National Insurance Co vs Naru Devi & Another

Manoj K. Tiwari, J

Heard learned counsel for the parties.

This appeal has been filed by the Insurance Company under Section 30 of Workmen Compensation Act challenging the order dated 30.09.2011 passed by Workmen Compensation Commissioner/ District Magistrate, Pithoragarh in W.C. Case No. 03 of 2009. This appeal was admitted on the following substantial questions of law:-

(i) Whether the Workmen Compensation Commissioner has committed illegality in awarding the compensation, while the death was not occurred during the course of the employment?

(ii) Whether the learned tribunal has committed illegality in awarding 12% per annum interest?

Smt. Naru Devi, mother of the deceased (Mohan Singh Dhami) filed an application under Workmen Compensation Act stating that her only son, who was employed as supervisor with M/s Super Traders and Engineers, Sah Market, Pithoragarh died on 25.11.2006 in accident arising out of and in the course of employment. In the claim petition, Smt. Naru Devi further asserted that at the time of death, her son was 20 years of age and he was getting Rs.3600/- per month as wages and with other allowances he was earning Rs.5,000/- per month. She further stated that she was wholly dependent upon her son as there is no other earning member in the family.

The employer in his written statement admitted paragraph nos. 1 & 2 of the claim petition wherein it was asserted that the deceased was serving as supervisor with him, who died in an accident arising out of and in the course of his employment. The employer further stated that he had taken insurance cover from National Insurance Company Ltd. for the workmen engaged by him, under which three skilled and eight unskilled workmen were covered, therefore, the liability to pay compensation, if any, is of the Insurance Company.

The Insurance Company denied all the averments made in the claim petition by filing written statement.

Smt. Naro Devi was examined as P.W.-1, who in her deposition reiterated the averments made in the claim petition. During cross-examination by the Insurance Company, she denied the suggestion made to her that death of her son had not occurred at the work place/during the course of employment, or death of her son had occurred at some other place. She further denied the suggestion that there is no workplace of employer at Ailagarh (place of accident). One Mr. Jai Singh, cousin of the deceased, was examined as PW-2 who also stated that the deceased was going to Aligarh Power House in connection with the work of his employer, and the accident occurred about half kilometer before Aligarh.

One Mr. Ashwani Kumar partner of M/s Super Traders and Engineers was examined as D.W-1, who in his Examination-in-Chief admitted that Mohan Singh Dhami was his employee, who died in an accident arising out of and in the course of employment. During cross examination by the claimant, he stated that the deceased was being paid Rs.3,000/- per month as wages.

Learned Commissioner framed as many as six issues. English translation of the issues, as supplied by learned counsel for the appellant, is as under:-

(i) Whether death of the workman (Mohan Singh Dhami) had occurred on 25.11.2006 in a road accident, arising out of and during the course of employment?

(ii) What was the age and income of the workman at the time of death?

(iii) Whether the employer had taken a valid insurance cover from National Insurance Company in respect of his employees?

(iv) Whether the workman had not died in a accident arising out of and during the course of employment, as alleged in paragraph 12 of the written statement?

(v) Whether the claim made by the claimant is not maintainable being barred by limitation and rules?

(vi) Claimant is entitled to whatreliefs and from whom?

After considering the rival contention of the parties, learned Commissioner passed an order on 30.09.2011, whereby the amount of compensation payable to the claimant was determined as Rs. 3,29,925/-and liability to pay the compensation amount was fastened upon the Insurance Company. However, the liability to pay interest from date of accident till payment of compensation was fastened upon the employer. Thus, feeling aggrieved by the order of learned Commissioner, Insurance Company has filed this appeal.

Mr. Prabhat Pande, learned counsel for the appellant submits that the workman died in a road accident which cannot be treated as an accident arising out of and during the course of employment, and learned Commissioner erred in awarding compensation under Workmen Compensation Act.

The submission made by learned counsel for the appellant is bereft of merit.

The accident in which the workman lost his life was reported by the employer to the police on 26.11.2006. A perusal of the written information given by the employer reveals that he has admitted that his employee (Mohan Singh Dhami) met with an accident while going from one maintenance site of the Firm to another maintenance site.

Learned counsel for the claimant submits that the employer was given contract of maintaining/repairing a high voltage transmission line established to evacuate power from Dhauli Ganga Hydro-Power Project. He further submits that any break down in the transmission lines would have resulted in huge losses to the power generating unit and also in disruption of power supply to Northern Grid.

The transmission lines traverse through rugged, hilly to mountains terrain and the workers were required to move from one place to another to fix the problems in the transmission lines. Since the work undertaken by the workers engaged by M/s Super Traders & Engineers, Pithoragarh is inherently dangerous, therefore, the employer had taken insurance policy to cover any risk to the workers.

Learned counsel for the appellant submits that the accident, which resulted in death of the workman had not occurred during the course of his employment, as he was not at his work place at the relevant point of time.

I do not find any substance in the submission made on behalf of the appellant. From the evidence on record, it is apparent that there is a causal connection between the accident and the employment. The deceased was going from one work place of the employer to another work place. Thus, he had boarded the vehicle, not as a public or by choice but as an employee of M/s Super Traders & Engineers.

The Apex Court in the case of General Manager, B.E.S.T. Undertaking v. Mrs. Agnes reported in AIR (1964) SC 193 dealt with a similar issue. In the said case also, the workman was a driver, who after finishing his work was returning to his residence in another bus, the bus collided with stationary lorry, as a result, the workman was thrown out on the road and was injured, and due to those injuries, he died. Relevant paragraphs of the said judgment are extracted below:-

"9. In Weaver v. Tredegar Iron and Coal Co. Ltd.4 the House of Lords re-viewed the entire law and gave a wider meaning to the concept of "duty". It was also a case of a collier. He was caught up in a press of fellow-workmen trying to board a train and was pushed off the railway platform and injured. The platform and train were both owned, managed and controlled by a railway, company, but the platform was situated by the side of a railway line which ran through the colliery premises owned by the workmen's employers, and was accessible from the colliery premises only. It was not open to the public, and its name did not appear in the company's timetable. Employees of the colliery used it under an arrangement between their employers and the company whereby specified trains were stopped at the platform to take the men to and from their homes at a reduced fare, which was deducted by the employers from the men's wages. The men were free to go home by means of the main road which ran past the colliery, but in practice every employee used the railway. The injured workman claimed compensation. The House of Lords by a majority held that the accident arose in the course of and out of the employment and the injured workman was entitled to compensation. Lord Atkin posed the question thus: Is he doing something in discharge of a duty to his employer directly or indirectly imposed upon him by his contract of service? and answered:

"... the word 'duty' in the test has such a wide connotation that it gives little assistance as a practical guide."

He proceeded to state:

"Duty with the vague connotation given to it above cannot be rejected. but it does not seem to point very clearly to the desired goal. There can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the 'down tools' signal is given, or when the actual workshop where he is working is left. In other words, the employment may run on its course by its own momentum beyond the actual stopping-place"

After considering the decisions on the subject, the learned Lord concluded thus:

"When all the cases have been looked at and considered, one is finally brought back to the words of the Act, 'the course of the employment'. The course of the employment begins when the workman enters the employment, and it ceases when he leaves the employment, it being his duty to do both."

Lord Wright puts the same idea differently thus at p. 172.

"In a case like the present, however, where a man was simply using the usual and proper way provided for leaving the colliery; I do not see the relevance of the idea of duty, except in the artificial sense that a man owes his employers a duty to come to his work and to go away when his work is ended. I think that it is in some such sense that duty has been referred to in certain of the cases of this nature."

Lord Romer applied the following tests to the facts of the case at p.175:

"In all cases, therefore, where a workman, on going to, or on leaving his work, suffers an accident on the way, the first question to be determined is whether the workman was at the place where the accident occurred in virtue of his status as a workman or in virtue of his status as a member of the public".

He came to the conclusion that the employee in that case, when the accident happened, was there only by virtue of his status as an employee of the colliery. Lord Porter, dealing with the test of duty, remarked thus, at p. 179:

"In some cases, no doubt, it may be helpful to consider whether the man owed a duty to his employers at the time of the accident, and, indeed, if duty be construed with sufficient width, it may be a decisive test, but, so construed, to say that the man was doing his duty means no more than that he was acting within the scope of his employment. 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. Nor is his work necessarily confined to his employer's premises. The man may be working elsewhere e.g. in building a house or in work on the road, or in work at a dock. The question is not, I think whether the man was on the employer's premises. It is rather whether he was within the sphere of area of his employment."

Adverting to the question of alternative facilities, the learned Lord pointed out, "However, if it is in the course of his employment, the fact that he might have chosen an alternative method does not disentitle him to recovery." After equating the expression "part of his duty" with "in the course of his employment" he proceeded to observe:

"It is in the course of his employment, and, if the phrase be used, it is part of his duty, both to go to and to proceed from the work upon which he is engaged, and, so long as he is in a place in which persons other than those so engaged would have no right to be, and indeed, in which he himself would have no right to be but for the work on which he is employed, he would, I think, normally still be in the course of his employment."

But the learned Lord took care to state that he was not considering cases in which "the necessities of the work compel the employee to traverse the public streets or other public places." This decision, while it did not discard the test of "duty", gave it a wider meaning than that given by the earlier decisions. It was the duty of the employee to go to the work spot and leave it and it would be his duty to leave it by means of transit provided by the employer. The exigencies of the service, the practice obtaining therein and the nature of the service would be the guiding factors to ascertain the scope of the duty.

The court of appeal in Dunn v. A.G. Lockwood and Co.5 implied such a term of duty under the following circumstances. A workman, who lived at Whitstable was employed to work at Margate. The term of the employment were that the workman might, though it was not obligatory, travel from Whitstable, to Margate by the 7.40 a.m. train from Whitstable, which arrived at Margate at 8.15 a.m. and that he was to be paid as from 8.15 a.m. While proceeding one morning from Whitstable station by the most expeditious route to his work he slipped and injured himself. The Court held that there was a contractual obligation imposed on the workman by the concession to go to his work as quickly as possible after arrival at Margate station; and that the accident, therefore, arose "out of and, in the course of the employment" within the meaning of the Workmen's Compensation Act. Lord Oaksey, L.J., said that the accident arose in the course of the workman's employment, because at that time he was performing a duty which he owed to his employer by virtue of his contract. From the permission given to use the 7.40 a.m. train, although he was to be paid from 8 a.m., obligation was implied on the part of the employee to proceed as quickly as possible to his work by the most expeditious route after his arrival at Margate. This decision illustrates the wider meaning given to the test "duty", though the result was achieved by implying an obligation in the circumstances of the case. ln Hill v. Butterley Co. Ltd.6 a workman while crossing her employers' premises on her way to the office to "clock in" before starting work, slipped on an icy slope and was injured. Though there was no public right of way, the inhabitants of the neighbouring village were using the part of the premises, where the accident happened, without objection from the owners for reaching an adjoining railway station. The Court held that the accident arose out of and in the course of the employment. The fact that the premises were used as a path- way by the other members of the public did not prevent the Court from holding that the employee met with the accident in the course of her employment.

The court of appeal in Jenkins v. Elder Dempster Lines Ltd.7 once again construed the expression "arising out of and in the course of employment". There, the ship in which the deceased was employed against the harbour mole of Las Palmas. At the landward end of the mole was a gateway where police were stationed for the purpose, ostensibly, of keeping unauthorized persons off the mole, but all kinds of people were allowed there and entry to it was practically unrestricted. Shortly after the ship moored, the deceased and other members of the crew went ashore for a short while. When they were returning to the ship, the policemen at the gate of the mole asked them which was their ship and allowed them to enter the mole. In the darkness, the deceased fell over the side of the mole and was drowned. In a claim by the widow against the employers for compensation under the Workmen's Compensation Acts, her claim was not allowed. Sir Raymond Evershed, M.R., posed the question thus: "Was the workman at the relevant time acting in the scope of his employment?" and answered:

"... the explanation, it is true, which the cases have added will entitle him to say that he was if his presence at the point where he met with the accident is so related to his employment as to lead to the conclusion that he was acting within its scope."

This decision, lays down a wider test, namely, that there should be a nexus between the accident and the employment. This Court has considered the scope of the section in Saurashtra Salt Manufacturing Co. v. Bai Valu Raja8 and accepted the doctrine of "notional extension" of the employer's premises in the context of an accident to an employee. Imam, J., delivering the judgment of the Court laid down the law thus:

"As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. 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 times this theory of notional extension."

On the facts of that case, this Court held that the accident did not take place in the course of the employment.

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 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 as both the entry and exit by time and space. The scope of such extension "must necessarily depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves this tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employer to use only a particular means of transport extends the area, of the field of employment to the course of the said transport. Though at the beginning the word "duty" has been strictly construed, the later decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deals with a transport service operating over a large area like Bombay. They are, therefore, of little assistance, except insofar as they laid down the principles of general application. Indeed, some of the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to traverse public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority.

.....

Bombay is a city of distances. The transport service practically covers the entire area of Greater Bombay. Without the said right, it would be very difficult for a driver to sign on and sign off at the depots at the scheduled timings for he has to traverse a long distance. But for this right, not only punctuality and timings cannot be maintained, but his efficiency will also suffer. DW 1 a Traffic Inspector of B.E.S.T. Undertaking, says that instructions are give all the drivers and conductors that they can travel in other buses. This supports the practice of the drivers using the buses for their travel from home to the depot and vice versa. Having regard to the class of employees, it would be futile to suggest that they could as well go by local suburban trains or by walking. The former, they could not afford, and the latter, having regard to the long distances involved, would not be practicable. As the free transport is provided in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of his duty. He is not exercising the right as a member of the public, but only as one belonging to a service. The entire Greater Bombay is the field or area of the service and every bus is an integrated part of the service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egrees to the factory are not of much relevance to a case where an employee has to operate over a larger area in a bus which is in itself an integrated part of a fleet of buses operating in the entire area. Though the doctrine of reasonable or notional extension of employment developed in the context of specific worshops, factories or harbours, equally applies to such a bus service, the doctrine necessarily will have to be adopted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egrees to the factory is a limited one, in the case of a city transport service, by analogy, the entire fleet of buses forming the service would be the "premises". An illustration may make our point clear. Suppose, in view of the long distances to be covered by the employees, the Corporation, as a condition of service, provides a bus for collecting all the drivers from their houses so that they may reach their depots in time and to take them back after the day's work so that after the heavy work till about 7 p.m. they may reach their homes without further strain on their health. Can it be said that the said facility is not one given in the course of employment? It can even be said that it is the duty of the employees in the interest of the service to utilize the said bus both for coming to the depot and going back to their homes. If that be so, what difference would it make if the employer, instead of providing a separate bus, throws open his entire fleet of buses for giving the employees the said facility? They are given that facility not as members of the public but as employees; not as a grace but as of right because efficiency of the service demands it. We would, therefore, hold that when a driver when going home from the depot or coming to the depot uses the bus, any accident that happens to him is an accident in the course of his employment.

We, therefore, agree with the High Court that the accident occurred to Nanu Raman during the course of his employment and therefore his wife is entitled to compensation. No attempt was made to question the correctness of the quantum of compensation fixed by the High Court."

A Division Bench of Bombay High Court in the case of Shrimati Bhagubai Vs The General Manager, Central Railway reported in 1954 SCC Online Bom 10 , was dealing with a similar fact situation, where an employee of Central Railways was stabbed at midnight while going to join duty and succumbed to injuries sustained by him. It was held that since there was causal connection between the accident and the employment, therefore, employee was entitled to compensation under the Act. The relevant extract of the said judgment is reproduced hereunder:-

"To apply that test to the facts of this case, it arose out of the employment of the deceased that he found himself at a spot where he was assaulted and murdered.

Mr. Desai has strenuously argued that the distinguishing feature of this case is that the employee was murdered and according to him there is always a motive for a murder, and therefore it could not be said that the risk which the employee ran was a risk which would have been run by any other employee or member of the public. According to Mr. Desai, in the case of a murder the person murdered alone runs the risk because the murder is motivated by a particular person being done to death. In our opinion there is not an iota of evidence in this case that the employee was done to death because some one was interested in murdering him. Nor is there any evidence that the employee was bound to be murdered, whether he was on the spot in the course of his employment or anywhere else. Faced with this difficulty Mr. Desai's contention is that the burden was upon the applicant to establish that the risk which the employee ran was a risk which was not personal to him. Now, there can be no doubt that before an applicant under the Wrokmen's Compensation Act can succeed he must discharge the burden of proving (1) that there was an accident, (2) that the accident arose in the course of the employment, and (3) that the accident arose out of the employment. He must place evidence on the record which would entitle the Court to hold that these three conditions laid down by Section 3 of the Act have been satisfied. In this case, as already pointed out, there is no dispute as to the accident or the accident taking place in the course of employment. The question is whether the applicant has discharged the burden with regard to the third ingredient and also what is the burden that the law places upon him with regard to that ingredient. In our opinion, once the applicant has established that the deceased was at a particular place and he was there because he had to be there by reason of his employment, and he further establishes that because he was there he met with an accident, he has discharged the burden which the law places upon him. The law does not place an additional burden upon the applicant to prove that the peril which the employee faced and the accident which arose because of that peril was not personal to him but was shared by all the employees or the members of the public. Mr. Desai would have an applicant prove not only that the employee was murdered, but that in murdering him the murderer 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 but a peril personal to the employee. It is because of this that the authorities have made it clear that the causal connection between the accident and the employment which the applicant has 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."

Hon'ble Supreme Court in the case of Shyama Devi Vs Union of India reported in (2005) 12 SCC 217 held that merely because the workman was injured after duty hours, it cannot be said that workman's death did not occur in the course of his employment. Para 4 & 5 of the said judgment are extracted below:-

"4. To appreciate the contention raised on behalf of the appellant that the deceased employee died in the course of employment, only few facts, as noted by the High Court, are required to be stated. On 5-2-1994 at about 4.00 p.m., a group of anti-social elements armed with deadly weapons trespassed the office of the stationmaster at the railway station and damaged railway property. The deceased switchman was on duty between 8.00 a.m. to 4.00 p.m. who, just before the incident, had left the office and reached his quarters. On hearing the commotion and finding that the office of the stationmaster was attacked by a mob, he took out his licensed gun and proceeded towards the railway station. At the railway station, while he was trying to pacify the mob, he suffered lathi-blow on his head. He was taken to the hospital but ultimately died as a result of the said head injury.

On the above facts, there was no justification for the Presiding Officer, Labour Court for coming to the finding that the death of the deceased workman did not arise during the course of his employment. Merely because after his duty period, he had gone to his quarters and come out only after hearing a commotion to pacify the mob, it cannot be said that his death was not in the course of his employment. As the facts show, he was courageous enough to come out of his quarters even after his duty hours to save railway property. Learned counsel appearing for the Railways, tried to support the order stating that the son of the deceased has been given compassionate appointment and full service benefits have been paid. In our opinion, there is no ground to deny to his dependants compensation under the Workmen's Compensation Act, 1923."

In the present case also there is a causal connection between the accident and the employment of the deceased, as a skilled worker. The deceased workman was at that particular place, where he met with a road accident, by reason of his employment. Thus it can be safely inferred that death of the workman had occurred by an accident arising out of and in the course of employment, therefore, the claimant is entitled to compensation under Employees' Compensation Act.

Section 4-A(3)(a) of Employees' Compensation Act, 1923 ordains that where employer is in default in paying compensation due under the Act within one month from the date it fell due, the Commissioner shall direct that the employer shall, in addition to the amount of arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due.

In the present case, compensation was not paid in time. It was not paid when it became due (i.e. 25.12.2006) and it was paid after passing of the order dated 30.09.2011 by the Workmen Compensation Commissioner. Thus, learned Commissioner was justified in awarding statutory simple interest at the rate of twelve per cent per annum.

In such view of the matter, there is no scope for interference in the appeal. Accordingly, the appeal is dismissed.