Alice Nona v. Wickremesinghe.
1936Present: Fernando A.J.
In the Matter of an Appal under Section 43 of theWorkmen’s Compensation OrdinanceNo. 19 of 1934.
ALICE NONA et al. v. WICKREMESINGHE.
425—S. C. (Special).
Workmen’s compensation—Death of ’bus driver by ignition of petrol—Accidentin course of employment—Computation of wages—Overtime pay includedin wages—Ordinance No. 19 of 1934, ss. 2 and 3.
A ’bus driver employed by the appellant lost his life as the result ofthe ignition of petrol while it was being pumped to a tank under theseat of the driver. The ignition was caused by a match struck by apassenger who was occupying a seat next to the driver,—
Held, the death was caused by an accident arising out of and in thecourse of employment within the meaning of section 3 of the Workmen’sCompensation Ordinance, No. 19 of 1934.
Payment for working overtime is part df wages that should be takeninto account in assessing the compensation payable.
HIS was an appeal, under section 48 of the Workmen’s CompensationOrdinance, No. 19 of 1934.
Jagodage William was employed by the appellant as a ’bus driver.While petrol was being pumped into the tank which was under theseat of the driver, a passenger who was seated on the seat by the sideof the driver lighted a match. This ignited the petrol and caused thedeath of William. The widow and the minor children of William claimedcompensation under section 3 of the Workmen’s Compensation Ordi-nance, No. 19 of 1934. The Commissioner ordered the appellant to payRs. 1,350. From this order he has appealed.
Gratiaen, for the appellant.—The accident was caused by an act inbreach of a statutory regulation. Hence the appellants are not liableto pay compensation. See Moore & Co. v. Donnelly, Fife Co. v. Sharp,and Fife Coal Co. v. Fyfe1; Castells v. Addie & Sons Collieries, Ltd?
In calculating the wages the Commissioner had included an item“ the batta earned by him which is at the rate ..of 50 cents for everythird day in the month”. There is no evidence to show whether thiswas part of the salary, under the definition of “ wages ” in section 2of the Ordinance, no travelling concession can be included in computingthe wages. Hence the award of the Commissioner in excessive.
1 (1921) 1 A. C. 329.
* (1922) 1 A. C. 164.
FERNANDO A.J.—Alice Nona v. Wickremesinghe.
Senaratne (with him A. L. Jayasuriya), for the respondents.—Thereis no evidence to show that the death was the result of an action in breach,of a statutory regulation. Even if it had been in breach of a statutoryregulation it is not that of the deceased, it was the act of a third party.Hence the cases cited by the other side would not apply.
With regard to the item “ batta ”, it is a finding of fact, and there is no>appeal from the decision of the Commissioner on facts under section 48.The learned Commissioner had found that this amount was paid fromthe books. There is in evidence that this amount was paid when thedriver worked in the night. It cannot be said that this amount wasfor the expenses of meals or travelling. Hence clearly it does not comewithin a travelling concession and the learned Commissioner had rightly"included it under wages as a benefit paid by the employer to the workman.
Cur. adv. vult.
September 18, 1936. Fernando A.J.—
The Commissioner appointed under the Ordinance ordered the appellantto pay to the respondents a sum of Rs. 1,350 as compensation due to themon the ground that the death of Jagodage William had been caused byan accident arising out of and in the course of his employment.
Counsel for the appellant argued first that the accident did not ariseout of his employment, but the authorities cited by him show that beforehe can succeed on this point, it must be proved that William the employeein question was acting in breach of a statutory regulation, and thuswas himself responsible for the accident. Counsel has referred me tocondition 8 of the conditions as to structure and equipment of minorpetroleum installations which requires that the licensee shall take all dueprecautions for preventing unauthorized persons from having accessto any dangerous petroleum, or to any receptacle which contains or hasrecently contained dangerous petroleum. This condition has to beperformed by the licensee, the seller of the petroleum, but casts no dutyon the purchaser, and I am not satisfied that the hose with whichpetroleum is pumped into a car is a receptacle within the meaning of thiscondition. It is a matter of common knowledge that the hose is in facthandled by almost every purchaser of petroleum, and it is difficult tobelieve that if such handling is a breach of the condition, it would be soopenly allowed. In these circumstances, I must hold that the finding ofthe Commissioner, that the accident arose out of and in the course ofhis employment, was correct.
Counsel also argued that the amount of compensation awarded wasexcessive, inasmuch as the Commissioner wrongly included in the wagesearned by the deceased an allowance which had been paid to him as“ batta ”. The evidence, however, does not show that this was a travellingallowance. The appellant in the course of his evidence stated, “ Whena driver works at night I pay him batta 50 cents. This is a * santosumnot an agreed allowance ”. He also produced his book of daily expendi-ture showing amounts of batta paid to the deceased. In computingthe wages earned by the deceased, the Commissioner added to his monthlysalary, “ the batta earned by him which is at the rate of 50 cents forevery third day in the month ”. The books are not before me, but Iunderstand the Commisisoner to mean that he was satisfied on the
Sinnapodian v. Muttan.
evidence, and from the books, that a sum of 50 cents had been paidto the deceased every third day during the months that he was employed.There is no appeal to this Court from the finding of the Commissionerexcept on a question of law (see section 48 (3) ). On the material beforeme, I am not prepared to say that the Commissioner was wrong whenhe found that in fact the deceased had been paid 50 cents every thirdday during the months he was employed. If he had been paid this sumregularly, there is nothing to show that, that sum was intended to covertravelling, that is to say, the cost of travelling. On the other hand thenature of the employment, driving a bus, shows that the deceased whenhe travelled, did so on his employer’s omnibus, and could not haveincurred any expenditure in so travelling. Nor is there any evidenceto show that the allowance was intended to cover the cost of any mealswhich the deceased had to find during such travelling. I would thereforehold that the allowance in question was part of the wages received by thedeceased as overtime, that is to say, because on every third day heworked more than ordinary number of hours.
I hold against the appellant on both these questions and accordingly■dismiss the appeal with costs.
ALICE NONA et al. v. WICKREMESINGHE