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2014 DIGILAW 1282 (RAJ)

New India Assurance v. Lada Devi

2014-06-30

ALOK SHARMA

body2014
Hon'ble SHARMA, J.—Aggrieved of the judgment and award dated 29-5-2009 passed by the Workmen's Compensation Commissioner, Jaipur District-I, Jaipur (hereinafter 'the Commissioner') the appellant-non-claimant insurance company (hereinafter `the non claimant') has filed this miscellaneous appeal under Section 30 of the Workmen' Compensation Act, 1923 (hereinafter 'the 1923 Act'). 2. On notice being served, cross objections have been filed by the respondents-claimants, the widow and parents of the deceased Bhanwar Lal (hereinafter `the claimants'). 3. The facts relevant to the miscellaneous appeal and the cross objections are that the claimants filed a petition before the Commissioner on 19-7-2007 under Section 22 of the 1923 Act stating that the deceased Bhanwar Lal, who was working as a Driver on Truck No.HR-56/G-2021, had died in an accident on 3-9-2006 while working as such. The accident was stated to have occurred near Chhitroli Petrol Pump at about 9.30 PM when after taking a break at a Dhaba for having tea, Bhanwar Lal while returning to truck No.HR-56/G-2021 for onward journey to Gurgaon was stated to have been overrun by a speeding unknown vehicle. The injuries sustained in the accident resulted in the death of Bhanwar Lal after he had been taken to Sawai Man Singh Hospital Jaipur for treatment. FIR No.339/2006 was lodged with regard to accident, for the offences under Sections 279, 337 and 304 A IPC. As his dependents, the claimants were thus entitled to compensation in a sum of Rs.8,67,640/-. The basis of compensation claimed was that the deceased at the time relevant to accident was earning wages @ Rs.4000/- per month and was 25 years of age. It was stated that the truck No.HR-56/G-2021 which was being driven by the deceased Bhanwar Lal, was insured at the relevant time with the appellant non claimant. 4. On service of notice of the claim petition, it was contested by the appellant non-claimant. The claimants' assertion of employment of the deceased Bhanwar Lal as driver on truck No.HR-56/G-2021 was denied. It was further stated that the accident of 3-9-2006, in which the deceased Bhanwar Lal had sustained injuries and died as stated by the claimants themselves, could not be construed as an accident arising from the employment of Bhanwar Lal as driver on the insured truck and there was thus no nexus between the death of deceased Bhanwar Lal and his employment as driver on the truck in issue. It was submitted that hence the claim petition was liable to be dismissed. 5. The Commissioner on the basis of pleadings of parties framed five issues, viz. (i) Whether the deceased Bhanwar Lal was employed as driver on truck No.HR-56/G-2021 on 3-9-2006 at the time of road accident leading to injuries and subsequently his death? (ii) Whether the deceased Bhanwar Lal could in the facts of the case be held to have died in an accident arising out of his employment as driver on truck No. No.HR-56/G-2021 insured with the non claimant insurance company? (iii) Whether the claimants were not entitled to compensation as claimed for reasons of objections set up against the maintainability of the claim petition by the non claimant insurance company? (iv) Whether the claimants were entitled to any compensation against the non claimants, and if yes, to what extent? (v) Relief? 6. On consideration of the evidence laid before him, the Commissioner decided issue No.1 in favour of the claimants and held that at the time of accident on 3-9-2006 the deceased Bhanwar Lal was engaged as a driver on truck No.HR-56/G-2021 insured with the non claimant insurance company. On issue No.2, the Commissioner concluded that the mere fact that the accident which occurred on 3-9-2006 was not at the time when the vehicle was actually being driven, but while the deceased driver Bhanwar Lal, was returning to the truck for onward journey from a Dhaba after having tea, did not entail a de-linking between Bhanwar Lal's death and his employment, and therefore the accident in issue was fully covered within the scope of Section 3 of the 1923 Act entitling the claimants as his dependents, to compensation in accordance with law. The Commissioner also rejected the defence set up by the non claimant insurance company on the claim petition not being maintainable inter alia for the reason of a notice under Section 10 of the 1923 Act not having been issued by the insured to the insurer. On the quantum of compensation, taking into consideration the age of deceased to be 29 years at the time of the accident, as per his driving licence and his wages at Rs.4000/- per month, the Commissioner determined the aggregate compensation payable to claimants, at Rs.4,22,340/-. On the quantum of compensation, taking into consideration the age of deceased to be 29 years at the time of the accident, as per his driving licence and his wages at Rs.4000/- per month, the Commissioner determined the aggregate compensation payable to claimants, at Rs.4,22,340/-. Interest at the rate of 12% per annum was further directed to be paid on the compensation effective the lapsing of thirty days after the date of accident i.e. 3-9-2006 till the date of payment. 7. Heard learned counsel for the parties and perused the impugned judgment award dated 29-5-2009 passed by the Commissioner. 8. Learned counsel for the appellant non claimant has confined the challenge to the judgment dated 29-5-2009 to the conclusions of the Commissioner that the death of Bhanwar Lal in the accident of 3-9-2006 arose out of his employment as driver on truck No.HR-56/G-2021 insured with the appellant non claimant. Counsel has submitted that on the facts of the case set up by the claimants, the insured vehicle truck No.HR-56/G-2021 was not involved in the accident, nor did the deceased Bhanwar Lal sustain injuries while driving the said vehicle or died thereof. He died for reason of injuries suffered in a road accident while returning to the truck for onward journey. Consequently the death in such a road accident could not be attributed to the discharge of Bhanwar Lal's duties as driver on truck No.HR-56/G-2021. Counsel submitted that the status of the driver Bhanwar Lal while crossing the road after a tea break in the course of the truck's journey was that of a normal member of the public and not as an employee/ driver of the insured truck No.HR-56/G-2021. It was submitted that in the circumstances there was no causal connection between the death of Bhanwar Lal and his employment as driver of insured truck No.HR-56/G-2021, even though he was in employment on the insured truck No.HR-56/G-2021 at the time relevant to the accident. It was submitted that the Commissioner overlooked the judgment of Hon'ble Supreme Court in the case of Malikarjuna G. Hiremath vs. Branch Manager, the Oriental Insurance Co. Ltd. (2009 RAR 97 (SC)), wherein it has been held that unless a causal connection between the death of workman and his employment is established, no liability to pay any compensation either on the employer/ insured or by extension on the insurer could be fastened. 9. Ltd. (2009 RAR 97 (SC)), wherein it has been held that unless a causal connection between the death of workman and his employment is established, no liability to pay any compensation either on the employer/ insured or by extension on the insurer could be fastened. 9. Learned counsel for the claimants supported the impugned judgment award dated 29-5-2009 passed by the Commissioner. 10. Section 3(1) of the 1923 Act, is relevant for the purpose of this case reads thus:- 3. Employer's liability for compensation:- (1) If personal injury is caused to a workman by accident arising out of an 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) the 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”. 11. It is no doubt true that a causal connection between the death of a workman and his employment has to be established before grant of compensation under the Act of 1923. The burden for this purpose also without doubt is on the claimants. Enquiry therefor in each case has to be made with reference to facts and evidence on record as to whether the factum of employment was a contributory cause of the death of the employee. If such a connection can be found, it can be held that death of a workman arose out of the employment making the employer, and by extension if insured, his insurer, liable for the compensation and interest thereon, if the payment of compensation was delayed beyond 30 days of the accident without cause. If such a connection can be found, it can be held that death of a workman arose out of the employment making the employer, and by extension if insured, his insurer, liable for the compensation and interest thereon, if the payment of compensation was delayed beyond 30 days of the accident without cause. In the case of Malikarjuna G. Hiremath (supra) the Hon'ble Supreme Court set out the essential ingredients for attracting the provisions of Section 3 of the 1923 Act. The said essential ingredients are:- (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 12. In G.M. B.E.S.T. Undertaking vs. Agnes, ( 1964(3) SCR 930 ), the Hon'ble Apex Court enunciated a wider test i.e. where some nexus between the accident and the employment was found, compensation under the 1923 Act was to be granted to the aggrieved employee / dependants. The Hon'ble Supreme Court in the case of G.M. B.E.S.T. Undertaking (supra) proceeded to hold that the scope of notional extension of employment would depend on the circumstances of a given case. It was further held that the doctrine of reasonable or notional extension of employment although developed specifically in the context of workshop, factories, etc. it equally applied to other situations to meet peculiar requirement of specific employment. Further in the case of Mackinnon Mackenzie & Co. (P) Ltd. vs. Ibrahim Mohd. Issak ( 1969 (2) SCC 607 ) the Hon'ble Apex Court held that “the expression arising out of employment is again not confined to the mere nature of the employment. The expression applies to employment as such—to its nature, its conditions, its obligations and its incidents (Emphasis mine). If by reason of any of those factors the workman is brought within the zone of special danger in the course of his employment the injury suffered would be one which arises out of employment”. The expression applies to employment as such—to its nature, its conditions, its obligations and its incidents (Emphasis mine). If by reason of any of those factors the workman is brought within the zone of special danger in the course of his employment the injury suffered would be one which arises out of employment”. It was further clarified in the aforesaid judgment that “if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed”. In Saurashtra Salt Manufacturing Co. vs. Bai Valu Raja ( AIR 1958 SC 881 ) the doctrine of notional extension of employment had been accepted. It was held that:- “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 will have to be examined very carefully in order to determine whether the accident arose out of and in the course of employment of a workman keeping in view at all times this theory of notional extension.” 13. Reverting to the facts of the present case, it transpires from the unshaken evidence of the claimants before the Commissioner that the deceased Bhanwar Lal at the time relevant to the accident on 3-9-2006 was engaged as a Driver on Truck No.HR-56/G-2021 and as per the employer's direction was on his way from Naseerabad to Gurgaon. When he reached Chhitroli Petrol Pump at about 9.30 PM he stopped at a “Dhaba” (roadside eatery) for having tea. Subsequent to the tea-break when Bhanwar Lal was returning to truck No.HR-56/G-2021 to recommence his onward journey to Gurgaon he was struck by a speeding unknown vehicle. Resulting injuries led to his death in spite of being shifted to SMS Hospital Jaipur for treatment. Subsequent to the tea-break when Bhanwar Lal was returning to truck No.HR-56/G-2021 to recommence his onward journey to Gurgaon he was struck by a speeding unknown vehicle. Resulting injuries led to his death in spite of being shifted to SMS Hospital Jaipur for treatment. In my considered opinion, the mere fact that the driver Bhanwar lal was injured in an accident not while driving truck No.HR-56/G-2021, but while returning to the truck No.HR-56/G-2021 after a tea break in the course of driving it from Naseerabad to Gurgaon on the instructions of his employer, it would not exclude the case from the ambit of Section 3 of the 1923 Act. The job of a truck driver is an arduous job. It is inter alia an implied condition of the job of a truck driver that he would stop after driving the truck after a distance for a tea break and/or refreshments. During the period of such break for tea/ refreshment in the course of driving truck over a long distances, the driver definitely continues in the employment of the employer/ owner of the truck. In my considered opinion in such a situation if the truck driver is overrun by a speeding unknown vehicle while returning to the truck for further onward journey, it would clearly be a case of an accident arising out of and in the course of his employment. The liberal and wider test, for applicability of Section 3 of the 1923 Act, as enunciated by the Hon'ble Supreme Court in the case of Saurashtra Salt Manufacturing Co. (supra) stands attracted. To my mind, it is quite clear that employment of Bhanwar Lal as driver on the truck was clearly a contributory factor in the facts of the case leading to his death. There is clear nexus between Bhanwar Lal's employment as driver of the truck and his death in an accident which arose out of and in the course of his employment. The risk of crossing the road subsequent to a tea break availed by the driver of a truck driving long distances is a risk incidental to his obligations/duties as a driver. It is quite apparent that if Bhanwar Lal was not engaged as a driver of truck No.HR-56/G-2021 and was not sent from Naseerabad to Gurgaon he would not have suffered any injury and cones-quent death in the accident of 3-9-2006. It is quite apparent that if Bhanwar Lal was not engaged as a driver of truck No.HR-56/G-2021 and was not sent from Naseerabad to Gurgaon he would not have suffered any injury and cones-quent death in the accident of 3-9-2006. There was thus a causal connection between the accident of 3-9-2006 and Bhanwar Lal's death as his employment had brought him within the zone of special danger of suffering such an injury. In my considered opinion, for the aforesaid reasons there is no force in the contention of the learned counsel for the non claimant insurance company that in the facts of the case there was no causal connection between Bhanwar Lal's death and his employment as driver of the insured truck. 14. There is also no force in the arguments of the counsel for the non-claimant-Insurance Company in respect of other issues decided by the Commissioner on the basis of appreciation of evidence before him. In my considered opinion, compensation for the sum of Rs.4,22,340/- awarded by the Commissioner taking Bhanwar Lal's age as 29 years, as per his driving licence, at the time of the accident on 3-9-2006 and his wages to be Rs.4000/- per month is wholly reasonable in the context of the claimant's unshaken evidence on record. The compensation also includes funeral expenses. There is thus no force in the appeal filed by the appellant non claimant insurance company and the same is hereby dismissed. 15. As far as cross objections filed by the claimants are concerned, the counsel for the claimants have sought to agitate three arguments; first, with regard to age of the deceased driver Bhanwar Lal. It was stated that Bhanwar Lal's age at 29 years at the time of the accident has wrongly been arrived at and it should have been taken as 25 years as pleaded and stated in claimant's evidence. Second, the interest on the amount of compensation has wrongly been awarded by the Commissioner at 6% per annum instead of 12% p.a. as statutorily warranted. Third, funeral expenses have not been granted. 16. There is no force in the contention of the learned counsel for the claimants. The age of the deceased Bhanwar Lal was determined by the Commissioner as 29 years on the basis of his date of birth 1-8-1977, indicated in his driving licence. Third, funeral expenses have not been granted. 16. There is no force in the contention of the learned counsel for the claimants. The age of the deceased Bhanwar Lal was determined by the Commissioner as 29 years on the basis of his date of birth 1-8-1977, indicated in his driving licence. The contention of counsel for the claimants with regard to interest on the amount of compensation being 6% per annum is absolutely incorrect. A bare look at the impugned judgment dated 29-5-2009 passed by the Commissioner indicates that the Commissioner has awarded interest at the rate of 12% per annum on the amount of compensation Rs.4,22,340/- following thirty days of the accident of 3-9-2006 till the date of payment. Further the amount of compensation by the Commissioner indicates that funeral expenses have been taken into reckoning in determining the compensation There is thus no force in the cross objections and they stand accordingly dismissed. 17. Hence the miscellaneous appeal filed by the appellant non claimant insurance company as well as the cross objections filed by the respondents-claimants are dismissed.