Orissa High Court
Senior Divisional Manager vs Suresh Kumar Behera & Another on 18 February, 2019
Equivalent citations: AIRONLINE 2019 ORI 215
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
FAO No.526 of 2018
In the matter of an application under Sec.30 of the Employee's
Compensation Act.
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Senior Divisional Manager,
National Insurance Company Ltd. .... Appellant
Versus
Suresh Kumar Behera & another .... Respondents
For Appellant ... Mr. Subrat Satapathy, Adv.
For Respondent No.1 ... Mr. Pradeep Kumar Mishra, Adv.
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing : 08.02.2019 : Date of judgment : 18.02.2019
Dr. A.K.Rath, J This appeal by the insurance company is directed against
the award dated 20.02.2018 passed by the Commissioner for
Employee's Compensation-cum-Assistant Labour Commissioner,
Cuttack ('Commissioner') in E.C Case No.21-D/2015, whereby and
whereunder the Commissioner awarded an amount of Rs.11,82,784/-
as compensation and directed the insurance company to pay the
same within thirty days, failing which, the same shall carry interest @
12% per annum from the date of filing of the case.
2. The brief facts of the case, which are relevant to dispose of
the appeal, are :
The claimant-respondent no.1 was the driver of the truck
bearing registration number OD-02-N-6303. On 14.6.2014 at about 8
A.M, he parked the truck on the left side of the road near Kalpana
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Chhak, Cuttack-Puri Road, Bhubaneswar, got down and instructed
the helper to grease the back side wheel of the truck. At that time,
another truck bearing registration number OD-02-L-3534 came in a
high speed and dashed against him, as a result of which he sustained
fracture injury on his right leg femur and other injuries. He was
shifted to Capital Hospital, Bhubaneswar for treatment. Thereafter, he
was shifted to KIIMS Hospital. His right leg femur fracture was
operated and nail was applied. Laxmisagar Police Station Case No.195
of 2014 was registered. With this factual scenario, the claimant filed
E.C Case No.21-D of 2015 before the Commissioner for Employee's
Compensation-cum-Asst. Labour Commissioner, Cuttack claiming
compensation of rupees ten lakhs. It was pleaded that the claimant
was 32 years old at the time of accident.
3. Opposite parties 1 and 2 entered appearance and filed
separate written statements denying the assertions made in the
petition.
4. Stemming on the pleadings of the parties, the
Commissioner struck four issues. To substantiate the case, the
claimant adduced evidence. No evidence was adduced by the opposite
parties. On an anatomy of the pleadings and the evidence, the
Commissioner came to hold that the claimant was a workman. He
was 32 years old at the time of accident. It assessed the loss of
earning capacity of the claimant at 80% and monthly wage at
Rs.8000/-. Held so, it awarded an amount of Rs.11,82,784/- and
directed the insurer to pay the same to the claimant within thirty
days, failing which, the same shall carry interest @ 12% per annum
from the date of filing of the case
5. Heard Mr. Subrat Satpathy, learned counsel for the
appellant and Mr. Pradeep Kumar Mishra, learned counsel for the
respondent no.1.
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6. Mr. Satpathy, learned counsel for the appellant submitted
that the accident did not arise in course of and out of the employment
of the claimant and as such, the insurer is exonerated from its
liability. There was no casual connection between the employment
and the accident. Under Sec.147(1) of the Motor Vehicles Act (in
short, "the M.V Act"), the insurer is not liable to pay any
compensation. To buttress the submission, he placed reliance on the
decisions of the Apex Court in the case of General Manager, B.E.S.T
Undertaking, Bombay v. Mrs. Agnes, AIR 1964 SC 193, Mackinnon
Machenzie and Co. (P) Ltd. v. Ibrahim Mahmmed Issak, (1969) 2 SCC
607, Mamtaj Bi Bapusab Nadaf and others v. United India Insurance
Company and others, (2010) 10 SCC 536 and Leela Bai & another v.
Seema Chouhan & another, Civil Appeal No(s). 931 of 2019 arising
out of SLP(C) No.5576 of 2017).
7. Per contra, Mr. Mishra, learned counsel for the respondent
no.1 submitted that the accident occurred in course of and out of the
employment of the claimant. The claimant is entitled to interest @
12% per annum from the date of accident. He placed reliance on the
decisions of the Apex Court in the case of State of Rajasthan v. Ram
Prasad and another, (2001) 9 SCC 395, Manju Sarkar and others v.
Mabish Miah and others, (2014) 14 SCC 21, Saberabibi Yakubbhai
Shaikh and others v. National Insurance Co. Ltd. and others, (2014) 2
SCC 298 and the decision of this Court in the case of the Divisional
Manager, M/s. New India Assurance Co. Ltd. v. Smt. Sagarika Bhoi &
others (FAO No.135 of 2017 disposed of on 9.8.2017).
8. The seminal points that falls for consideration are (i) What
is the true meaning of the expressions "arising out of and in the
course of employment" appearing in Sec.3(1) of the Employee's
Compensation Act, 1923, and (ii) Whether the doctrine of notional
extension can be applied in the facts and circumstances of the case ?
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9. Section 3(1) of the Employee's Compensation Act, which is
the hub of the issue, is quoted hereunder;
"If personal injury is caused to a workman 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."
10. Proviso appended thereto provides for exclusion of the
liability of the employer specified therein.
11. Proviso to Sec.147 of the M.V Act was the subject-matter
of consideration before the Apex Court in the case of Oriental
Insurance Company Ltd. v. Sorumai Gogoi and others, 2008 (2) TAC
5 (SC). The Apex Court held :
"15. Section 147 of the Motor Vehicles Act, 1988,
however, mandatorily provides for obtaining insurance
cover by the owner of a vehicle. Proviso appended thereto
reads as under :
"Provided that a policy shall not be required -
(i) to cover liability in respect of the death, arising
out of and in the course of his employment, of the
employee of a person insured by the policy or in
respect of bodily injury sustained by such an
employee arising out of and in the course of his
employment other than a liability arising under the
Workmen's Compensation Act, 1923 (8 of 1923) in
respect of the death of, or bodily injury to, any such
employee"
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as
conductor of the vehicle or in examining tickets on
the vehicle, or
(c) if it is a goods carriage, being carried in the
vehicle, or
(ii) to cover any contractual liability.
16. The sine qua non for invoking the proviso appended
to Section 147 is that the employee must be engaged in
driving the vehicle. Death or bodily injury must occur
arising out of or in the course of his employment. The
1923 Act or the 1988 Act, therefore, would be applicable
only if the conditions precedent laid down thereunder are
satisfied."
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12. Mrs. Agnes is a locus classicus on the subject. The Apex
Court held that under Section 3(1) of the Workmen's Compensation
Act (in short, "W.C 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. There is a notional extension at both the entry
and exit by time and space. The scope of such extension must
necessarily depend on the circumstances of a given case. As
employment may end or may begin not only when the employee
begins to work or leaves his tools but also when he used the means of
access and, egress to and from the place of employment. It was
further held that though the doctrine of reasonable or notional
extension of employment developed in the context of specific
workshops, factories or harbours, equally applies to such a bus
service the doctrine necessarily will have to be adapted to meet its
peculiar requirements.
13. Sec.3(1) of the Employee's Compensation is pari materia to
Sec.3(1) of the Workmen's' Compensation Act. Sec.3(1) of the W.C Act
was the subject-matter of consideration before the Apex Court in
Mackinnon Mackenzie and Co. Pvt. Ltd. The Apex Court held :
"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
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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 these factors the workman
is brought within the scene 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
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 yea,
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.
6. In the case of death caused by accident the burden of
proof rests upon the workman to prove that the accident arose
out of employment as well as in the course of employment. But
this does not mean that a workman who comes to court for
relief must necessarily prove: it by direct evidence. Although
the onus of proving that the injury by accident arose both out
of and in the course of employment rests upon the applicant
these essentials may be inferred when the facts proved justify
the inference. On the one hand the Commissioner must not
surmise, conjecture or guess; on the other hand, he may draw
an inference from the proved facts so long as it is a legitimate
inference."
14. In Ram Prasad, the accident took place on account of
lightning. The contention put-forth on behalf of the appellant was that
the mishap of death of Smt. Gita due to lightning is an act of God and
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therefore, the appellant was not liable to pay compensation. The
contention was repealed by the Commissioner for Workmen's
Compensation. The State of Rajasthan filed appeal before the High
Court. Learned Single Judge affirmed the award of the Commissioner.
The Division Bench affirmed the judgment. The matter travelled to the
Apex Court. Taking a cue from Ibrahim Mohammed Issak, the Apex
Court held that the view taken is that the concept of the liability
under the Act is wide enough to cover a case of this nature inasmuch
as death had taken place arising as a result of accident in the course
of employment.
15. In Manju Sarkar, Sajal Sarkar, husband of the appellant
no.1 was the driver of the truck bearing registration number TR-01-B-
1689 under the employment of respondent nos.1 and 2. On the way
the driver noticed some mechanical trouble in the truck and got down
to make arrangement for repair of the vehicle. He met with an
accident and sustained grievous injuries. While he was taken to
hospital, he succumbed to the injuries. The Apex Court applied the
principle of notional extension and held that the Sajal Sarkar met
with an accident in course of his employment.
16. In Leela Bai, the deceased was a bus driver of the bus. He
met with an accidental death while he was coming down the roof of
the bus after taking dinner at about 8.30 p.m. The deceased had
returned to bus terminus at 7.30 p.m. The question arose before the
Apex Court was whether the death occurred during the course of, and
arising out of the employment. Taking a cue from Agnes and Sanju
Sarkar, the Apex Court applied the doctrine of notional extension and
accordingly compensation was awarded.
17. On a survey of the decisions of the various High Courts
and the Apex Court, this Court in the case of the General
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Superintendent, Talcher Thermal Station v. Smt. Bijuli Naik, 76
(1993) CLT 699, succinctly stated the principles. This Court held :
"4. The pre-conditions for attracting the provisions
of Section 3(1) of the Act are that death or injury must be
caused to a workman; the said injury must have been
caused by accident; and the accident must have arisen out
of and in the course of his employment. A causal
connection between the employment and the injury caused
by the accident must exist. If after looking at the entire
facts, a fair inference can be drawn that the employment
caused the injury, then the employer would be liable to pay
the compensation. The liability under Section 3(1) of the
Act would accrue, if it is established that an injury has
been caused to a workman and the accident arose out of
and in course of his employment.
xxx xxx xxx
The general principles are that (i) there must be a causal
connection between the injury and the accident and the
work done in the course of employment; (ii) the onus is
upon the applicant to show that it was the work and the
resulting strain which contributed to, or aggravated, the
injury; (iii) it is not necessary that the workman must be
actually working at the time of his death or that death
must occur while he was working or had just ceased to
work; and (iv) where the evidence is balanced, if the
evidence shows 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 where the accident involved a risk common to
all humanity and did not involve any peculiar or
exceptional danger resulting from the nature of the
employment, or where the accident was the result of an
added peril to which the workman, by his own conduct,
exposed himself and which peril was not involved in the
normal performance of the duties of his employment, then
the employer will not be liable under Section 3 of the Act."
18. In Smt. Sagarika Bhoi, the workman died due to snake
bite. This Court held that the accident arose out of and in course of
the employment of the deceased.
19. Admittedly the claimant was a driver in the truck bearing
registration number OD-02-N-6303. At about 8.00 A.M., the driver
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parked the vehicle and instructed the helper to grease the back side
wheel of the truck. At that time another truck bearing registration
number OD-02-L-3534 came in a high speed and dashed against the
driver. There was casual connection between the employment of the
workman and his accident. The doctrine of notional extension is
applicable to the facts scenario. The Commissioner has rightly held
that the accident arose in course of employment of the injured.
20. The next question crops up as to whether Commissioner is
justified in awarding interest @ 12% per annum ?
21. In Oriental Insurance Company Limited v. Siby George
and others, (2012) 12 SCC 540, the short question that arose for
consideration before the Apex Court that when the payment of
compensation under the Workmen's Compensation Act, 1923
becomes due and consequently what is the point in time from which
interest would be payable on the amount of compensation as provided
under Section 4-A(3) of the Act ? The Apex Court held :
"9. Now, coming back to the question when does the
payment of compensation fall due and what would be the
point for the commencement of interest, it may be noted
that neither the decision in Mubasir Ahmed nor the one in
Mohd. Nasir can be said to provide any valid guidelines
because both the decisions were rendered in ignorance of
earlier larger Bench decisions of this Court by which the
issue was concluded. As early as in 1975 a four Judge
Bench of this Court in Pratap Narain Singh Deo. Vs.
Shrinivas Sabata directly answered the question. In
paragraphs 7 and 8 of the decision it was held and
observed as follows:-
"7. Section 3 of the Act deals with the employer's liability
for compensation. Sub-section (1) of that section provides
that the employer shall be liable to pay compensation if
"personal injury is caused to a workman by accident
arising out of and in the course of his employment." It was
not the case of the employer that the right to compensation
was taken away under sub-section (5) of Section 3 because
of the institution of a suit in a civil court for damages, in
respect of the injury, against the employer or any other
person. The employer therefore became liable to pay the
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compensation as soon as the aforesaid personal injury was
caused to the workman by the accident which admittedly
arose out of and in the course of the employment. It is
therefore futile to contend that the compensation did not
fall due until after the Commissioner's order dated May 6,
1969 under Section 19. What the section provides is that if
any question arises in any proceeding under the Act as to
the liability of any person to pay compensation or as to the
amount or duration of the compensation it shall, in default
of agreement, be settled by the Commissioner. There is
therefore nothing to justify the argument that the
employer's liability to pay compensation under Section 3,
in respect of the injury, was suspended until after the
settlement contemplated by Section 19. The appellant was
thus liable to pay compensation as soon as the aforesaid
personal injury was caused to the appellant, and there is
no justification for the argument to the contrary.
8. It was the duty of the appellant, under Section 4- A(1) of
the Act, to pay the compensation at the rate provided
by Section 4 as soon as the personal injury was caused to
the respondent. He failed to do so. What is worse, he did
not even make a provisional payment under sub-section (2)
of Section 4 for, as has been stated, he went to the extent
of taking the false pleas that the respondent was a casual
contractor and that the accident occurred solely because of
his negligence. Then there is the further fact that he paid
no heed to the respondent's personal approach for
obtaining the compensation. It will be recalled that the
respondent was driven to the necessity of making an
application to the Commissioner for settling the claim, and
even there the appellant raised a frivolous objection as to
the jurisdiction of the Commissioner and prevailed on the
respondent to file a memorandum of agreement settling the
claim for a sum which was so grossly inadequate that it
was rejected by the Commissioner. In these facts and
circumstances, we have no doubt that the Commissioner
was fully justified in making an order for the payment of
interest and the penalty."
The Apex Court further held :
"12. The decisions in Pratap Narain Singh Deo was by a
four Judge Bench and in Valsala by a three Judge Bench of
this Court. Both the decisions were, thus, fully binding on
the Court in Mubasir Ahmed and Mohd. Nasir, each of
which was heard by two Judges. But the earlier decisions
in Pratap Narain Singh Deo and Valsala were not brought
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to the notice of the Court in the two later decisions in
Mubasir Ahmed and Mohd. Nasir."
22. In Saberabibi Yakub Bhai Shaikh, the Commissioner
awarded compensation of Rs.2,13,570/- with interest 12% per annum
from the date of accident and penalty. Aggrieved and dissatisfied with
the award the Insurance Company filed first appeal before the High
Court. The High Court directed the Insurance Company to pay
interest on the amount of compensation from the date of adjudication
of claim application. A further direction was issued that the excess
amount towards interest, if any, deposited by the Insurance Company
be refunded to it. The award of the Commissioner was modified to
that extent. The claimants filed SLP before the Apex Court. A
contention was raised by the appellant that the judgment of the High
Court is contrary to the law laid down by the Apex Court in the case
of Oriental Insurance Company Limited v. Siby George and others
(2012) 12 SCC 540. Taking a cue from the celebrated judgment in the
case of
Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289, the
Apex Court held :
"10. We have perused the aforesaid judgment. We are of the
considered opinion that the aforesaid judgment relied upon
by the learned counsel for the appellants is fully applicable
to the facts and circumstances of this case. This Court
considered the earlier judgment relied upon by the High
Court and observed that the judgments in the case of
National Insurance Co. Ltd. v. Mubasir Ahmed [(2007) 2
SCC 349] and Oriental Insurance Co. Ltd. v. Mohd. Nasir
[(2009) 6 SCC 280] were per incuriam having been rendered
without considering the earlier decision in Pratap Narain
Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289]. In the
aforesaid judgment, upon consideration of the entire matter,
a four-judge Bench of this Court had held that the
compensation has to be paid from the date of the accident.
11. Following the aforesaid judgments, this Court in
Oriental Insurance Company Limited versus Siby George
12
and others (supra) reiterated the legal position and held as
follows:
"11. The Court then referred to a Full Bench decision of the
Kerala High Court in United India Insurance Co. Ltd. v.
Alavi and approved it insofar as it followed the decision in
Pratap Narain Singh Deo.
12. The decision in Pratap Narain Singh Deo was by a four-
judge Bench and in Valsala K. by a three-judge Bench of
this Court. Both the decisions were, thus, fully binding on
the Court in Mubasir Ahmed and Mohd. Nasir, each of
which was heard by two Judges. But the earlier decisions in
Pratap Narain Singh Deo and Valsala K. were not brought to
the notice of the Court in the two later decisions in Mubasir
Ahmed and Mohd. Nasir.
13. In the light of the decisions in Pratap Narain Singh Deo
and Valsala K., it is not open to contend that the payment of
compensation would fall due only after the Commissioner's
order or with reference to the date on which the claim
application is made. The decisions in Mubasir Ahmed and
Mohd. Nasir insofar as they took a contrary view to the
earlier decisions in Pratap Narain Singh Deo and Valsala K.
do not express the correct view and do not make binding
precedents."
23. In view of the authoritative pronouncements of the Apex
Court in the case of Siby George and Saberabibi Yakub Bhai Shaikh,
the claimant is entitled to interest @ 12% per annum from the date of
accident.
24. The logical sequitur of the analysis made in the preceding
paragraphs is that the accident occurred in course of and out of
employment of the claimant and the claimant is entitled to interest @
12% per annum from the date of accident till the date of payment.
25. In view of the discussions made in the preceding
paragraphs, the appeal is dismissed since the same does not involve
any substantial question of law. There shall be no order as to costs.
.............................
DR. A.K.RATH, J.
Orissa High Court, Cuttack. Dated 18th February, 2019/PKS. 13