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2015 DIGILAW 1711 (MAD)

United India Insurance Company Ltd. v. Paavayee

2015-03-30

D.HARI PARANTHAMAN

body2015
JUDGMENT : D. Hari Paranthaman, J. One Subramanian was a driver in a rig unit lorry bearing registration No. TN28-U-7699. The lorry went from Tamil Nadu to Maharashtra on 26.06.2004. He rode a two wheeler on Nagar-Aurangabad road which involved in an accident with a Tempo bearing registration No. TN-34-B-5611. In the accident, the said Subramanian died. The parents of the deceased filed W.C. No. 248 of 2004 before the Commissioner for Workmen Compensation (Deputy Commissioner of Labour), Dindigul, claiming compensation of Rs. 6,00,000/- for the death of their son. 2. The owner of the rig lorry is the 1st respondent in the claim petition. The appellant insurance company is the 2nd respondent in the claim petition. The insurer of the two wheeler is the 3rd respondent in the claim petition. 3. The owner of the rig unit lorry admitted the employment of the deceased. However, he disowned his liability. It is the case of the appellant herein which is the 2nd respondent in the claim petition that the rig unit lorry alone was insured with them at the time of accident and the driver Subramanian was not driving the lorry at the time of accident and he met with an accident while he was riding a motor cycle bearing registration No. TN-34-B-5611. Hence, the appellant insurance company is not liable to pay the compensation. If at all he could claim compensation in motor accident claim, it can be filed as against the owner of the tempo and the insurance company with which the tempo was insured or the owner of the two wheeler and its insurer. 4. It was the case of the claimants that the deceased was a driver in the rig unit lorry bearing registration No. TN28-U-7699. He went to Maharashtra at the relevant point of time. There was no diesel in the lorry. Hence, he took the aforesaid motorcycle which is also owned by the owner of the lorry. The deceased was away from the lorry for some time for the purpose of getting diesel and based on the same, neither the lorry owner nor the insurance company could deny compensation for the death of the deceased. 5. Before the Deputy Commissioner of Labour, the 1st claimant was examined as a witness and Exs. A1 to A6 were marked. The owner of the lorry got examined as a witness. 5. Before the Deputy Commissioner of Labour, the 1st claimant was examined as a witness and Exs. A1 to A6 were marked. The owner of the lorry got examined as a witness. No oral and documentary evidence was let in on the side of the appellant insurance company. 6. Based on the materials produced, the Deputy Commissioner of Labour came to the conclusion that the deceased had left the lorry and went in a motorcycle to get the diesel and in the meantime, he involved in the accident and died. He took note of the fact that the motor cycle is also owned by the lorry owner and its registration is made in Tamil Nadu. 7. The Deputy Commissioner of Labour passed an order dated 17.10.2005 holding that the insurance company of the lorry has to pay compensation, since the deceased went in a two-wheeler to get diesel for the lorry as per the evidence that was tendered by the owner of the lorry. Hence, he directed the appellant to pay Rs. 4,03,320/- as compensation and funeral expenses of Rs. 2,500/-. This appeal is against the aforesaid order and this Court on 23.06.2006 admitted the appeal on the following substantial questions of law:- "1. Whether the Commissioner for Workmen's Compensation is right in holding the appellant liable in the suit accident when the insured rig unit lorry was nowhere near the spot where the accident occurred? 2. Whether the accident caused by the involvement of two other motor vehicle could be construed as an accident arising out of the use of the insured lorry? 3. Whether the appellant can be held to indemnify its insured in respect of the accident that did not come within the ambit of the Motor Vehicles Act, 1988?" 8. Heard both sides. 9. The learned counsel for the appellant vehemently contended that the accident did not arise while the deceased was driving the lorry and hence, the insurance company with which the lorry was insured is not liable to pay compensation. He further submitted that the accident took place in the two wheeler could not be construed as accident arising out of the use of the lorry insured with the appellant. 10. The learned counsel for the owner of the lorry as well as the learned counsel for the insurance company with which the two-wheeler was insured have sought to sustain the order. 10. The learned counsel for the owner of the lorry as well as the learned counsel for the insurance company with which the two-wheeler was insured have sought to sustain the order. There is no representation for the claimants. 11. I have considered the submission made by either side. 12. The appellant has not let in any evidence before the Deputy Commissioner of Labour. He did not also produce any documents. It was the case of the claimants that the deceased travelled in the rig unit lorry and the lorry went to Maharashtra. The lorry is owned by the 3rd respondent herein. The 3rd respondent/lorry owner filed a counter affidavit stating that the deceased was in employment in his rig unit lorry. Further, he deposed before the Deputy Commissioner of Labour and he was also cross-examined by all the parties. The relevant portion of the evidence of the lorry owner is extracted hereunder:- Chief examination of RW1/Owner of the Lorry:- Cross examination of RW1:- 13. Further, the Deputy Commissioner of Labour has recorded a finding that the accident arose out of and during the course of employment, since he went by a two wheeler only to get the diesel for the lorry, as the diesel tank became empty in the lorry. Furthermore, the Deputy Commissioner of Labour held that the 4th respondent insurance company who was the 3rd respondent in the claim petition is not a necessary party for the purpose of the case and accordingly deleted them from the cause title. 14. In view of the aforesaid deposition of the owner of the lorry and also the finding recorded by the Deputy Commissioner of Labour, I am not inclined to interfere with the same. It can also be taken note of that the two-wheeler used by the deceased is also owned by the owner of the lorry and the registration is made in Tamil Nadu. Both the claimants as well as the owner of the lorry deposed that the deceased took up the two wheeler only to get diesel for the lorry and while riding in the said motorcycle, he met with an accident and died. The aforesaid version was not seriously disputed by way of any contra evidence by the appellant insurance company. 15. In ICICI Lombard General Insurance Co. The aforesaid version was not seriously disputed by way of any contra evidence by the appellant insurance company. 15. In ICICI Lombard General Insurance Co. Ltd., v. K. Rajendran and another (CMA(MD) No. 113 of 2015, decided on 23.02.2015), relied on by the learned counsel for the 3rd respondent, I have held that if the lorry driver got down from the lorry and crossed the road to have a tea and in that process, he involved in the accident and died, it could not be held that the accident did not arise out of employment. 16. Upon consideration of entire facts, I am of the view that theory of notional extension is applicable to the facts of this case. In this regard, I would like to quote the judgments of the Hon'ble Supreme Court:- "(i) The meaning of the words "in the course of his employment" appearing in Section 3(1) of the Workmen's Compensation Act, 1923, was examined by the Hon'ble Supreme Court in the case of Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and Others, AIR 1958 SC 881 : (1958) 2 LLJ 249 . The appellant therein, a salt manufacturing company, employed workmen both temporary and permanent. The salt-works was situated near a creek opposite to the town of Porbandar. The salt-works could be reached by at least two ways from the town, one an overland route nearly 6 to 7 miles long and the other via a creek which had to be crossed by a boat. In the evening of 12.6.1952, a boat carrying some of the workmen, capsized due to bad weather and overloading. As a result of this, some of the workmen were drowned. One of the questions that came up for consideration was whether the accident had taken place in the course of the employment of the workers. Hon'ble Mr. Justice S. Jafer Imam, speaking for the Court, held as follows:- 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. After laying down the principle broadly, His Lordship Justice S. Jafer Imam, went on to observe that there might be some reasonable extension in both time and place to this principle. After laying down the principle broadly, His Lordship Justice S. Jafer Imam, went on to observe that there might be some reasonable extension in both time and place to this principle. "A workman might be regarded as in the course of his employment even though he had not reached or had left his employer's premises in some special cases. The facts and circumstances of each case would 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. 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 boatman's dues, S. Jafer 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. 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. In the present case, even if it be assumed that the theory of notional extension extends up to 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 Workmen's 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." (ii) The Supreme Court in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another (Appeal (civil) 4778 of 2006 decided on 10/11/2006), in a case of death of a lorry cleaner, even though he was in employment held that in a case for compensation under the Workmen Compensation Act, the key issue to be decided is whether that the death or injury, occurred out of and in the course of employment. The principles as laid down by the Apex Court are as follows:- "(21)(1) There must be a casual connection between the injury and the accident and the accident and the work done 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 records 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. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed. (22) There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction." 17. In view of the above, I do not find any infirmity in the factual findings recorded by the Deputy Commissioner of Labour, particularly when the appellant insurance company did not choose to let in any evidence and did not make any independent investigation. In view of the above, I do not find any infirmity in the factual findings recorded by the Deputy Commissioner of Labour, particularly when the appellant insurance company did not choose to let in any evidence and did not make any independent investigation. It is well settled that unless there is any perversity, this Court could not interfere with the factual finding recorded by the Deputy Commissioner of Labour in the appeal under Section 30 of the Workmen Compensation Act. 18. In the result, the Civil Miscellaneous Appeal fails and the same is dismissed. No costs. Consequently, CMP(MD)No. 2 of 2006 is closed. 19. The learned counsel for the appellant brought to the notice of this Court that the entire award amount was withdrawn by the claimants in 2006 itself before numbering the appeal. The said statement is placed on record.