Orissa High Court
Senior Divisional Manager vs Shaibarani Mohanta & Others on 18 February, 2019
Equivalent citations: AIRONLINE 2019 ORI 213
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
FAO No.426 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
Shaibarani Mohanta & others .... Respondents
For Appellant ... Mr. Subrat Satapathy, Adv.
For Respondents ... Mr. Pradeep Kumar Mishra, Adv.
1 to 3
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 7.11.2017 passed by the Commissioner for
Employee's Compensation-cum-Deputy Labour Commissioner,
Cuttack ('Commissioner') in E.C Case No.342-D/2014 whereby and
whereunder the Commissioner awarded an amount of Rs.5,56,775/-
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 accident till payment.
2. The brief facts of the case, which are relevant to dispose
of the appeal, are :
One Dillip Kumar Mohanta was working as a helper in a
Bolero Pick-up bearing registration number OR-04-L-2555. On
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6.6.2014, the vehicle was proceeding from Kendrapara to Cuttack.
On the way near Chandolgada at about 6.30 P.M, the driver parked
the vehicle and directed the helper to take tiffin. While he was
crossing the road, all of a sudden, an unknown vehicle dashed him
and fled away, as a result of which he sustained grievous injuries on
his person and shifted to SCB Medical College and Hospital, Cuttack
for treatment. While undergoing treatment, he died in the hospital.
Post-mortem was conducted over the dead body. Mangalabag Police
Station U.D Case No.848 of 2014 was registered. With this factual
scenario, the claimants-respondents filed E.C Case No.342-D of 2014
before the Commissioner for Employee's Compensation-cum-Deputy
Labour Commissioner, Cuttack claiming compensation of rupees
eight lakhs. It was pleaded that the deceased was 20 years old at the
time of accident.
3. Opposite parties 1 and 3 entered appearance and filed
separate written statements. Opposite party no.1 in his written
statement admitted the employment and accidental death of the
deceased Dillip Kumar Mohanta. It was stated that the deceased was
getting Rs.5,000/- per month towards wages. Offending vehicle was
validly insured with the opposite party no.3. Opposite party no.3
insurer filed a written statement denying the assertions made in the
petition.
4. Stemming on the pleadings of the parties, the
Commissioner struck three issues. To substantiate the case, the
claimants 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 deceased was a workman.
He was 21 years old at the time of death. He was earning Rs.5000/-
per month. Held so, it awarded an amount of Rs.5,56,775/- and
directed the insurer to pay the same to the claimants within thirty
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days, failing which, the same shall carry interest @ 12% per annum
from the date of accident till payment.
5. Heard Mr. Subrat Satpathy, learned counsel for the
appellant and Mr. Pradeep Kumar Mishra, learned counsel for the
respondents 1 to 3.
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 deceased 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
nos.1 to 3 submitted that the accident occurred in course of and out
of the employment of the deceased. The claimants are 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.
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Ltd. v. Smt. Sagarika Bhoi & others (FAO No.135 of 2017 disposed of
on 9.8.2017).
8. An identical matter came up for consideration before this
Court in the case of Senior Divisional Manager, National Insurance
Company Ltd. V. Suresh Kumar Behera and another (FAO No.526 of
2018 disposed of on 18.02.2019). This Court held :
"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 ?
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
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(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."
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
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"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 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.
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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 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
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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 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,
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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.
xxx xxx xxx
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
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pay the 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."
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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 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
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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 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."
9. Admittedly the deceased was a helper in the Bolero
Pickup bearing registration number OR-04-L-2555. The driver
parked the vehicle and instructed him for taking tiffin. At about 6.30
P.M, while he was crossing the road, an unknown vehicle dashed
him. There was casual connection between the employment of the
deceased workman and his accidental death. The doctrine of notional
extension is applicable to the facts scenario.
10. In view of the authoritative pronouncement of this Court
in the case of Suresh Kumar Behera, the irresistible conclusion is
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that there was casual connection between the employment of the
deceased and his accidental death. The accident arose in course of
and out of employment of the deceased. The claimants are entitled to
interest @ 12% per annum from the date of accident.
11. Resultantly 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.