Karnataka High Court
Sharadabai W/O Nagappa Ors vs Abdul Karim S/O Abdul Majid Ors on 12 November, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH R
DATED THIS THE 12TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
MFA CROB NO.1054/2011
C/W
MFA NO.31587/2010 (WC)
IN MFA CROB NO.1054/2011 :
Between:
1. Sharadabai W/o Nagappa,
Aged about 37 years, Occ. : Household,
2. Ganesh S/o Nagappa,
Aged about 18 years, Occ.: Student,
3. Sunit S/o Nagappa,
Aged about 13 years, Occ. Student,
4. Sunil S/o Nagappa,
Aged about 11 years, Occ.: Student,
All are R/o Bhorubai Nagar,
Shasansilla Darga,
Brahmpur, Gulbarga.
... Cross objectors
(By Sri Chaitanyakumar Chandriki, Advocate)
And:
1. Abdul Karim S/o Abdul Majid
Age : 50 years, Occ. : Agriculture,
2
R/o. Mossa Bouli, Hyderabad.
2. Majid Bayi
Age 44 years,
R/o Chokoda Mela,
Gunj Area, Gulbarga.
3. Divisional Manager,
National Insurance Company Ltd.,
Gulbarga.
... Respondents
(By Sri Manvednra Reddy, Advocate for R3;
Notice to respondents 1 and 2 served)
This MFA CROB is filed under Section 30(1) of the
Workmen's Compensation Act, praying to allow the above
cross appeal and modify the judgment and award dated
18.03.2010 passed by the Commissioner for Workmen's
Compensation, Gulbarga in W.C.No.94/2007 and
consequently be pleased to enhance the compensation of
Rs.3,68,340/-.
IN MFA NO.31587/2010 :
Between:
The Divisional Manager,
M/s National Insurance Company Ltd.,
Bilagundi Complex,
Opp.Mini Vidhana Soudha,
Station Road, Gulbarga.
... Appellant
(By Sri Manvednra Reddy, Advocate)
3
And:
1. Smt.Sharadabai W/o Late Nagappa,
Aged about 36 years,
Occ. : Household,
2. Minor Ganesh S/o Late Nagappa,
Aged about 17 years, Occ.: Student,
3. Minor Sunita D/o Late Nagappa,
Aged about 12 years, Occ. Student,
4. Minor Sunil S/o Late Nagappa,
Aged about 11 years, Occ.: Student,
Respondents No.2 to 4 are minors,
U/g of respondent No.1
who is their natural mother
All are R/o Borabai Nagar,
Shaha Hussain Chilla Darga,
Brahmpur, Gulbarga.
5. Abdul Kareem S/o Abdul Majeed
Age : Major, R/o.21-4-1120,
Moussa Bauli, Hyderabad.
6. Majeedbhai
R/o Tokod Mail,
Gunj Area, Gulbarga.
... Respondents
(By Sri Chaitanyakumar Chandriki, Advocate for R1 to R4;
R2 to R4 are minors represented by R1
Vide order dated 05.06.2017 notice to respondent No.5 is
held sufficient)
This MFA is filed under Section 30(1) of the Workmen's
Compensation Act, 1923 praying to set aside the order dated
18.03.2010 passed by the Commissioner for Workmen's
4
Compensation, Gulbarga in W.C.No.94/2007, by allowing
the appeal as prayed for..
This MFA CROB and appeal coming on for Further
Arguments this day, the Court delivered the following:
JUDGMENT
MFA No.31587/2010 is filed by the Insurance Company calling in question the order dated 18.03.2010 passed in W.C.A.No.94/2007 by the Commissioner for Workmen's Compensation, Kalaburagi (for short 'the learned Commissioner') on the ground that the death of the deceased-Nagappa is not arising out of and in the course of employment but he died due to the chronic disease of tuberculosis. Therefore, the appellant/Insurance Company is not liable to pay the compensation.
2. The MFA CROB No.1054/2010 is filed by the claimants for seeking enhancement of compensation as well as for making payment of interest from the date of petition but not from the date of order as the learned 5 Commissioner has passed order for payment of interest from the date of order.
3. Brief facts of the case are as follows :-
The Cross-objectors 1 to 4/claimants are the legal heirs of the deceased-Nagappa, being the wife and minor children. It is stated that the deceased-Nagappa was working under the employment of respondents No.1 and 2/owners of the lorry bearing Reg.AP-24/V-3238 and the said vehicle is insured with appellant/ Insurance Company.
It is stated that on 16.07.2005 the deceased along with another spare driver had taken the lorry by driving the said lorry from Kalaburagi to Kalamboli (Mumbai) and unloaded the commodities and after unloading at about evening 5.00 pm in the APMC Truck terminal at Mumbai was taking rest but the deceased started omitting and immediately he was shifted to Shanti Clinic Hospital at Kalamboli. But on the next day i.e., 6 17.07.2005 once again the deceased had started omitting and immediately he was shifted to the hospital at the APMC Truck Terminal at Mumbai, but died at morning 9.00 am and this fact was told by another driver to the owners of the truck and therefore complaint was lodged before the APMC Police, New Mumbai and therefore the cross objectors/claimants have preferred the claim petition for claiming compensation before the learned Commissioner and learned Commissioner after receiving the evidences from both sides, has awarded compensation of Rs.3,68,340/-
with 12% interest from the date of order. Therefore, the appellant/Insurance Company by raising ground that the death of the deceased was not arising out of and in the course of employment as he has died while taking rest in the APMC truck terminal, but the cross objectors have preferred the cross objection on two grounds for enhancement of compensation and also the interest awarded by the learned Commissioner is from the date 7 of the order but ought to have been granted from the date of the death. Therefore, on these respective grounds raised by the appellant/Insurance Company and cross objectors/claimants the above stated appeal and cross objection were filed.
4. The learned counsel for the appellant/Insurance Company submitted that the death of the deceased is not arising out of and in the course of employment. The deceased has driven the truck from Kalaburagi to Mumbai and after unloading the commodities in the truck after 5.00 p.m., he was taking rest at APMC truck terminal and started omitting and on the next day morning i.e., on 17.07.2005, he died in the APMC Truck Terminal, Mumbai. Therefore, submitted that the death of the deceased is not while he was driving the truck but while he was taking rest and also submitted that as per the post mortem report- Ex.P.5 issued by the NMMC General Hospital, Vashi, Mumbai, the provisional cause of death is due to 8 chronic disease of tuberculosis as it is observed therein as 'bilateral pulmonary kochs'. Therefore, submitted that the death of the deceased is due to the said reasons as above stated, but not while he was on the wheel on the truck while returning to the Mumbai or while going to Mumbai. Therefore, submitted that even the theory of notional extension of employment cannot be applied in the case of the death of the deceased. Therefore, as per Section 3 of the Employees Compensation Act, 1923, the death cannot be construed as it is not out of and in the course of employment. Therefore, the learned Commissioner has committed an error in appreciating the evidences and fastening liability on the appellant/Insurance Company. Therefore, prays to exonerate the appellant/Insurance Company from payment of compensation.
5. On the other hand, learned counsel for the cross objectors/claimants submitted that on 16.07.2005 in the morning, the deceased went as driver, 9 driving the said truck along with another driver and reached Kalamboli (Mumbai) and by evening 5.00 p.m., unloaded the commodities, then went to APMC Truck Terminal, Mumbai for taking rest and then he has started omitting till on the next day morning and on the next day morning on 17.07.2005 at 9.00 a.m. he died. Therefore submitted that the deceased died in the course of the employment and even he did not return from Kalamboli (Mumbai) to Kalaburagi. That, after loading the truck, he was taking rest, at that moment, he suffered omitting and on the next day morning he died. Therefore submitted that the principle of notional extension of employment can be applied and as per Section 3 of the Employees Compensation Act, 1923, the death of the deceased can be construed as occurred arising out of and in the course of employment. Further submitted that as per the insurance policy-Ex.P1(b), the insurance policy is Goods Carrying Commercial Vehicle (Open) Policy B Package and the risk of two workmen is 10 covered under the said insurance policy, as extra premium of Rs.50/- has been paid. Therefore submitted that the risk of two workmen is covered under the said insurance policy and also the death of the deceased is arising out of and in the course of employment as per Section 3 of the E.C. Act. Therefore, prays to dismiss the appeal filed by the insurance company and also sought for enhancement of compensation and for modification of the date of payment of interest.
6. After hearing the learned counsel for the parties, the following substantial question of law would arise for my consideration in this appeal:
Whether the death of the deceased which is occurred on 17.07.2005 in the morning at 9.30 a.m. at APMC Truck Terminal, Mumbai can be said to be occurred arising out of and in the course of employment so as to attract the provisions under Section 3 of the Employees Compensation Act, 1923 by applying the 11 principle of notional extension of employment?
7. In the present case, the facts emerged from the documentary evidenced on record, which are FIR, inquest panchanama, post mortem report, spot panchanama etc. as per Exs.A1 to A7 and also as per Exs.P1 and P2 are that, admittedly the another driver by name Shirazuddin Khaja Patel went along with the deceased in the truck bearing No.AP-24/V-3238 from Kalaburagi to Kalamboli (Mumbai) on 16.07.2005 and by evening they reached Kalamboli place and unloaded the truck by evening 5.00 p.m. and the deceased was taking rest in APMC Truck Terminal, Mumbai by parking the truck therein. The complaint is recorded in Marathi language and its true translation in English language is furnished during the evidence before the learned Commissioner. The complaint given before the 12 APMC Market Police Station, Mumbai reveals that, on 16.07.2005 at about 7.00 a.m., the complainant and deceased went to Kalamboli (Mumbai) and unloaded the truck at about 5.00 p.m. and then the truck was stationed at APMC Truck Terminal, Mumbai and at that time the deceased fell uneasiness due to omitting and nature call. Immediately he was shifted to Shanti Clinic at Vashi, Mumbai and he was treated therein for half an hour and returned back to APMC truck terminal, but on the next day i.e., on 17.07.2005 in the morning hours, the deceased fell uneasiness due to omitting and in the morning at 9.30 a.m. when he was taking treatment in the hospital died. This is the date, time and cause of death as revealed from the witnesses. The question is, whether the occurrence of death as stated above is to be categorized as occurred arising out of and in the course of employment. 13
8. Learned counsel for the appellant-insurance company relied on the various judgments of the Hon'ble Apex Court as well as this Court in support of its case, which would be discussed hereunder.
9. In the judgment of Hon'ble Apex Court in the case of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali & Anr. reported in IV (2006) ACC 769 (SC), the deceased was working as a cleaner in the truck and suffered cardiac arrest and died while performing his duties. Therefore, in that context, there was no evidence to demonstrate that the workman was put through sudden stressful condition in course of his duties, which brought on cardiac arrest and died. Therefore, it was held that the death of the deceased was not arising out of and in the course of employment.
10. In the case of Branch Manager, United India Insurance Company Limited, Hunsur v. 14 Srinivasa and others reported in 2007(1) Kar.L.J. 677, the deceased was driver and he died due to the heart attack after going to home after his work. Therefore, under these factual matrix, it was held that the death is not arising out of and in the course of employment.
11. In the case of Malikarjuna G. Hiremath V. Branch Manager, Oriental Insurance Co. Ltd. and another reported in 2009 ACJ 721, the deceased was driver of truck and he took some passengers in his truck to a temple as per directions of his employers and on reaching the temple driver went to a pond for taking bath where he slipped and drowned. Therefore, the question was whether the said death was arising out of and in the course of employment. But, it was held that there was no casual connection between death of the driver and his employment.
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12. Further, in the case of Smt. Baby and others vs. Smt. Sheela Jalan and another reported in 2010(3) Kar.L.J. 131, the driver stopped the vehicle on the way and had gone to attend the nature's call and fell down and died. Therefore under those circumstances, it was held that the death of the deceased was not on account of accident arising out of and in the course of employment.
13. Further, in the case of Mamtaj Bi Bapusab Nadaf and others vs. United India Insurance Company and others reported in (2010) 10 Supreme Court Cases 536, the death of workmen was occurred when they were engaged in unloading the maize (foodgrain) from tractor to underground storage bin and they climbed grocery pit in order to clean the same for storing maize and while cleaning, they fell into the pit and have suffered severe injuries and died due to asphyxia. Therefore, under those circumstances, it was 16 held that the death of the workmen cannot be said that it is out of and in the course of employment.
14. In the case of Branch Manager, United India Insurance Co. Ltd. v. Anjinappa & Anr. reported in 2011 (1) AIR Kar R 392, the deceased was working as a cleaner in bus and died on account of bullet injury received in clash between Naxalites and police Battalion, while sleeping in bus, after completion of duty. Therefore, under those circumstances, it was held that the death of the deceased was not arising out of and in the course of employment.
15. Further, in the case of Manager, National Insurance Company Limited. Vs. Saju P. Paul and another reported in (2013) 2 Supreme Court Cases 41, the question of law is, whether the insurance company is liable to pay the compensation for the bodily injury caused to the claimant, who was travelling in a goods vehicle as a spare driver, though he was 17 employed as a driver in another vehicle owned by the owner of the vehicle under the policy of insurance and it was held that the insurance company is not liable to pay compensation, since he could be classified and categorized as a gratuitous passenger.
16. Further, in the judgment of this Court in the case of The Divisional Manager, M/s. United India Insurance Company Limited, Bijapur vs. Smt. Renuka and others in MFA No.31715/2009 (WC) dated 30.04.2014, the driver of the bus left Davangere to reach Muddebihal and on the way as there was some mechanical defect in the vehicle, took the bus for repairs to the garage of one Moulanasab Munavar situated near railway rack and after stopping the bus in the said garage, as he was to attend the call of nature, proceeded towards railway track. At that time, the train hit him and having sustained severe injuries, he died on the spot. Therefore, under those circumstances, it was 18 held that the death of the deceased was not arising out of and in the course of employment.
17. Further, in the judgment of this Court in the case of United India Insurance Company Limited Vs Sri Anil and others in MFA No.12596/2007 C/w MFA No.12594/2007 (WC) dated 28.04.2015, the facts are that, when the deceased were digging in the pit of the sand, the sand was collapsed and fell on them and because of that reason both the persons died as a result of asphyxia. Therefore, it was held that there was no use of vehicle and they were not travelling in the said vehicle. Therefore, the insurance company is not liable to pay the compensation, by forming an opinion that there is no close proximity between the death caused and the use of the vehicle. Therefore, under those circumstances, the insurance company was exonerated from payment of compensation.
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18. Learned counsel for the cross objectors- claimants also relied on the various judgments of the Hon'ble Apex Court as well as this Court.
19. In the case of Leela Bai and another vs. Seema Chouhan and another reported in (2019) 4 Supreme Court Cases 325, the deceased bus driver ferrying passengers daily from the place B at 6.30 p.m. and reaching the place I at 11.00 a.m. and while returning back from the place I at 3.00 p.m. and reaching the place B at 7.30 p.m., the deceased met with accident at terminus while coming down from the roof of bus after having meals at 8.30 a.m. Therefore, on the basis of principle of notional extension of employment laid down in the case of BEST Undertaking v. Agnes reported in AIR 1964 SC 193, it was held that the death of the deceased was arising out of and in the course of employment.
20
20. Further, in the case of Daya Kishan Joshi and Anr. v. Dynemech Systems Pvt. Ltd. reported in AIR 2017 Supreme Court 4134, the deceased and his co-worker were deputed to test a filter which was installed on 07.09.2007 at Hero Honda Factory, Dharu Heda, Haryana. Accordingly, both of them went from Delhi and checked the filter installed at Hero Honda Factory, Dharu Heda, Haryana in the afternoon and thereafter started the return journey to Delhi at 4.30 p.m. and both the workers met with road traffic accident while they were little away from Hero Honda Factory and sustained injuries and the deceased succumbed to the said injuries. Therefore, under these circumstances, the Hon'ble Apex Court by interpreting Section 3 of the E.C. Act has held that, the death is arising out of and in the course of employment and thus, the employer is liable to pay compensation. 21
21. Further, in the judgment of this Court in the case of The Divisional Manager, Oriental Insurance Co. Ltd., Belgaum vs. Smt. Laxmibai @ Ramakka and Others reported in 2015 (1) KCCR 253, the death of the driver of a tempo was, while on duty by electrocution. In the said case, the facts are that, the driver on instructions of the employer went to factory for loading certain materials. As the main gate of factory was closed, the deceased stopped the vehicle in front of gate, got down and while opening the main gate, came into contact with live wire which had fallen on gate, got electrocuted and succumbed to injuries. Therefore, under those circumstances, this Court held that the death of the driver is arising out of and in the course of employment.
22. Further, in the judgment of this Court in the case of M/s. Oriental Insurance Company Limited, Chennai vs. Sri Murthaiah and Others reported in 22 2019 (2) KCCR 985, the workman was cleaner-cum- loader in the lorry and after the lorry was loaded with the Manganese Ore, he went to have bath in a nearby reservoir, wherein he died of drowning. Therefore, under those facts and circumstances, it was held that the death of the workman is arising out of and in the course of employment.
23. Upon perusal of the factual matrix of the present case, the deceased had gone along with truck as a driver at the instruction of the owner of the truck and on 16.07.2005, he left Kalaburagi and reached Kalamboli (Mumbai) by evening and after unloading the commodities in the truck by evening 5.00 p.m., the deceased and the other driver went for rest in APMC Truck Terminal, Mumbai and therein while the deceased was in rest, started omitting and he was taken to the hospital and treatment was given and returned back to the APMC Truck Terminal meant for rest of the 23 drivers and once again he fell uneasiness and started omitting on the next day morning at 7.00 a.m. and at morning 9.00 a.m., he died. Therefore, the deceased and another driver have not yet come to Kalaburagi from Kalamboli (Mumbai). The deceased along with another driver went to Kalamboli on 16.07.2005 and unloaded the commodities at evening 5.00 p.m. and thereafter while taking rest and even have not started journey from Kalamboli to Kalaburagi, in that moment of time when the deceased was at APMC Truck Terminal, Mumbai, due to omitting he died.
24. Learned counsel for the appellant-insurance company argued by relying on the documentary evidence i.e., Ex.A5 which is issued by the NMMC General Hospital, Mumbai that the provisional cause of death is shown as Bilateral pulmonary koch's, which means the deceased died due to chronic tuberculosis, but the fact is that the death of the deceased is occurred 24 during the course of employment. The deceased went to Kalamboli (Mumbai) by driving the truck and after unloading the truck he started omitting and then died. Therefore, under these factual circumstances, the principle of notional extension of employment can be applied.
25. In the judgment of Hon'ble Supreme Court in the case of Poonam Devi and others vs. Oriental Insurance Company Limited reported in (2020) 4 SCC 55, the deceased aged 21 years driver, having to drive a truck for an approximately 200 km route, on a hot summer day stopped by a canal to fetch water and also to have a bath, unfortunately, slipped to the canal and died. Thereafter appreciating the evidence that truck cabin was not having a facility of air condition and therefore under that hot summer season he was constrained to park the truck by the side of the road in order to cool down the engine and also for fetching 25 water and to have bath, but unfortunately died in the canal due to slippery. Therefore, under those factual circumstances, their Lordships by applying the principle of notional extension of employment, as it was held by the Hon'ble Apex Court in the case of BEST Undertaking v. Agnes reported in AIR 1964 SC 193, were pleased to hold that the death of the driver in the above stated case can be stated as arising out of and in the course of employment. For the purpose of brevity, it is worthwhile to extract the ratio laid down by the Hon'ble Apex Court in Poonam's case (supra) at paragraphs 9 to 12, which reads as follows:
"9. In Manju Sarkar. v. Mabish Miah, (2014) 14 SCC 21, the deceased was driving the employer's truck from Agartala to Churaibari FCI godown. When he reached near Dharam Nagar, he got down to make arrangements for repairing some mechanical problems in the truck when he was hit on the road by another vehicle and died in the hospital. Applying the principle of notional extension, it was held that death occurred in the course of employment relying upon BEST 26 Undertaking v. Agnes, AIR 1964 SC 193, at para 12: (Agnes case, AIR p. 199) "12. 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. 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."
10. More recently in Daya Kishan Joshi & Anr. v. Dynemech Systems (P) Ltd., (2018) 11 SCC 642, the deceased was employed as an engineer for promoting sales and installation of 27 products which required him to move around in the field. While returning from field work, he met with an accident resulting in death. Holding that his being on the road related to the nature of his duties, not only the injury was caused during the currency of the employment but also arose out of the employment.
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 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 28 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 (supra) and followed in Leela Bai (supra) is extracted hereunder: (Leela Bai case, SCC 99. 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 (supra) as follows:
(AIR p. 199, para 11) '11. ..."7. ... It is now well-settled, however, that this is subject to the theory of 29 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 view at all times this theory of notional extension."
12. In Leela Bai (supra), the deceased having completed his journey as a driver stayed back on the roof of the bus to ensure early scheduled departure the next morning by not going home. While he was coming down the roof of the bus he slipped and died. It was held at para 7 as follows: (SCC p. 327) "7. In the facts of the case, and the evidence available, it is evident that the deceased was present at the bus terminal 30 and remained with the bus even after arrival from Indore not by choice, but by compulsion and necessity, because of the nature of his duties. The route timings of the bus required the deceased to be readily available with the bus so that the passenger service being provided by Respondent 1 remained efficient and was not affected. If the deceased would have gone home every day after parking the bus and returned the next morning, the efficiency of the timing of the bus service facility to the travelling public would definitely have been affected, dependent on the arrival of the deceased at the busstand from his house. Naturally that would bring an element of uncertainty in the departure schedule of the bus and efficiency of the service to the travelling public could be compromised. Adherence to schedule by the deceased would naturally enure to the benefit of Respondent 1 by enhancement of income because of timely service. It is not without reason that the deceased would not go home for weeks as deposed by the appellant. Merely because the deceased was coming down the roof of the bus after 31 having his meal, cannot be considered in isolation and interpreted so myopically to hold that he was off duty and therefore would not be entitled to compensation."
26. Therefore, by applying the principle of notional extension of employment and considering Section 3 of the Employees Compensation Act, where the death or bodily injuries caused arising out of and in the course of employment, the death or bodily injury of the workman cannot necessarily be happened while actually working in the lorry as driver. Therefore, the principle of notional extension of employment on both point of entry and exit in time and space can be considered.
27. In the present case, the deceased went to Kalamboli (Mumbai) and had not started journey from Mumbai to Kalaburagi and while he was in Kalamboli (Mumbai) after unloading the truck, quite naturally he was supposed to take rest by parking the truck and he 32 was taking rest in the APMC Truck Terminal, Mumbai and started omitting and then died. Therefore, certainly when the principle of notional extension of employment can be applied, then in the present case, it can be said that the death of the deceased is arising out of and in the course of employment. Section 3 of the Employment Compensation Act cannot be interpreted in its narrow meaning that where the workman actually was driving or is doing machine work are only to be considered as out of and in the course of employment, but while going to work and returning from work and in that interregnum period of time if death occurs, that can also be said that the death of the workman is arising out of and in the course of employment. The said principle is applied by the Hon'ble Apex Court in Daya Kishan Joshi's case (supra). In that case, the facts are that, the deceased workmen went to Hero Honda Factory, Haryana and while returning to Delhi, met with road traffic accident and under those circumstances, it 33 was held that the death of the said workmen is arising out of and in the course of employment. Therefore, the ratio laid down in Daya Kishan Joshi's case is squarely applicable to the case on hand, which is coupled with the principles of law laid down in Poonam Devi's case (supra).
28. Therefore, even though in the present case the provisional cause of death is shown as 'Bilateral pulmonary koch's as per the post mortem report, but working as driver in the heavy goods vehicle causes stress and pressure and uneasiness while driving the heavy goods vehicle for long distance. In the present case, it is an undisputed fact that from Kalaburagi to Mumbai, the distance is approximately 500 Kms. That, on 16.07.2005 in the morning, the deceased by driving the truck left Kalaburagi and reached Kalamboli (Mumbai) in the evening and unloaded the commodities by evening 5.00 p.m. itself. Therefore, it means from 34 morning to evening the deceased drove the truck nearly about 500 Kms. Hence, certainly it causes stress.
Therefore, even though the counsel for the insurance company argued that the deceased was suffering from chronic disease of tuberculosis and thus, stress and work load is added for accelerating death of the deceased. Therefore, under these circumstances, applying the principles of law laid down by the Hon'ble Apex Court supra, it can be held that the death of the deceased is arising out of and in the course of employment by applying principle of notional extension of employment. Therefore, I do not find any merit in the contentions taken by the insurance company.
29. Further, as per Exs.P1 and P2, the insurance policy is Goods Carrying Commercial Vehicle (Open) Policy B Package and under this insurance policy, the risk of two workmen is covered by making payment of extra premium of Rs.50/-. Therefore, 35 admittedly the deceased and another driver have gone to Mumbai from Kalaburagi and except these two drivers, there were no other workmen in the truck. Therefore, the risk of the deceased is also covered under the insurance policy.
30. In MFA Crob No.1054/2011:-
Coming to the question of quantum of compensation, the learned Commissioner has taken the monthly income of the deceased at Rs.4,000/- and considered the relevant factor of 184.17 according to the age of the deceased and has deducted 50% from the income of the deceased towards his personal expenses and has accordingly awarded a compensation of Rs.3,68,240/-, which needs no interference, as the quantification and award made by the Commissioner is correct.
31. But, the learned Commissioner has granted interest at 12% p.a. after one month from the date of 36 judgment, which is not correct. The learned Commissioner ought to have awarded interest at 12% p.a. from the date of accident as per the principles laid down by the Hon'ble Apex Court in the case of Pratap Narain Singh Deo vs. Srinivas Sabata and another reported in (1976) 1 Supreme Court Cases 289. Therefore, to this extent, the impugned judgment is liable to be modified and it is ordered that the cross objectors - claimants are entitled for interest at 12% p.a. from the date of accident. Accordingly, I answer the substantial question of law in the affirmative.
32. Hence, I proceed to pass the following:
ORDER i. MFA No.31587/2010 filed by the insurance company is dismissed.
ii. MFA Crob No.1054/2011 filed by the claimants is allowed in part.37
iii. The judgment dated 18.03.2010 passed by the Commissioner in WCA No.94/2007 is modified to the extent that the cross objectors - claimants are entitled for interest at 12% p.a. from the date of accident till its realisation. However, the cross objectors are not entitled for interest for the delayed period of 1532 days in filing the recalling application.
Sd/-
JUDGE sn/LG