Madhya Pradesh High Court
Smt. Tarannum Nisha vs Shri Mohd. Asgar on 12 June, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:25477
1 MA-7876-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 12th OF JUNE, 2025
MISC. APPEAL No. 7876 of 2023
SMT. TARANNUM NISHA AND OTHERS
Versus
SHRI MOHD. ASGAR AND OTHERS
Appearance:
Shri Shafiqullah - Advocate for the appellants.
Shri G.C.Sohane - Advocate for the respondent No.2.
None for the respondent No.1, inspite of service of notice as per office report dated
11.4.2024.
ORDER
This Misc.Appeal under section 30 of the Employees Compensation Act, 1923 has been filed against order dated 06.11.2023 passed by the Commissioner for Workmen's Compensation, Labour Court, Jabalpur [for short the "Labour Court"] in Claim Case No.51/2020 (Fatal )], which has dismissed the claim application.
2. In brief facts of the case are that appellants/claimants being dependants of Mohd.Sharif Khan (Driver) filed in an application on 27.11.2019 under section 10 of Workmen Compensation Act, 1923 whereby appellants claimed Rs.15 lacs as compensation alongwith interest for the death of deceased-Mohd.Sharif Khan. It is stated that deceased was working as a Truck Driver in Truck bearing registration No.MP-20/G-6054. On 29.6.2019, on the instructions of respondent No.1-Mohd.Asgar deceased-
Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 2 MA-7876-2023 Mohd.Sharif carried goods to Paper Mill at Nagpur (Maharashtra). On reaching the destination the deceased went up on top of the truck to off-load the goods by untieing the ropes but while opening the ropes of truck he fell down and due to injuries sustained by him he expired on 05.7.2019. The claimants filed claim application stating that deceased was earning Rs.9,000/- per month and was aged about 47 years at the time of incident. The vehicle was insured but no compensation has been given, therefore, claim petition was filed.
3. The non-applicant No.2/Insurance Company denied the claim and stated that at the time of accident the registration of truck already stood cancelled. They were not informed about the accident. The driver did not have valid driving licence and vehicle was plied without permit and fitness. The job of deceased was not to open the ropes. Accordingly, dismissal of claim filed by appellants was sought by the non-applicant No.2.
4. Before the Labour Court wife of deceased appeared and supported the application as also filed documents, which have been exhibited, in her court statement. The non-applicant No.1 did not appear in Labour Court. However, the non-applicant No.2/Insurance Company examined DW.1 (Ms.Madhuri Tirki), DW.2 (Vivek Bhosle) & DW.3- Gauri Shanker Umare and filed documents Exhibits-D/1 to D/5.
5. Learned counsel for the appellants has challenged the order of Labour Court on the ground that Labour Court erred in holding that death of deceased not occurred during course of employment and it has not properly Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 3 MA-7876-2023 appreciated the evidence available on record. Learned counsel has placed reliance on the decisions in the cases of Fulmati Dhramdev Yadav Vs. New India Assurance Co.Ltd. AIR 2023 SC 4438, Poonam Devi and others VS. Oriental Insurance Co. Ltd., AIR 2020 SC 1305 and Leela Bai and another Vs. Seems Chouhan and another [Civil Appeal No.931/2019]. Hence, prayer has been made to set aside the impugned order of Labour Court.
6. Learned counsel for the respondent/Insurance Company has opposed the prayer of learned counsel for the appellants and claimed dismissal of this appeal.
7. On 02.9.2024 & 03.3.2025 this Court while admitting appeal framed following substantial questions of law:-
"(1) Whether death of the deceased occurred during the course of employment as the deceased did not return back to his destination from where he proceeded under employment and, therefore, it is presumed that accident occurred during the course of employment and the driver died?
(2) Whether the work which was being done by the deceased i.e. opening the rope of the truck at the time of accident was not a part of his employment?
(3) Whether the learned labour Court has rightly exonerated the insurance company in respect of the liability of the payment of compensation to the Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 4 MA-7876-2023 claimants by coming to the wrong conclusion that the vehicle was plying in violation of Insurance Policy? (4) Whether the appellants are entitled to get compensation of Rs.15,00,000/- from the respondents jointly and severally in respect of the death of deceased-
Sharif Khan who was died during the course of employment"
6. Considered the submissions of learned counsel for the parties and perused the record of the Labour Court. The wife of deceased admitted in her cross-examination that work of her husband was not to open the ropes of the Truck, which was loaded. The Labour Court in paragraph 8 of the impugned order has relied on the decision in the case of Poonam Devi and others Vs. Oriental Insurance Company Limited, (2020) 2 SCT 343 = (2020) 4 SCC 55 wherein the Hon'ble Supreme Court in paragraph 11 has observed thus:-
"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 42.6° C in Yamunagar (Haryana) (source : weatheronline.in). It was a compulsion for the deceased to 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 Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 5 MA-7876-2023 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 bona fide errors of judgment by reason of the heat. The theory of notional extension noticed in the Agnes [BEST Undertaking v. Agnes, AIR 1964 SC 193] and followed in Leela Bai [Leela Bai v. Seema Chouhan, (2019) 4 SCC 325 : (2019) 2 SCC (Civ) 334 : (2019) 1 SCC (L&S) 661] is extracted hereunder : (Leela Bai case [Leela Bai v. Seema Chouhan, (2019) 4 SCC 325 : (2019) 2 SCC (Civ) 334 : (2019) 1 SCC (L&S) 661] , SCC pp. 327-
28, para 9) "9. In the facts of the present case and the nature of evidence, there was a clear nexus between the accident and the employment to apply the doctrine of "notional extension" of the employment considered in Agnes [BEST Undertaking v. Agnes, AIR 1964 SC 193] as follows : (AIR p. 199, para 11) '11. ..."7. ... It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 6 MA-7876-2023 view at all times this theory of notional extension. "
7. In the case of Poonam Devi (supra) the deceased was a truck driver and went to Yamuna to fetch water and he also had a bath where he slipped into the canal and died. The Hon'ble Supreme Court held that in the facts and circumstances all these be considered as part of a duty of driver. Therefore, taking a cue from the above judgment and the fact that the Insurance Company & owner have not opposed the fact situation in case as also considering the fact that there are no other eye witnesses, it would be proper to hold that opening of ropes over the goods is not beyond the part of a duty of the driver, when required in facts of the case. In fact, experience shows that after loaded truck reaches the destination, not only the recipient of goods is in hu rry to receive the goods but even the vehicle owner/driver is also in rush to off-load the goods and take away his vehicle.
8. The law of notional extension of employment has been dealt with by the Hon'ble Supreme Court in the case of Leeladhar Bai and another Vs. Seema Chouhan and another [Civil Appeal No.931/2019 which has been decided vide order dated 22.1.2019] wherein it has been observed that there may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of employment of a Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 7 MA-7876-2023 workman, keeping in view at all time this theory of notional extension. Therefore, it is held that deceased driver (Mohd.Sharif Khan) died during course of employment.
9. Perused the record. The Non-applicant Witness No.1 (Madhuri Tirki) who has been examined by Insurance Company has stated that on the date of accident i.e. 29.6.2019 the truck was registered. In fact, registration was cancelled only on 26.12.2019. Similarly, on 29.6.2019 the truck had valid permit. It was renewed from 20.8.2015 to 19.8.2020. In cross- examination this witness has stated that she has not brought any document which shows that permit (Exhibit-D/2) is only to the extent of State of Madhya Pradesh but in paragraph 3 of her cross-examination she stated that in permit it is mentioned MPMVR 50, which means it is operable in State of Madhya Pradesh.
10. Witness-Vivek Bhosle (NAW-02) who is Junior Clerk in R.T.O., Nagpur has stated that no permit was issued by them for truck bearing MP-20/G-6054. Non-applicant Witness No.3 (Gauri Shanker Umare) Senior Assistant, Oriental Insurance Co.Ltd. stated that in Policy, which was issued from 25.12.2018 to 24.12.2019, the conditions of permit are mentioned.
11. Therefore, it is proved that at the time of incident the vehicle was being plied outside the State of Madhya Pradesh (in State of Maharashtra) without any valid permit and, therefore, conditions of permit were breached. In Ram Sujan Tiwari Vs. Sita Gupta and others , 2009 ACJ Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 8 MA-7876-2023 437 it has been held in paragraph 26 as under:-
"26. Since the vehicle was being driven on the route for which the permit was not granted, hence contravened the conditions of permit. In such circumstances, the insurance company cannot be held liable to pay compensation. The Tribunal has rightly exonerated the insurance company from its liability of payment."
Hence, Insurance Company would not be liable to pay compensation, however, looking to the facts and circumstances of the case as also taking into account that owner has not come to contest the case and has not raised any defence to oppose the case of the appellants, therefore, liability has to be imposed on the owner of the vehicle i.e. Non-applicant No.1. Thus, the decision relied by appellants in the case of Fulmati Dhramdev Yadav (supra) regarding imposition of liability on Insurance Company would not help the case of the appellants. In the said case the Commissioner granted compensation but High Court reversed the order and restored the order of Commissioner.
12. It is seen that learned Tribunal has simply rejected the claim of the appellants whereas it should have calculated the compensation also even while rejecting the claim.
13. Thus, the finding of the Commissioner for Workmen Compensation given in respect of Issue No.1 is reversed and finding is recorded in affirmative in favour of claimant. So far as Issue No.2 is concerned the finding of this Court is that opening of rope is an extension of Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29 NEUTRAL CITATION NO. 2025:MPHC-JBP:25477 9 MA-7876-2023 driving work and hence, part of employment. Regarding Issue No.3, the conclusion of Labour Court on the basis of finding on Issues No.1 is that Insurance Company is not liable to pay compensation which in the facts and circumstances of the case as discussed in paragraph 11 is correct. Regarding Issue No.4 this Court is of the view that case is to be remanded to the Labour Court/Commissioner for determining just and proper compensation payable by owner of the Truck/respondent No.1 (Shri Mohd.Asgar) alongwith rate of interest and its distribution between the applicants/legal heirs.
14. Accordingly, the appeal is partly allowed in part and case is remanded to the Labour Court for fixing/determining the compensation after hearing the parties and distribution of just compensation which is to be paid by respondent No.1/owner of truck. Let the entire exercise be done preferably within 03 (three) months from receipt of record of the case.
(AVANINDRA KUMAR SINGH) JUDGE RM Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 12-06-2025 19:49:29