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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