Madras High Court
Mrs.Jothi vs K.P.Saraswathi on 4 February, 2021
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.A.No.2701 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.2701 of 2018
1.Mrs.Jothi
2.Minor.Manojkumar
3.Minor.Vasantha Kumar
[Minors 2 and 3, Rep.by Mother/Guardian.Jothi]
4.Rangammmal
5.Pommanaicker @ Palanisamy ..Appellants
Vs.
1.K.P.Saraswathi
2.M/s.Cholamandalam MS General
Insurance Company Ltd.,
No.9, 1st Floor, Rajaji Road,
State Bank of Travancore Upstairs,
Peramanaur, Salem. ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 30 of the
Workmen Compensation Act, 1923, against the order dated 20.02.2017
made in W.C.No.223 of 2015 on the file of Deputy Commissioner of
Labour, Coonoor, The Nilgiris District.
For Appellants : Mr.Ma.P.Thangavel
For Respondents : No appearance for R1
Mr.M.B.Raghavan for R2
https://www.mhc.tn.gov.in/judis/
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C.M.A.No.2701 of 2018
JUDGMENT
The Award dated 20.02.2017 passed in W.C.No.223 of 2015 is under challenge in the present Civil Miscellaneous Appeal.
2. The claimants are the appellants and the application filed under the Workmen Compensation Act was rejected and challenging the said rejection, the present appeal is filed.
3. The Substantial Questions of law raised in the appeal on hand is that whether the Deputy Commissioner of Labour is right in not appreciating the evidences placed by the appellants; Whether the Deputy Commissioner of Labour is correct in dismissing the application though the appellants have proved that the deceased drove the vehicle from Delhi to Madurai and the accident occured during the course of employment; Whether the Deputy Commissioner of Labour is right in not considering the fact that the Workmen Compensation Act is a welfare legislation.
https://www.mhc.tn.gov.in/judis/ 2/20 C.M.A.No.2701 of 2018
4. The question of law raised in the present appeal are related to facts and cannot be considered as a Substantial Question of law. However, this Court is inclined to consider the facts in order to ascertain whether the decision taken by the Deputy Commissioner of Labour is in consonance with the provisions of the Act and based on the evidences or not.
5. The First Appellant is the wife of the deceased workman and second and third appellants are the minor sons and fourth and fifth respondents are the parents of the deceased. The Claim Petition was filed on the ground that the deceased P.Raju was a workman and was working as a Driver under the first respondent / K.P.Saraswathi, in a lorry bearing Registration No.TN-28-AB-5999. On 16.05.2010 at about 10.00 a.m, the deceased Raju was engaged as a Driver in the said lorry owned by the first respondent and the lorry was proceeding from Delhi to Madurai with a loaded potato vegetable. The deceased driver Raju and cleaner Krishna Kumar were parked the lorry in Kumar Body builder at Murugan Kovil, Salem Road, Namakkal. Thereafter, they went to take bath and to change their dress in their house, which is in the nearby village from Namakkal. The loaded lorry was parked in a garage https://www.mhc.tn.gov.in/judis/ 3/20 C.M.A.No.2701 of 2018 in the Namakkal in a protective manner because the lorry was loaded with potato vegetable. The deceased Raju and the cleaner went to their native place in Motor Cycle bearing Registration No.TN-28-A25640 and they met with an accident on the way to Namakkal near at Karunkalpalayam.
6. This being the admitted fact between the parties, the learned counsel for the appellants mainly contended that the loaded lorry has to reach Madurai in between at Namakkal. The deceased Raju parked the vehicle in a garage and went to his village for taking bath and changing dress, he went to his village in a two wheeler and the said two wheeler met with an accident and he died. Thus, for all purpsoes, the deceased Raju was an employee and the accident occured during the course of employment. A criminal case was registered in Crime No.267 of 2010.
7. The learned counsel for the appellants relied on the evidence by stating that the deceased parked the lorry and went to take bath. Therefore, he was in employment and the accident occured during the course of employment. Mere traveling to his village during the course of employment, cannot be held against the claimants, so as to deprive them https://www.mhc.tn.gov.in/judis/ 4/20 C.M.A.No.2701 of 2018 to get compensation under the welfare legislation.
8. In this regard, the learned counsel for the appellants cited the judgment of Oriental Insurance Co., Ltd., Vs. K.V.Joseph, reported in [2007] 4 CTC 106. The Full Bench of the High Court of Kerala, in paragraph 8 of the judgment, held as follows:
“8. We are of the considered view that in the facts and circumstances of the case, the claimant has satisfied all the tests viz., notional extension, casual connection and reasonably incidental to establish his claim, but we make it clear that ultimately everything turns on the facts and circumstances of each case. Facts of this case would clearly indicate that the claimant got down from the motor vehicle so as to unload the goods and it was at that juncture he had sustained dog bite and ran away to escape from further bite and then fell down and sustained injuries. He got out of the vehicle during the course of his employment so as to unload the goods. Goods loaded on the vehicle were to be unloaded and therefore the vehicle was under use. Compensation can be claimed when the accident occurred not only when the vehicle was moving but also when it was stationary. Use of the motor vehicle would clearly establish that since goods were loaded necessarily it had to be unloaded and it is for unloading https://www.mhc.tn.gov.in/judis/ 5/20 C.M.A.No.2701 of 2018 the goods the claimant got out of the motor vehicle. Therefore so far as the claimant is concerned he sustained injuries when the motor vehicle was under use. Workmen's Compensation Commissioner has allowed the claim since the vehicle has been insured with the appellant insurance company. Vehicle was in use and the accident occurred during the course of employment. On both counts, in our view, claimant is entitled to succeed and the Commissioner has rightly awarded the compensation. Appeal therefore lacks merits and the reference is answered accordingly.”
9. Relying on the above judgment, the learned counsel for the appellants is of an opinion that in the present case also, the lorry was parked in a garage and the deceased driver went to his village to take bath and change his dress. Thus, he died during the course of employment.
10. This Court is of the considered opinion that the Full Bench of the Kerala High Court considered the question how far notional extension theory would be applied so as to make Insurance company liable to compensate accident victim arising out of use of motor vehicle https://www.mhc.tn.gov.in/judis/ 6/20 C.M.A.No.2701 of 2018 even if it is established that accident occurred during the couse of his employment.
11. In paragraph 8 of the judgment (cited supra), the Hon'ble Full Bench of Kerala in unambiguous terms held that “We are of the considered view that the facts and circumstances of the case, the claimant has satisfied all the tests viz., notional extension, casual connection and reasonably incidental to establish his claim, but we make it clear that ultimately everything turns on the facts and circumstances.”
12. Therefore, the benefit of notional extension can be granted, only if the facts and circumstances are sufficient to connect the incidents, so as to establish that the victim sustained injury or death during the course of employment. Thus, the Full Court made it clear that the facts and the circumstances of each case require consideration for the grant of notional extension.
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13. The learned counsel for the appellants cited the judgment of the Hon'ble Supreme Court of India in the case of Poonam Devi and others Vs. Oriental Insurance Company Limited, reported in 2020 4 SCC 55, wherein the concept of welfare legislation namely the Workmen Compensation Act is emphasised by the Hon'ble Supreme Court. It is a settled principle that the Workmen Compenation is a welfare legislation and is to be interpreted, so as to ensure that the victims get 'just compensation' in accordance with the procedures as contemplated. Therefore, the general principles laid in the said judgment may not have much avail. Regarding the notional extension, the Hon'ble Supreme Court of India referred the case of Leelabai and made an observation in paragraph 11 as under:
“11. Coming to the facts of the present case, the deceased was driving the truck of respondent 2 from Ambala to Meerut. Indisputably he was in the course of his employment. We can take judicial notice of the fact that considering the manufacturer’s specification, the cabin of the truck was not air-conditioned and would have been a baking oven in the middle of the afternoon in the sultry monsoon heat of June 2003, when the temperature was touching 42.60 C in Yamunagar (Haryana) (source:
weatheronline.in). It was a compulsion for the deceased to https://www.mhc.tn.gov.in/judis/ 8/20 C.M.A.No.2701 of 2018 stay fresh and alert not only to protect the truck of respondent 2 from damage but also to ensure a smooth journey and protect his own life by safe driving. We can also take judicial notice of the fact that the possibility of the truck also requiring water to prevent overheating cannot be completely ruled out. In these circumstances, can it be said that the act of the deceased in going to the canal to fetch water in a can for the truck and to refresh himself by a bath before continuing the journey was not incidental to the employment? Every action of the driver of a truck to ensure the safety of the truck belonging to the employer and to ensure his own safety by a safe journey for himself has to be considered as incidental to the employment by extension of the notional employment theory. A truck driver who would not keep himself fresh to drive in such heat would be a potential danger to others on the road by reason of any bonafide errors of judgement by reason of the heat. The theory of notional extension noticed in the Agnes (supra) and followed in Leela Bai (supra) is extracted hereunder:(Leela Bai Case, 2019 4 SC 325)”
14. However, again the Hon'ble Supreme Court of India also made it clear that facts and circumstances of each case is to be considered, so as to extend the benefit of notional extension. It is not as if in all cases, https://www.mhc.tn.gov.in/judis/ 9/20 C.M.A.No.2701 of 2018 the principles of notional extension is to be extended for grant of compensation. The connectivity with reference to the facts are more important for the purpose extending the beneift of notional extension.
15. The learned counsel for the appellants further referred the judgment in the case of Manju Sarkar & Others Vs. Mabish Miah & Ors, reported in 2014-2-TNMAC-161(SC) and the relevant paragraphs 11 and 12 is extracted hereunder:
“11. As rightly contended by learned counsel appearing for the appellants there is a notional extension in the present case also and we would, therefore, hold that Sajal Sarkar met with the road accident in the course of his employment under respondent Nos.1 and 2. The Courts below have misdirected themselves while dealing with this question and the finding rendered by them is perverse and unsustainable.
12. In the claim petition the appellants have stated that Sajal Sarkar at the time of death was aged about 22 years and used to get monthly wages of Rs. 4,500/- at the time of accident. The first appellant herein examined herself as PW1 in the trial and has reiterated the age and income of the deceased. Three documents were marked on her side. Her testimony deserves acceptance. As per Section 4 clause 1(a) of the Act where death results https://www.mhc.tn.gov.in/judis/ 10/20 C.M.A.No.2701 of 2018 from the injury, 50% of the monthly wages of the deceased multiplied by the relevant factor would be the amount of compensation. In the present case the compensation would be a sum of Rs.2250 being 50% of the monthly wages multiplied by factor 221.37, which comes to Rs.4,98,082.50 and a further sum of Rs.10,000/- could be awarded towards funeral expenses as per Section 4 Clause (4). In the circumstances of the case we deem it just and proper to award interest at the rate of 9% per annum on the compensation from the date of claim petition.”
16. In all such cases, the Apex Court of India as well as the Full Bench of the Kerala High Court in clear terms held that in order to grant the benefit of notional extension, the facts and circumstances as well as its connectivity are to be taken into account and it is not as if notional extension can be extended in each and every case, when there is no connection between the insured vehicle and the accident occured in some other place.
17. The learned counsel appearing on behalf of the second respondent/ Insurance company objected the contentions of the appellant by stating that the facts are admitted. The learned counsel for the https://www.mhc.tn.gov.in/judis/ 11/20 C.M.A.No.2701 of 2018 Insurance company by referring the "Google Map", informed this Court that the distance between Namakkal and Gangabommanpatti, which is the village belongs to the deceased is 57 Kms. Further, the deceased parked the loaded lorry in a garage safely at Kumar Body builder at Murugan Kovil, Salem Road, Namakkal. Admittedly, the said lorry was insured with the second respondent Insurance Company. As per the terms and conditions of the Insurance policy, if the accident occured along with the lorry or if there is a reasonable cause for sustaining injuries on account of the accident, then alone, the Insurance company can be held liale and not otherwise.
18. The learned counsel for the respondent Insurance company emphasized that in the present case, the deceased parked the lorry, he went to his native place, which is 57 Kms from Namakkal in a two wheeler. While returning back from the village to Namakkal, he met with an accident and the said accident is no way connected with his employment nor connected with the parked lorry at Namakkal, which is insured with the second respondent Insurance company. Thus, the Deputy Commissioner of Labour is right in exonerating the Insurance company from liability. Ther terms and conditions of the insurance https://www.mhc.tn.gov.in/judis/ 12/20 C.M.A.No.2701 of 2018 policy are clear that the accident must be occured along with the vehicle insured.
19. The learned counsel for the respondents cited the judgment of the High Court of Madras in the case of New India Assurance Co., Ltd., Vs. A.Sharifa Bivi and others, reported in 2002 ACJ 378, the High Court of Madras held as follows:
“7.............Therefore, the evidence clearly establishes that the accident occurred not while the deceased was performing his duties as a driver but only while discharging some other works on the directions of the employer. Therefore, on a perusal of section 147(1)(b) proviso (i) the liability of the insurance company would arise only while the driver was performing the duties as a driver of the vehicle and not otherwise. The facts which are admitted have to be interpreted in accordance with the clear statutory provisions and there can be no scope for enlarging the meaning of the words which are clearly stated in the statute itself. There is no possibility of adopting any sympathetic approach while dealing with the statutory provisions and by ignoring admitted facts. If facts are in dispute the court may be in favour of the claimants and against the insurance company. When the fact that deceased met with the accident, when he was not https://www.mhc.tn.gov.in/judis/ 13/20 C.M.A.No.2701 of 2018 discharging his duties as driver is admitted, the insurance company is clearly relieved of its liability. The liability covers only the driver and the conductor and that too only while engaged in driving the vehicle or engaged as a conductor or in examining tickets on the vehicle. It is not possible to read into the provisions something which is clearly excluded to suit the convenience of the owner of the vehicle or the employer as against the interest of the insurance company which is a public institution. The claimant is not aggrieved in any manner since her claim is enforceable against the owner or the employer. (Emphasis supplied)”
20. The Judgment of the Hon'ble Supreme Court of India in the case of Regional Director, E.S.I.Corporation and another Vs. Francis De Costa and another, reported in (1996) 6 SCC 1, the Three Judges Bench of the Hon'ble Supreme Court of India ruled in paragraph 12 is as follows:
“12. This is precisely the case before us. Here also, we have a case of a person going from his home to his place of work. But he suffers injury in an accident on the way. It cannot be said that the accident arose out of and in the course of his employment. It was faintly suggested by Mr Chacko, appearing on behalf of the respondent, https://www.mhc.tn.gov.in/judis/ 14/20 C.M.A.No.2701 of 2018 that the bicycle was bought by taking a loan from the employer. That, however, is of no relevance. He might have borrowed money from his Company or from somewhere else for purchasing the bicycle. But the fact remains that the bicycle belonged to him and not the employer. If he meets with an accident while riding his own bicycle on the way to his place of work, it cannot be said that the accident was reasonably incidental to the employment and was in the course of his employment. The deeming provision of Section 51-C, which came into force by way of an amendment effected by the Employees' State Insurance (Amendment) Act of 1966 (Act No. 44 of 1966), enlarged the scope of the phrase “in the course of employment” to include travelling as a passenger by the employer's vehicle to or from the place of work. The legal fiction contained in Section 51-C, however, does not come into play in this case because the employee was not travelling as a passenger in any vehicle owned or operated by or on behalf of the employer or by some other person in pursuance of an arrangement made by the employer.”
21. In the case of Malikarjuna G.Hiremath Vs. Branch Manager, Oriental Insurance Company Limited and another, reported in (2009) 13 SCC 405, the Apex Court of India held in https://www.mhc.tn.gov.in/judis/ 15/20 C.M.A.No.2701 of 2018 paragraph 14 is as follows:
“14. It is the specific case of the claimants that on 30-11-2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation.”
22. This Court is of the considered opinion that the fundamental aspect of insurance for vehicle is to cover accident “caused by or arising out of use of the vehicle” as per Sections 146 and 147 of M.V.Act. Thus, the requirement of coverage is for accident caused by or arising out of use of the vehicle. Liability under Workmen Compensation Act is only for death arising out of and in the course of employment unless the accident occurs during use of the vehicle, the Insurer of the vehicle cannot be fastened with liability as held by Hon'ble Supreme Court of India in the case of Mamtaj Bi Bapusab Nadaf and others Vs. United India Insurance Company and others, reported in (2010) 10 SCC 536. https://www.mhc.tn.gov.in/judis/ 16/20 C.M.A.No.2701 of 2018 In the cases of coverage under insurance policy in the context of Section 147 of the M.V.Act and involvement of the vehicle in the accident and dismissal of the claim on the ground that death was not caused by use of the vehicle was upheld by the Hon'ble Supreme Court of India.
23. In the present case, as far as the respondent is concerned, as Insurer of the lorry bearing Registration No.TN-28-AB-5999, they cannot be held liable when the accident occured without any involvement of the said vehicle, which was safely parked and far away from the place of accident suffered by the deceased involving his motorcycle and an unknown container lorry. Thus, the insured lorry bearing Registration No.TN-28-AB-5999 was unrelated in any manner to the accident.
24. In the present case, the accident is no way connected with the insured vehicle but the accident admittedly occured with the another two wheeler, in which, the deceased Raju was travelling. If at all, the claim is to be made with reference to the accident occured in the two wheeler, while the deceased was traveling from his own village to Namakkal. This apart, there is no possibility of connecting the accident in the https://www.mhc.tn.gov.in/judis/ 17/20 C.M.A.No.2701 of 2018 present case, in view of the fact that the distance between Namakkal and the village belongs to the deceased is 57 Kms and therefore, the connectivity for grant of notional extension would not arise at all.
25. This Court is of the considered opinion that the facts are undisputed. The accident occured when the deceased Raju was travelling in a two wheeler from Namakkal to Gangabommanpatti. The accident exactly occured at Karungalpalayam, while returning from Gangabommanptti to Namakkal. The said accident is no way connected with the insured lorry bearing Registration No.TN-28-AB-5999, which was parked along with the load at Namakkal in a garage. Therefore, absolutely, there is no connectivity so as to grant the beneift of notional extension. Slightest connectivity with reference to the accident can be considered for the purpose of grant of notional extension.
26. However, in the present case, absolutely, there is no connectivity. The cause of action is entirely different as the insured lorry was parked safely in a garage and thereafter, the deceased Raju went to his native village, which is 57 Kms from Namakkal and while returning back from his village, he met with an accident at Karungalpalayam in a https://www.mhc.tn.gov.in/judis/ 18/20 C.M.A.No.2701 of 2018 two wheeler and therefore, there is no possibility of creating a connectivity, so as to grant the benefit of notional extension.
27. This being the factum established, this Court has no hesitation in arriving a conclusion that the award dated 20.02.2017 passed in W.C.No.223 of 2015 is to be confirmed and stands confirmed and consequently, the Civil Miscellaneous Appeal in C.M.A.No.2701 of 2018 stands dismissed. No costs.
04.02.2021 kak Index: Yes/No Internet:Yes/No Speaking/Non-Speaking order To The Deputy Commissioner of Labour Coonoor, The Nilgiris District.
https://www.mhc.tn.gov.in/judis/ 19/20 C.M.A.No.2701 of 2018 S.M.SUBRAMANIAM, J.
kak C.M.A.No.2701 of 2018 04.02.2021 https://www.mhc.tn.gov.in/judis/ 20/20