Research › Search › Judgment

Uttarakhand High Court · body

2021 DIGILAW 180 (UTT)

Adarsh Kumar Singhal v. Usha Devi

2021-03-19

RAVINDRA MAITHANI

body2021
JUDGMENT Ravindra Maithani, J. - The present appeal is preferred under Section 30 of the Workmen's Compensation Act, 1923 (now christened as the Employees' Compensation Act, 1923) (for short "the Act") against the judgment and order dated 01.07.2009 passed in Workmen's Compensation Case No. 33 of 2005 "Smt. Usha Devi vs. Sri Adarsh Kumar and another" (for short "the case") by the Workmen's Compensation Commissioner/Assistant Labour Commissioner, Kumaon Region, Haldwani, Nainital. By the impugned judgment and order, the claim petition of the respondent has been allowed and she has been awarded a total compensation of Rs.4,19,735/- (Rupees Four Lakh Nineteen Thousand Seven Hundred Thirty Five only). 2. The case is based on the application of the respondent. According to it, the husband of the respondent late Diwan Chand was a workman in the Rice Mill of the appellant titled as M/s Shyam Rice Mill (for short "the establishment"). On 11.04.2005, the deceased was on duty from 08:00 in the morning till 09:00 in the night. After duty, while he was returning to his house on his bicycle, at about 09:30 PM, he was hit by a motorcycle, due to which he died on the spot. The respondent claimed Rupees Four Lakh as compensation. The appellant filed objections to the claim. According to it, the deceased did not die during the course of his employment; deceased was not a workman under the Act; at the time of his death, he was not on a job and the death did not occur during the working hours. The appellant also specifically taken a plea in paragraph 10 of his objections that the work of Rice Mill is a seasonal work; the month in which the deceased died was not a seasonal month; deceased was seasonally employed, therefore, he had not been assigned any work out of season, and therefore, he was not a workman in the month of April, 2005. 3. In her claim petition, the respondent made certain amendments. Thereafter an additional written statement was filed by the appellant, and in paragraph 2 of it, an objection with regard to nonjoinder of necessary party has been raised on the ground that the appellant had taken an insurance policy covering the risk of workers of the establishment from the National Insurance Company Limited ("the insurance company"), therefore, the insurance company is a necessary party. It is thereafter that the insurance company was also made a party. 4. The insurance company also filed its objections in the case. According to it, it is the responsibility of the employer to establish that his case is covered under validly issued insurance policy and the conditions thereof were not violated. The insurance company admitted to have issued a Policy, which was a Group Personal Accident Policy and accepted that the insurance company is liable to the extent of the Policy issued by it. But, an objection is raised with regard to the Group Personal Accident Policy that the matter cannot be agitated under the provisions of the Act. 5. In the case, parties led evidence and produced documents. After hearing the parties, by the impugned judgment and order, the claim petition for compensation filed by the respondent was allowed and she was awarded the compensation as stated hereinbefore. Aggrieved by it, the appellant is in appeal. 6. Appeal under the Act cannot be entertained in a routine manner, unless a substantial question of law is involved in it. This is what is provided in the first proviso to Section 30 sub-section (1) of the Act, which reads as hereunder:- "30. Appeals.- (1) ********** Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than ten thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify:" 7. Initially when the appeal was taken up on 13.08.2009, substantial question of law was not framed. Not only this, in the memo of appeal also, the appellant did not propose any substantial question of law. Although by way of a supplementary affidavit dated 24.08.2009, four substantial questions of law were proposed. 8. After hearing the parties, the following substantial question of law is now formulated for determination in the instant appeal. "(i) Whether the deceased Diwan Chand died during the course of his employment?" 9. Heard learned counsel for the parties and perused the record. 10. Learned counsel for the appellant has raised two points which are as hereunder:- "(i). The deceased was not in the employment of the appellant, and; (ii). "(i) Whether the deceased Diwan Chand died during the course of his employment?" 9. Heard learned counsel for the parties and perused the record. 10. Learned counsel for the appellant has raised two points which are as hereunder:- "(i). The deceased was not in the employment of the appellant, and; (ii). If for the sake of argument it is presumed that the deceased was in the employment of the appellant, he did not die during the course of his employment." 11. Learned counsel for the appellant would submit that the deceased was a seasonal worker and in the month of April, there was no season in the establishment; the deceased was not assigned any job, hence, he was not in the employment of the appellant. Learned counsel for the appellant would refer to paragraph 10 of the objection filed by the appellant in the case where assertion to this effect has been made. 12. The second limb of argument which is advanced is that the death did not occur during the course of the employment because it was beyond working hours and it was beyond the premises of the establishment. 13. On the other hand, learned counsel for the respondent would submit that in the instant appeal after the death of the deceased, it is the appellant himself who had informed the insurance company for making the payment of compensation (Annexure-6). It is argued that had the deceased not employed and died during the course of his employment, the appellant had no occasion to write the insurance company for making the payment to the legal heirs of the deceased. 14. Learned counsel for the respondent would also submit that leaving the establishment after working hours and proceeding towards one's residence is also a part of employment. This is the extension of the employment and the death during this extended period would also be considered a death during the course of employment. In support of his contention, the learned counsel for the respondent has placed reliance on the principles as laid down in the case of National Insurance Company Limited vs. Smt. Suman Devi and another, 2008 3 UC 1410 . In support of his contention, the learned counsel for the respondent has placed reliance on the principles as laid down in the case of National Insurance Company Limited vs. Smt. Suman Devi and another, 2008 3 UC 1410 . In this case, this Court had held that "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". 15. The Act provides for payment by certain classes of employers to their workmen for compensation, for injury by accident. This is an Act which provides social security. It provides financial protection to the workmen and its helpless dependants in case of accidental injury by means of payment of compensation. It is a beneficial legislation. The provisions of the Act are to be interpreted so as to advance the purpose of the Act for which the Act has been enacted and not in a manner which may defeat the very purpose of enactment of the Act. 16. To answer the substantial question of law as framed in this appeal, two issues are required to be addressed, namely, (i) whether the deceased was in the employment in the establishment of the appellant at the relevant time, and (ii) whether the death occurred during the course of his employment. 17. It is the case of the respondent that her husband was working in the establishment, and on 11.04.2005, he had worked from morning to evening in the establishment. In the evening while the husband of the respondent was returning to his house, he was hit by a motorcycle. Thereafter an FIR of the incident was lodged. This is what she has stated in her statement. 18. The factum of death is not in dispute. According to the objections filed by the appellant in the case, the deceased was not employed at the relevant time. He was a seasonal worker and the month of April was not the season for such work, which otherwise would have been assigned to the deceased. The appellant appeared as a witness. In his examination-in-chief, the appellant reiterated what he has stated in his objections. He was a seasonal worker and the month of April was not the season for such work, which otherwise would have been assigned to the deceased. The appellant appeared as a witness. In his examination-in-chief, the appellant reiterated what he has stated in his objections. The appellant also submitted documents in the case with regard to the work that was carried out in the establishment in the month of April, 2005, and it has belied the entire version of the appellant. When cross-examined by the insurance company, the appellant admitted that in the month of April, they produced Rice in the establishment. He admits that in the month of April, 2005, the establishment was running. He also admits that on certain dates, the work was done. This statement of the appellant himself falsifies the stand which he has taken in paragraph 10 of his objections, where he has stated that the month of April was not the season for the work. This has been discussed in detail in the impugned order. The documents produced by the appellant were discussed in page 7 paragraph 1 of the impugned judgment and it was concluded that in the month of April, 2005 there are entries for sale and purchase of paddy. 19. The statement of the appellant is further falsified by the communication which he made to the insurance company on 18.04.2005. In his communication, the appellant wrote that a Munsi of his establishment Diwan Chand died in an accident on 11.04.2005, which is covered under a Policy taken from the insurance company. This is the earliest admission made by the appellant. He admitted then that the deceased was working with him and he died in an accident. Thereafter, the appellant took a U-turn and it is further clarified by the statement of R.S. Pangti, Branch Manager, National Insurance Company Limited. This witness proved the letter dated 18.04.2005 written by the appellant to the insurance company. But, according to him, when further details were sought from him, he did not submit them; the appellant did not submit the documents pertaining to the deceased Diwan Chand. According to this witness R.S. Pangti, the Policy was Personal Accident Claim. It is not the Workmen Compensation Policy. Under the Policy, which the appellant had taken the insurance company is not liable to pay the compensation under the Act. According to this witness R.S. Pangti, the Policy was Personal Accident Claim. It is not the Workmen Compensation Policy. Under the Policy, which the appellant had taken the insurance company is not liable to pay the compensation under the Act. It appears that it prompted the appellant to take a different stance and the appellant claimed that the deceased was not in his employment. 20. All the attending factors establish that, in fact, the deceased was in the employment of the appellant on 11.04.2005. The conclusion on this aspect as drawn in the impugned judgment does not warrant any interference. 21. There is another point as to whether the death occurred during the course of employment. 22. In the case of General Manager, B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes, (1964) AIR SC 193, the Hon'ble Supreme Court observed that "when a driver when going home from the depot or coming to the depot uses the bus, any accident that happens to him is an accident in the course of his employment". 23. In the case of Daya Kishan Joshi and another vs. Dynemech Systems Private Limited, (2018) 11 SCC 642 , the concept of notional extension of "course of employment" has further been discussed, and the Hon'ble Court held that it depends upon the facts of each case. It was observed that "there is a notional extension at both entry and exit by time and space. There may be some reasonable extension in both time and space and a workman may be regarded as in the course of his employment even though he has not reached or has left employer's premises. The Courts have held consistently that the employment does not necessarily end, when the tool down signal is given and when the workman actually leaves his place of work". 24. In the case of Mackinnon Machenzie and Co. (P) Ltd. vs. Ibrahim Mahmmed Issak, (1969) 2 SCC 607 , the phrase "in the course of employment" has been interpreted and the notional extension of time and space was considered in paragraph 5 of the judgment. The Hon'ble Supreme Court observed as hereunder:- "5. To come within the Act the injury by accident must arise both out of and in the course of employment. The Hon'ble Supreme Court observed as hereunder:- "5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered." In other words there must be a causal relationship between the accident and the employment. 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. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley, (1917) AC 352 Lord Sumner laid down the following test for determining whether an accident "arose out of the employment": "There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this : Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury ? If yes, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. If yes, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the workman was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury." 25. It is not that within working hours for which a workman is deputed or the place within which a workman is required to perform his duties that phrase "arising out of the employment" may be restricted. It may extend in time and space both, but it depends upon the facts and circumstances of each case. That should be the test within the phrase "arising out of the employment". There must be a casual relationship between the accident and the employment. 26. In fact, in the instant case, the deceased exposed himself to the accident only because of his employment. At 09:00 in the night he had completed his duties and while he was returning home, he died. It has a relationship with his employment. Therefore, in view of the settled laws, this Court is of the view that the deceased Diwan Chand died during the course of his employment. The finding as recorded in the impugned order on this aspect also does not warrant any interference. 27. Accordingly, this Court is of the view that the deceased died during the course of employment. Substantial question of law is answered accordingly. 28. In view of the foregoing discussion, this Court is of the view that there is no substance in the appeal and it deserves to be dismissed. 29. The appeal is dismissed.