whether the accident occurred out of and in the course of employment and whether the applicants are entitled to compensation. = Workmens Compensation Act is a beneficial Legislation meant to be liberally interpreted, this Court holds that the injury was an injury arsing out of and in the course of employment. As decided by learned single Judges of this Court, when a cleaner bringing tiffin or a driver cooking food for himself, were held to be entitled to compensation, this case is also on equal footing. Even the judgment of Mackinnon Mackenzie & Co. (1 supra) was the case of seaman/deck hand who was missing on board a ship. The body was not found despite search and there was no proof available to show how the seaman died. Nobody saw the missing seaman at the so- called place of accident. The Commissioner held a local inspection of the ship also. The evidence available did not show that it was a stormy night for the seaman to fall overboard. In these circumstances, the Additional Commissioner held that there was no material to hold that the death of the seaman took place on account of an accident which arose out of his employment. This finding of the Commissioner was upheld by the Honble Supreme Court in the cited judgment (Mackinnon Mackenzie & Co.). These facts are not present in this case. The proximity to the parked lorry; the cause of death are all apparent from the record. As was held by various Courts, a purposive and liberal interpretation is necessary in this case. The legislative intent contained therein is required to be interpreted with a view to give effect thereto (as per Oriental Insurance Co. Ltd. v. Mohd. Nasir ). There was a casual connection to his employment and the accident was reasonably incidental to his employment. Above all the decisions in Manju Sarkar (10 supra) and Daya Kishan Joshi (11 supra) come to the aid of the workman in this case. For all the above reasons, this Court finds that there are no reasons to disagree with the findings of the lower Court. Hence, the impugned order of the Commissioner dated 20.01.2005 in W.C.No.88 of 2002 is confirmed.
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CMA No.1030 of 2005
13-04-2018
National Insurance Co. Ltd., Appellant/ OP-2
Smt. K. Venkata Narasamma and 3 others. Respondents/Applicants 1 to 3 & OP-1
Counsel for the appellant: Sri Ravi Shankar Jandhyala
Counsel for the Respondents: Sri Chandrasekhar Reddy Gopi Reddy
<Gist:
>Head Note:
? Cases referred:
1969 ACJ 422
2 1967 ACJ 194
3 1975 ACJ 243
4 AIR 1964 SC 193
5 2005 (1) LLJ 763
6 2005 (5) ALD 185
7 2012 (4) ALD 266
8 2004 ACJ 1639
9 2006 ACJ 890
10 (2014) 14 SCC 21
11 2017 SCC Online 980
12 (2009) 6 SCC 280
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
C.M.A.No.1030 of 2005
JUDGMENT:
This appeal is filed by the insurance company against
the order dated 20.01.2005 passed in W.C.No.88 of 2002 by
the Commissioner for Workmens Compensation and Asst.
Commissioner of Labour, Nalgonda.
The applicants have filed the case before the
Commissioner claiming compensation for the death of one Sri
Kampasati Venkanna, who died in an accident that occurred
on 15.10.2002. The said Venkanna was a driver of a lorry
bearing No.AP-16U 6367 belonging to the first opposite party
and insured with the second opposite party.
The case of the applicants is that the deceased took the
lorry with a load on 15.10.2002 to Bibigudem. As there was a
shortage of labourers to unload the lorry, he parked the lorry
and was waiting for the coolies to come and unload the lorry.
At that point of time, he walked across the road and was hit
by a unknown lorry. The injuries were fatal and caused his
death. The case was therefore filed seeking compensation of
Rs.3,00,000/-.
The first opposite party remained ex parte. The second
opposite party filed a counter denying the case set up by the
applicants.
On behalf of the applicants, AW.1 was examined and
Exs.A.1 to A.6 were marked. For the opposite parties, one
witness was examined as RW.1 and Ex.B.1 was marked.
Basing on the pleadings, evidence etc., the Commissioner
awarded compensation of Rs.3,57,587/- with interest and
costs. It is this order that is now assailed in the appeal.
This Court has heard Sri Ravi Shankar Jandhyala,
learned counsel for the appellant/insurance company and Sri
Chandrasekhar Reddy Gopi Reddy, learned counsel for the
respondents/ applicants.
The essential grounds that are urged in the appeal are
that there is no connection between the accident and the
employment and that the accident occurred on a public road.
On the other hand, the learned counsel for the respondents/
applicants argued that in the written statement that is filed
before the Commissioner, none of the present issues were
raised. Therefore, it is his contention that the respondents
cannot now raise these issues in the appeal. Nevertheless, as
the points that are raised are a part of the evidence and are
part of the issues raised before the Commissioner during the
course of evidence and arguments, this Court considered the
same.
The essential question that falls for consideration is
whether the accident occurred out of and in the course of
employment and whether the applicants are entitled to
compensation.
The facts which are not in dispute are that the deceased
drove the lorry to Bibiguda and parked the fully loaded lorry
in the rice mill. The loaded lorry could not be unloaded
because of the shortage of coolies. The deceased then decided
to come to the bus stand to catch a bus stating that he will
return the next day. At that point of time, on the road just
outside the mill, he met with a fatal accident.
AW.1 the witness for the applicant is not an eye
witness. RW.1 the witness examined for the opposite parties
is an investigator, who is also not an eye witness to the
accident. Therefore, neither of them are actually competent
witnesses to speak about the accident. However, the
examination of RW.1 (investigator) discloses the following
factors a) the distance between the place of the accident and
the mill was only 100 meters; b) on the date of accident the
deceased Venkanna was on duty on lorry No.AP-16U-6367;
c) the deceased was in search of labour for unloading purpose
because the mill labourers were availing the festival of
Dasara; and d) the lorry was not unloaded when the
accident occurred.
Therefore, from the examination of RW.1, it is clear that
he admits that the deceased was looking for labourers at the
time of his death and also admits that on the date of the
accident, the deceased Venkanna was on duty.
The learned counsel for the appellant/insurance
company basing on three judgments i) Mackinnon Mackenzie
& Co. v. Ibrahim Mahmmod Issak , ii) A.C. Roay & Co. (P) Ltd.
v. Taslim & another ; and iii) Executive Engineer, R.C.P.
Central Workshop Division, Suratgarh v. Veera argued that
the applicant was not on duty at the time of the accident and
the accident did not occur out of and in the course of
employment. He stressed mainly on Mackinnon Mackenzie &
Co.s case (1 supra), wherein the Honble Supreme Court of
India held that the accident in the course of his employment
means an accident in the course of work in which the
workman is employed to do. The words arising out of
employment were interpreted as per him to mean that during
the actual course of employment. In other words, he urged
that there should be a relationship between the accident and
employment. The learned counsel stressed the fact that at the
time of death in this case the deceased was walking across
the road and was not either driving the lorry or even near the
lorry. According to the learned counsel, there is no connection
between the actual accident and the employment. Relying on
other two cases also, he pointed out that the connection is
not established.
In reply to this, the learned counsel for the
respondents/applicants relying upon i) General Manager,
B.E.S.T. Undertaking, Bombay v. Mrs. Agnes ;
ii) Superintending Engineer, Tamilnadu Electricity Board v.
Sankupathy, (TMT) ; iii) New India Assurance Coompany Ltd.
Secunderabad v. P. Padmavathi ; iv) New India Assurance Co.
Ltd., Gudivada v. Mandava Krishna Kumari ; v) Branch
Manager, New India Assurance Co. Ltd. V. Siddappa ; and
vi) Premila v. Shaliwan argued that the theory of notional
extension of employment is applicable to the facts and
circumstances of this case also. The majority decision in
Mrs. Agness case (4 supra) is to the following effect:
Under S. 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 as both
the entry and exit by time and space. The scope of the such
extension must necessarily depend on the circumstances of
a given case. An employment may end or may begin not
only when the employee begins to work or leaves his tools
but also when he uses the means of access and egress to
and from the place of employment.
Similarly, the Division Bench of Madras High Court also
held that the notional extension of employment extends to
accidents that occurred while he was proceeding to the work
also. A learned single Judge of this Court in
P. Padmavathis case (6 supra) held that the words arsising
out of and in the course of employment have to be
interpreted liberally keeping in view the fact that the
Workmens Compensation Act is a beneficial Legislation. The
facts in P. Padmavathis case show that the accident occurred
to a cleaner of the lorry who was actually bringing tiffin to the
driver of the lorry after it is parked. The learned counsel also
pointed out that in Mandava Krishna Kumaris case
(7 supra), the facts reveal that the vehicle was stopped and
while the driver was cooking food for himself, his lungi caught
fire and he died because of the burn injuries. The learned
single Judge held that the accident occurred out of and in the
course of employment. Therefore, the learned counsel argued
that in this case also the injury must be held to have
occurred out of and in the course of employment.
On a review of facts, the evidence on record and the
case law cited across the bar in this case, this Court is of the
opinion that the accident occurred out of and in the course of
employment only. The deceased was present at that spot only
because of his employment and as the coolies were not found,
he parked the lorry. The lorry was admittedly not unloaded
as per the evidence of RW.1. RW.1 also admitted that the
driver was on duty at that point of time. The presence of the
deceased at that spot can only be attributed his employment.
If he was not in the course of his employment, he would not
have been on the road in Bibinagar very close to the Rice mill.
The proximity in time and the place of accident are also
critical. This Court also notices the judgment of the Honble
Supreme Court of India in the case of Manju Sarkar v. Mabish
Miah wherein the Honble Supreme Court awarded
compensation to a driver who met with a factal road accident
after he parked his truck at the godown and left the place.
This case was followed in the judgment of Daya Kishan Joshi
v. Dynemech Systems Pvt. Ltd. .
Keeping in view the fact that the Workmens
Compensation Act is a beneficial Legislation meant to be
liberally interpreted, this Court holds that the injury was an
injury arsing out of and in the course of employment. As
decided by learned single Judges of this Court, when a
cleaner bringing tiffin or a driver cooking food for himself,
were held to be entitled to compensation, this case is also on
equal footing. Even the judgment of Mackinnon Mackenzie &
Co. (1 supra) was the case of seaman/deck hand who was
missing on board a ship. The body was not found despite
search and there was no proof available to show how the
seaman died. Nobody saw the missing seaman at the so-
called place of accident. The Commissioner held a local
inspection of the ship also. The evidence available did not
show that it was a stormy night for the seaman to fall
overboard. In these circumstances, the Additional
Commissioner held that there was no material to hold that
the death of the seaman took place on account of an accident
which arose out of his employment. This finding of the
Commissioner was upheld by the Honble Supreme Court in
the cited judgment (Mackinnon Mackenzie & Co.). These facts
are not present in this case. The proximity to the parked
lorry; the cause of death are all apparent from the record. As
was held by various Courts, a purposive and liberal
interpretation is necessary in this case. The legislative intent
contained therein is required to be interpreted with a view to
give effect thereto (as per Oriental Insurance Co. Ltd. v. Mohd.
Nasir ). There was a casual connection to his employment
and the accident was reasonably incidental to his
employment. Above all the decisions in Manju Sarkar
(10 supra) and Daya Kishan Joshi (11 supra) come to the aid
of the workman in this case.
For all the above reasons, this Court finds that there are
no reasons to disagree with the findings of the lower Court.
Hence, the impugned order of the Commissioner dated
20.01.2005 in W.C.No.88 of 2002 is confirmed. The appeal is
accordingly dismissed. In the circumstances of the case, there
shall be no order as to costs. As a sequel, miscellaneous
petitions, if any, pending in this appeal shall stand closed.
___________________________
D.V.S.S. SOMAYAJULU, J
Date: 13.04.2018
CMA No.1030 of 2005
13-04-2018
National Insurance Co. Ltd., Appellant/ OP-2
Smt. K. Venkata Narasamma and 3 others. Respondents/Applicants 1 to 3 & OP-1
Counsel for the appellant: Sri Ravi Shankar Jandhyala
Counsel for the Respondents: Sri Chandrasekhar Reddy Gopi Reddy
<Gist:
>Head Note:
? Cases referred:
1969 ACJ 422
2 1967 ACJ 194
3 1975 ACJ 243
4 AIR 1964 SC 193
5 2005 (1) LLJ 763
6 2005 (5) ALD 185
7 2012 (4) ALD 266
8 2004 ACJ 1639
9 2006 ACJ 890
10 (2014) 14 SCC 21
11 2017 SCC Online 980
12 (2009) 6 SCC 280
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
C.M.A.No.1030 of 2005
JUDGMENT:
This appeal is filed by the insurance company against
the order dated 20.01.2005 passed in W.C.No.88 of 2002 by
the Commissioner for Workmens Compensation and Asst.
Commissioner of Labour, Nalgonda.
The applicants have filed the case before the
Commissioner claiming compensation for the death of one Sri
Kampasati Venkanna, who died in an accident that occurred
on 15.10.2002. The said Venkanna was a driver of a lorry
bearing No.AP-16U 6367 belonging to the first opposite party
and insured with the second opposite party.
The case of the applicants is that the deceased took the
lorry with a load on 15.10.2002 to Bibigudem. As there was a
shortage of labourers to unload the lorry, he parked the lorry
and was waiting for the coolies to come and unload the lorry.
At that point of time, he walked across the road and was hit
by a unknown lorry. The injuries were fatal and caused his
death. The case was therefore filed seeking compensation of
Rs.3,00,000/-.
The first opposite party remained ex parte. The second
opposite party filed a counter denying the case set up by the
applicants.
On behalf of the applicants, AW.1 was examined and
Exs.A.1 to A.6 were marked. For the opposite parties, one
witness was examined as RW.1 and Ex.B.1 was marked.
Basing on the pleadings, evidence etc., the Commissioner
awarded compensation of Rs.3,57,587/- with interest and
costs. It is this order that is now assailed in the appeal.
This Court has heard Sri Ravi Shankar Jandhyala,
learned counsel for the appellant/insurance company and Sri
Chandrasekhar Reddy Gopi Reddy, learned counsel for the
respondents/ applicants.
The essential grounds that are urged in the appeal are
that there is no connection between the accident and the
employment and that the accident occurred on a public road.
On the other hand, the learned counsel for the respondents/
applicants argued that in the written statement that is filed
before the Commissioner, none of the present issues were
raised. Therefore, it is his contention that the respondents
cannot now raise these issues in the appeal. Nevertheless, as
the points that are raised are a part of the evidence and are
part of the issues raised before the Commissioner during the
course of evidence and arguments, this Court considered the
same.
The essential question that falls for consideration is
whether the accident occurred out of and in the course of
employment and whether the applicants are entitled to
compensation.
The facts which are not in dispute are that the deceased
drove the lorry to Bibiguda and parked the fully loaded lorry
in the rice mill. The loaded lorry could not be unloaded
because of the shortage of coolies. The deceased then decided
to come to the bus stand to catch a bus stating that he will
return the next day. At that point of time, on the road just
outside the mill, he met with a fatal accident.
AW.1 the witness for the applicant is not an eye
witness. RW.1 the witness examined for the opposite parties
is an investigator, who is also not an eye witness to the
accident. Therefore, neither of them are actually competent
witnesses to speak about the accident. However, the
examination of RW.1 (investigator) discloses the following
factors a) the distance between the place of the accident and
the mill was only 100 meters; b) on the date of accident the
deceased Venkanna was on duty on lorry No.AP-16U-6367;
c) the deceased was in search of labour for unloading purpose
because the mill labourers were availing the festival of
Dasara; and d) the lorry was not unloaded when the
accident occurred.
Therefore, from the examination of RW.1, it is clear that
he admits that the deceased was looking for labourers at the
time of his death and also admits that on the date of the
accident, the deceased Venkanna was on duty.
The learned counsel for the appellant/insurance
company basing on three judgments i) Mackinnon Mackenzie
& Co. v. Ibrahim Mahmmod Issak , ii) A.C. Roay & Co. (P) Ltd.
v. Taslim & another ; and iii) Executive Engineer, R.C.P.
Central Workshop Division, Suratgarh v. Veera argued that
the applicant was not on duty at the time of the accident and
the accident did not occur out of and in the course of
employment. He stressed mainly on Mackinnon Mackenzie &
Co.s case (1 supra), wherein the Honble Supreme Court of
India held that the accident in the course of his employment
means an accident in the course of work in which the
workman is employed to do. The words arising out of
employment were interpreted as per him to mean that during
the actual course of employment. In other words, he urged
that there should be a relationship between the accident and
employment. The learned counsel stressed the fact that at the
time of death in this case the deceased was walking across
the road and was not either driving the lorry or even near the
lorry. According to the learned counsel, there is no connection
between the actual accident and the employment. Relying on
other two cases also, he pointed out that the connection is
not established.
In reply to this, the learned counsel for the
respondents/applicants relying upon i) General Manager,
B.E.S.T. Undertaking, Bombay v. Mrs. Agnes ;
ii) Superintending Engineer, Tamilnadu Electricity Board v.
Sankupathy, (TMT) ; iii) New India Assurance Coompany Ltd.
Secunderabad v. P. Padmavathi ; iv) New India Assurance Co.
Ltd., Gudivada v. Mandava Krishna Kumari ; v) Branch
Manager, New India Assurance Co. Ltd. V. Siddappa ; and
vi) Premila v. Shaliwan argued that the theory of notional
extension of employment is applicable to the facts and
circumstances of this case also. The majority decision in
Mrs. Agness case (4 supra) is to the following effect:
Under S. 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 as both
the entry and exit by time and space. The scope of the such
extension must necessarily depend on the circumstances of
a given case. An employment may end or may begin not
only when the employee begins to work or leaves his tools
but also when he uses the means of access and egress to
and from the place of employment.
Similarly, the Division Bench of Madras High Court also
held that the notional extension of employment extends to
accidents that occurred while he was proceeding to the work
also. A learned single Judge of this Court in
P. Padmavathis case (6 supra) held that the words arsising
out of and in the course of employment have to be
interpreted liberally keeping in view the fact that the
Workmens Compensation Act is a beneficial Legislation. The
facts in P. Padmavathis case show that the accident occurred
to a cleaner of the lorry who was actually bringing tiffin to the
driver of the lorry after it is parked. The learned counsel also
pointed out that in Mandava Krishna Kumaris case
(7 supra), the facts reveal that the vehicle was stopped and
while the driver was cooking food for himself, his lungi caught
fire and he died because of the burn injuries. The learned
single Judge held that the accident occurred out of and in the
course of employment. Therefore, the learned counsel argued
that in this case also the injury must be held to have
occurred out of and in the course of employment.
On a review of facts, the evidence on record and the
case law cited across the bar in this case, this Court is of the
opinion that the accident occurred out of and in the course of
employment only. The deceased was present at that spot only
because of his employment and as the coolies were not found,
he parked the lorry. The lorry was admittedly not unloaded
as per the evidence of RW.1. RW.1 also admitted that the
driver was on duty at that point of time. The presence of the
deceased at that spot can only be attributed his employment.
If he was not in the course of his employment, he would not
have been on the road in Bibinagar very close to the Rice mill.
The proximity in time and the place of accident are also
critical. This Court also notices the judgment of the Honble
Supreme Court of India in the case of Manju Sarkar v. Mabish
Miah wherein the Honble Supreme Court awarded
compensation to a driver who met with a factal road accident
after he parked his truck at the godown and left the place.
This case was followed in the judgment of Daya Kishan Joshi
v. Dynemech Systems Pvt. Ltd. .
Keeping in view the fact that the Workmens
Compensation Act is a beneficial Legislation meant to be
liberally interpreted, this Court holds that the injury was an
injury arsing out of and in the course of employment. As
decided by learned single Judges of this Court, when a
cleaner bringing tiffin or a driver cooking food for himself,
were held to be entitled to compensation, this case is also on
equal footing. Even the judgment of Mackinnon Mackenzie &
Co. (1 supra) was the case of seaman/deck hand who was
missing on board a ship. The body was not found despite
search and there was no proof available to show how the
seaman died. Nobody saw the missing seaman at the so-
called place of accident. The Commissioner held a local
inspection of the ship also. The evidence available did not
show that it was a stormy night for the seaman to fall
overboard. In these circumstances, the Additional
Commissioner held that there was no material to hold that
the death of the seaman took place on account of an accident
which arose out of his employment. This finding of the
Commissioner was upheld by the Honble Supreme Court in
the cited judgment (Mackinnon Mackenzie & Co.). These facts
are not present in this case. The proximity to the parked
lorry; the cause of death are all apparent from the record. As
was held by various Courts, a purposive and liberal
interpretation is necessary in this case. The legislative intent
contained therein is required to be interpreted with a view to
give effect thereto (as per Oriental Insurance Co. Ltd. v. Mohd.
Nasir ). There was a casual connection to his employment
and the accident was reasonably incidental to his
employment. Above all the decisions in Manju Sarkar
(10 supra) and Daya Kishan Joshi (11 supra) come to the aid
of the workman in this case.
For all the above reasons, this Court finds that there are
no reasons to disagree with the findings of the lower Court.
Hence, the impugned order of the Commissioner dated
20.01.2005 in W.C.No.88 of 2002 is confirmed. The appeal is
accordingly dismissed. In the circumstances of the case, there
shall be no order as to costs. As a sequel, miscellaneous
petitions, if any, pending in this appeal shall stand closed.
___________________________
D.V.S.S. SOMAYAJULU, J
Date: 13.04.2018
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