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2022 DIGILAW 424 (JHR)

Chari Devi v. Mahal Bricks, through its proprietor Sri Keshav Narsaria

2022-04-07

GAUTAM KUMAR CHOUDHARY

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JUDGMENT : 1. This appeal is filed under section 30(1) of the Workmen Compensation Act, 1923 against dismissal of the application for compensation passed by the Presiding Officer, Labour Court, Ranchi–cum-Commissioner, under the Workmen Compensation Act in W.C. Case No. 3/2007. 2. The Applicant /appellant’s case is as follows:- (i) That the Ganesh Oraon husband of the claimant was a workman within the meaning of Section 2 (n) of the Workmen Compensation Act, 1923. That husband was employed under the opposite party no. 1 as watchman/Munshi on a salary of Rs.1700/-per month and his work involved making reminders for payment to the customer apart from working as watchman in the brick kiln. The opposite party no. 1 was the employer within the meaning of Section 2 (E) of the Act. (ii) That on 09.12.2002 at 2.30 PM the deceased was on his normal duty when a tractor bearing no. BR-41-3793 came to the brick kiln of the opposite party No. 1 and he proceeded on the tractor to Gumla for giving reminder to some customer for payment due. The tractor had moved just 200 yards from the kiln that it overturned in which he sustained fatal injuries and died in the accident. It is the case of the applicant that her husband died on duty i.e. in course of and out of employment. At the time of death of age of the deceased husband was 32 years. 3. Owner of the brick kiln and the insurance company have been impleaded as O.P. No. 1 & 2. 4. Opposite party no.1 has contested the claim on the ground that the deceased Ganesh Oraon did not receive injury resulting in his death during the course of employment. It has however not been disputed that he was employed in the brick kiln as a staff of O.P. No.1. He had gone out on his own free will and left the work premises and on way to Gumla the accident took place. 5. The Insurance Company has contested the claim on the ground that there did not exist any employer–employee relationship between the deceased and the opposite party number one. There is nothing on record to show that the deceased died during the course of his employment which admittedly did not take place within the premises of the workplace. Being a watchman, he was not supposed to leave the workplace. 6. There is nothing on record to show that the deceased died during the course of his employment which admittedly did not take place within the premises of the workplace. Being a watchman, he was not supposed to leave the workplace. 6. On the basis of the pleadings of the parties the following issues have been framed : I. Whether the petitioner has valid cause of action? II. Whether the deceased workmen died due to injuries received in an accident arising out of and in course of employment? III. Whether the petitioner is entitled to get relief? 7. The learned Court below dismissed the claim application mainly on the ground that the accident took place at a distance of 200 yard from the brick kiln by placing reliance on 2002 (2) JCR 349 . 8. The present appeal has been admitted to be heard on the following substantial questions of law : I. The lower court below has gravely erred in not considering the concept of notional extension of time and space. II. The lower court below has erroneously decided issue no. 3, that the workmen has died outside the premises of the respondent no.1, as such he is not liable for any compensation. 9. The appeal has been preferred on the ground that accident occurred during the course of employment, but the learned Court below has attached undue weightage to the FIR and disallowed the claim application on the ground that the accident took place outside the workplace without considering the causal connection between the employment and accident. The admitted facts of the group insurance under the Workmen (now Employees) Compensation Act has also not been considered. It is also submitted that no evidence has been led on behalf of the opposite parties in support of their case. Reliance has been placed on the following authorities : (i) General Manager, B.E.S.T. Undertaking v. Agnes AIR 1964 SC 193 “Under Section 3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the “down tool” signal is given or when the workman leaves the actual workshop where he is working. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the “down tool” signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension as both the entry and exit by time and space. The scope of such extension “must necessarily depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves this tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employer to use only a particular means of transport extends the area, of the field of employment to the course of the said transport. Though at the beginning the word “duty” has been strictly construed, the later decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deals with a transport service operating over a large area like Bombay. They are, therefore, of little assistance, except insofar as they laid down the principles of general application. Indeed, some of the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to traverse public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority”. (ii) Daya Kishan Joshi v. Dynemech Systems (P) Ltd., (2018) 11 SCC 642 “Undisputedly, the employer's liability for compensation to the employee arises only if the employee has suffered in the accident which arose out of and in the course of employment. Section 3(1) of the Act deals with the employer's liability for compensation to the employee in case of accident arising out of and in the course of employment. Section 3(1) reads thus: “3. Section 3(1) of the Act deals with the employer's liability for compensation to the employee in case of accident arising out of and in the course of employment. Section 3(1) reads thus: “3. Employer's liability for compensation.—(1) If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:” ………..The words “arising out of” and “in the course of employment” are in fact two different phrases and have been understood as such. If the accident had occurred on account of a risk which is an incident of employment, the claim shall succeed unless, of course, the workman had exposed himself to an added peril by his own imprudent act. The phrase “in the course of employment” suggests that the injury must be caused during the currency of employment, whereas the expression “out of employment” conveys the idea that there must be a causal connection between the employment and the injury caused to the workman as a result of the accident.” 10. From the above authorities the position of law that emerges is that the main plank of claim under Employee’s Compensation Act is the causal connection between the nature of employment and the accident and that it should be caused during the continuity of employment. Whether the employee was required to remain confined to the workplace or the employee had to move out from the workplace depended on nature of work and demand of the job. In the later case, it will be deemed notional extension of space and time with regard to place of work and the time of work is essentially a question of fact. Thus, in order to make the Employer liable the requirement of law under Section 3 of the Employee’s Compensation Act, 1923 is that the injury should have been caused out of and during course of his employment. In other words there should be a causal link between the accident and the employment. 11. The authority relied upon by the learned Court below is distinguishable from the one at hand. In other words there should be a causal link between the accident and the employment. 11. The authority relied upon by the learned Court below is distinguishable from the one at hand. In 2002(2) JCR 349 the deceased was not on duty, but was on way to join his duty when the accident took place and, therefore, their Lordships held it to be not a case of accident to have taken place during the course of his employment. In the present case it has not been disputed by the O.P. No.1 in para 5 of the show cause that the deceased was an employee. Regarding the nature of employment it has been averred on behalf of the claimant that he was Watchman/Munshi, whereas as per the case of O.P. No.1, he was a “staff” in their Bhalmanda Chatti premises. Word ‘staff’ is of a wider import, where the service of a person is put to multifarious works. In para 3 of her deposition the claimant has elaborated on the nature of the work, wherein she has stated that her husband was working as a munshi and used to look after the brick kiln and also used to go to collect money from the parties to whom the bricks were supplied. On 9.12.2002 he was going to Gumla to collect money when the tractor overturned resulting in his accidental death. It has also been deposed that he was getting a monthly salary of Rs.1700. Regarding age, she has candidly admitted that she did not knew his age. She had a son and a daughter and was dependent on the deceased. In para-seven of her cross-examination she has denied that he was going on his own free will without any instruction from the owner. In para-8 she says that at that time she did not know that her husband had gone to collect the dues, but came to know only after a month from Kesav Narsiya. This witness is at a rustic tribal lady who has put her RTI on the deposition form. From the tone and tenor of her deposition she does not appear to be a tutored witness. A.W. 2 has also corroborated the testimony of A.W. 1. He has deposed that he was working in the brick kiln as munshi and on the date of accident deceased was going to collect dues. From the tone and tenor of her deposition she does not appear to be a tutored witness. A.W. 2 has also corroborated the testimony of A.W. 1. He has deposed that he was working in the brick kiln as munshi and on the date of accident deceased was going to collect dues. In para-5 he has stated that he was working as a watchman but used to be also sent for collection of dues. No contrary evidence has been led on behalf of the opposite parties so as to contradict, or disbelief the testimony of these two witnesses. 12. The Learned Court below was in error to discard the evidence of these witnesses only on the ground that the accident took place out of the work premises. From the evidence on record, it can be inferred that on the fateful day the deceased was on an errand to collect the dues of the brick kiln when the accident took place. This deceased suffered accidental death during course of his employment for which the employer O.P. No.1 shall be liable to pay compensation under the provisions of chapter II of the Act 1923. 13. In view of the above both the substantial questions of law are answered in favour of the appellant. 14. O.P. No.1 has asserted in para-9 that O.P. No.2 was the insurer of the staff and labourers vide Policy No. 170204/41/02/8600502 valid from 2.12.2002 to 1.12.2003. This averment has not been disputed or denied. Under the circumstance the insurance company O.P. No.2 shall be liable to pay the compensation amount. 15. It has come in evidence of A.W. 2 that the age of the deceased was about 37–38 years and the monthly salary was Rs.1700/-. For the age of 37 years the applicable multiplier shall be 192.14. Taking Rs.1700 the final compensation amount shall work out to Rs.850X 192.14 = Rs.1,63,319 with interest at the rate of 12 % from the date of accident i.e. 09.12.2002. The National Insurance Co. Ltd. O.P. No.2 is, accordingly, directed to pay compensation of Rs.1,63,319/- with simple interest at the rate of 12% per annum from 09.12.2002 to the claimant within a month of this order. The appeal is allowed.