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Allahabad High Court · body

2008 DIGILAW 739 (ALL)

Bharat Pump and Compressors Ltd. v. Madhu Rani

2008-04-01

AMITAVA LALA, SHISHIR KUMAR

body2008
AMITAVA LALA, J. ( 1 ) THIS appeal has been preferred by the company upon being aggrieved by and/or dissatisfied with the judgment and order passed by the concerned Commissioner under workmens Compensation Act, 1923, Allah bad dated 30th January, 2008 awarding a sum of Rs. 3,38,880 and interest @ 6% per annum from the date of his death i. e. 19th December, 2002 till the date of payment, on account of death of the deceased. ( 2 ) IN the appeal following four points have been raised by Mr. Manish Goyai, learned counsel appearing for the appellant: (a) The death of the deceased cannot said to be occurred in the course of employment in view of the judgment of the Supreme Court reported in a. I. R. 1958 SC 881, Saurashtra Salt manufacturing Co. v. Bail Valu Raja and others. (b) Wages of workman is more that rs. 4,000, therefore Workmens compensation Act cannot be attracted; (c Enormous delay in making application for compensation disentitles the respondent from getting it; (d) Award of interest has been passed from the death of thedeceased inspite of belated claim. ( 3 ) SO far as the first point is concerned, mr. Goyal relied upon a relevant portion of a judgment of the Supreme Court of similar nature as reported in Regional Director, E. S. I. Corporation and another v. Francis De Costa and another. The relevant portions of the judgment are as follows: "in the context of Section 2 (8), the words "out of indicate that the injury must be caused by an accident which had its origin in the employment. A mere road accident, while an employee is on his way to his place of employment, cannot be said to have its origin in his employment in the factory. " ". . . . . . if the employees work shift begins at 4. 30 p. m. , any accident before that time will not be in the course of his employment. The journey to the factory may have been undertaken for working at the factory at 4. 30 p. m. But this journey was certainly not in course of employment. If employment begins from the moment the employee stumbles and falls down at the door-steps of his house, the accident will have to be treated as to have taken place in the course or his employment. 30 p. m. But this journey was certainly not in course of employment. If employment begins from the moment the employee stumbles and falls down at the door-steps of his house, the accident will have to be treated as to have taken place in the course or his employment. This interpretation leads to absurdity and has to be avoided. " "construing the meaning of the phrase in the course of his employment, it was noted by Lord Denning that the meaning of the phrase had gradually been widened over the last 30 years to include doing something which was reasonably incidental was applied in a large number of English decisions. But, Lord Denning pointed out that in all those cases the workman was at the premises where he or she worked and was injured while on a visit to the canteen or other place for a break. Lord Denning, however, cautioned that the words reasonably incidental should be read in that context and shou Id be limited to the cases of that kind. Lord denning observed: "take a case where a man is going to or from his placeofworkon his own bicycle, or in his own car. He might be said to be doing something reasonably incidental to his employment. But if he has an accident on the way, it is well settled that it does not "arise out of and in the course of his employment. Even if his employer provides the transport, so that he is going to work as a passenger in his employers vehicle (which is surely reasonably incidental to his employment), nevertheless, if he is injured in an accident, it does not arise out of and in the course of his employment. It needed a special deeming provision in a statute to make it deemed to arise out of and in the curse of his employment. " "this is precisely the case before us. Here also, we have a case of a person going from his home to his place of work. But he suffers injury in an accident on the way. It cannot be said that the accident arose out of and in the course of his employment. It was faintly suggested by Mr. Chacko, appearing on behalf of the respondent, thatthe bicycle was bought by taking a loan from the employer. That, however, is of no relevance. But he suffers injury in an accident on the way. It cannot be said that the accident arose out of and in the course of his employment. It was faintly suggested by Mr. Chacko, appearing on behalf of the respondent, thatthe bicycle was bought by taking a loan from the employer. That, however, is of no relevance. He might have borrowed money from his Company or from somewhere else or purchasing the bicycle. But the fact remains that the bicycle belonged to him and not the employer. If he meets with an accident while riding his own bicycle on the way to his place of work, it cannot be said that the accident was reasonably incidental to the employment and was in the course of his employment. The deeming provision of Section 51c, which came into force by way of an amendment effected by Employees Life Insurance (Amendment) Act of 1966 (Act No. 44 of 1966), enlarged the scope of the phrase in the course of employment to include traveling as a passenger by the employers vehicle to or from the place of work. The legal fiction contained in section 51 C, however, does not come into play in this case because the employee was not traveling as a passenger in any vehicle owned or operated by or on behalf of the employer or by some other person in pursuance of an arrangement made by the employer. " "the meaning of the words in the course of his employment appearing in Section 3 (1) of Workmens compensation Act, 1923, was examined by this Court in the case of Saurashtra salt Manufacturing Co. v. Bai Valu Raja. " ". . . . . But, examining the facts of the case, in particular, after noticing the fact that the workman used a boat, which was also used as public ferry for which they had to pay the boatmans dues, S. Jafar imam J. , observed-"it is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. Hecertainly is in the course of his employment if he reaches the place of work orapointoran area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends upto point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmens compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points a and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident the appellant cannot be made liable. " ". . . . . Moreover, walking to the bus-stop from the employees residence and boarding the bus for going to the place of work cannot be act in course of employment. " ( 4 ) THE learned Commissioner at the time of considering the case relied upon the judgment of Bai Valu Raja and Others (supra), but not considered the judgment where the same was distinguished subsequently i. e. Francis De Costa and another (supra ). ( 5 ) SO far as the wages part is concerned, although we do not find the point is very strong in support of appellant but at the same time other emoluments attached to the salary cannot be ignored particularly when the Court considered the salary by fixing the amount upto the extreme limit of Rs. 4,000. ( 6 ) THE third point of delay is really interesting one and it appears to us that the question of limitation is applicable in view of section 19 (1) of the Act. 4,000. ( 6 ) THE third point of delay is really interesting one and it appears to us that the question of limitation is applicable in view of section 19 (1) of the Act. But at the time of consideration instead of ignoring such fact the court could have considered the Act as well against the proviso about the condonation for the part of rendering equitable justice. That part was also taken up very lightly. ( 7 ) SO far as the interest part is concerned, it is true to show that interest can be directed to be paid only on the point of fault of the appellant but not as a grace unnecessarily when admittedly the claim was made after about two years from the date of death. Therefore, the calculation of interest from the date of death also appears to be false. ( 8 ) THERE fore, under the aforesaid circumstances it appears to us that this is a case of total demand but not partial for which the judgment and award should be set aside. Thus, the judgment and award impugned in this appeal is set aside and the dispute is sent back to the Commissionerfor reconsideration in the light of the judgment as early as possible preferably within a period of two months from date of communication of this order, by giving adequate opportunity of hearing. ( 9 ) AT the time of adjudication of the appeal it has been pointed out by the learned counsel appearing forthe appellant about the performance of the Commissioner as a Judicial officer in the justice delivery system. We also find that no legal aspect has been followed but behaved in a manner as if he is an executive officer discharging certain governmental functions. He is totally forgetful about the judicial activities. We cannot avoid but to note that wherever we find thatthe orders are being passed by the Commissioner/s under the workmens Compensation Act, 1923, almost similar situations are being followed. Hence, we are keen to inform the State through the learned Advocate General, to whom a copy of this order will be supplied to take the matter with the Government, so that important judicial posts of Commissioner/s underthe workmens compensation Act, 1923 should be filed by the people directly involved in the legal fraternity, like many other States, who have judicial sense of proportion. ( 10 ) TILL the decision is taken by the commissioner and communicated to the parties, the amount, which has been deposited by the Company appellant herein, will be kept in a short term fixed deposit of a Nationalised bank and will be renewed time-to-time. ( 11 ) ACCORDINGLY, the appeal is disposed of. No order is passed as to costs. . .