Poonam Devi And Others vs Oriental Insurance Co. Ltd

Navin Sinha, J

The appellants are the legal heirs of the deceased. They were granted compensation of Rs.4,45,420/Â 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 Actâ€). The High Court on 09.05.2014 has

allowed the appeal of the respondent holding that the death occurred during the course of employment but did not arise out of the employment.

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.

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 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.

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.

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 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, Oriental Insurance Company Limited and another, (2009) 13 SCC 405.

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.

The Workmen’s Compensation Act, 1923 (now christened as “Employee’s Compensation Act, 1923â€) 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.

Relevant to the discussion is Section 3 of the Act. The relevant extract reads as follows:

“3. Employer' s liability for compensation.Â​

(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:

XXXXâ€​

In Manju Sarkar & Ors. vs. Mabish Miah & Ors., (2014) 14 SCC 2,1 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 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.â€​

More recently in Daya Kishan Joshi & Anr. vs. Dynemech Systems Pvt. Ltd., (2018) 11 SCC 642, the deceased was employed 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.

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 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 touching 42.60C 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 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 extensionâ€​ of the employment considered in Agnes (supra) as follows:

“…It is now wellÂsettled, 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.â€​

In Leela Bai (supra), the deceased having completed his 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:

“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 busÂstand 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.â€​

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.

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.

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.

The appeal is allowed.