ORAL : 1. Instant appeal under Section 30 of the Workmen Compensation Act has been filed for setting aside the award passed by the Assistant Labour Commissioner, Ramban (hereinafter referred to as ‘ALC’) on the grounds that ALC has erred in assessing the monthly income of the deceased Abdul Latig Naik and the income taken is on the very higher side; that respondent has not placed any such document or lead any such evidence with regard to the age and the loss of income to the family, as such, the award, thus, based on wrong assessed income of the deceased is erroneously in law and deserves to be set aside; and that the ALC has again error in applying the multiplier, which has been fixed on the very higher side, as a result of which, exorbitant award for an amount of Rs.6,81,599/- along with Rs.50,000/- as a penalty for delaying the payment of compensation to the respondents without any fault of the appellant, has been passed. 2. The facts in brief as projected are that respondents-claimants invoked the jurisdiction of Assistant Labour Commissioner, Ramban, under the Workmen's Compensation Act, 1923 (here-in-after referred to as “Act”) for grant of compensation on account of death of Abdul Latief Naik, who was husband of claimant No.1 and father of claimants Nos. 2 and 3. It is averred in the claim petition that on 09.06.2010 permanent casual labourer Mohd. Rafiq Sohail son of Ashraf Sohail resident of Amkote, Chambalwas, Banihal was injured during the execution of work and was shifted to Emergency Hospital, Banihal for treatment. The Officer Commanding of 99 RCC C/O 56 APO directed Abdul Latif Naik (deceased) to attend the injured at Emergency Hospital, Banihal. After attending the injured, the authorities took late Abdul Latif Naik (attendant) in their official vehicle and dropped him on National Highway at Nachlana in the late hours and on way to his residence, he fell down in a deep gorge and received multiple serious injuries. On 10.06.2010, he too was shifted to Emergency Hospital, Banihal for treatment, where Doctors declared him as brought dead. The deceased workman was getting Rs.10,000/- per month as wages and was of 28 years old at the time of accident. On account of death of Abdul Latief Naik, respondents-claimants claimed compensation to the tune of Rs.15.00 lakhs. 3. On 10.06.2010, he too was shifted to Emergency Hospital, Banihal for treatment, where Doctors declared him as brought dead. The deceased workman was getting Rs.10,000/- per month as wages and was of 28 years old at the time of accident. On account of death of Abdul Latief Naik, respondents-claimants claimed compensation to the tune of Rs.15.00 lakhs. 3. Notice came to be issued to the appellant-Union of India whereby it resisted the petition by filing objections. In the objections, it is averred that deceased was not engaged as Labourer at the time of his death. On 9th of June, 2010 Code No. 6714 CP Mazdoor Abdul Latif was deployed at K.M. 185.00 on Jammu-Srinagar Road (N.H-44) for maintenance of work along with other Labourers. After completion of day work, Mazdoor Abdul Latif and other Labourers left work site for their respective homes. However, as per family members of Abdul Latif, he did not reach his home on 09th June, 2010, and on 10th June, 2010, the family members of the deceased after search found him in a Nallah between Khari Village and his home. The deceased was taken to Banihal Hospital by his family members, where doctors declared him as brought dead. Neither the petitioner nor the death certificate reveals the time of the death. It is contended that moreover, as per the Workmen’s Compensation Act, 1923, it is necessary that the workman must be actually working at the time of injury or the accident. There is no casual connection between accident and employment. It is further contended that as a Labourer, his monthly income was not more than Rs.4030/- pm. As per school leaving certificate the date of birth of the deceased is 01st March, 1977. Hence, his age was 33 years at the time of occurrence/incident. In the objections, it is also contended that the deceased was not covered under Workmen Compensation Act at the time of incident. The appellant-Union of India refused to pay compensation under the Workmen Compensation Act, therefore, claimants-respondents requested to determine the following issues:- i. Whether the deceased was a workman within the meaning of Workmen Compensation Act? OPP ii. Whether the accident arose out of and in the course of employment with opposite party? iii. Whether the amount of compensation claimed is due or any part thereof. iv. Whether the opposite party is liable to pay such compensation as is due. OPP ii. Whether the accident arose out of and in the course of employment with opposite party? iii. Whether the amount of compensation claimed is due or any part thereof. iv. Whether the opposite party is liable to pay such compensation as is due. They requested to pass an award of compensation in their favour. 4. The claimant No.1 examined Mohi-ud-Din and Mohd.-ud-Din as her witnesses besides examined herself whereas respondent examined only one witness, namely, Mr. Des Raj, Asstt Engineer, 52 RCC GREF C/O 56 APO. It is profitable to give brief resume of the evidence led by the claimant No.1 and her witness as also by appellant-Union of India. 5. Claimant No.1-Zahoor Begum stated that deceased Abdul Latif Naik was her husband and was of 30 years old at the time of incident. He was working with GREF for the last 4-5 years and was getting Rs.4000/- per month being Mistri. She further stated that deceased while coming back to his residence after duty hours on 09.06.2010 died in the way. His postmortem was got conducted in Banihal Hospital and respondent have paid her Rs.3650/-. In cross-examination witness stated that deceased slipped in the way and fell in a Nallah resulting to his death, when he was coming back to his home after performing his duty. 6. Mohi-ud-Din witness of the claimant No.1 stated that about 4-5 years back deceased Abdul Latif Naik used to work with GREF as a Mazdoor. After the close of the work, the deceased died in the way while going back to his home. He further stated that deceased died in the way due to accident. He was working as a drilling mystery. 7. On the other hand, Union of India examined one Shri Des Raj, Asstt. Engineer, 52 RCC GREF C/O 56 APO, who stated that on 09.06.2010 Labourer Abdul Latif was engaged for road maintenance work at K.M.185 Jammu-Srinagar National Highway. After duty hours, he left for home, but he did not reach his home on 09.06.2010. On 10.06.2010, deceased was found dead in Khari Nallah. At the time of accident deceased was not on duty. After court of inquiry, the family members of the deceased were not entitled for compensation under the Workmen’s compensation Act. After duty hours, he left for home, but he did not reach his home on 09.06.2010. On 10.06.2010, deceased was found dead in Khari Nallah. At the time of accident deceased was not on duty. After court of inquiry, the family members of the deceased were not entitled for compensation under the Workmen’s compensation Act. In cross-examination by the counsel for the applicant witness Des Raj stated that he does not know as to who was present at site on the day of accident. 8. On the basis of evidence on record and after hearing learned counsel for the parties, it has been proved that deceased Abdul Latif Naik was a Workman employed with the respondent. On the instructions of respondent late Abdul Latif attended one of their injured workman admitted in Emergency Hospital, Banihal. Abdul Latief died in way when he fell down in a gorge and it was proved beyond any doubt that deceased Abdul Latif died due to accident which arose out of and in the course of his employment for the respondent. All the witnesses have deposed that claimant/respondent No. 1 was a labourer and during the course of employment of appellant, met with an accident and sustained grievous injuries due to which he died. 9. Heard learned counsel for the parties and perused the record. 10. Learned counsel for the appellant-Union of India argued that the deceased Abdul Latif was on his way home after completing the days work on 09.06.2010 and having left the work site after finishing his job, the accident which took place while he was on his way home cannot be said to have arisen during the course of his employment and, therefore, the respondents are not entitled to any compensation under the provisions of the Employees Compensation Act (earlier Workmen Compensation Act). Alternatively, it is, argued by the learned counsel that the age of the deceased has wrongly been taken as 28 years whereas the actual date of birth of the deceased as per their record is 01.03.1977 and the deceased as such, was 33 years old at the time of accident. It is further argued that no opportunity of being heard on the question of penalty to be imposed under Section 4-A has been afforded to the appellant-Union of India by the learned Commissioner, in absence whereof, no penalty could have been imposed upon the appellant. 11. It is further argued that no opportunity of being heard on the question of penalty to be imposed under Section 4-A has been afforded to the appellant-Union of India by the learned Commissioner, in absence whereof, no penalty could have been imposed upon the appellant. 11. Learned counsel for the respondents, on the other hand, argued that the expression “course of employment” would take within its sweep the area through which an employee passes or re-passes while going to or coming back from his work. It was, further, highlighted that the deceased, on the fateful day, after finishing his duty was deputed by the officer in-charge of 99 RCC to attend one Mohd. Rafiq Sohail in the Emergency Hospital, Banihal whereafter he was dropped on the National Highway in the official vehicle wherefrom he proceeded towards his home and fell into a gorge in darkness of the night. Learned counsel further relied upon a judgment passed by the Karnataka High Court in case titled United India Insurance Co. V. Smt. Susheela and others reported in ( 2004 ACJ 1518 ) wherein the Court, while relying upon a judgment rendered by the Hon’ble Apex Court and by a Division Bench of the same Court, held that the concept of “during the course of employment” can be extended from the time the workman leaves home and returns after completion of his duty. The following principle of law, settled in an earlier judgment was quoted with reference in the said judgment:- "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 re-passes in going to and in leaving the actual place of work. There may he 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. There may he 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" ". (emphasis supplied) It is also seen that a Division Bench of this Court in the case of Smt. Balawwa, supra, at para 10, has held thus: "With regard to the first point, it is no doubt true that a claim for compensation for the death of an employee could be made under Section 3 read with Section 4 of the Workmen's Compensation Act only if the death of that employee has occurred due to an injury sustained by accident out of and in the course of his employment. By a series of judicial pronouncements it is now well-settled that the word 'accident' should be taken to mean a mishap or untoward event, not expected or designed; that if a person suffers heart attack and dies, it necessarily means that there has been an injury to the heart and that, that event being a mishap not expected or designed, is an accident and that, if a workman suffers heart attack out of and in the course of his employment, then the employer is liable to pay compensation under Section 3 read with Section 4 of the Workmen's Compensation Act". 12. Another judgment which has been relied upon by the learned counsel for the respondents in support of his aforesaid contention, has been rendered by the Madras High Court in the case of titled Tncs. Corporation Ltd. v. S. Poomalai reported in (1994) 2 MLJ 124 , wherein the following principle settled by Division Bench of the Gujarat High Court has been quoted with reference:- “The expression 'arising out of employment' is not confined to the mere nature of the employment. It applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one arising 'out of employment'. It applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one arising 'out of employment'. To put it differently, if the accident occurred on account of a risk which is an incident of an employment, the claim for compensation must succeed, unless of course, the workman has exposed himself to an added peril by his own impudent act. The employee, who belonged to the second shift of the mill working at 3.30 p.m. started from his house to go to the mill on one afternoon. In order to see that the second shift started at 3.30.p.m. the mill had devised a rule that the workers should be inside the mill compound five minutes before the shift commenced. The entry by particular gate had been fixed for the orderly, convenient egress and ingress for the large number of employee when one shift ended and the other started. The employee came at about 3.20 p.m. at a distance of 10.15 ft. away from the mill gate and when he was trying to get success in the mill he was knocked down by a cyclist causing his death. On the question whether the doctrine of notional extension applied. Held, that the case clearly came within what is called 'incident of employment' because instead of the entire route bring prescribed the entry gate and timings had been specified by the employer so that the worker could properly leave and enter from the particular gate facilitating search by the watchman at that particular time. The employee would be under a duty to obey this ride. Therefore, clearly the workmen came within the scope of employment can be carried out these incidental orders and the doctrine of notional extension therefore, clearly applied to the case and the claimants were entitled to compensation.” 13. In light of the aforesaid judicial pronouncements, which squarely apply to the facts of the present case, the accident- in- question which led to the death of the deceased Abdul Latif is held to have arisen in the course of employment. 14. In light of the aforesaid judicial pronouncements, which squarely apply to the facts of the present case, the accident- in- question which led to the death of the deceased Abdul Latif is held to have arisen in the course of employment. 14. Now coming to the contention alternatively raised by the appellant-Union of India having a bearing on the quantum of the awarded amount; in so far as the contention of the appellant with regard to the age of the deceased being 28 years and not 33 years by reference to his date of birth, no objection has been raised by the respondents-claimants and the same as such, is accepted. Accordingly, a multiplier of 201.66 instead of 222.79 would have to be applied as mentioned in Schedule IV of the aforesaid Act and multiplied to fifty percent of the last drawn wages of the deceased. In so far as the contention of the appellant-Union of India with regard to non-grant of an opportunity of being heard before imposing penalty under Section 4-A of the Workmen’s Compensation Act is concerned, the same can be determined only after perusing the record file of the court below. However, the calling of the record is not felt necessary in view of the statement made by the counsel appearing for the respondents-claimants that they would forego their claim with regard to the amount awarded by way of penalty. The change in the amount of compensation awarded on account of the above would also result in change in the amount of interest awarded thereon. Thus, the award passed by the Court below is modified in the following terms:- (i) Compensation Rs. 4,06,344.50 (ii) Interest @ 12% pa. Rs. 1,99,109.00 Total Rs. 6,05,453.90 15. Further in terms of the award impugned, a period of thirty days was granted to the appellant-Union of India for making payment of the awarded amount to the respondents-claimants while further providing that failing which payment, a further statutory interest for the period w.e.f. 09.08.2014 till its actual payment would be recovered from the appellant-Union of India. It is seen from the record of the Court file that the awarded amount was not paid to the claimants-respondents and was instead deposited before this Court on 05.02.2015 which comes to Rs.36,327.23. It is seen from the record of the Court file that the awarded amount was not paid to the claimants-respondents and was instead deposited before this Court on 05.02.2015 which comes to Rs.36,327.23. Thus, the total amount payable to the respondents, therefore, comes to RS.6,41,781.13 (Rupees Six Lakh Forty One Thousand Seven Hundred Eighty One and Thirteen only) and the same is directed to be released in favour of the respondents-claimants from out of the awarded amount as deposited by the appellant-Union of India before this Court after their proper identification and verification. The excess amount, if any, shall be refunded to the appellant-Union of India through Account Payees Cheque. 16. Disposed of as above along with connected MPs.