In the present case, there is nothing to induce to hold that truck
driver had abandoned duty for his personal work or that his duty was
terminated. Indeed, he had perforce to take back the truck after
unloading to other destination. The area of operation would thus be
extensive even if the driver has left the truck for a while. Is it that the
driver of the truck should not answer nature's call, or simply for that
purpose, he should be thrown away from being branded as a
employee or workman. It cannot be said such employee has not
expired during the course of employment. It is matter of record, as
rule, employment of workmen like the driver has the connectivity with
the vehicle. The cleaner could not even otherwise drive the vehicle.
The facts and circumstances of each case needs to be
examined carefully in order to determine whether the accident arose
within and in the course of employment of the workman. This is
keeping in view the theory of notional extension. The time gap in the
instant case of parking truck for unloading and driver leaving, is
eloquent and cannot be trotted to claimants’ disadvantage.
In the situation, I hold that the driver expired during the course of
employment, as workman.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 143 OF 2007
Ruksana w/o Shaikh Aleem,
versus
Azmat Khan s/o Daulat Khan Pathan
CORAM : K.U. CHANDIWAL, J.
Date of pronouncing
the Judgment : 20th February, 2014
Citaion;2015(7)ALLMR230
1. The appeal is admitted on 20.2.2007.
2. At the time of admission, no substantial question of law was
formulated. It is now formulated, as under:-
Whether deceased Shaikh Aleem expired during the
course of employment suffered an accident?
3. Heard. Shaikh Aleem was truck driver on truck No. MH-26-7230
on monthly salary of Rs.5000/- plus Rs.50/- daily Bhatta. On
23.5.2005, Shaikh Aleem had been to Jintur for unloading cotton at
Ayodhya Ginning factory on Jintur Yeldari road. At 11.00 p.m., he had
parked the vehicle in the factory. Thereafter, in the process of
unloading, he came out of the factory and while walking on the road
side, he was knocked by unknown vehicle. Resultantly, he was injured
and shifted to Government Hospital and later succumbed to the
injuries on 24.5.2005. Post mortem was drawn. The cause of death
was due to hemorrhagic shock due to multiple injury with bomice
infracraninal hemorrhage.
4. The claimants-appellants asserted that death occurred due to
accidental injuries received during and in the course of employment. A
crime was registered being crime No. 101 of 2005 for the offences
punishable under Sections 279 and 338 of I.P.C. against unknown
vehicle. The appellants feel, the accident has caused financial
debacle and resulted in the dereliction of their family structure. The
Workmen’s Compensation First appeal No. 9 of 2005 was lodged
before the learned Civil Judge, Senior Division and Ex-Officio
Commissioner for Workmen’s Compensation Act, Nanded. After
notice, the respondents appeared. The employer accepted, deceased
Shaikh Aleem was serving as truck driver with him since 5 years on
Truck No. MH-26-7230 and drawing salary of Rs.5000/- with daily
Bhatta of Rs. 50/-. He does not dispute that Shaikh Aleem had been
to Jintur for unloading the cotton at Ayodhya Ginning alongwith cleaner
Sayyad Ismail and that accident had taken place on 23.5.2005.
5. Respondent No.2 Insurance company disputed the claim and
submitted that the petition is bad in the eyes of law for want of
mandatory notice under Section 10 of Workmen’s Compensation Act.
It is denied that Shaikh Aleem was driver, drawing salary of Rs.5000/-
p.m. Learned Judge on assessing evidence, hold death was not during
course of employment. The rejection of the claim petition on
28.11.2006 has made the claimants to file present appeal.
6. The evidence of the claimants and also police papers suggested
death of Shaikh Aleem owing to vehicular accident giving rise to crime
No. 101 of 2005. The claimants indeed established that deceased
was workman within the meaning of Workmen’s Compensation Act.
There is no controversy about existence of insurance policy (Exh.33)
covering the claim. Neither respondent No.1 Azmat Khan nor
respondent No.2 Insurance company adduced any evidence before
the learned Judge.
7. The factual matrix, Shaikh Aleem was serving with respondent
No.1 as driver and having driven the truck for unloading purposes of
cotton to said Ayodhya Ginning is not in controversy. The truck was
under process of unloading and in midway said Shaikh Aleem had
gone, to answer natures call to road side and was crushed in the
accident.
8. It was canvassed by learned counsel for Insurance Company
that accidental death of the driver was not while working on the truck
or during the course of employment, as a truck driver. His death has
occasioned unfortunately when he has left the truck unattended and
went outside factory, which would not extend his employment, as
driver of the truck.
9. An objection is raised by the learned counsel for the Insurance
Company that owner of the truck has not stepped in witness box,
however, his absence or presence would not accelerate the case in any
direction, as he was not present at the spot. The record illustrates that the
goods (raw cotton) in the truck was under process of unloading and the
deceased had gone to attend natures call. Thus, the workman-driver was
proceeding during the course of his employment, suffered jerk of accident
and succumbed to the injuries. The driver was on duty, as after unloading
the truck, he was bound to take it back to owner or to the other destination.
The job, which the deceased was required to undertake, was a
continuation. Leaving the truck for a short duration was part of extension
of his job as a driver. Merely because accident has taken place when
unloading goods in vehicle was in the process it cannot be said that the
accident did not take place during the course of employment. It is not that
deceased took a risk, to leave the truck, he did not expose himself to any
peril, illegally. It was in the course of the work assigned to him, the injury
has occasioned.
10. The words “arising out of and in the course of employment” used in
Section 3 of Workmen’s Compensation Act 1923 are wide enough to
embrace in its sweep the short movement of the truck driver. These
aspects have indeed gone uncontested and for want of adverse evidence
the claim should have been accepted.
11. In General Manager, B.E.S.T. Undertaking vs. Mrs. Agnes – AIR
1964 SC 193, the driver of the bus was on duty and after his work, he
boarded another bus in order to come to his residence. The said bus
collided with a stationary lorry parked at an awkward angle.
Resultantly, the driver was thrown out and he expired. It was held,
the death of driver in another bus was during the course of his
employment hence, he was entitled to compensation. It was observed
by the Supreme Court, the efficiency of the service depends, interalia,
on the facility given to a driver for his journey to and from his house in
the depot. A bus driver has to drive a bus allotted to him from morning
till evening with necessary intervals, and for that purpose he has to
reach the depot concerned early in the morning and go back to his
home after his work is finished and the bus is lodged in the depot.
12. The Supreme Court explained the term “course of employment”
and observed, “the course of employment begins when the workman
enters employment and ceased when he leave the employment after
his duty to do both. The Hon’ble Court referred to Lord Porter. Lord
Porter in the case of Alderman v. Great Western Rly. Co. 1937 AC 454
observed:-
“ It is in the course of his employment, and, if the phrase be
used, it is part of his duty, both to go to and to proceed from the
work upon, which he is engaged, and, so long as he is in a place
in which persons other than those so engaged would have no
right to be, and indeed, in which he himself would have no right
to be but for the work on which he is employed, he would, I think,
normally still be in the course of his employment.”
13. In the present case, there is nothing to induce to hold that truck
driver had abandoned duty for his personal work or that his duty was
terminated. Indeed, he had perforce to take back the truck after
unloading to other destination. The area of operation would thus be
extensive even if the driver has left the truck for a while. Is it that the
driver of the truck should not answer nature's call, or simply for that
purpose, he should be thrown away from being branded as a
employee or workman. It cannot be said such employee has not
expired during the course of employment. It is matter of record, as
rule, employment of workmen like the driver has the connectivity with
the vehicle. The cleaner could not even otherwise drive the vehicle.
14. The facts and circumstances of each case needs to be
examined carefully in order to determine whether the accident arose
within and in the course of employment of the workman. This is
keeping in view the theory of notional extension. The time gap in the
instant case of parking truck for unloading and driver leaving, is
eloquent and cannot be trotted to claimants’ disadvantage.
15. In the situation, I hold that the driver expired during the course of
employment, as workman. The substantial question of law is
answered in affirmative.
16. Evidence suggests that Shaikh Aleem was earning Rs.5000/-
p.m. He was 40 years old. Insurance policy was valid from 22.10.2004
to 21.10.2005, which covers the date of accident and death of
deceased, which occurred during the course and at the time of
employment. Notice under section 10 of the Workmen’s Compensation
Act was dispatched by registered post A.D. to respondent No.1 for
payment of compensation. The same has not been disputed by
respondent No.1.
17. Schedule IV of Workmen’s Compensation Act 1923 provide
factors for working out lump-sum equivalent of compensation in case
of permanent disablement and death. In case of completed years of
age of 40, the factor is 184.17. The claimants are thus entitled for an
amount of Rs.3,68,207/- with interest @ 6% p.a. from respondents and
also entitled for Rs.2,500/- towards funeral expenses, with costs.
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