Madras High Court
The Oriental Insurance Co.Ltd vs )Tmt.Zeenath Beebi on 30 June, 2014
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.06.2014 CORAM THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM C.M.A.No.1771 of 2003 The Oriental Insurance Co.Ltd., No.134, Katpadi Road, Gudiyatham. ... Appellant Vs. 1)Tmt.Zeenath Beebi 2)Selvi.Sabhana 3)Thiru.R.Samu 4)Manager, S.T.C. Tranery, Masha Leather Tanery, Ponnamadurai Main Road, Dindigul. ... Respondents Prayer Petition filed under Section 30 of the Workmen Compensation Act, against the award dated 10.02.2003 made in W.C.No.120 of 2002 on the file of the Commissioner for Workmen Compensation, Dindigul. For Appellant : Mr.K.Bhaskaran ^For R1 & R2 : Mr.P.Sathish Murugan for M/s.Hindu Associates For R4 : No appearance :JUDGMENT
Being aggrieved by the award made in W.C.No.120 of 2002 dated 10.02.2003 by the Commissioner for Workmen Compensation, Dindigul, the insurance company has filed the appeal.
2. Respondents 1 and 2 laid a petition before the Commissioner for Workmen Compensation, contending that the son of the 1st respondent and brother of the 2nd respondent namely, Sathiq Basha was working as a driver in a Lorry bearing registration No.TCJ 3377 belonging to the 3rd respondent herein. Whileso, on 02.02.2002 he was driving the Lorry from Vaniambadi to S.T.C. Tranery, Masha Leather Tanery, Dindigul. When the workers were engaged in unloading the goods, the driver of the Lorry went to attend the natural call and when he unfortunately touched the electric fencing, fell down and became unconscious. Immediately, he was taken to Government Hospital, Dindigul, where he was declared dead. A criminal case in FIR No.84/02 was registered at Taluk Police Station, Dindigul. Contending that the death occurred during the course of employment, the claimants prayed for compensation of Rs.9,00,000/-.
3. The appellant insurance company resisted the claim by filing detailed counter mainly contending that the deceased was not the employee of the 3rd respondent.
4. Before the Commissioner for Workmen Compensation, mother of the deceased examined herself as PW1 and marked Exs.P1 to P5. On the side of the appellant insurance company, RWs 1 and 2 were examined, but no document was marked.
5. The Commissioner for Workmen Compensation relying upon the evidence of the claimants, held that the deceased died in the course of employment and awarded compensation of Rs.3,26,883/-. Challenging the award, the present appeal has been filed, which has been admitted on the following substantial questions of law:-
1)Whether the Deputy Commissioner of Labour was correct in coming to the conclusion that the deceased was a workman under the third respondent as per W.C. Act?
2)Whether the Deputy Commissioner of Labour was correct in holding that the appellant is liable to pay the compensation awarded in spite of the death occurred due to the illegal electric fencing laid by the fourth respondent?
3)Whether the Deputy Commissioner of Labour was correct in holding that the applicant is liable to pay the compensation awarded against the terms of policy?
6. Heard Mr.K.Bhaskaran, learned counsel for the appellant and Mr.P.Sathish Murugan, learned counsel for M/s.Hindu Associates, learned counsel for the respondents 1 and 2 and perused the records.
7. The learned counsel for the appellant submitted that the death occurred only due to the negligence of the deceased while he touched the electric fencing and the personal injury can not be termed as injury sustained in the course of employment. The learned counsel further submitted that the claimants have not produced any documentary evidence nor examined any independent witnesses to prove the employment of the deceased under the 3rd respondent at the time of the accident.
8. PW1 has categorically stated that her son was working under the 3rd respondent for number of years and he was engaged in driving the Lorry from Vaniambadi to Dindigul. Ex.P1-FIR was registered immediately after the accident. Ex.P2 is the Postmortem Certificate and Ex.P3 is the Driving Licence of the deceased. Ex.P5 shows that on the date of the accident, the vehicle had coverage of insurance under the appellant insurance company.
9. The main contention of the appellant is that the deceased had touched the electric fencing and due to the electric shock, he died which can not be termed as injury happened during the course of employment. The evidence of PW1 and Ex.P1 would establish that the deceased was engaged to drive the Lorry and he sustained injury while he was attending the natural call. The claimants have established that at the time of accident, the deceased after parking the Lorry for unloading, attended the natural call.
10. As regards the theory of notional extension, I would like to quote the judgments of the Hon'ble Supreme Court:-
(i) The meaning of the words "in the course of his employment"
appearing in Section 3(1) of the Workmen's Compensation Act, 1923, was examined by the Hon'ble Supreme Court in the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, AIR 1985 SC 811. The appellant therein, a salt manufacturing company, employed workmen both temporary and permanent. The salt-works was situated near a creek opposite to the town of Porbander. The salt-works could be reached by at least two ways from the town, one an overland route nearly nearly 6 to 7 miles long and the other via a creek which had to be crossed by a boat. In the evening of 12.6.1952, a boat carrying some of the workmen, capsized due to bad weather and overloading. As a result of this, some of the workmen were drowned. One of the questions that came up for consideration was whether the accident had taken place in the course of the employment of the workers. Hon'ble Mr.Justice S. Jafer Imam, speaking for the Court, held as follows:-
As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded.
After laying down the principle broadly, His Lordship Justice S. Jafer Imam, went on to observe that there might be some reasonable extension in both time and place to this principle.
?A workman might be regarded as in the course of his employment even though he had not reached or had left his employer's premises in some special cases. The facts and circumstances of each case would 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. But, examining the facts of the case, in particular, after noticing the fact that the workman used a boat, which was also used as public ferry for which they had to pay the boatman's dues, S. Jafer Imam, J., observed: It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends up to point D, the theory cannot be extended beyond it The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident the appellant cannot be made liable.?
(ii) The Supreme Court in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another, in a case of death of a lorry cleaner, even though he was in employment held that in a case for compensation under the Workmen Compensation Act, the key issue to be decided is whether that the death or injury, occurred out of and in the course of employment. The principles as laid down by the Apex Court are as follows:
21)(1) There must be a casual connection between the injury and the accident and the accident and the work done the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes 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 the same would depend upon the fact of each case.
Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforseen or uncomprehended or could not be forseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.
22) There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.
11. In the light of the judgment of the Hon'ble Apex Court, I am of the view that the theory of notional extention is applicable to the facts of this case. The appellant can not contend that due to the death in the electrocution, the injury can not be treated as personal injury in the course of employment.
12. In view of my findings supra, the claimants are entitled for compensation and the appellant is liable to indemnify the same. Accordingly, substantial questions of law are answered in the negative against the appellant. The award passed by the Deputy Commissioner of Labour is sustained and the Civil Miscellaneous Appeal is dismissed. In view of the dismissal of the appeal, respondents 1 and 2/claimants are permitted to withdraw the entire award amount lying in the credit of the claim petition by making necessary application before the Commissioner for Workmen Compensation, Dindigul. No costs.
To Commissioner for Workmen Compensation, Dindigul.