Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 931 OF 2019
(arising out of SLP(C) No.5576 of 2017)
LEELA BAI AND ANOTHER ….APPELLANT(S)
VERSUS
SEEMA CHOUHAN AND ANOTHER ….RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellants are the legal heirs of the deceased aggrieved
by the rejection of their claim for compensation under the
Employee’s Compensation Act, 1923 as amended by the
Workmen’s Compensation (Amendment) Act, 2009 (hereinafter
referred to as ‘the Act’). The deceased was a bus driver under
respondent no.1. He fell off the roof of the bus accidentally and
died.
3. Learned counsel for the appellants submits that the
Signature Not Verified
Digitally signed by R
NATARAJAN
Date: 2019.01.22
16:23:54 IST
Reason:
deceased suffered an accidental death in the course of, and
arising out of the employment, evident from the deposition of PW
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2, Ajay Singh Chauhan. The denial of compensation under the
Act to the appellants suffers from grave misappreciation of facts
and the evidence available on record. The nature of duty
performed by the deceased required him to be with the bus
twentyfour hours, failing which the employer’s requirement
could not be fulfilled. The presence of the deceased on the bus
was by compulsion, and not by choice. PW2 deposed that the
deceased was required to be with the bus and was therefore paid
salary of Rs.6,000/ p.m. for twentyfour hours. Merely because
the accident took place while the deceased was coming down the
roof of the bus after having his meals, cannot be sufficient, sans
the evidence, to hold that death did not arise out of and was not
in the course of employment. The facts of the case adequately
reflect notional extension of the duty, relying on General
Manager, B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes,
(1964) 3 SCR 930.
4. Learned counsel for the respondent contended that the duty
of the deceased got over at 7:30 pm. He is stated to have fallen
off the bus after duty hours at 8:30 pm. The deceased cannot be
said to have died in course of and arising out of the employment.
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There was no proximity between the death and discharge of
duties. The deceased cannot be said to have been on duty while
he was eating food on the roof of the bus by choice.
5. We have considered the submissions on behalf of the
parties. The deceased, aged around 42 years, was the driver of
the public bus belonging to respondent no.1. He met an
accidental death on 18.07.2010 at the Burhanpur bus stand
while coming down the roof of the bus of which he was a driver,
after eating his meal. The salary of the deceased at the time of
death was determined by the Tribunal at Rs.4,275/ per month
while dismissing the claim case.
6. The deceased was required to drive the public bus daily,
ferrying passengers from Indore to Burhanpur and back from
Burhanpur to Indore. The travelling time in one direction was
approximately 5 hours, according to PW2. The bus ferried
passengers from Burhanpur at 6:30 AM and reached Indore at
about 11:00 AM. The return journey would commence from
Indore at 3:00 PM and terminate at Burhanpur on or after
7:30PM. According to PW2, because of the nature of their duty,
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the deceased and the conductor of the bus, were required to
remain with the bus twentyfour hours. The appellants also
deposed that because of the nature of his duty, the deceased at
times, would not come home for as long as a week.
7. On the fateful day the deceased had returned from Indore to
the Burhanpur terminus at about 7:30 pm. He met an
accidental death while he was coming down the roof of the bus
after having his meal at about 8:30 pm. The short question for
consideration is whether the death occurred during the course of,
and arising out of the employment. In the facts of the case, and
the evidence available, it is evident that the deceased was present
at the bus terminal and remained with the bus even after arrival
from Indore not by choice, but by compulsion and necessity,
because of the nature of his duties. The route timings of the bus
required the deceased to be readily available with the bus so that
the passenger service being provided by respondent no. 1
remained efficient and was not affected. If the deceased would
have gone home every day after parking the bus and returned the
next morning, the efficiency of the timing of the bus service
facility to the travelling public would definitely have been
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affected, dependant on the arrival of the deceased at the bus
stand from his house. Naturally that would bring an element of
uncertainty in the departure schedule of the bus and efficiency of
the service to the travelling public could be compromised.
Adherence to schedule by the deceased would naturally inure to
the benefit of respondent no.1 by enhancement of income
because of timely service. It is not without reason that the
deceased would not go home for weeks as deposed by the
appellant. Merely because the deceased was coming down the
roof of the bus after having his meal, cannot be considered in
isolation and interpreted so myopically to hold that he was off
duty and therefore would not be entitled to compensation.
8. The deceased did not remain at the bus stand living in the
bus as a member of the public or by choice after arrival at
Burhanpur till departure for Indore the next morning. It is not
the case of the respondent that the deceased was at liberty to
proceed home and return at leisure the next morning after
parking the bus at the Burhanpur bus stand at night. The Act
being a welfare legislation, will have to be interpreted in the facts
of each case and the evidence available, to determine if the
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accident took place in the course of employment and arose out of
the employment. In (supra) it was observed :
Agnes
“…The man’s work does not consist solely in the
task which he is employed to perform. It
includes also matters incidental to that task.
Times during which meals are taken, moments
during which the man is proceeding towards his
work from one portion of his employers’ premises
to another, and periods of rest may all be
included.”
9. In the facts of the present case and the nature of evidence,
there was a clear nexus between the accident and the
employment to apply the doctrine of “notional extension” of the
employment considered in Agnes (supra) as follows:
“It is now wellsettled, however, that this is
subject to the theory of notional extension of the
employer’s premises so as to include an area
which the workman passes and repasses in
going to and in leaving the actual place of work.
There may be some reasonable extension in both
time and place and a workman may be regarded
as in the course of his employment even though
he had not reached or had left his employer’s
premises. The facts and circumstances of each
case will have to be examined very carefully in
order to determine whether the accident arose
out of and in the course of the employment of a
workman, keeping in view at all time this theory
of notional extension.”
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10. If the requirement of the deceased to stay with the bus was
integrally connected with the efficiency of the service to be
provided to the public by respondent no.1 and the deceased was
not present at the bus terminal with the bus in his nature as a
member of the public by choice, we see no reason why the
doctrine of notional extension of the employment will not be
applicable.
11. Agnes (supra) has been followed in Manju Sarkar and
(2014) 14 SCC 21, observing as
Ors. vs. Mabish Miah and Ors.,
follows:
“As rightly contended by the learned counsel
appearing for the appellants there is a notional
extension in the present case also and we would,
therefore, hold that Sajal Sarkar met with the
road accident in the course of his employment
under Respondents 1 and 2. The courts below
have misdirected themselves while dealing with
this question and the finding rendered by them
is perverse and unsustainable.”
12. The appellants are held to have wrongly been denied
compensation under the Act. The impugned orders are
accordingly set aside. The Workmen’s Compensation
Commissioner, Labour Court, Khandwa has already determined
the salary of the deceased at the time of death as Rs.4,275/ per
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month and which is upheld. The compensation payable to the
appellants shall be calculated on the aforesaid basis under
Section 4 along with default penalty under Section 4A and costs
to be awarded under Section 26 of the Act. The quantum of
compensation shall be finally computed after hearing the parties
within one month from the date of receipt and/or production of a
copy of this order before the Commissioner. Respondent no.2
shall pay the determined amount to the appellants within three
weeks from the date of such computation by the Tribunal.
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13. The appeal is allowed.
.……………………….J.
(Arun Mishra)
………………………..J.
(Navin Sinha)
New Delhi,
January 22, 2019.
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