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2012 DIGILAW 1256 (MAD)

Oriental Insurance Company Limited v. T. Vijaya

2012-03-08

ARUNA JAGADEESAN

body2012
Judgment 1. This Civil Miscellaneous Appeal is filed by the Oriental Insurance Company Limited, Erode against the award dated 26.07.2004 made in WC.No.601/2002 by the Commissioner for Workmen's Compensation, Salem, thereby awarding a sum of Rs.2,56,660/- with interest at 9 per cent p.a. from the date of filing of the claim petition till the date of deposit in the event of the Appellant Insurance Company failing to deposit the compensation within thirty days. 2. The claimants 1 to 4, who are the wife, daughters and mother of the deceased Thangamuthu, filed the above said claim application under the provisions of the Workmen's Compensation Act for grant of compensation for the death of the deceased. According to the claimants, the deceased was employed under the 5th Respondent as a Driller in the Rig Unit of M/s.Cauvery Borewells for the past 15 years and was drawing a monthly salary of Rs.3000/- and a daily batta of Rs.50/-. He was a skilled labourer and was employed to sink borewells for the purpose of erecting power stations in the Amaravathi Dam. On 17.6.2001, at night hours, after completing first shift work, the deceased went to Amaravathi Dam for taking bath to clean the dust spread over on his body and while taking bath, he accidentally drowned in the said Dam and died on the spot. The claimants have pleaded that the deceased died during the course of his employment with the 5th Respondent, while he was taking bath in the said Dam to clean his body after completing first shift work. Therefore, the claimants claimed a sum of Rs.4,50,000/- as compensation with interest at 12 per cent p.a. 3. The Appellant Insurance Company filed a Written Statement before the Commissioner for Workmen compensation stating that the death of the deceased workman did not take place during the course of his employment. It is further pleaded that neither the death took place within the premises of the power station nor during the course of actual employment or during the period of his duty. The owner remained exparte before the Commissioner for Workmen Compensation. 4. It is further pleaded that neither the death took place within the premises of the power station nor during the course of actual employment or during the period of his duty. The owner remained exparte before the Commissioner for Workmen Compensation. 4. The Commissioner for Workmen Compensation, after having considered the entire evidence adduced by the parties, came to the conclusion that the deceased was working as a Driller/skilled labourer in the Rig Unit of M/s.Cauvery Borewells owned by the 5th Respondent herein to sink borewells for the purpose of erecting power station in the Amaravathi Dam. He, further,held that the workman died while he was taking bath in the said Dam to wipe out the dust spread on his body during drilling and therefore, the workman died on account of the accident during the course of his employment. The Commissioner for Workmen Compensation having considered the age of the deceased at 45 years as well as his monthly salary at Rs.3000/-, awarded a compensation of Rs.2,54,160 and added Rs.2500/-for funeral expenses and thus, a total compensation of Rs.2,56,660/-. Aggrieved by the same, this Civil Miscellaneous Appeal has been filed by the Insurance Company. 5. This court heard Mr.N.Vijayaraghavan, the learned counsel for the Appellant and Mr.V.Bharathidasan, the learned counsel for the Respondents 1 to 4 and also perused the materials placed on record. None appeared for the owner/5th Respondent. 6. On the basis of the pleadings adduced by the parties, the relevant issue for consideration in this appeal is as to whether the death of the deceased Thangamuthu was caused during the course of his employment or out of employment? and whether the Commissioner is right in holding that the death comes within the course of employment or it falls outside the scope of employment? 7. It is the specific case of the claimants that the deceased was working as a skilled labourer/driller in the Rig Unit of M/s.Cauvery Borewells owned by the 5th Respondent herein for the past 15 years and on the date of the accident, the he was employed to sink borewell for the purpose of erecting power station in the Amaravathi Dam. It is the specific case of the claimants that the deceased was working as a skilled labourer/driller in the Rig Unit of M/s.Cauvery Borewells owned by the 5th Respondent herein for the past 15 years and on the date of the accident, the he was employed to sink borewell for the purpose of erecting power station in the Amaravathi Dam. The owner of the said Rig Unit, namely, Periasamy was examined as PW.2 and he has stated in his evidence that the deceased Thangamuthu was working in their M/s.Cauvery Borewells from the year 1988 onwards till his death as a senior driller and on the date of the accident, i.e. on 17.6.2001, he was working as a driller to sink borewells for the purpose of erecting power stations in the Amaravathi Dam. Apart from his evidence, the claimants have filed Ex.P1, copy of the First Information Report and the averments made in Ex.P1 was in consonance with the evidence adduced by PW.2 and the claimants. Therefore, the evidence clearly makes out a case that the deceased had taken bath in the Amaravathi Dam after completing first shift work to wipe out the dust spread on his body due to the drilling work he was carrying on and he drowned in the said Dam and died on the spot. Under these circumstances, the case would be covered that the accident took place during the period of notional extension of employment and the workman died during the aforesaid period and hence, it is a clear cut case that the workman died during the period of discharging his official duty. 8. In order to reach to a definite conclusion in the present case, it would be relevant to reproduce the provisions of Section 3(1) of the Workmen's Compensation Act, which reads as under:- "3.) Employer's liability for compensation-(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. Provided that the employer shall not be so liable- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) he willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen." 9. The Honourable Supreme Court in the case of General Manager, B.E.S.T.Undertaking, Bombay Vs. Agnes (1958-65-ACJ-473-SC) has held as follows:- "Under Section 3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But, the courts have agreed that the 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." 10. The learned counsel for the Respondents 1 to 4 relied on the decision of this court reported in 2007-5-CTC-733 (The Management of Wentworth Estate, Cherambadi P.O. Nilgiris Vs. The learned counsel for the Respondents 1 to 4 relied on the decision of this court reported in 2007-5-CTC-733 (The Management of Wentworth Estate, Cherambadi P.O. Nilgiris Vs. Rethini) wherein the Management deputed the deceased to dig a pit along with three others and after digging the pit, the deceased met with the accident at the time of taking bath in the pond which was situated inside the premises of the Estate and the Commissioner held that the accident had occurred during the course of his employment and therefore, the Management was held liable to pay the compensation and same was upheld by this court in the decision cited supra. 11. In the present case also, it is not disputed that the deceased was employed in the Rig Unit of the 5th Respondent, namely, the owner of M/s.Cauvery Borewells and after completing first shift work, the deceased had gone to take bath in the Amaravathi Dam to clean dust spread over on his body and died due to drowning. Therefore, the finding of the Commissioner for Workmen Compensation that the accident took place during the course of his employment does not suffer from any infirmity. 12. The expression 'employment' in Section 3 of the Workmen's Compensation Act is wider than the actual work or duty which the workman had to do. It is enough that at the time of the accident, the workman was in actual employment although he might not be actually turning out the work which was his duty to carry out. It is for this reason that even when a workman is resting or having his food or taking his tea in the factory premises or proceeding from the place of employment to his residence and an accident occurs, the accident is regarded as arising out of and in the course of employment. Therefore, even if any injury or death takes place during after his shift work in the place of employment, as in this case he was taking bath to clean his body from dust, it has to be considered as the accident taken place during the course of employment. 13. Therefore, even if any injury or death takes place during after his shift work in the place of employment, as in this case he was taking bath to clean his body from dust, it has to be considered as the accident taken place during the course of employment. 13. Applying the principle of notional extension of time of employment and in view of the evidence available on record as well as the observation recorded by the Commissioner for Workmen Compensation in the impugned order, I am of the considered view that the deceased Thangamuthu who was the workman in the Rig Unit of the 5th Respondent, died in the work place, that is, Amaravathi Dam and during the course of his employment. Therefore, compensation has been rightly awarded by the Commissioner for Workmen Compensation and I do not find any infirmity in the conclusion drawn by the Commissioner for Workmen Compensation and the same does not require any interference and there are no merits in this appeal and liable to be dismissed. 14. In the result, this Civil Miscellaneous Appeal is dismissed as devoid of merits, confirming the impugned award dated 26.07.2004 made in WC.No.601/2002 by the Commissioner for Workmen's compensation, Salem. No costs. Consequently, the connected MP is closed.