Uttarakhand High Court

Adarsh Kumar Singhal vs Smt. Usha Devi on 19 March, 2021

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Appeal from Order No. 275 of 2009

Adarsh Kumar Singhal                                         ....... Appellant

                                      Vs.

Smt. Usha Devi                                               ......Respondent



Present: Mr. Rahul Consul, Advocate for the appellant.
         Mr. P.S. Rawat, Advocate for the respondent.



                                  Judgment

Hon'ble Ravindra Maithani, J. (Oral)

The present appeal is preferred under Section 30 of the

Workmen's Compensation Act, 1923 (now christened as the

Employees' Compensation Act, 1923) (for short "the Act") against the

judgment and order dated 01.07.2009 passed in Workmen's

Compensation Case No. 33 of 2005 "Smt. Usha Devi vs. Sri Adarsh

Kumar and another" (for short "the case") by the Workmen's

Compensation Commissioner/Assistant Labour Commissioner,

Kumaon Region, Haldwani, Nainital. By the impugned judgment and

order, the claim petition of the respondent has been allowed and she

has been awarded a total compensation of Rs.4,19,735/- (Rupees Four

Lakh Nineteen Thousand Seven Hundred Thirty Five only).

2. The case is based on the application of the respondent.

According to it, the husband of the respondent late Diwan Chand was a

workman in the Rice Mill of the appellant titled as M/s Shyam Rice

Mill (for short "the establishment"). On 11.04.2005, the deceased was

on duty from 08:00 in the morning till 09:00 in the night. After duty,

while he was returning to his house on his bicycle, at about 09:30 PM,

he was hit by a motorcycle, due to which he died on the spot. The

respondent claimed Rupees Four Lakh as compensation. The appellant

filed objections to the claim. According to it, the deceased did not die

during the course of his employment; deceased was not a workman

under the Act; at the time of his death, he was not on a job and the

death did not occur during the working hours. The appellant also

specifically taken a plea in paragraph 10 of his objections that the work

of Rice Mill is a seasonal work; the month in which the deceased died

was not a seasonal month; deceased was seasonally employed,

therefore, he had not been assigned any work out of season, and

therefore, he was not a workman in the month of April, 2005.

3. In her claim petition, the respondent made certain

amendments. Thereafter an additional written statement was filed by

the appellant, and in paragraph 2 of it, an objection with regard to non-

joinder of necessary party has been raised on the ground that the

appellant had taken an insurance policy covering the risk of workers of

the establishment from the National Insurance Company Limited ("the

insurance company"), therefore, the insurance company is a necessary

party. It is thereafter that the insurance company was also made a

party.

4. The insurance company also filed its objections in the

case. According to it, it is the responsibility of the employer to

establish that his case is covered under validly issued insurance policy

and the conditions thereof were not violated. The insurance company

admitted to have issued a Policy, which was a Group Personal

Accident Policy and accepted that the insurance company is liable to

the extent of the Policy issued by it. But, an objection is raised with

regard to the Group Personal Accident Policy that the matter cannot be

agitated under the provisions of the Act.

5. In the case, parties led evidence and produced documents.

After hearing the parties, by the impugned judgment and order, the

claim petition for compensation filed by the respondent was allowed

and she was awarded the compensation as stated hereinbefore.

Aggrieved by it, the appellant is in appeal.

6. Appeal under the Act cannot be entertained in a routine

manner, unless a substantial question of law is involved in it. This is

what is provided in the first proviso to Section 30 sub-section (1) of

the Act, which reads as hereunder:-

"30. Appeals.-

(1)...

Provided that no appeal shall lie against any order unless a

substantial question of law is involved in the appeal and, in

the case of an order other than an order such as is referred to

in clause (b), unless the amount in dispute in the appeal is

not less than ten thousand rupees or such higher amount as

the Central Government may, by notification in the Official

Gazette, specify:"

7. Initially when the appeal was taken up on 13.08.2009,

substantial question of law was not framed. Not only this, in the memo

of appeal also, the appellant did not propose any substantial question

of law. Although by way of a supplementary affidavit dated

24.08.2009, four substantial questions of law were proposed.

8. After hearing the parties, the following substantial

question of law is now formulated for determination in the instant

appeal.

"(i) Whether the deceased Diwan Chand died during the

course of his employment?"

9. Heard learned counsel for the parties and perused the

record.

10. Learned counsel for the appellant has raised two points

which are as hereunder:-

"(i). The deceased was not in the employment of the

appellant, and;

(ii). If for the sake of argument it is presumed that the

deceased was in the employment of the appellant, he did not

die during the course of his employment."

11. Learned counsel for the appellant would submit that the

deceased was a seasonal worker and in the month of April, there was

no season in the establishment; the deceased was not assigned any job,

hence, he was not in the employment of the appellant. Learned counsel

for the appellant would refer to paragraph 10 of the objection filed by

the appellant in the case where assertion to this effect has been made.

12. The second limb of argument which is advanced is that

the death did not occur during the course of the employment because it

was beyond working hours and it was beyond the premises of the

establishment.

13. On the other hand, learned counsel for the respondent

would submit that in the instant appeal after the death of the deceased,

it is the appellant himself who had informed the insurance company

for making the payment of compensation (Annexure-6). It is argued

that had the deceased not employed and died during the course of his

employment, the appellant had no occasion to write the insurance

company for making the payment to the legal heirs of the deceased.

14. Learned counsel for the respondent would also submit

that leaving the establishment after working hours and proceeding

towards one's residence is also a part of employment. This is the

extension of the employment and the death during this extended period

would also be considered a death during the course of employment. In

support of his contention, the learned counsel for the respondent has

placed reliance on the principles as laid down in the case of National

Insurance Company Limited vs. Smt. Suman Devi and another, 2008

(3) UC 1410. In this case, this Court had held that "it is for this

reason that even when a workman is resting, or having his food, or

taking his tea (in the factory premises) or proceeding from the

place of employment to his residence and an accident occurs, the

accident is regarded as arising out of and in the course of

employment".

15. The Act provides for payment by certain classes of

employers to their workmen for compensation, for injury by accident.

This is an Act which provides social security. It provides financial

protection to the workmen and its helpless dependants in case of

accidental injury by means of payment of compensation. It is a

beneficial legislation. The provisions of the Act are to be interpreted so

as to advance the purpose of the Act for which the Act has been

enacted and not in a manner which may defeat the very purpose of

enactment of the Act.

16. To answer the substantial question of law as framed in

this appeal, two issues are required to be addressed, namely, (i)

whether the deceased was in the employment in the establishment of

the appellant at the relevant time, and (ii) whether the death occurred

during the course of his employment.

17. It is the case of the respondent that her husband was

working in the establishment, and on 11.04.2005, he had worked from

morning to evening in the establishment. In the evening while the

husband of the respondent was returning to his house, he was hit by a

motorcycle. Thereafter an FIR of the incident was lodged. This is what

she has stated in her statement.

18. The factum of death is not in dispute. According to the

objections filed by the appellant in the case, the deceased was not

employed at the relevant time. He was a seasonal worker and the

month of April was not the season for such work, which otherwise

would have been assigned to the deceased. The appellant appeared as a

witness. In his examination-in-chief, the appellant reiterated what he

has stated in his objections. The appellant also submitted documents in

the case with regard to the work that was carried out in the

establishment in the month of April, 2005, and it has belied the entire

version of the appellant. When cross-examined by the insurance

company, the appellant admitted that in the month of April, they

produced Rice in the establishment. He admits that in the month of

April, 2005, the establishment was running. He also admits that on

certain dates, the work was done. This statement of the appellant

himself falsifies the stand which he has taken in paragraph 10 of his

objections, where he has stated that the month of April was not the

season for the work. This has been discussed in detail in the impugned

order. The documents produced by the appellant were discussed in

page 7 paragraph 1 of the impugned judgment and it was concluded

that in the month of April, 2005 there are entries for sale and purchase

of paddy.

19. The statement of the appellant is further falsified by the

communication which he made to the insurance company on

18.04.2005. In his communication, the appellant wrote that a Munsi of

his establishment Diwan Chand died in an accident on 11.04.2005,

which is covered under a Policy taken from the insurance company.

This is the earliest admission made by the appellant. He admitted then

that the deceased was working with him and he died in an accident.

Thereafter, the appellant took a U-turn and it is further clarified by the

statement of R.S. Pangti, Branch Manager, National Insurance

Company Limited. This witness proved the letter dated 18.04.2005

written by the appellant to the insurance company. But, according to

him, when further details were sought from him, he did not submit

them; the appellant did not submit the documents pertaining to the

deceased Diwan Chand. According to this witness R.S. Pangti, the

Policy was Personal Accident Claim. It is not the Workmen

Compensation Policy. Under the Policy, which the appellant had taken

the insurance company is not liable to pay the compensation under the

Act. It appears that it prompted the appellant to take a different stance

and the appellant claimed that the deceased was not in his

employment.

20. All the attending factors establish that, in fact, the

deceased was in the employment of the appellant on 11.04.2005. The

conclusion on this aspect as drawn in the impugned judgment does not

warrant any interference.

21. There is another point as to whether the death occurred

during the course of employment.

22. In the case of General Manager, B.E.S.T. Undertaking,

Bombay vs. Mrs. Agnes, AIR 1964 SC 193, the Hon'ble Supreme

Court observed that "when a driver when going home from the

depot or coming to the depot uses the bus, any accident that

happens to him is an accident in the course of his employment".

23. In the case of Daya Kishan Joshi and another vs.

Dynemech Systems Private Limited, (2018) 11 SCC 642, the concept

of notional extension of "course of employment" has further been

discussed, and the Hon'ble Court held that it depends upon the facts of

each case. It was observed that "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. 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".

24. In the case of Mackinnon Machenzie and Co. (P) Ltd. vs.

Ibrahim Mahmmed Issak, 1969 (2) SCC 607, the phrase "in the course

of employment" has been interpreted and the notional extension of

time and space was considered in paragraph 5 of the judgment. The

Hon'ble Supreme Court observed as hereunder:-

"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered." In other words there must be a causal relationship between the accident and the employment. The expression "arising out of employment" is again 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. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley1 Lord Sumner laid down the following test for determining whether an accident "arose out of the employment":

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this : Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury ? If yes, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the

1.1917 AC 352.

employment. To ask if the cause of the workman was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury."

25. It is not that within working hours for which a workman is

deputed or the place within which a workman is required to perform

his duties that phrase "arising out of the employment" may be

restricted. It may extend in time and space both, but it depends upon

the facts and circumstances of each case. That should be the test within

the phrase "arising out of the employment". There must be a casual

relationship between the accident and the employment.

26. In fact, in the instant case, the deceased exposed himself

to the accident only because of his employment. At 09:00 in the night

he had completed his duties and while he was returning home, he died.

It has a relationship with his employment. Therefore, in view of the

settled laws, this Court is of the view that the deceased Diwan Chand

died during the course of his employment. The finding as recorded in

the impugned order on this aspect also does not warrant any

interference.

27. Accordingly, this Court is of the view that the deceased

died during the course of employment. Substantial question of law is

answered accordingly.

28. In view of the foregoing discussion, this Court is of the