POONAM DEVI AND OTHERS versus ORIENTAL INSURANCE CO. LTD. on 6 March 2020

1. The appellants are the legal heirs of the deceased. They weregranted compensation of Rs. 4,45,420/- with interest at the rate of 12Fper cent by the Commissioner, Workmen’s Compensation Act from thedate of accident up to the date of deposit in addition to a penaltyimposed on the employer under Section 4A(3)(b) of the Workmen’sCompensation Act, 1923 (hereinafter called “the Act”). The High Courton 09.05.2014 has allowed the appeal of the respondent holding thatthe death occurred during the course of employment but did not ariseGout of the employment.

2. The deceased was aged 21 years, in the employment ofrespondent no.2 (since deleted), and was driving her TATA 407 vehiclebearing registration No. UP 15P 1689 on 11.06.2003 from Ambala toMeerut, a distance of approximately 200 Kms. At about 12.30 PM,Hwhen 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 wasinsured with the respondent Insurance Company. P.W.2, who wasstanding near the bridge, deposed that the deceased had gone to fetchwater in a can along with the cleaner who tried to save him, but bothslipped into the canal. The Workmen’s Compensation Commissionerby order dated 12.12.2005 allowed the claim as aforesaid.

3. The High Court in appeal by the Insurance Company held thatthe deceased may have died during the course of the employment butdeath did not arise out of the employment, as bathing in the canal wasnot incidental to the employment but was at the peril of the workman.There was no casual connection between the death of the workmanand his employment. He had gone to fetch water for personalconsumption 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 theemployment. In the extreme heat of the month of June at noon, apresumption would arise that the deceased had gone to the canal tofetch water not only to cool the truck but also himself to ensure a properand safe journey of the vehicle belonging to the employer and his ownsafety. Reliance was placed on Leela Bai and anr. vs. SeemaChouhan and anr., (2019) 4 SCC 325.

5. Mr. Ajay Singh, learned counsel for the respondent opposingthe appeal, submitted that the High Court has rightly held that therewas no casual connection between the death of the deceased with theemployment. Merely because death may have occurred in the courseof the employment will not suffice unless it is established that it wasincidental and arose out of the employment. Reliance was placed onMalikarjuna G. Hiremath vs. Branch Manager, Oriental InsuranceCompany Limited and another, (2009) 13 SCC 405.

6. We have considered the submission on behalf of the partiesand have also perused the impugned orders as also the case law citedbefore us.

7. The Workmen’s Compensation Act, 1923 (now christened as“Employee’s Compensation Act, 1923”) is a piece of socially beneficiallegislation. The provisions will therefore have to be interpreted in amanner to advance the purpose of the legislation, rather than to stultify

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Ait. In case of a direct conflict, when no reconciliation is possible, thestatutory provision will prevail only then.8. Relevant to the discussion is Section 3 of the Act. The relevantextract reads as follows:

“3. Employer’ s liability for compensation.-B

(1) If personal injury is caused to a workman by accident arisingout of and in the course of his employment, his employer shallbe liable to pay compensation in accordance with the provisionsof this Chapter:

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9. In Manju Sarkar & Ors. vs. Mabish Miah & Ors., (2014)14 SCC 21, the deceased was driving the employer’s truck fromAgartala to Churaibari FCI godown. When he reached near DharamNagar, he got down to make arrangements for repairing some mechanicalDproblems in the truck when he was hit on the road by another vehicleand died in the hospital. Applying the principle of notional extension, itwas held that death occurred in the course of employment relying uponB.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 theEworkman by an accident arising out of and in the course of hisemployment. The question, when does an employment begin andwhen does it cease, depends upon the facts of each case. Butthe Courts have agreed that the employment does not necessarilyend when the “down tool” signal is given or when the workmanleaves the actual workshop where he is working. There is aFnotional extension at both the entry and exit by time and space.The scope of such extension must necessarily depend on thecircumstances of a given case. As employment may end or maybegin not only when the employee begins to work or leaves histools but also when he used the means of access and, egress toGand from the place of employment.”

10. More recently in Daya Kishan Joshi & Anr. vs. DynemechSystems Pvt. Ltd., (2018) 11 SCC 642, the deceased was employedas an engineer for promoting sales and installation of products whichrequired him to move around in the field. While returning from fieldHwork, he met with an accident resulting in death. Holding that his being POONAM DEVI AND OTHERS v.

on the road related to the nature of his duties, not only the injury wascaused during the currency of the employment but also arose out ofthe employment.

11. Coming to the facts of the present case, the deceased wasdriving the truck of respondent no.2 from Ambala to Meerut.Indisputably he was in the course of his employment. We can takejudicial notice of the fact that considering the manufacturer’sspecification, the cabin of the truck was not air conditioned and wouldhave been a baking oven in the middle of the afternoon in the sultrymonsoon heat of June 2003, when the temperature was touching 42.6[0]Cin Yamunagar (Haryana) (source: weatheronline.in). It was acompulsion for the deceased to stay fresh and alert not only to protectthe truck of respondent no.2 from damage but also to ensure a smoothjourney and protect his own life by safe driving. We can also takejudicial notice of the fact that the possibility of the truck also requiringwater to prevent overheating cannot be completely ruled out. In thesecircumstances, can it be said that the act of the deceased in going tothe canal to fetch water in a can for the truck and to refresh himselfby a bath before continuing the journey was not incidental to theemployment? Every action of the driver of a truck to ensure the safetyof the truck belonging to the employer and to ensure his own safety bya safe journey for himself has to be considered as incidental to theemployment by extension of the notional employment theory. A truckdriver who would not keep himself fresh to drive in such heat wouldbe a potential danger to others on the road by reason of any bonafideerrors of judgement by reason of the heat. The theory of notionalextension 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 theemployment to apply the doctrine of “notional extension” of theemployment considered in Agnes (supra) as follows:

“…It is now well-settled, however, that this is subject to thetheory of notional extension of the employer’s premises so as toinclude an area which the workman passes and repasses in goingto and in leaving the actual place of work. There may be somereasonable extension in both time and place and a workman maybe regarded as in the course of his employment even though he AB

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Ahad not reached or had left his employer’s premises. The factsand circumstances of each case will have to be examined verycarefully in order to determine whether the accident arose outof and in the course of the employment of a workman, keepingin view at all time this theory of notional extension.”

B12. In Leela Bai (supra), the deceased having completed hisjourney as a driver stayed back on the roof of the bus to ensure earlyscheduled departure the next morning by not going home. While he wascoming down the roof of the bus he slipped and died. It was held atparagraph 7 as follows:

“7. In the facts of the case, and the evidence available, it isCevident that the deceased was present at the bus terminal andremained with the bus even after arrival from Indore not bychoice, but by compulsion and necessity, because of the natureof his duties. The route timings of the bus required the deceasedto be readily available with the bus so that the passenger serviceDbeing provided by Respondent 1 remained efficient and was notaffected. If the deceased would have gone home every day afterparking the bus and returned the next morning, the efficiency ofthe timing of the bus service facility to the travelling public woulddefinitely have been affected, dependent on the arrival of thedeceased at the bus-stand from his house. Naturally that wouldEbring an element of uncertainty in the departure schedule of thebus and efficiency of the service to the travelling public couldbe compromised. Adherence to schedule by the deceased wouldnaturally enure to the benefit of Respondent 1 by enhancementof income because of timely service. It is not without reason thatFthe deceased would not go home for weeks as deposed by theappellant. Merely because the deceased was coming down theroof of the bus after having his meal, cannot be considered inisolation and interpreted so myopically to hold that he was offduty and therefore would not be entitled to compensation.”

13. We see no reason why the application of the theory of notionalGextension will therefore not apply in the facts of the present case also.

14. Malikarjuna (supra) is distinguishable on its own facts asthe deceased had completed his journey from Siraguppa to the GuruguntaAngreshwar temple, after which he went to the pond and while takinga bath slipped and drowned. The case is completely distinguishable onHits own facts.

POONAM DEVI AND OTHERS v.

ORIENTAL INSURANCE CO. LTD. [NAVIN SINHA, J.]

15. We, therefore, find the order of the High Court to beunsustainable. It is set aside. The order of the Workmen’s CompensationCommissioner dated 12.12.2005 is restored. The payments in terms ofthe order of the Workmen’s Compensation Commissioner be made tothe appellants within a period of six weeks from today. Since respondentno.2 stands deleted, the question of payment of penalty by her doesnot arise.

16. The appeal is allowed.

Devika Gujral

Appeal allowed.

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