Bombay High Court
M/S. New India Ass. Co. Ltd vs Shri. Vijay Bapu Kamble And Ors on 23 February, 2021
Bench: P. K. Chavan
334-2019-FA-res.order.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 334 OF 2019
A/W
CIVIL APPLICATION NO. 2570 OF 2019
A/W
CIVIL APPLICATION NO. 1204 OF 2019
IN
FIRST APPEAL NO. 334 OF 2019
M/s. New India Assurance Co. Ltd.
MRO-1, New India Bhawan,
34/38, Bank Street,
Mumbai - 400 013
At present : Mumbai Claim Hub,
41B, 4th floor, maker Tower E,
Opp. World Trade Centre,
Cuffe Parade, Mumbai - 400 005 .. Appellant
Vs.
1. Vijay Bapu Kamble
Father, Age 55 years
2. Smt. Suvarta Vijay Kamble
Mother, Age 55 years,
Both R/at ESIC Hospital
Quarters Type,
Room No. 01, Akurli Road,
Near Kandivali Station,
Kandivali East, Mumbai - 400 101
3. Abhishek S. Mayekar
Room No. 03, Haji Noorani Compound,
Ground Floor, Elephinstone Road,
Mumbai - 400 013 .. Respondents
.....
Digitally
Ms. Jyoti Bajpayee for the appellant
UDAY
signed by
UDAY Mr. T.J. Mendon for the respondents
SHIVAJI
SHIVAJI JAGTAP
Date:
JAGTAP 2021.02.23
19:29:21
+0530
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CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 12 th FEBRUARY, 2021
PRONOUNCED ON : 23rd FEBRUARY, 2021
JUDGMENT : -
1. Feeling aggrieved by the impugned judgment and order
dated 7th August, 2018 granting compensation to the respondents
to the tune of Rs.8,15,400/- along with interest at the rate of 12%
p.a. by the Additional Commissioner for Employees Compensation
& Judge, 7th Labour Court, Mumbai, the insurer had preferred this
appeal amongst following facts and grounds.
2. Deceased Harshad @ Sachin Vijay Kamble, was the son of
respondent nos. 1 and 2 and an employee of respondent no.3.
While discharging his duties an employee of the respondent no.3
deceased Harshad @ Sachin Vijay Kamble met with an accident as
he was dashed by an unknown vehicle at Vine Gaon, Mumbai-Pune
Highway No.4, Near Khalapur, Dist. Raigad. The respondent nos.
1 and 2, who area parents of the deceased have moved an
application under Section 4 of the Employees' Compensation Act,
1923.
3. On 3rd September, 2015 deceased Harshad, as a driver of
respondent no.3, had taken some students and teachers of Saboo
Siddiki Technical College to Monteria Resort at Khalapur, Dist.
Raigad for a picnic. After parking the motor vehicle at the said
Resort, he went for shaving and met with a vehicular accident,
resulting into his death due to the fatal injuries.
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4. An offence came to be registered with Khalapur Police
Station, Dist. Raigad.
5. It is the contention of respondent nos. 1 and 2 that at the
relevant time, the deceased was employed with respondent no.3
and was drawing a monthly salary of Rs.8,000/-. He was aged
about 32 years. After his death in an accident, the respondent
nos. 1 and 2 have raised a claim before respondent no.3 and the
insurer but the same was neither responded nor complied with.
6. Pursuant to filing an application under Section 4 of the
Employees' Compensation Act, notices were duly served upon the
appellant and respondent no.3. Despite sufficient opportunity,
respondent no.3 did not appear before the Court and, therefore,
the matter proceeded against him in his absence.
7. The appellant in its written statement denied all the
averments made in the application. The specific stand of the
appellant was that there was no casual connection between the
incident and the work of the deceased, for which he was engaged.
The appellant, therefore, disowned the liability in respect of the
insured vehicle by contending that it was not involved in the
accident / incident. The appellant, therefore, prayed for rejection
of the claim of respondent nos. 1 and 2.
8. The learned Commissioner framed necessary issues after
hearing the learned Counsel for the respondents and by the
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impugned judgment and order, awarded compensation as above.
The learned Commissioner inter alia directed the respondent no.3
to make payment of penalty amount to the extent of 50% of the
claim amount.
9. I heard Ms. Bajpayee, learned Counsel for the appellant and
Mr. Mendon, learned Counsel for respondent nos. 1 and 2.
10. Ms. Bajpayee, took me through the impugned Judgment and
award by contending that the learned Judge has not considered
the evidence on record in its correct perspective, in the sense,
there is no evidence tendered to show that the deceased was in
fact, working with respondent no.3 and that the incident took
place during the course of his employment. It is contended that
the accident did not arise out of the employment as the deceased
died while going for shaving and, therefore, it cannot be termed to
be 'a death during and in the course of employment'. It is
further contended that the learned Judge ought to have considered
the fact that the deceased had parked the vehicle and went for
shaving and while crossing the road, was knocked down by
another vehicle. Hence, there is no casual connection with the job
on employment and that of the accident. It is contended that the
observations of the learned Judge that the opponents are under
legal obligation to cover the risk of such drivers in entire span of
time and not only for the period of driving, is grossly erroneous.
It is further contended that the learned Judge has failed to
consider the fact that the deceased did not die due to the use of
the insured vehicle. Lastly, the learned Counsel vehemently urged
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to quash and set aside the impugned judgment and award by
allowing the appeal.
11. Per contra, Mr. Mendon, learned Counsel for respondent nos.
1 and 2 has strongly supported the impugned judgment and
award. Mr. Mendon, in support of his contention pressed into
service four decisions, which shall be referred to at the appropriate
stage.
12. Respondent no.1 had filed his affidavit in lieu of evidence
before the Court. In order to substantiate the fact as to the
employee - employer relationship between the deceased Harshad
and respondent no.3, affidavit of respondent no.1 substantiate the
said fact, which went uncontroverted by respondent no.3 owing to
his absence despite due service. In the absence of any rebuttal to
that effect, the learned Commissioner has rightly held that there
was a employee - employer relationship between the deceased
Harashad and respondent no.3.
13. There is no dispute that the deceased died in an accident
which took place on 3rd September, 2015 when he had been to
Monteria Resort for a picnic along with students and teachers of
Saboo Siddiki Technical College and while going for shaving, was
dashed by an unknown motor vehicle. Death of the deceased
involving an unknown motor vehicle has been corroborated from
the documents namely; certified copies of F.I.R., statements,
panchanama, inquest panchanama and death certificate etc.
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14. The police recorded statement of one Sandip Ashok
Shingare, who is the co-employee of the deceased. Statement of
Sandip A. Shingare reveals that on the day of incident, he along
with the deceased and other co-employees, proceeded for their
regular duties. They picked up teachers and students of Saboo
Siddiki Technical College and proceeded to Monteria Resort,
Khalapur, Dist. Raigad for a picnic. After reaching the destination,
the deceased went for shaving. The accident occurred at that time
as the deceased was dashed by another vehicle. Due to the fatal
accident, the deceased succumbed to the injuries.
15. Crux of the appeal is that the appellant is not liable to pay
compensation as the accident did not arise out of and in the course
of employment of the deceased with respondent no.3.
Undisputedly, the vehicle bearing No. MH-04-G-7400 belongs to
respondent no.3, which was insured with the appellant. The
learned Commissioner has, therefore, rightly observed that since
the respondent no.3 did not turn up despite service, adverse
inference is required to be drawn against him. The appellant
was not prevented from summoning respondent no.3 to
substantiate its contention that the deceased was not employed
with him and the accident did not occur out of and in the course of
his employment with respondent no.3.
16. From the cross-examining of the respondent no.1, nothing
could be elicited from his mouth by the appellant, which would
render his evidence as unworthy of credit. From the material on
record, it can be safely said that it was a planned picnic by the
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students and teachers of Saboo Siddiki Technical College to
Monteria Resort, Khalapur. After reaching the destination, the
deceased went for shaving. Obviously, after the picnic, it was
incumbent upon the deceased, as a driver of the said vehicle, to
bring back the students and teachers to Mumbai. Till his return to
Mumbai, the deceased was in the course of employment of
respondent no.3.
17. At this stage, the learned Counsel for the appellant has
placed reliance on a decision of the Hon'ble Supreme Court in the
case of Mallikarjuna G. Hiremath V. Branach Manager, The
Oriental Insurance Co. Ltd. & Anr. (2009) LawSuit (SC) 211 . It
was a case under Workmen Compensation Act. The ratio laid
down by the Hon'ble Supreme Court is that an accident may lead
to death but that an accident had taken place must be proved.
Only because a death has taken place in course of employment will
not amount to accident. Death must arise out of accident and,
therefore, there is no presumption that an accident had occurred.
The facts in the said case are that the deceased who was driving
the vehicle on the directions of insured had gone to Gurugunta
from Siraguppa. There he had gone to a temple and was sitting
on the steps of the pond in the temple and he slipped and fell into
the water and died due to drowning. The High Court held that
the owner of the vehicle is liable to pay the compensation.
However, the Hon'ble Supreme Court allowed the appeal by
observing that the High Court was not justified in holding that
owner of the vehicle was liable to pay compensation.
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18. The learned Counsel for the appellant has relied upon one
more judgment of the Hon'ble Supreme Court in case of
Mackinnon Mackenize & Co. Pvt. Ltd. Vs. Ibrahim Mohommad
Issak, (1969) Law Suit (SC) 275 . This is under Section 3 of the
Workmen Compensation Act. The ratio laid down herein is that
the injury must arise both "out of" and "in the course of
employment". There must be a casual relationship between the
accident and the employment. If the accident had occurred on
account of a risk, which is an incident of the employment, the
claim must succeed, unless, the workman has exposed himself to
an added peril by his own imprudent act.
19. I am afraid, both case laws referred to hereinabove, would
not be made applicable to the present situation in view of the
simple reason that here it is not the case that the deceased had
exposed himself to an added peril by his own imprudent act. What
he did was he proceeded for shaving which can, by no stretch of
imagination, said to be an imprudent act on his part. It was just
an accident.
20. Secondly, in case of Mallikarjun G. Hiremath (supra), the
deceased had gone to a temple and was sitting on the steps of the
pond in the temple and he slipped and fell into the water and died
due to drowning. The deceased had exposed himself to an added
peril by his act of sitting on the steps of the pond. D
21. In that context, it can be apposite to refer to a decision of the
Hon'ble Supreme Court relied upon by Mr. Mendon in the case of
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Manju Sarkar & Ors. Vs. Mabish Miah and Ors. (2014) ACJ 1927 .
The Hon'ble Supreme Court has lucidly enunciated and interpreted
Section 3(1) of the Workmens' Compensationo Act as to what is
"arising out of" and "in the course of employment" as well as
"notional extension". It was a case wherein a driver took the truck
to the destination and was to bring the vehicle back laden with
rice bags. Since some delay had been occurred in loading the
goods, driver left the truck in care of the helper by telling him that
he would return in the night. However, during the night, he met
with a road accident and succumbed to his injuries in the hospital.
It is held by the Hon'ble Supreme Court that in the given set of
facts and circumstances, "notional extension" is applicable since
the deceased met with road accident in the course of his
employment. The deceased had gone to that place only on
account of employment of a driver of the truck. Paragraph 7, 8
and 10 of the judgment would reflect the ratio decidendi :-
"7. From the pleadings it is clear that Sajal Sarkar was
employed by respondent Nos.1 and 2 to drive their truck
at the relevant time. Though respondent Nos. 1 and 2
had stated in the counter that Sajal Sarkar was entrusted
to drive the truck on 13.5.2005 and on the same day the
said truck entered the godown complex of FCI at
Churaibari, this statement about the date does not
appear to be correct. It is categorically stated in the
claim petition that Sajal Sarkar drove the truck vehicle
on 14.5.2005 and the said fact is corroborated by the
averments in the First Information Report as well as final
report which specifically states that the truck reached the
FCI godown at Churaibari on 14.5.2005.
8. Further case of respondent Nos.1 and 2 is that Sajal
Sarkar was employed by them to drive the truck vehicle
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from Agartala to Dharmanagar FCI godown at
Churaibari and on the truck reaching the godown, Sajal
Sarkar ceased to be in their employment. This also
appears to be an after thought and factually incorrect. As
per the averments in the First Information Report lodged
by helper Bikram Deb the truck reached Churaibari FCI
godown on 14.5.2005 and Sajal Sarkar was to return
back to Agartala with the truck laden with rice bags.
According to the complainant, on reaching FCI godown
in the afternoon on 14.5.2005, considering the delay of
loading goods, Sajal Sarkar left the place by leaving the
truck in his care and told him that he would return in
the night and since he did not return during the night,
he searched him the next morning and after coming to
know about the accident and death, he lodged the
complaint. If Sajal Sarkar was actually employed only for
the trip from Agartala to FCI godown Churaibari there
was no need for him to inform the helper that he would
come back in the night to the godown for the return trip
and in the same way there was no obligation on the part
of the helper Bikram Deb to search for Sajal Sarkar the
next day morning leading to lodging of the complaint.
These circumstances clinch the issue and prove that Sajal
Sarkar was employed to drive the truck from Agartala to
FCI godown Churaibari and return back to Agartala with
the truck laden with the rice bags. It is also relevant to
point out that respondent Nos.1 and 2 neither examined
themselves in the trial nor examined helper Bikram Deb
or permanent driver Gopal Sharma to substantiate their
plea.
10. This Court has in the celebrated decision in General
Manager B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes
(AIR 1964 SC 193] laid down as follows:-
"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
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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."
22. Similar is the view echoed in the judgment by the Hon'ble
Supreme Court in Poonam Devi & Ors. Vs. Oriental Insurance
Co.Ltd. 2020 (3), T.A.C. 73 (SC). In the said case, the deceased
was aged about 21 years and was in employment of respondent
no.2 as a driver. While on the way he went to canal to fetch water
and also to have a bath. Unfortunately, he slipped into canal and
died. The Commissioner awarded an amount of Rs.4,45,420/-
along with interest @ 12% in addition to penalty imposed on
employer. The High Court allowed the appeal filed by the
respondent by holding that deceased may have died during course
of employment but death in question did not arise out of
employment, as bathing in the canal was not incidental to
employment but was at peril of the workman. It is observed by the
Hon'ble Supreme Court that indisputedly, deceased was in the
course of his employment. A judicial note was taken of the fact
that the possibility of the truck also requiring water to prevent
overheating cannot be completely ruled out. The act of the
deceased driver to ensure the safety of truck belonging to
employer and to ensure safe journey for himself considered as
incidental to employment by extension of notional employment
theory. The Hon'ble Supreme Court by relying upon the case law
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in case of B.E.S.T. Undertaking Vs. Agnes, AIR 1964 SC 193 and
Leela Bai and Anr. Vs. Seems Chouhan and Anr. (2019) ACJ 637
(SC) set aside the order of the High Court. As can be seen that
the ratio laid down in the case of Poonam Devi (supra) and Manju
Sarkara (supra) would be squarely applicable to the present set of
facts and can be distinguished from a judgment in the case of
Mallikarjun G. Hiremath (supra) and Mackinnon Mackenzie and
Co. Pvt. Ltd. (supra).
23. It would be apposite to refer the observations made by the
Hon'ble Supreme Court in paragraph 8 in case of Leela Bai
(supra), which reads thus :-
"8. The deceased did not remain at the bus stand living in
the bus as a member of the public or by choice after
arrival at Burhanpur till departure for Indore the next
morning. It is not the case of the respondent that the
deceased was at liberty to proceed home and return at
leisure the next morning after parking the bus at the
Burhanpur bus stand at night. The Act being a welfare
legislation, will have to be interpreted in the facts of each
case and the evidence available, to determine if the
accident took place in the course of employment and
arose out of the employment. In Agnes (supra) it was
observed :-
"...The man's work does not consist solely in the
task which he is employed to perform. It includes
also matters incidental to that task. Times during
which meals are taken, moments during which the
man is proceeding towards his work from one
portion of his employers' premises to another, and
periods of rest may all be included."
24. Turning back to the case in hand, admittedly, the deceased
was duty bound to bring back the students and teachers of Saboo
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Siddiki Technical College and, therefore, there is an extension of
notional employment. The journey was incomplete. There is
nothing wrong for the driver to go for shaving during the break.
It was not the case of the respondent that the deceased was
prevented by the employer to proceed anywhere during the halt at
the picnic spot.
25. Thus, in view of the ratio laid down by the Hon'ble Supreme
Court in case of Manju Sarkar (supra) and Poonam Devi (supra)
vis-a-vis the facts and evidence in hand, I do not find any reason to
interfere with the impugned judgment and award passed by the
learned Commissioner, who has rightly considered the age and
income of the deceased as well as the suitable factor of 203.25
applicable to the age of the deceased.
26. Upshot of the observations, would result in dismissal of the
appeal with costs.
27. In view of the dismissal of the appeal, pending applications
also stand disposed of.
(PRITHVIRAJ K. CHAVAN, J.)
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