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 1923 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.
Have posted
at length the excerpts of judgment of Apex Court (13.2.2020) in Civil Appeal no. 9046 of 2019 –
now comes yet another interesting interpretation by Supreme Court of India on
6.3.2020, this time on ‘notional extension principle’ – when does worktime
begin or end ?.
This
is a Civil Appeal preferred by Poonam Devi and others Vs Oriental Insurance and
others arising out of a case of 2014. The
appellants are the legal heirs of the deceased. They were granted compensation
of Rs.4,45,420/ 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 Act. It was agitated before the High Court and this appeal before
Apex Court.
The
deceased @ 21 was a driver on truck from Ambala to Meerut, a distance of
approx. 200 km – in mid noon, 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. PW2 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. WC commissioner in 2005 allowed compensation.
Insurers went on appeal and High Court 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.
More was to follow before the Apex Court. The 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. The respondent Insurers opposed the appeal
submitting that High Court had 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.
The
Court held that considering the submission on behalf of the parties, impugned
orders and case laws – Workmen Compensation Act (now Employee’s Compensation
Act 1923) 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.
The
Act under Sec 3 provides that : (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:
In
Manju Sarkar & Ors. vs. Mabish Miah & Ors., 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. Courts
have agreed that 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.”
In
Daya Kishan Joshi & Anr. vs. Dynemech Systems Pvt. Ltd., (2018) 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.
The
Court further added that - 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: “ 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.”
The
Hon’ble Court having considered the circumstances of the case held that the
order of High Court was found to be unsustainable and was set aside. It restored the order of WC Commissioner
dated 12.12.2005. Court directed that
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 the date of order. In the proceedings, R2 had been deleted and
the question of payment of penalty by her does not arise.
Interesting ! contains many learning for Employer, Employee,
Insurer, Intermediaries and others .. ……….
With
regards – S. Sampathkumar
19.3.2020.
No comments:
Post a Comment