MFA (WCC) No. 179 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 24TH DAY OF AUGUST 2017/2ND BHADRA, 1939 MFA (WCC).No. 179 of 2011 -----------------------WCC 45/2004 IN THE COUR OF COMMISSIONER FOR WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, KANNUR APPELLANT/2ND OPPOSITE PARTY: ------------------------------- THE NATIONAL INSURANCE CO. LTD., KANNUR, REPRESENTED BY ITS DEPUTY MANAGER,, REGIONAL OFFICE M.G.ROAD, ERNAKULAM, KOCHI-35. BY SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/APPLICANTS/1ST OPPOSITE PARTY --------------------------------------------------------------------------- ## 1. SHEEBA K., W/O. LATE SREEJITH BABU, MEPPATTU HOUSE, KOTTAYAM MALABAR P.O.,, PIN-686 039. ## 2. RIYA, D/O. LATE SREEJITH BABU, MEPPATTU HOUSE, KOTTAYAM MALABAR P.O.,, PIN-686 039. ## 3. NALINI, W/O. P.P.BALAN, MEPPATTU HOUSE, KOTTAYAM MALABAR P.O.,, PIN-686 039. ## 4. K.SUJATHA, D/O. KANNAN, VEENA NIVAS, YOGASALA ROAD, TALAP,, KANNUR-670 001. R4 BY SRI.LATHEESH SEBASTIAN R1 TO 3 BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) R1 TO 3 BY ADV. SRI.GEORGE MATHEWS THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 24-082017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CR** ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - M.F.A.(WCC).179 of 2011 - - - - - - - - - - - - - - - - Dated : 24[th] August, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## Harilal, J. - 1.National Insurance Company, the insurer in W.C.C.45/2004 on the files of the Commissioner for Workmen Compensation, Kannur, has come up in appeal, challenging the judgment, granting Rs.4,07,700/- as compensation to the applicants, passed by the Commissioner. The parties are referred to as in the Application. - 2.The applicants are dependents of the deceased Sreejith Babu, who was working as driver under the opposite party No.1. According to the applicants, on 3.1.2003, while Sreejith Babu was driving the Bus owned by the opposite party No.1 from Konnakkad in Kasargode district to Poopara in Idukki district, the vehicle when reached at **MFA(WCC).179/2011** **==> picture [7 x 9] intentionally omitted <==** Thalapara at about 12.10.am, it went of the road and fell into a paddy field on the side of the road and Sreejith Babu sustained fatal injuries all over his body and at last he succumbed to the injuries. The vehicle was validly insured with the opposite party No.2, the Insurance Company, and the deceased was earning more than Rs.5000/- per month and he was aged 32 years at the time of accident. Therefore he is entitled to get compensation from the opposite parties for the loss suffered by them. - 3.1[st] opposite party, the employer admitted the accident and according to her, the death of Sreejith Babu was due to the accident as alleged by the applicant. It is also stated that one Premarajan was driving the vehicle at the time of accident and Sreejith Babu was sleeping in the cabin at the time of accident, as he has completed his duty and awaiting for his next turn. Opposite party No.2, the Insurance Company, admitted the insurance coverage of the ## **MFA(WCC).179/2011** 3 bus; but denied all other claims of the applicant. - 4.On the aforesaid rival pleadings all the parties adduced evidence and after considering the evidence on record, the Commissioner for Workmen's Compensation passed the impugned judgment granting an amount of Rs.4,07,700/- to the applicant. The legality and correctness of the judgment are assailed in this appeal. - 5.Heard the learned counsel for the appellant and the learned counsel for the respondent. - 6.The learned counsel for the appellant contended that the evidence on record would prove that the deceased Sreejith Babu was sleeping in the cabin at the time of accident. So it cannot be held that the death was the result of the accident which occurred in the course of employment. More specifically, it is argued that the accident was not arising out of and in the course of **MFA(WCC).179/2011** 4 employment. In support of the said contention, the learned counsel cited decision of the Apex Court in Manager, National Insurance Co.Ltd v. Saju P.Paul and Anr. (AIR 2013 SC 1064). 7.Per contra, the learned counsel for the applicant and the 1[st] opposite party submits that the proposition laid down in the said decision cannot be applied to the instant case as the facts of the said case are entirely different. According to him, the presence of two drivers was indispensable in the cabin for a long journey, even though one among them was driving the vehicle at the time of accident. So it can be said that the accident was arising out of and in the course of employment, according to him. - 8.The employer-employee relationship between the deceased and 1[st] opposite party stands admitted. But, the facts narrating the nature and course of employment of the deceased, at the time of accident, are disputed by the owner and the **MFA(WCC).179/2011** 5 insurer. According to the applicant the deceased Sreejith Babu was driving the vehicle at the time of accident. But, according to the owner and insurer, he was resting in the cabin after his duty and the other driver Pemarajan was driving the vehicle, at the time of accident. It is contended by the insurer that since he was not driving the vehicle and resting in the cabin at the time of accident, he was not entitled to get compensation under the Workman's Compensation Act. According to the applicants, even if he was resting in the cabin after his turn, for resuming his duty in his next turn, at the time of accident, the accident must be deemed to be occurred in the course of employment. - 9.The facts, which stand proved in evidence, by the oral evidence of AW1 to AW3 coupled with Exts.A1 and A2 can be encapsulated as follows : The bus was going from Konnakkad in - Kasargode District to Poopara in Idukki District **MFA(WCC).179/2011** 6 and the accident occurred at 12.10 am in the midnight, when the bus reached Thalapara. Sreejith Babu had driven the vehicle till 11.00 pm and thereafter he was taking rest in the cabin and awaiting for resuming his duty, in the next turn. The other driver Premarajan was driving the vehicle at the time of accident. Two drivers were employed to drive the vehicle at a time, as the journey was a long one, and one driver alone cannot drive the vehicle such a long distance particularly in the night. We also find that the deceased Sreejith Babu was not driving the vehicle and he was resting in the cabin, after his turn for resuming duty in the next turn. 10.In view of the proven facts the question that germane for consideration is whether the accident which resulted in death of the driver, was arising out of and in the course of employment as contemplated under Section 3 of the Workman's Compensation Act, when two drivers **MFA(WCC).179/2011** 7 were employed in the vehicle throughout the journey and the deceased driver was resting or sleeping in the cabin, while awaiting for resuming his duty in the next turn ? 11.The statutory requirements to prove the entitlement of compensation are (1) the accident arising out of employment and (2) in the course of employment. Thus the ingredients constituting the statutory requirements are conjunctive and unless the aforesaid requirements are proved, no compensation can be given under Section 3 of the workmen's compensation Act. It is trite law that there must have a causal connection between the accident and the employment. So point to be considered, in the given situation is, is there any causal connection between the accident and the nature of employment of the deceased at the time of accident ? - 12.It stands as proven fact that two drivers were employed at a time and one was driving the **MFA(WCC).179/2011** 8 vehicle and the other was resting after his turn for resuming his duty in the next turn. Thus, the presence of two drivers throughout the journey, at a time in the vehicle, was indispensable for that long journey, though one among them alone was driving the vehicle and the other was resting or sleeping while so, in the cabin, at the time of accident. Needless to say, in the above situation, the driver, who was not driving the vehicle, is not expected to travel in another vehicle, so as to resume his duty, in the next turn. So it can be safely concluded that the presence of the deceased driver in the cabin, though he was not driving the vehicle, but, was resting or sleeping, forms a part of his duty and thereby it is in the course of employment also. - 13.Therefore, we hold that where two drivers were employed to drive a vehicle alternatively in a long journey, if the accident occurred, when one among them was driving the vehicle and the other **MFA(WCC).179/2011** 9 was resting or sleeping in the cabin while awaiting for resuming his duty in the next turn, after the other, the accident has a causal connection with the employment. Therefore the accident shall be deemed to have arisen out and in the course of employment. In this analysis, we find that the Tribunal has rightly appreciated the fact and law in correct perspective and arrived at the just and proper finding. 14.We further find that in the decision cited by the learned counsel for the appellant the deceased driver was travelling in a 'Goods' vehicle as a spare driver of another vehicle and he was travelling to the work site of his employment. So he was not expected to travel in the vehicle involved in the accident and he shall be deemed to be a gratuitous passenger only. Therefore, we find that the proposition laid down by the Apex Court in the said decision cannot be made applicable to the instant case. 10 ## **MFA(WCC).179/2011** There is no merit in this Appeal and the same is dismissed accordingly. **Sd/-** Mrcs/24.8 **K.HARILAL Judge Sd/A.M.BABU Judge** //True Copy// P.S.To Judge