[Cites 13, Cited by 0]
Gujarat High Court
Shardaben Maganbhai Zala vs Divisional Controller on 27 April, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1315 of 2020
With
R/FIRST APPEAL NO. 538 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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SHARDABEN MAGANBHAI ZALA & ORS.
Versus
DIVISIONAL CONTROLLER
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Appellant(s) No. 1,2,3,4
MR HS MUNSHAW(495) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/04/2026
JUDGMENT
1. The captioned First Appeals arise out of the same
judgment and award dated 13.06.2019 passed by the learned
Workmen's Compensation Commissioner, Kheda in W.C.
(Fatal) Case No.4 of 2016, whereby the learned
Commissioner, under the provisions of the Employees'
Compensation Act, 1923, awarded compensation of
Rs.6,52,280/- alongwith 12% accrued interest, 40% penalty
and costs of Rs.3,000/-.
2. The brief facts of the case are that the deceased
Shri Maganbhai Shnabhai Zala, husband of claimant No.1 and
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the father of claimant Nos.2 to 4, was working as a driver with
the S.T.Corporation, Nadiad bearing Badge No.8517, since
16th September, 1993 and was earning a monthly salary of
Rs.9,128/- prior to his death. On 31 st May, 2008, the deceased,
while performing his duties as a driver with S.T.Corporation,
was assigned to drive S.T.Bus bearing No.GJ.18-V-7768 from
Mahudha Depot alongwith conductor Mr.Udaysinh Zala.
During his night duty, he was assigned the Nadiad-Ghodasar
route and was instructed to remain at the Ghodasar bus stand
overnight.
2.1 According to the claimants, there was no rest
room at the Ghodasar S.T.Bus stand. As the custody of the bus
was with the conductor, Mr. Udaysing Zala, the deceased
slept on the top of the bus during the night. Unfortunately, he
accidentally fell from the top of the bus and sustained serious
injuries, and died as a result thereof.
2.2 In this background, the claimants contended that
the deceased died while in service and during the course of
his duty. The claimants, being dependents, were therefore
entitled to compensation. Accordingly, considering the
statutory provisions along with the monthly income and age of
the deceased, a claim of Rs.7,29,327.20 paisa along with 50%
penalty and 12% statutory interest was claimed by the
claimants by way of a claim petition.
2.3 The S.T.Corporation, upon being served, filed
written statement contending that the deceased had been
assigned duty between Nadiad and Ghodasar, and after
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completing his last trip, he remained at Ghodasar. It is stated
that though, there was no rest room at the Ghodasar Bus
Stand, the deceased was expected to remain with the bus. It
is further stated that, for the purpose of safeguarding the bus,
the deceased was required to sleep inside the cabin and not
on the top of the bus. However, of his own volition, the
deceased climbed to the top of the bus from where he
accidentally fell and sustained fatal injuries. It is also stated
that the incident occurred during the night hours, which was
not part of his active duty period, and therefore, it could not
be said that the death occurred in the course of employment.
In the absence of any nexus between the accident and the
duty hours, the claim petition, according to the
S.T.Corporation, deserves to be dismissed.
2.4 The learned Commissioner, after permitting both
parties to led evidence, partly allowed the claim petition and
awarded compensation of Rs.6,52,280 with interest @ 12%
along with 40% penalty and costs of Rs.3,000/-.
2.5 Being aggrieved, both parties preferred appeals;
the claimants, on the ground that the compensation awarded
was inadequate, and the S.T. Corporation, on the ground that
the deceased did not die during the course of his employment
and therefore, the dependents were not entitled to
compensation.
3. I have heard learned advocate Mr.Paresh
Brahmbhatt for the original claimants and learned advocate
Ms.R.R. Gautam for learned advocate Mr.H.S.Munshaw for
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S.T.Corporation.
4. Learned advocate Mr.Brahmbhatt questions the
assessment of compensation on the ground that the learned
Commissioner was required to assess the income of the
deceased as per the salary slip, but instead took the monthly
salary to be Rs.8,000/-, thereby committed a serious error. He
further submitted that, while determining the age of the
deceased, learned Trial Court failed to consider the necessary
evidence on record and erred in applying the factor of 163.07,
which is on the lower side. It is further argued by learned
advocate Mr.Brambhatt that the learned Trial Court has not
given any reason for awarding 40% penalty of the awarded
amount and thereby has erred in assessing the fair and
equitable compensation.
5. Per contra, learned advocate Ms.Gautam submits
that, though there was no rest room at the Ghodasar bus
stand for drivers of the S.T.Corporation, driver is not
permitted to sleep on top of the bus, but rather permitted to
sleep inside the cabin of the S.T. bus. It is further contended
that, after completion of the Ghodasar trip, the duty of the
deceased had ended and he was no longer on duty. She
further submitted that, if no rest room was available at the
Ghodsar, he could have travelled back to District Kheda,
which is only 35 km away, and could have rested in the rest
room there. She further submitted that the learned Trial
Court, in this factual aspect, wrongly applied the principle of
notional extension of employment and thereby committed an
error, particularly, in interpreting the provisions of law. Upon
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above submissions, she prays for dismissal of the appeal filed
by the original claimants and for allowing the appeal filed by
the S.T.Corporation.
6. Regard being made to the rival submissions of
learned advocates of both sides and upon perusal of the
impugned judgment and award as well as the record and
proceedings of the case, following facts emerge as
incontrovertible:
(i) The deceased, Maganbhai Shanabhai Zala, was
working as a driver with the S.T.Corporation;
(ii) He was appointed as a permanent employee on
16th September, 1993;
(iii) He was allotted Badge No.8517;
(iv) his monthly salary was Rs.9,128/-
(v) He was driving S.T.Bus bearing Bus No.GJ-18V-
7768 alongwith conductor Mr.Udaysinh Zala;
(vi) On 31st May, 2008, he was assigned the duty on
the Nadiad-Ghodasar route with conductor
Mr.Udasinh Zala, and after completing his duty, he
was instructed to remain at the Ghodasar bus stand
overnight;
(vii) on 31st May, 2008, the deceased Maganbhai
Zala was sleeping on the top of the bus, he
accidentally fell down and sustained grievous head
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injury, which later proved fatal;
(viii) A Notice was issued by the claimants on 14 th
September, 2015;
(ix) The birth date of the deceased was 01.06.1948.
7. In the above factual background, upon perusal of
the judgment of the learned Trial Court, it appears that the
Court applied principle of notional extension of employment,
relying upon the judgment of the Hon'ble Supreme Court in
the case of Leela Bai and Anr. Vs. Seema Chouhan and Anr.
reported in 2019-II-LJ-148 and held that when a driver, as
part of his duty, stays at a particular village and sleeps on the
top of the S.T.Bus due to the absence of a rest room for
security of the bus, and accidentally falls on the ground, the
same amounts to an untoward incident occurring in the
course of employment.
8. At the outset, this Court refers to the recent
judgment passed by the Co-ordinate Bench of this Court in the
case of New India Assurance Company Ltd. Vs. Shree
Vardayini Travels & Anr. in First Appeal No.715 of 2020 ,
mainly take the assistance from para 7 to 10, which read as
under:
7. It would be profitable to refer following decision as
they are akin to the question involved in the present appeal.
In the case of National Insurance Company Vs.
Rayajibhai Vaghabhai Patel, reported in 2008(0)
GLHEL-HC 220595, the Co-ordinate Bench of this Court
has considered the notional extension theory and held that
the deceased died during the course of employment when
premises was allotted by employer at work site and before
attending duty hours, deceased was taking bar an accident
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occurred. In the case of Saurashtra Salt Manufacturing
Co. Vs. Bail Valu Raja reported in AIR 1958 SCC 881,
the Hon'ble Apex Court, in para 7 has observed as under:-
"7. 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. 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 re-passes 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."
8. The said decision has been referred in the case of
National Insurance Company Ltd. (supra), the principle
of notional extension theory is not a novel theory. In cantena
of decisions, the law is settled that even when the employee
passes and re-passes in going to and in leaving the place of
work, it would amount to an accident arising out of and in
the case of employment. In para 15, the Co-ordinate Bench
of this Court has observed as under:-
"15. I have examined the appeal in merits as well as on
substantial question of law involved or not. The appeal
fails on both the counts as Commissioner has rightly
decided the matter and deceased was died during the
course of employment when premises was alloted by the
employer at work sight and before attending the duty
hours, he was taking bath and then, immediately
accident occurred, therefore, it was considered to be a
notional extension theory applied to the employment
which period was covered the period prior to actual duty
to be performed by workman. That principal has been
recognised by Apex Court as discussed above and
accordingly, Commissioner has rightly awarded
compensation and penalty and interest, for that,
Commissioner has not committed any error which
requires interference by this Court. Therefore,
contentions raised by learned advocate Mr. Shah cannot
be accepted, hence, the same are rejected."
9. In the case of Daivshala Vs. Oriental Insurance
Company reported in 2025(0) AIJEL-SC 75646. The
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question arose before the Hon'ble Apex Court on a factual
aspect that the accident which has occurred outside factory
premises would not be considered as accident arising out
and in the course of employment. While deciding the issue, it
has come on record that there exist clear nexus between the
circumstances, time and place of the accident and the
deceased's employment as a watchman, accident occurred
while deceased was proceeding to workplace during duty
hours. The Hon'ble Apex Court in para 31 has also
considered the decision in the case of Saursthra
Manufacturing Co. (supra) and accepted the principle
theory of notional extension of the employer's premises so as
to include an area which the workman passes and repasses
in going to leave and in leaving the actual place of work.
10. The notional extension of employers premises
imagines the workplace extends beyond its physical
boundaries to include a reasonable area and time around the
actual work site. This principle is used to determine if an
accident is covered by Workers' Compensation Laws, even if
it happens outside workplace as long as it is directly
connected to the employment. This covers situation like
commuting to work if they travel, is an implied condition of
employment. The doctrine extends the workplace and
notionally to cover areas, places under the employers'
control and reasonable time before and after the work hours.
The doctrine of notional extension ensures that workers
receive compensation for injuries, sustained in
circumstances connected with their employment, even if the
incidents occur outside the traditional settings or timings.
In the present case, the circumstances indicate that
the accident has occurred in connection to the job.
Deceased was sleeping on the roof of the bus and when the
driver called him to resume his duties, deceased came into
contact with a live wire while getting up from roof of bus and
expired due to electric current. Applying the principle of
notional extension of employer's workplace the case would
fall within the purview of Section 3 of the Act. The learned
Commissioner has rightly observed that the deceased might
have gone to sleep on the roof of the luxury bus while
looking after the bus. Such a presumption is justified in light
of the facts and circumstances of the case and in absence of
any contrary material. The substantial questions of law
which are proposed are not substantial questions of law. The
substantial question of law which are proposed are
connected with factual aspects and the scope under Section
30 of the Act is limited. This Court can entertain appeal
under Section 30 of the Act only if substantial questions of
law are involved."
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8.1 In identical fact situation, the Co-ordinate Bench
adopted and accepted the principle of "notional extension" of
the employment.
9. In addition, the claimant examined Mr.Udaysinh
Zala, the conductor of the bus, at the relevant point of time, as
P.W.3 at Ex.23. In his Examination-in-chief, he unequivocally
stated that it is the duty of both, the driver and conductor to
ensure the security of the S.T.Bus assigned to them for the
day, and that if they fail to do so, the S.T.Corporation would
take necessary action against them. He further stated that
they are paid a night allowance for maintaining the security of
the bus. In his cross-examination, in response to the questions
put by the learned advocate for the S.T.Corporation, he stated
that he was aware of the rules of the S.T.Corporation
permitting them to stay in the bus. He denied the suggestion
that it was necessary only in remote areas for the driver and
conductor to sleep in the bus. He further admitted that at the
time of the accident, the deceased Maganbhai was sleeping on
the top of the bus and, while turning, accidentally fell down.
On the other hand, the S.T. Corporation has not led any
evidence nor produced any rules prohibiting the driver from
staying with the bus, or prescribing what should be done
when rest rooms are not available in remote villages, or how
the security of the bus is to be maintained in such places
where proper bus stand facilities are not available.
10. When confronted with these factual position,
learned advocate Ms.Gautam could not reply any other
aspects.
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11. The Hon'ble Supreme Court in the case of Daya
Kishan Joshi & Anr. Vs. Dynemech Systems Pvt. Ltd. reported
in 2018(1)SLR 441 (S.C.), while explaining the terms "arising
out of" and "in the course of employment" in para 6 and 7,
observed as under:
"6. The words 'arising out of' and 'in the course of
employment' are in fact two different phrases and have been
understood as such. If the accident had occurred on account
of a risk which is an incident of employment, the claim shall
succeed unless, of course, the workman had exposed himself
to an added peril by his own imprudent act. The phrase 'in
the course of employment' suggests that the injury must be
caused during the currency of employment, whereas the
expression 'out of employment' conveys the idea that there
must be a causal connection between the employment and
the injury caused to the workman as a result of the accident.
Prima facie, while deciding the issue on hand, there is
no material on record to show that the deceased workman
had exposed himself to added peril by his own imprudent
act.
7. When a workman is on the public road or public place
or on 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. In other words, there must be a causal
relationship between the accident and the employment. The
expression 'out of employment' is not confined to the mere
nature of the employment: the expression applies to
employment as such, to its nature, its conditions, its
obligations and its incidents. The words "arising out of
employment" are understood to mean that during the course
of employment, the injury has resulted from some risk
incidental to the duties. Unless engaged in the duty owed to
the employer, it is reasonable to believe that the workman
would not otherwise have suffered.
There cannot be any dispute that the question as to
when an employment begins and when it ceases, depends
upon the facts of each case. There is a notional extension at
both entry and exit by time and space. There may be some
reasonable extension in both time and space and a workman
may be regarded as in the course of his employment even
though he has not reached or has left employer's premises.
In India, the courts have recognized the principle of notional
extension of time and space for over 60-70 years while
determining whether the injury has been caused out of or in
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the course of the employment of the workman. The Courts
have held consistently that the employment does not
necessarily end, when the tool down signal is given and
when the workman actually leaves his place of work."
12. In the case of Leela Bai (supra), which was
referred to by the learned Trial Court with profit to reach at
impugned judgment, this Court again referred to the said
judgment, in paras 7, 9 and 12, it has been held that:
"7. On the fateful day the deceased had returned from
Indore to the Burhanpur terminus at about 7:30 pm. He met
an accidental death while he was coming down the roof of
the bus after having his meal at about 8:30 pm. The short
question for consideration is whether the death occurred
during the course of, and arising out of the employment. In
the facts of the case, and the evidence available, it is evident
that the deceased was present at the bus terminal 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 no. 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, dependant on the arrival of the deceased
at the bus stand 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 inure to the benefit of respondent
no.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 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.
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 General Manager, B.E.S.T.
Undertaking, Bombay Vs. Ms. Agnes (supra) as follows:
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"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 view at all time
this theory of notional extension."
12. The appellants are held to have wrongly been denied
compensation under the Act. The impugned orders are
accordingly set aside. The Workmen's Compensation
Commissioner, Labour Court, Khandwa has already
determined the salary of the deceased at the time of death
as Rs.4,275/ per month and which is upheld. The
compensation payable to the appellants shall be calculated
on the aforesaid basis under Section 4 along with default
penalty under Section 4A and costs to be awarded under
Section 26 of the Act. The quantum of compensation shall be
finally computed after hearing the parties within one month
from the date of receipt and/or production of a copy of this
order before the Commissioner. Respondent no.2 shall pay
the determined amount to the appellants within three weeks
from the date of such computation by the Tribunal.
13. Applying the aforesaid principles to the case on
hand, the appeal filed by the S.T.Corporation is found devoid
of merit. As far as the appeal filed by the claimants is
concerned, according to this Court, claimants have also failed
to make out any ground warranting interference with the
impugned judgment and award. The statutory limit of income
of Rs.8,000/- cannot be enhanced on the basis of the figures
reflected in the pay slip. As far as applying of the statutory
factors is concerned, the same has been staunchly applied by
learned Trial Court in accordance with the law. Considering
the facts and circumstances of the case, the award of 40%
penalty by the learned Trial Court is found just and legal.
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14. For the foregoing reasons, both appeals fail and
same are dismissed. No order as to costs. R&P, if any, be sent
back to the concerned Court forthwith.
15. Connected Civil Application, if any, does not
survive and stands disposed of accordingly. Interim relief, if
any, stands vacated.
16. The learned Trial Court shall disburse the
entire/remaining amount, if any, to the original claimants
after deducting the Court fees and after due verification and
identification.
17. Registry is directed to keep the copy of the
judgment in each of the appeal.
(J. C. DOSHI,J)
MANOJ
