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2014 DIGILAW 1206 (PNJ)

ORIENTAL INSURANCE COMPANY LIMITED v. TILAK RAJ

2014-08-20

REKHA MITTAL

body2014
JUDGMENT : Rekha Mittal, J. By way of this order, I shall dispose of FAO Nos. 4529 and 5077 of 2011 as these have emerged out of common award dated 11.04.2011 passed by the Motor Accident Claims Tribunal, Hoshiarpur (for brevity, ‘the Tribunal’). Tilak Raj (appellant in FAO No. 5077 of 2011) filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short. ‘the Act’) for grant of compensation in regard to sustaining of injuries in a motor vehicular accident due to rash and negligent driving of TATA 207-D1 PB-07-N-1957 driven by Ashwani Kumar – respondent No. 1. 2. The learned Tribunal assessed compensation to the extent of Rs.11,57,900/- but limited the same to Rs. 10,00,000/- as claimed by the applicant/claimant and the amount was held to be payable by the respondents jointly and severally. 3. The Oriental Insurance Company Limited has filed the appeal (FAO No. 4529 of 2011) primarily challenging the maintainability of the proceedings. Tilak Raj has filed the appeal (FAO No. 5077 of 2011) for enhancement of compensation to the extent assessed by the Tribunal i.e. Rs. 11,57,900/-. 4. The parties shall be referred to as 'the Company' and 'the claimant', respectively, for facility of reference. 5. Counsel for the claimant contends that the learned Tribunal gravely erred in awarding compensation of Rs. 10,00,000/- despite the fact that the compensation payable was assessed to the tune of Rs. 11,57,900/-. He has prayed that the claimant may be awarded compensation to the tune of Rs. 11,57,900/- along with interest. 6. Counsel for the Company has assailed the award on sole submission that the application for grant of compensation is not maintainable in view of the provisions of Section 53 of the Employees State Insurance Act, 1948 (in short, 'the 1948 Act'). It is argued with vehemence that as per version of the applicant, he left his house on a bicycle for going to JCT Mills, Chohal, wherein he was working as Operator. Counsel has submitted that as the claimant sustained injuries in the course of employment, the application filed by him for grant of compensation under Section 166 of the Act is barred in view of the provisions of Section 53 of the 1948 Act. Counsel has submitted that as the claimant sustained injuries in the course of employment, the application filed by him for grant of compensation under Section 166 of the Act is barred in view of the provisions of Section 53 of the 1948 Act. In support of his contention that the claimant sustained injuries in the course of employment as he was on his way to the place of work, he has relied upon judgment of this Court in Sheela Vs. E.S.I. Corpn., (1991) 1 ILR (P&H) 417. 7. Counsel for the claimant has refuted the contention of counsel for the Company with the submissions that judgment in Smt. Sheela’s case (supra) was rendered by this Court to extend the benefit of 1948 Act by accepting theory of notional extension and held that the accident occurred in the area falling within the notional extension theory and accepted the claim of the dependents of the employee to get benefits under the 1948 Act. 8. I have heard counsel for the parties and perused the records. 9. Before adverting to the plea of the claimant in regard to enhancement of compensation, it is appropriate to deal with the appeal filed by the Company. 10. A relevant extract from Section 53 of the 1948 Act reads as follows:- Section 53 - Bar against receiving or recovery of compensation or damages under any other law. - An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmens Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act. 11. This Court in Smt. Sheela's case (supra) while dealing with the theory of notional extension has relied upon judgment of Hon'ble the Supreme Court in Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and Others, AIR 1958 SC 881 . A relevant extract from paras 7 and 8 of the said judgment is quoted hereunder:- "7. As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. A relevant extract from paras 7 and 8 of the said judgment is quoted hereunder:- "7. As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. 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 times this theory of notional extension. 8. xx xx ....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. He certainly is in the course of his employment if he reaches the place of work or a point or an 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....." 12. A plain reading of the aforesaid extract from para 8 of the judgment leaves no manner of doubt that a workman is not in the course of his employment from the moment he leaves his home and is on his way to work. A plain reading of the aforesaid extract from para 8 of the judgment leaves no manner of doubt that a workman is not in the course of his employment from the moment he leaves his home and is on his way to work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening with him. 13. In the case at hand, the injured victim (claimant) was on a public road i.e. a public place, therefore, I do not accept contention of the Company that he sustained injuries in the course of employment to oust jurisdiction of the Tribunal under the Act to entertain an application for grant of compensation. This apart, the Act contains provisions to grant compensation even in cases of "no fault liability" and in "hit and run" motor accidents. There is no provision in the Act which excludes the jurisdiction of the Tribunal to grant compensation if the injured/victim happens to be an employee covered within the purview of the 1948 Act. In this view of the matter, I do not find any merit in the contention of the Company that the application for grant of compensation is not sustainable in view of the provisions of the 1948 Act. 14. This brings the Court to the plea of the claimant for enhancement of compensation. The learned Tribunal awarded compensation under various heads i.e. loss of income, transportation charges, attendant charges, diet and nutrition, medical expenses, pain and sufferings, loss of amenities of life and permanent disability and computed compensation of Rs. 11,57,900/-. Perusal of the award in regard to loss of income makes it evident that though the claimant suffered disability to the extent of 70% but the Tribunal, by taking disability to 100% qua the whole body, allowed compensation by taking into consideration the total salary of the victim plus 50% amount towards future prospects and applied a multiplier of 15 in view of age of the victim, in the light of judgment of Hon'ble the Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 . Delhi Transport Corporation and Another, AIR 2009 SC 3104 . As the Tribunal has awarded compensation in regard to total income which was likely to be earned by the victim, had he not sustained injuries and further awarded compensation towards loss of amenities of life, the award of compensation in regard to permanent disability of Rs. 1,40,000/- cannot be allowed to sustain. However, counsel for the Company is fair enough to concede that irrespective of the amount claimed by the claimant, the Tribunal has to award just and reasonable compensation and, therefore, the claim of the claimant could not be confined to the amount claimed in the application. Hence, the claimant shall be entitled to an amount of Rs. 10,17,900/- as compensation and the enhanced amount of compensation Rs. 17,900/- shall be payable to the claimant with interest at the rate of 6% per annum from the date of filing of the petition till payment thereof. For the aforesaid reasons, FAO No. 4529 of 2011 is hereby dismissed, whereas FAO No. 5077 of 2011 is partly allowed in the aforesaid terms. No order as to costs.