Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).1836 OF 2020
(arising out of SLP (C) No(s).33445 of 2014)
POONAM DEVI AND OTHERS ...APPELLANT(S)
VERSUS
ORIENTAL INSURANCE CO. LTD. ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellants are the legal heirs of the deceased. They were
granted compensation of Rs.4,45,420/ with interest at the rate of
12 per cent by the Commissioner, Workmen’s Compensation Act
from the date of accident up to the date of deposit in addition to a
penalty imposed on the employer under Section 4A(3)(b) of the
Workmen’s Compensation Act, 1923 (hereinafter called “the Act”).
The High Court on 09.05.2014 has allowed the appeal of the
Signature Not Verified
Digitally signed by
MEENAKSHI KOHLI
Date: 2020.03.07
12:15:25 IST
Reason:
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respondent holding that the death occurred during the course of
employment but did not arise out of the employment.
2. The deceased was aged 21 years, in the employment of
respondent no.2 (since deleted), and was driving her TATA 407
vehicle bearing registration No.UP 15P 1689 on 11.06.2003 from
Ambala to Meerut, a distance of approximately 200 Kms. At about
12.30 PM, when he approached the bridge near village Fatehpur,
the deceased went to the Yamuna canal to fetch water and also to
have a bath. Unfortunately, he slipped into the canal and died. The
vehicle was insured with the respondent Insurance Company.
P.W.2, who was standing near the bridge, deposed that the deceased
had gone to fetch water in a can along with the cleaner who tried to
save him, but both slipped into the canal. The Workmen’s
Compensation Commissioner by order dated 12.12.2005 allowed the
claim as aforesaid.
3. The High Court in appeal by the Insurance Company held that
the deceased may have died during the course of the employment
but death did not arise out of the employment, as bathing in the
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canal was not incidental to the employment but was at the peril of
the workman. There was no casual connection between the death of
the workman and his employment. He had gone to fetch water for
personal consumption and it was not his case that the truck was
over heated.
4. Mr. Vikas Bhadana, learned counsel for the appellants,
submitted that there was a causal connection of the death with the
employment. In the extreme heat of the month of June at noon, a
presumption would arise that the deceased had gone to the canal to
fetch water not only to cool the truck but also himself to ensure a
proper and safe journey of the vehicle belonging to the employer and
his own safety. Reliance was placed on
Leela Bai and anr. vs.
Seema Chouhan and anr., (2019) 4 SCC 325.
5. Mr. Ajay Singh, learned counsel for the respondent opposing
the appeal, submitted that the High Court has rightly held that
there was no casual connection between the death of the deceased
with the employment. Merely because death may have occurred in
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the course of the employment will not suffice unless it is established
that it was incidental and arose out of the employment. Reliance
was placed on Malikarjuna G. Hiremath vs. Branch Manager,
, (2009) 13
Oriental Insurance Company Limited and another
SCC 405.
6. We have considered the submission on behalf of the parties
and have also perused the impugned orders as also the case law
cited before us.
7. The Workmen’s Compensation Act, 1923 (now christened as
“Employee’s Compensation Act, 1923”) is a piece of socially
beneficial legislation. The provisions will therefore have to be
interpreted in a manner to advance the purpose of the legislation,
rather than to stultify it. In case of a direct conflict, when no
reconciliation is possible, the statutory provision will prevail only
then.
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8. Relevant to the discussion is Section 3 of the Act. The relevant
extract reads as follows:
“3. Employer' s liability for compensation.
(1) If personal injury is caused to a workman by
accident arising out of and in the course of his
employment, his employer shall be liable to pay
compensation in accordance with the provisions of
this Chapter:
XXXX”
9. In , (2014) 14
Manju Sarkar & Ors. vs. Mabish Miah & Ors.
SCC 21, the deceased was driving the employer’s truck from
Agartala to Churaibari FCI godown. When he reached near Dharam
Nagar, he got down to make arrangements for repairing some
mechanical problems in the truck when he was hit on the road by
another vehicle and died in the hospital. Applying the principle of
notional extension, it was held that death occurred in the course of
employment relying upon B.E.S.T. Undertaking vs. Agnes, AIR
1964 SC 193, at paragraph 12
| “Under | Section 3(1) | of the Act the injury must be | ||
|---|---|---|---|---|
| caused to the workman by an accident arising | ||||
| out of and in the course of his employment. The | ||||
| question, when does an employment begin and | ||||
| when does it cease, depends upon the facts of | ||||
| each case. But the Courts have agreed that the |
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| employment does not necessarily end when the | |
|---|---|
| “down tool” signal is given or when the workman | |
| leaves the actual workshop where he is working. | |
| There is a notional extension at both the entry | |
| and exit by time and space. The scope of such | |
| extension must necessarily depend on the | |
| circumstances of a given case. As employment | |
| may end or may begin not only when the | |
| employee begins to work or leaves his tools but | |
| also when he used the means of access and, | |
| egress to and from the place of employment.” |
10. More recently in Daya Kishan Joshi & Anr. vs. Dynemech
, (2018) 11 SCC 642, the deceased was employed
Systems Pvt. Ltd.
as an engineer for promoting sales and installation of products
which required him to move around in the field. While returning
from field work, he met with an accident resulting in death. Holding
that his being on the road related to the nature of his duties, not
only the injury was caused during the currency of the employment
but also arose out of the employment.
11. Coming to the facts of the present case, the deceased was
driving the truck of respondent no.2 from Ambala to Meerut.
Indisputably he was in the course of his employment. We can take
judicial notice of the fact that considering the manufacturer’s
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specification, the cabin of the truck was not air conditioned and
would have been a baking oven in the middle of the afternoon in the
sultry monsoon heat of June 2003, when the temperature was
0
touching 42.6 C in Yamunagar (Haryana) (source: weatheronline.in).
It was a compulsion for the deceased to stay fresh and alert not only
to protect the truck of respondent no.2 from damage but also to
ensure a smooth journey and protect his own life by safe driving.
We can also take judicial notice of the fact that the possibility of the
truck also requiring water to prevent overheating cannot be
completely ruled out. In these circumstances, can it be said that
the act of the deceased in going to the canal to fetch water in a can
for the truck and to refresh himself by a bath before continuing the
journey was not incidental to the employment? Every action of the
driver of a truck to ensure the safety of the truck belonging to the
employer and to ensure his own safety by a safe journey for himself
has to be considered as incidental to the employment by extension
of the notional employment theory. A truck driver who would not
keep himself fresh to drive in such heat would be a potential danger
to others on the road by reason of any bonafide errors of judgement
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by reason of the heat. The theory of notional extension noticed in
the Agnes (supra) and followed in Leela Bai (supra) is extracted
hereunder:
| “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 well | settled, 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.” |
12. In (supra), the deceased having completed his
Leela Bai
journey as a driver stayed back on the roof of the bus to ensure
early scheduled departure the next morning by not going home.
While he was coming down the roof of the bus he slipped and died.
It was held at paragraph 7 as follows:
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“7. 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
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 affected, dependent on the arrival of
the deceased at the busstand 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 enure
to the benefit of Respondent 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.”
13. We see no reason why the application of the theory of notional
extension will therefore not apply in the facts of the present case
also.
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14. Malikarjuna (supra) is distinguishable on its own facts as the
deceased had completed his journey from Siraguppa to the
Gurugunta Angreshwar temple, after which he went to the pond and
while taking a bath slipped and drowned. The case is completely
distinguishable on its own facts.
15. We, therefore, find the order of the High Court to be
unsustainable. It is set aside. The order of the Workmen’s
Compensation Commissioner dated 12.12.2005 is restored. The
payments in terms of the order of the Workmen’s Compensation
Commissioner be made to the appellants within a period of six
weeks from today. Since respondent no.2 stands deleted, the
question of payment of penalty by her does not arise.
16. The appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
March 06, 2020.
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