal, therefore, fails and is dismissed with costs. Counsels fee Rs. 100, if certified.