New India Assurance Company Limited v. P. Jayalakshmi Latha & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934** ## **MFA.No. 56 of 2007 (A)** **---------------------WCC.462/2002 OF COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) COURT, THRISSUR** **----------------------** **APPELLANT / 2ND OPPOSITE PARTY :** **--------------------------------------------------------** **THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, 721000, MUSSA SAIT COMPLEX, II FLOOR, COMMERCIAL ROAD, OOTTY REPRESENTED BY ITS MANAGER.** **BY ADVS. SRI. K.K.M. SHERIF SRI.P.A.MOHAMMED ASHROF SRI.A.A.ZIYAD RAHMAN** ## **RESPONDENTS / APPLICANTS 1 TO 3 AND THE 1ST OPPOSITE PARTY :** - **-------------------------------------------------------------------------------------------------------** **1. P.JAYALAKSHMI LATHA, W/O.LATE LAKSHMANAN, RESIDING AT D NO.10/254 F3, PERIYABIKKATY CORNER PARIYAMBIKKATTY VILLAGE, ARAVAMKADAVU P.O, NILGIRI DISTRICT, TAMIL NADU.** ## **2. SANGEETHA (MINOR),** **REPRESENTED BY GUARDIAN P.JAYALAKSHMI LATHA, W/O.LATE LAKSHMANAN, RESIDING AT D NO.10/254 F3, PERIYABIKKATTY CORNER, PARIYAMBIKKATTY VILLAGE, ARAVAMKADAVU P.O, NILGIRI DISTRICT, TAMIL NADU.** **3. CHIKKAYYA, S/O.ERAYYA, RESIDING AT D.NO.10/254 F3, PERIYABIKKATTY CORNER PARIYAMBIKKATTY VILLAGE, ARAVAMKADAVU P.O, NILGIRI DISTRICT,TAMIL NADU.** **4. YESHODA, RESIDING AT D.NO. 10/254 F3, PERIYABIKKATTY CORNER, PARIYAMBIKKATTY VILLAGE ARAVAMKADAVU P.O., NILGIRI DISTRICT, TAMIL NADU.** **5. T.BALACHANDRAN, S/O.THIRUMALACHETTIAR, RESIDING AT D NO.138, RAMANUJA NILAYAM, HOSPITALROAD, OOTTY.** **BY** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **“CR”** **Thottathil B Radhakrishnan & K. Vinod Chandran, JJ ---------------------------------------------------M.F.A.No.56 of 2007 ---------------------------------------------------Dated this the 5[th] day of July, 2012** **J U D G M E N T** ## K. Vinod Chandran, J The insurer is in appeal raising substantial questions of law regarding; (1) whether the incident in question amounts to an accident arising out of and in the course of employment, as stipulated in Section 3 of the Workmen's Compensation Act, 1923? (2) is the insurer liable to indemnify the insured on a claim under the WC Act, by virtue of a policy issued under the provisions of the Motor Vehicles Act, 1988, especially so on an accident which did not arise directly out of the use of the motor vehicle? (3) fixation of monthly income at Rs.3,600/-, and (4) the legality of granting interest from the date of accident. The accident in the case led to the death of the driver of a goods vehicle by drowning. 2. The wife, daughter and parents of the deceased workman applied for compensation. The deceased was the driver of a lorry owned by the insured. The lorry having a MFA No.56 of 2007 2 national permit was carrying sugar from Mysore to Tirur. Thereafter, it came to Oorganttiri in Malappuram District for transporting a load of sand to Ooty. The lorry was parked near a ghat on the banks of Pavanna river to load the sand. While loading, the driver, allegedly, went to the river for a bath and accidentally slipped into the river, resulting in his death by drowning. The Ariyakode police had registered a crime for unnatural death as Crime No.22 of 2002 in connection with that incident and the cleaner of the lorry narrated the incident in so many words as is evident from the FIR in that case. The applicants claimed that the deceased drew monthly income of Rs.6000/- and sought lump sum payment of Rs.4,22,000/- as compensation under the WC Act. 3. The owner of the vehicle remained ex-parte. The insurer challenged the employee-employer relationship and pleaded that the death by drowning while bathing cannot at all be attributed to be one during the course of employment or out of the employment. 4. The wife of the deceased was examined before the Commissioner and a copy of the F.I.R in the Crime was produced, with the statement of the cleaner who accompanied the driver. Exts.A2 to A5 are the copies of inquest report; postmortem MFA No.56 of 2007 3 certificate; driving licence; and, legal heirs certificate. 5. The counsel for the appellant/insurer argued that in a near similar situation, the Division Bench had, in **Oriental Insurance Company v. Thankappan (2005(3)KLT 480)** , held that the accident fell within the notional extension of employment, however that; the Full Bench on a reference has expressly found against the said view in **Oriental Insurance Co.Ltd., v. K.V Joseph and another(2007(2)KHC 698)** . Relying on that, the learned counsel for the appellant-insurer argued for the position that the drowning of the driver cannot be treated as one in the course of employment or arising out of employment. 6. In the Full Bench decision (supra), the facts relevant were that the driver of the vehicle, while getting down to unload the goods, sustained a dog bite and in the clamour to escape, fell down and sustained injuries. The Full Bench, though did not agree with the Division Bench with respect to the drowning of a conductor, on the facts of the case dealt with by the Full Bench, held that the claimant therein having been engaged in the vehicle, had stepped out of the vehicle during the course of his employment and the subsequent accident was one directly arising out of the employment. The Full MFA No.56 of 2007 4 Bench considered the tests with respect to “notional extension”, “casual connection” and “reasonably incidental” and held that the claim in that case was established on facts of that case. It was also made explicit that ultimately, everything turns on the facts and circumstances of each case. We specifically notice that in **Thankappan's case,** the Division Bench though dealing with a case of drowning of an employee was concerned with an accident that occurred while the employee took bath in preparation of the commencement of the duties and responsibilities in connection with the employment. The facts in that case would indicate that the vehicle was parked overnight at a destination, intending to commence its journey the next morning and the employee who had slept at that destination, proceeded in the morning to bathe in preparation of discharging his duties and responsibilities in connection with his employment, and the accident then occurred. We are clear in our mind that the facts in **Thankappan's case (supra)** are clearly distinguishable from the facts in the present appeal. 7. The Hon'ble Supreme Court of India considered similar provisions in the Employees State Insurance Act, 1948 in **ESI** MFA No.56 of 2007 5 ## **Corporation v. Francis De Costa(1996(2)KLT 799).** In that case, the employee while proceeding to his work place, a factory, was involved in a motor accident resulting in injury to him. The Hon'ble Supreme Court, rejecting the claim for compensation held that the accident, to come within the cover of eligibility to compensation, should take place within or during the period of employment and should arise out of the employment. **Regina v. National Insurance Commissioner** , **(1977) 1 WLR 109** was noticed; wherein the words “in the course of his employment” were considered to have been extended only when the workman was in the premises of the workplace but also when injured while on a visit to a canteen or some other place for a break. The test of what was “reasonably incidental” was held to be applicable even when a workman is sent on an errand outside the factory premises, but only if it is in the usual course of his employment. **South Maitland Railway Properties Ltd. v.James** **(67CLR 496)** was also noticed. It was held therein that an accident occurring in the course of the employment on a hot day, while the workman went for a cool drink to enable him to continue his work, was one occurring in the course of his employment. 8. The Supreme Court of India in **General Manager, B.E.S.T** MFA No.56 of 2007 6 ## **Undertaking, Bombay v. Mrs.Agnes(1964(3) SCR 930)** found the death of a driver in an accident, while returning home in a bus of the employer, to be a direct result of employment, since the right to travel home in a bus of the employer, was conferred on the employee to function punctually and efficiently. In **Bhagubai v. Central Railway, Bombay,(1954)II LLJ 403** , the Hon'ble Supreme Court was concerned with an instance of murder of a railway employee, living in railway quarters, while he was proceeding for his night shift at midnight. That accident was categorized as an occupational hazard of an employee who had to join duty at midnight traversing from the railway quarters to the railway station through the railway compound. **SAIL v. Madhusudan Das (2008(15)SCC 560)** also dealt with the issue but in the aspect of compassionate appointment. The decision in **Mackinnon Mackenzie and Co.P Ltd., v. Ibrahim Mahammed(1969(2) SCC 607)** was quoted with approval and paragraphs 5 and 6 were extracted in paragraph 20:- “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 MFA No.56 of 2007 7 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. 6. In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment MFA No.56 of 2007 8 as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it” In **Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali,(2007) 11 SCC 66** , decision of Lord Wright in **Dover Navigation Co.Ltd. v. Isbella Craig(1940 AC 190)** referred to in ESI Corporation case(supra) was extracted:- “ Nothing could be simpler than the words “arising out of and in the course of the employment”. It is clear that there are two conditions to be fulfilled. What arises “in MFA No.56 of 2007 9 the course” of the employment is to be distinguished from what arises “out of the employment”. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is employed to do - gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.” and it was held in paragraph 22:- “22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:- 1. There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. MFA No.56 of 2007 10 2. The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. 3. If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.” 9. In the instant appeal, from the evidence on record, it is clear that the vehicle proceeded from Mysore with a load of sugar on the previous evening and after delivering that load, a load of sand was taken for transportation to another destination. There can be absolutely no dispute that the accident which occurred while sand was being loaded into the vehicle was within and during the period of employment. By the nature of the employment of a driver of a goods carriage, neither the work-place nor the working hours are definite or limited. From the moment the vehicle is taken out from the garage, till it is garaged, the driver is on duty and the vehicle is in his care. It is common knowledge that employment of a driver in a MFA No.56 of 2007 11 goods carriage is not for a specified period or with defined working hours and would extend from the time the vehicle is taken out from its garage and its return to the garage. The work-place is the public road and wherever the vehicle is parked in the course of carriage. What can definitely be inferred while considering the employment of a driver is that neither time nor place is finite. A driver travelling long distance, if parking the vehicle for a nap and an accident occurs while he was asleep; is it not one 'arising in the course of his employment' and 'out of his employment'? The time element is satisfied in so far as the vehicle, in the care of the driver, had not completed the journey. The act being related to the employment is also clear in so far as a shut-eye is necessary for him to efficiently carry out his duties and also ensure the safety of the vehicle in his care. 10. The next question is as to whether the accident was one arising out of the employment of the deceased. It is trite that what is required is a “reasonably incidental” connection to the employment. The Supreme Court in **Francis De Costa's Case(** supra **)** held that the words “out of” indicate that the injury must be caused by the accident which had its origin in the employment. All and every MFA No.56 of 2007 12 accident that occurs when the employee goes to the place of the employment or for the purpose of employment, has been held to be not one arising out of the employment unless there is a recognizable casual connection between the accident and the employment. But the occupational hazards of a driver also extend to his not being able to attend to his needs; abandoning the vehicle. The principles expounded in **General Manager, B.E.S.T & Bhagubai(** supra **)** apply on all fours to the facts of this case. The act of bathing in the river was only due to the long working hours and would definitely enable better performance. The occupational hazard in not being able to leave the vehicle in his care, for long, even for his bare necessities is starkly obvious. The need to have a wash to refresh himself; while constantly on the road, adds to his efficiency and ensures the safety of the vehicle. 11. As has been held in **Mackinnon Mackenzie and Co.P Ltd.(** supra **)** , though the onus to prove that the injury arose out of and in the course of employment rests upon the claimant, a reasonable inference from proved facts is permissible and legitimate. The Commissioner's order is not at all, in the instant case; vitiated by surmises, conjectures or guess work. The principles stated in MFA No.56 of 2007 13 paragraph 22 of **Shakuntala Chandrakant Shreshti(** supra **)** squarely applies. The accident i.e., of drowning; occurred while the goods vehicle was being loaded and when the driver had attempted to take a bath, in the meanwhile. The long arduous journey undertaken is also evident. We do not at all feel persuaded to differ from the view taken by the Commissioner, since it is a very reasonable conclusion on the facts and circumstances. No other reasonable conclusion appeals to us. In any event, it is not for us to substitute, with another reasonable hypothesis, the findings of the Commissioner while acting within the contours of our jurisdiction. 12. The deceased employee had taken a load of sugar from Mysore and had unloaded it at Tirur and was again engaged in loading sand to be transported to Ooty, that too, from near a river ghat. The accident occurred while the lorry was being loaded and the driver had alighted from the vehicle to facilitate the loading. There is direct connection with the employment and accident. It can only be concluded that the accident arose in the course of the employment. The accident arose out of an occupational hazard. The driver could not have abandoned the vehicle even for his bare necessities. The accident of drowning in the river, according to us, MFA No.56 of 2007 14 on the facts and circumstances of the case was one arising in the course of the employment and also out of it. Hence, the question of law raised by the insurer regarding the act of drowning being treated as an accident arising out of and in the course of employment has to be held in the affirmative and against the insurer; on the facts and circumstances of the nature of the employment of a driver. 13. The policy though under the Motor Vehicles Act its terms do not exclude workmen's compensation for the driver of the vehicle. The accident which arose out of and in the course of employment of the deceased as a driver of the vehicle is one which arose out of the use of the motor vehicle. Our finding on the first question applies equally in answering this question too. The use of the vehicle cannot be divorced from the incidental acts of its driver. Hence, this issue also has to be answered against the insurer and in favour of the applicants. 14. The next question is with regard to the monthly income of the deceased being fixed at Rs.3,600/-. The appellants claimed the monthly wages to be Rs.6,000/- and on facts, the Commissioner fixed it at Rs.3,600/-. We are of the view that no substantial question of law arises from such determination made on facts. MFA No.56 of 2007 15 15. Remaining question is with respect to the grant of interest from the date of adjudication. The said issue is covered by the precedent rendered by the Division Bench of this Court in **Oriental Insurance Company v. Padmini N.V (MFA No.59 of 2011)** , following the Supreme Court decision in **Pratap Narain Singh Deo v. Srinivas Sabata(1976(1) SCC 289)** rendered by a Bench of four Judges; and also in view of the subsequent Division Bench decisions of this Court to hold that the interest on the compensation granted by the Commissioner would run from the date of accident. The said question also is hence answered against the insurer. In the result, the above appeal is dismissed leaving the parties to suffer their respective costs. ## **Thottathil B Radhakrishnan (Judge)** **Sd/K. Vinod Chandran (Judge)** jma - true copy -