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Friday, March 1, 2019

Workmen Compensation ~ what constitutes working hours ! - Apex Court

Every industry, every entrepreneurial activity requires labour – and people are employed in various capacities of manual labour – there is employment – while people work, there are also mishaps ! - Misfortunes can occur at any workplace harming those at work. Duty is cast on the  Employer to pay compensation arising out of  personal injury  / death  caused to a workman at such workplace. Employees Compensation Act (Amended) 2009  [Workmen Compensation Act 1923 earlier] – provides for payment of compensation by the employer to his employees (or their dependents in the event of fatal accidents) in respect of personal injury due to accidents arising out of and in the course of their employment.   The beneficial enactment  aims not at compensating the workmen the wages,  but provides for compensation for the injury or death.  The amount of compensation depends on the nature of the injury and the average monthly wages and age of workmen.

The primary aspects that would be looked into are : 1. Whether there was employment 2. Whether there is causal connection between the employment and the injury / death  - whether the occurrence is ‘arising out and in the course of employment’ .. ..  .. however, it is clear that the occurrence need not occur at the workplace or during the workhours (again what constitutes work hours) but occurrence should be attributed to workmen being present in that particular place at that specified time – as arising out of employment and not a risk posed when the workman was there as a commoner / member of public.

There are of course times, when even common things get interpreted differently and perhaps the impugned case is one.  In this appeal dealt by a Bench of Apex Court recently,  theappellants 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.   The person in respect of whom the petition had been made was a bus driver – he fell off the roof.  It was earlier contended that he being a driver, he was no longer discharging his employment when the ill-fated accident occurred. 

The petitioners contended that the driver was required to be there at that time and accident occurred while the deceased was coming down the roof of the bus after having his meals while the respondents observed that the duty of the deceased got over at 7:30 pm; and the claim was that the deceased had  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 and that 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 ![though it might look obvious, deeper reading of the circumstances could provide a different perspective.]

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.  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 PW-2, because of the nature of their duty,  the deceased and the conductor of the bus, were required to remain with the bus twenty-four 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.  

 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  affected, dependent 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.    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  accident took place in the course of employment and arose out of the employment. 

In Agnes (supra) it was observed :“…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.”  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.”

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.

The courts below have misdirected themselves while dealing with this question and the finding rendered by them is perverse and unsustainable.”  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 7 month and  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.    Respondent no.2 shall pay the determined amount to the appellants within three weeks from the date of such computation by the Tribunal. The appeal is allowed. 

With regards – S. Sampathkumar
24th Jan 2019.

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