Sri N Krishnappa Vs. Sri D C Nagaraja - Court Judgment

SooperKanoon Citationsooperkanoon.com/1234579
CourtKarnataka High Court
Decided OnApr-20-2023
Case NumberMFA.CROB 47/2014
JudgeHANCHATE SANJEEVKUMAR
AppellantSri N Krishnappa
RespondentSri D C Nagaraja
Excerpt:
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- 1 - mfa no.9035 of 2012 c/w mfa.crob no.47 of 2014 r in the high court of karnataka at bengaluru dated this the20h day of april, 2023 before the hon'ble mr justice hanchate sanjeevkumar miscellaneous first appeal no.9035 of2012c/w mfa crob.no.47 of2014(wc) in mfa no.9035/2012 between: m/s. icici lombard general insurance company limited, vtc tower, 2nd floor, opposite to bata, no.39, cmh road, indiranagar, bangalore. represented by: m/s. icici lombard general insurance company limited, no.89, 2nd floor, s.v.r complex, hosur main road, madiwala, bangalore - 560 068. represented by its manager legal. …appellant (by sri. a.m. venkatesh, advocate) - 2 - mfa no.9035 of 2012 c/w mfa.crob no.47 of 2014 and:1. sri. n. krishnappa, s/o. late narayanappa, aged about53years, 2. smt......
Judgment:

- 1 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF APRIL, 2023 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.9035 OF2012C/W MFA CROB.NO.47 OF2014(WC) IN MFA NO.9035/2012 BETWEEN: M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, VTC TOWER, 2ND FLOOR, OPPOSITE TO BATA, NO.39, CMH ROAD, INDIRANAGAR, BANGALORE. REPRESENTED BY: M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, NO.89, 2ND FLOOR, S.V.R COMPLEX, HOSUR MAIN ROAD, MADIWALA, BANGALORE - 560 068. REPRESENTED BY ITS MANAGER LEGAL. …APPELLANT (BY SRI. A.M. VENKATESH, ADVOCATE) - 2 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 AND:

1. SRI. N. KRISHNAPPA, S/O. LATE NARAYANAPPA, AGED ABOUT53YEARS, 2. SMT. LAKSHMIDEVAMMA, W/O. N. KRISHNAPPA, AGED ABOUT48YEARS, BOTH ARE R/AT YEDAHALLI, THORADEVANAHALLI POST, KASABA HOBLI, KOLAR TALUK & DISTRICT.

3. D.C. NAGARAJ, S/O. CHIKKA ANNAIAH, RESIDING AT NO.9, DEVISHETTIHALLI VILLAGE & POST, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT - 562 114. …RESPONDENTS (BY SMT. SUGUNA R. REDDY, ADVOCATE FOR R1 & R2; R3- NOTICE HAS BEEN SERVED VIDE

ORDER

DATED:18/04/2016) THIS MFA IS FILED U/S301) OF W.C. ACT AGAINST THE

JUDGMENT

DATED:

24. 2.2012 PASSED IN WCA/FC/CR-04/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, KOLAR DISTRICT, KOLAR, AWARDING A COMPENSATION OF RS.3,79,593/- WITH INTEREST.-. 3 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 IN MFA.CROB NO.47/2014 BETWEEN:

1. SRI. N. KRISHNAPPA, S/O. LATE NARAYANAPPA, AGED ABOUT55YEARS, 2. SMT. LAKSHMIDEVAMMA, W/O. N. KRISHNAPPA, AGED ABOUT50YEARS, BOTH ARE R/AT. YEDAHALLI, THORADEVANAHALLI POST, KASABA HOBLI, KOLAR TALUK & DISTRICT. ……..CROSS OBJECTORS (BY SMT. SUGUNA R. REDDY, ADVOCATE) AND:

1. SRI. D.C. NAGARAJA, S/O. CHIKKAANNAIAH, MAJOR IN AGE, R/AT. NO.9, DEVASHETTI HALLI VILLAGE, HOSKOTE TQ, BENGALURU RURAL DISTRICT - 562 114.

2. THE BRANCH MANAGER, ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., V.T.C. TOWER, 2ND FLOOR, OPPOSITE TO BATA, NO.39, CMH.ROAD, INDIRANAGAR, BANGALORE. …RESPONDENTS (BY R1 - NOTICE SERVED; SRI. A.M. VENKATESH, ADVOCATE FOR R2) - 4 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 THIS MFA CROB.47/2014 IN MFA NO.9035/2012 IS FILED U/O41 RULE22OF CPC, R/W SEC301) OF WORKMENS COMPENSATION ACT, AGAINST THE

JUDGMENT

DATED:

24. 2.2012 PASSED IN WCA/FC/CR-04/2009 ON THE FILE OF WORKMEN'S COMPENSATION, COMMISSIONER FOR WORKMEN'S COMPENSATION, KOLAR DISTRICT, KOLAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND FURTHER SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL AND MFA CROB, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

MFA No.9035/2012 is filed by the Insurance Company challenging the judgment and award passed by the learned Commissioner.

2. MFA CROB. No.47/2014 is filed by the claimants for seeking enhancement of the compensation.

3. The brief facts of the case are that the deceased K. Jagadish Kumar was working as a Cleaner in heavy transport trailer bearing No.HR-38-J-2177 under the employment of respondent No.3-onwer of the heavy transport trailer. On 01.10.2008, on instruction of respondent No.3, the deceased was proceeding on NH-46, - 5 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 Bengaluru-Chennai Road, when he reached near Madhanur-Amburu (Tamilnadu), the drive of the heavy transport trailer stopped the vehicle for the purpose of recreation by drinking tea. Therefore, in order to fetch tea, the Cleaner got down from the heavy transport trailer and went to the nearby dhaba and while bringing tea to the driver, at that moment, the deceased was hit by another vehicle and died on the spot.

4. Heard the arguments on both sides and perused the records. SUBMISSION OF LEARNED COUNSEL FOR THE INSURANCE COMPANY:

5. Learned counsel for the Insurance Company submitted that the claim petition filed by the claimants is not maintainable as there is no proof regarding relationship of employer and employee. The claimants have not proved that the deceased was working as a Cleaner under the employment of respondent No.3 and only self serving statement of the claimants is not - 6 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 sufficient to prove that the deceased was engaged as a Cleaner by respondent No.3-owner of the heavy transport trailer. Therefore, it is submitted in the absence of proof of employee under respondent No.3/employer, the claim made by the claimants is not maintainable in view of Section 3 of the Employee's Compensation, Act, 1923 (hereinafter referred to as 'EC Act' for short).

6. Further, it is submitted that the cross objection filed by the claimants for seeking enhancement of compensation is not maintainable as per Rule XLI of the Workmen's Compensation (Central) Rules 1924 (hereinafter referred to as 'Central Rules' for short) and as per Rule XLII of the Workmen's Compensation (Karnataka) Rules, 1966 (hereinafter referred to as 'Karnataka Rules' for short). Therefore, it is submitted that only the provisions of Code of Civil Procedure (CPC) stated under these Central and Karnataka Rules are applicable, but no other provisions of CPC are applicable. Therefore, in this view of the legal position, the cross objection filed by the - 7 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 claimants is not maintainable. Further, it is submitted that the Cleaner was taking tea to the driver and he was dashed by another vehicle. Hence, it is not out of and in the course of employment. Therefore, the death is not out of and in the course of employment. Hence, the claim petition is not maintainable.

7. In support of his submission, he places reliance on the following authorities: i. Judgment of Hon'ble Supreme Court in the case of Gottumukkala Appala Narasimha Raju vs. National Insurance Co. Ltd., reported in LAWS(SC)-2007-2-132. ii. Judgment of this Court in the case of the Divisional Manager, United India Insurance Co. Ltd., vs. Gujjamma and others in MFA No.1584/2002 dated 16.01.2004. iii. Judgment of this Court in the case of the Oriental Insurance Co. Ltd., vs. Mohd. Nazeer and another in MFA No.7447/2010 (WC) dated 25.11.2020.-. 8 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 iv. Judgment of this Court in the case of M/s. United India Insurance Co. Ltd., vs. Sri Harish and another in MFA No.4375/2011 (WC) dated 30.08.2021. SUBMISSION OF LEARNED COUNSEL FOR THE CLAIMANTS:

8. On the other hand learned counsel for the claimants / cross-objectors submitted that the deceased was working as a Cleaner under the owner of heavy transport trailer bearing No.HR-38-J-2177 and while out of and in the course of employment, he met with an accident and died. Therefore, the death caused is out of and in the course of employment. The deceased was traveling in the heavy transport trailer as the trailer was carrying goods and on the way, the driver stopped the vehicle for the purpose of recreation by drinking tea. Therefore, in order to fetch tea, the Cleaner got down from the lorry and went to the nearby dhaba and while bringing tea to the driver and at that moment, the deceased was hit by another vehicle and died. Therefore, this is amounting to death of - 9 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 the claimant is out of and in the course of employment. Further, it is submitted that in the police records, it is proved that the deceased was working as a Cleaner under the employment of employer/owner of the heavy transport trailer. Therefore, at very initial point of time, it is mentioned in the police records that the deceased was working as a Cleaner under the employment of respondent No.3/owner of the heavy trailer. Therefore, just because either the owner or the driver of the heavy trailer have not been examined that cannot be a ground to say that the deceased is not employee. But the evidence on record proved that the deceased was working as a Cleaner and during the course of employment, the deceased met with an accident and died. Therefore, it is submitted that the learned Commissioner is correct in holding that the deceased was employee under the employment of respondent No.3/owner of the heavy trailer.

9. Further, it is submitted that as per Rule XLI of the Central Rules or as per Rule XLII of the Karnataka - 10 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 Rules, certain provisions of CPC are applicable under the proceedings before the Commissioner for workmen's compensation that does not mean that exclusion of the statutory right of the claimant to prefer appeal or cross objection though certain provisions are made applicable as per Central Rules or Karnataka Rules, is for the purpose of summoning the witnesses and respondents enabling the power given to the Commissioner during proceedings. Therefore, just because it is stipulated in the Rules that certain provisions of CPC are applicable that does not mean that the other provisions are not applicable. Filing of appeal or cross-objection is a statutory right of the party. Therefore, this statutory right cannot be taken away either by express provision or by implied meaning. Therefore, it is submitted that there is no exclusion from these Rules that filing of cross-objection is not permissible. Therefore, it is submitted that there is no merit in the submission made by the learned counsel for the Insurance Company. Hence, it is submitted that the cross-objection is maintainable.-. 11 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 10. Further, it is submitted that the deceased being the Cleaner, was in the process of carrying goods along with driver in the heavy trailer and on the way to the destination, the driver of the heavy trailer has stopped the vehicle for getting refreshment to proceed further journey and stopped the vehicle nearby dhaba for having tea and the deceased being the cleaner while taking tea to the driver, at that moment the death caused is due to accident is nothing but out of and in the course of employment by application of theory of national extension employment. Therefore, it is submitted that “the theory of Notional Extension of Employment” can be applied in the present case.

11. Learned counsel for the claimants/cross- objectors in support of her argument, places reliance on the following judgments. i. Judgment of this Court in the case of the Oriental Insurance Co. Ltd., Vs. Smt. Mariamma & Ors., reported in ILR2008KAR3203 - 12 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 ii. Judgment of this Court in the case of the Oriental Insurance Co. Ltd., Vs. Smt. Geetha & Ors., reported in ILR2009KAR2379 iii. Judgment of this Court in the case of the Branch Manager, New India Assurance Co. Ltd., vs. Smt. Mallamma and others., reported in ILR2009KAR1934 iv. Judgment of this Court in the case of National Insurance Co. Ltd., vs. Balawwa reported in ILR1993KAR1843 v. Judgment of the Hon'ble Apex Court in the case of Leela Bai and Anr. vs. Seema Chouhan and Anr. reported in AIR2019SC586 vi. Judgment of the Hon'ble Apex Court in the case of Poonam Devi and Ors. vs. Oriental Insurance Co. Ltd., reported in AIR2020SC1305 vii. Judgment of this Court in the case of the Oriental Insurance Company Limited, Bellary vs. Sri Mallikethi Basappa and Others reported in ILR2012KAR2572 viii. Judgment of the Hon'ble High Court of Orissa in the case of Branch Manager, New India Assurance Co. Ltd., vs. Jhunu Rani Patra reported in LAWS(ORI)-1999-8-8.-. 13 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 ix. Judgment of this Court in the case of United India Insurance Company Limited, Chikmagalur Branch, Chikmagalur vs. Manjunath and others reported in 2011(1) Kar.L.J.

267 (DB). x. Judgment of the Hon'ble Apex Court in the case of Manju Sarkar and others vs. Mabish Miah and others reported in (2014) 14 SCC21 xi. Judgment of the Hon'ble Apex Court in the case of Saberabibi Yakubbhai Shaikh vs. National Insurance Co. Ltd. and others reported in AIR2014SC1393 xii. Judgment of the Hon'ble High Court of Jammu & Kashmir in the case of United India Insurance Company Limited vs. Narinder Kour and others in MA No.51/2018. ANALYSIS & REASONINGS:

12. Upon hearing the rival contentions of the learned counsel appearing for the parties, the following substantial questions of law arises for consideration:

1. Whether, under the facts and circumstances involved in the case, the learned Commissioner - 14 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 is justified in holding that there is a relationship of employer and employee proved?.

2. Whether, Cross Objection under Order XLI Rule 22 of Code of Civil Procedure is maintainable challenging the order and award passed by the Commissioner for Workmen's Compensation?.

3. Whether, under the facts and circumstances involved in the case, theory of Notional Extension Employment can be applied in the case so as to hold that the death of the deceased is out of and in the course of employment?. All the above formulated substantial questions of law are having common question of fact and law and interlinked with each other. Therefore, in order to avoid petition, the same are together considered in common.

13. The facts revealed in the present case are that the deceased was working as Cleaner in the heavy transport trailer No.HR-38-J-2177 under the employment of respondent No.3-owner of the said heavy trailer and was receiving salary of Rs.4,000/- p.m. and batta of - 15 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 Rs.50/day. It is stated that on 01.10.2008, the deceased on instruction of the employer, was proceeding in the said heavy trailer with goods and other driver was driving the lorry along with another Cleaner and when they were proceeding so on Bengaluru-Chennai Road and at Madanurr Amburu (TN) , the driver of the heavy trailer stopped the vehicle and instructed the deceased to bring tea for getting refreshed and accordingly the deceased got down from the heavy trailer and went to the nearby dhaba and was brining tea to the driver at the moment another vehicle dashed to the deceased and deceased succumbed to the injury. This is the case put-forward by the claimants who are parents of the deceased. The father of the deceased has given evidence as PW.1 stating that the deceased was working as a cleaner in the heavy trailer under the employment of respondent No.3/owner. Ex.P1 is the FIR, other documents and other police records reveal that the deceased was working as Cleaner in the heavy trailer and the complainant by name Elayaraja, another cleaner and another driver were going on 01.10.2008 - 16 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 carrying goods to Chennai. When they were proceeding so on 01.10.2008 at night about 8.00 p.m. at Madanuru- Amburu, NH-46 National Highway Junction, the said vehicle was stopped for checking the air of wheels and at that time, the deceased was instructed to bring tea and deceased went and brining tea while entering to the heavy trailer, another vehicle had dashed the deceased and due to which, the deceased died. Just because another driver and another cleaner is not examined that is not ground to say that the deceased was not working as a Cleaner under the employment of respondent No.3 - owner of the heavy trailer. For these type of employment normally there would not be maintaining any records. The factum of accident is not disputed. The factum that the deceased was traveling in the heavy trailer as Cleaner is also not disputed. When these things are proved facts on all its preponderance of probabilities and expecting documentary evidence of appointment letter of a Cleaner is not a correct approach considering how these lower strata employees are appointed. At an undisputed point of time soon after - 17 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 the accident another cleaner Elayaraja had lodged the complaint before the police by mentioning in brief that he was also in the lorry as a Cleaner along with the deceased and driver. Therefore, just because the driver or another cleaner is not examined that cannot be ground to throwaway the claim petition that other witnesses are not examined. Considering the nature of employment as the deceased was working as a Cleaner, it is always not expected thing that the owner would come to the Court and give evidence regarding employment. Therefore, what are the probable evidences are on the records that can be considered. The documentary evidence of employment are available where employees are appointed in an organized Sector. But the owner of the heavy trailer has engaged said Cleaner and it cannot be expected appointment letter from the owner. Therefore, considering the evidence on record on all its preponderance of probabilities as discussed above, it is proved that the deceased was working as a Cleaner under the employment of respondent No.3-owner of the trailer vehicle. Therefore, in this regard, - 18 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 the findings given by the Tribunal is correct. Accordingly, I answer substantial question of law No.1 in affirmative.

14. Learned counsel for the Insurance Company submitted that as per Rule XLII of the Karnataka Rules, which is similar to Rule XLI of the Central Rules, submitted that the provisions of CPC made applicable under these Rules are only applicable and general provisions of CPC are not applicable. Rule XLI of the Central Rules stipulates as follows:

"41. Certain provisions of Code of Civil Procedure, 1908 to apply.-. Save as otherwise expressly provided in the Act or these rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto: Provided that, - (a) For the purpose of facilitating the application of the said provisions the Commissioner may construe them with - 19 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him; (b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interests of the parties will not thereby be prejudiced."

Rule XLII of the Karnataka Rules stipulates as follows:

"42. Certain provisions of Code of Civil Procedure, 1908 to apply.-. Save as otherwise expressly provided in the Act or these rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 30; Order VII, Rules 9 to 18; Order IX; Order XIII; Order XVI; Order XVII and Order XXIII, Rules 1 to 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto: Provided that, - (a) For the purpose of facilitating the application of the said provisions, the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adopt them to the matter before him; (b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if - 20 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 he is satisfied that the interests of the parties will not thereby be prejudiced.

15. These Rules stipulate certain provisions of the CPC applicable to the proceedings before the learned Commissioner. By these Rules, certain powers vested under the CPC are conferred on the learned Commissioner for smooth adjudication of the claim proceedings pending before him. Just because the other provisions of CPC are not mentioned in these Rules that does not mean that the other provisions of CPC are not applicable and the Cross Objection is not maintainable.

16. Under these rules, there is no exclusion of applicability of CPC. The applicability of certain powers as per CPC conferred on the learned Commissioner does not mean that other provisions are exclusively barred by application. Therefore, there is no merit found in the contention urged by the learned counsel for the Insurance Company regarding cross-objection is not maintainable.-. 21 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 17. Where statutory right is given to the parties to prefer appeal before Appellate Court under the provisions of EC Act, does not mean that the parties do not have statutory rights to prefer Cross Objection. Filing of cross-objection as per Order-41, Rule-22 of CPC is nothing, but an appeal.

18. In the cross-objection, even though, one of the party admits the decree passed by the learned Commissioner, but on certain issues or points if being aggrieved, then he may be at choice to file cross- objection. Therefore, filing of cross-objection is statutory right given as per the CPC and this cannot be taken away.

19. Therefore, where there is no express or implied bar under these Central or Karnataka Rules for preferring cross-objection, then the parties may at liberty to file cross-objection. Just because, certain powers under CPC are vested to the learned Commissioner as per these rules above stated they are in aid of proceedings before - 22 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 the learned Commissioner, that does not mean that other provisions of CPC are not applicable. Therefore, the cross- objection filed by the claimant is maintainable. Accordingly, I answer substantial question of law No.2 in Affirmative.

20. Learned counsel for the Insurance Company submitted that the deceased while bringing tea to the driver met with an accident and the driver is not an employer. Therefore, the death of the deceased is not out of and in the course of employment. Therefore, submitted that the death of the deceased is not on account of “out of and in the course of employment”, and then the claim petition is not maintainable.

21. The word enumerated under Section 3 of EC Act is “out of and in the course of employment“ shall not be construed in a narrow sense. The word “out of” means the injury must be caused in an accident which had its origin in the employment and it is relating to the employment. The word “in the course of employment” - 23 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 means death or injury caused while in the process of working causing death or injury. Therefore, the legislature in its wisdom has incorporated in Section 3 of EC Act that “out of and in the course of employment”. Sometimes the accident may occur not in engaging the work directly, but when work is related to the employment, the injury or death occurs, it means “out of” employment. Therefore, when the deceased was on work in relation to the employment, under these circumstances also, it can be said that death or injury is caused “out of” employment. If these principles are applied to the present set of facts and circumstances as discussed above as the deceased was proved to be a cleaner under the employment of respondent No.3-owner of transport trailer vehicle and was going in the said vehicle as a cleaner along with another cleaner and one Nagaraja was the driver and all these three persons were going from Bangalore to Chennai for unloading the packed machine and stopped the vehicle for checking air of tyre of the vehicle and in that process, the deceased went to bring tea for the driver as quite naturally - 24 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 whenever during travel the vehicle is stopped for getting refresh, it is necessary for bringing tea/water for smooth ongoing travel.

22. Under these circumstances, the deceased was bringing tea to the driver and in that process, the accident was caused and the deceased died. Therefore, the accident has occurred when the deceased was out of employment. Strictly it may not be construed as the deceased while travelling in the lorry met with an accident, but outside the lorry, and the deceased was engaged in relation to the employment. Therefore, this is nothing, but death is caused out of employment. The driver of the vehicle may not be the employer of the deceased, but the cleaner has to obey the instruction of driver and that is what is done by the deceased and that is part of job of the cleaner and therefore, the death caused is certainly out of and in the course of employment. Therefore, this is to be applied by following the theory of “Notional Extension of Employment” under Section 3 of EC Act. Stopping of the - 25 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 vehicle for checking air of tyre or tube and for getting refresh while travelling, since the vehicle involved is a heavy transport trailer vehicle, it may require two cleaners in the lorry. Therefore, just because, another person Ilayaraja is also engaged as a cleaner that does not mean that the deceased was not a cleaner. When the vehicle is a heavy transport trailer vehicle having multiple wheels and huge commodity for transport, therefore, quite naturally, two cleaners might have been engaged. When driving of heavy transport trailer vehicles for long distance, it is quite naturally, stopping the vehicle for checking air and also for getting refresh for further travelling by driving the said heavy vehicle, therefore, under these process, if the employee is out of the vehicle physically untouched and death caused while bringing tea as in the present case or while checking air or washing windscreen of the vehicle etc., if the accident is caused and death is occurred, this can be construed as the death is out of and in the course of employment by applying the theory of Notional Extension of Employment. In this regard, this Court in the - 26 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 case of Sharadabai and Others Vs. Abdul Karim and Others in MFA.Crob.No.1054/2011 c/w MFA.No.31587/2010 DD. 12.11.2020, wherein at paragraph Nos.19, 20, 21, 22, 25 and 26 held as under: “19. In the case of Leela Bai and another vs. Seema Chouhan and another reported in (2019) 4 Supreme Court Cases 325, the deceased bus driver ferrying passengers daily from the place B at 6.30 p.m. and reaching the place I at 11.00 a.m. and while returning back from the place I at 3.00 p.m. and reaching the place B at 7.30 p.m., the deceased met with accident at terminus while coming down from the roof of bus after having meals at 8.30 a.m. Therefore, on the basis of principle of notional extension of employment laid down in the case of BEST Undertaking v. Agnes reported in AIR1964SC193 it was held that the death of the deceased was arising out of and in the course of employment.

20. Further, in the case of Daya Kishan Joshi and Anr. v. Dynemech Systems Pvt. Ltd. reported in AIR2017Supreme Court 4134, the deceased and his co- worker were deputed to test a filter which was installed on 07.09.2007 at Hero Honda Factory, Dharu Heda, Haryana. Accordingly, both of them went from Delhi and checked the filter installed at Hero Honda Factory, Dharu Heda, Haryana in the afternoon and thereafter started the return journey to Delhi at 4.30 p.m. and both the workers met with road traffic accident while they were little away from Hero Honda Factory and sustained injuries and the deceased succumbed to the said injuries. Therefore, under these circumstances, the Hon'ble Apex - 27 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 Court by interpreting Section 3 of the E.C. Act has held that, the death is arising out of and in the course of employment and thus, the employer is liable to pay compensation.

21. Further, in the judgment of this Court in the case of The Divisional Manager, Oriental Insurance Co. Ltd., Belgaum vs. Smt. Laxmibai @ Ramakka and Others reported in 2015 (1) KCCR253 the death of the driver of a tempo was, while on duty by electrocution. In the said case, the facts are that, the driver on instructions of the employer went to factory for loading certain materials. As the main gate of factory was closed, the deceased stopped the vehicle in front of gate, got down and while opening the main gate, came into contact with live wire which had fallen on gate, got electrocuted and succumbed to injuries. Therefore, under those circumstances, this Court held that the death of the driver is arising out of and in the course of employment.

22. Further, in the judgment of this Court in the case of M/s. Oriental Insurance Company Limited, Chennai vs. Sri Murthaiah and Others reported in 2019 (2) KCCR985 the workman was cleaner-cum- loader in the lorry and after the lorry was loaded with the Manganese Ore, he went to have bath in a nearby reservoir, wherein he died of drowning. Therefore, under those facts and circumstances, it was held that the death of the workman is arising out of and in the course of employment.

23. x x x 24. x x x 25. In the judgment of Hon'ble Supreme Court in the case of Poonam Devi and others vs. Oriental Insurance Company Limited reported in (2020) 4 SCC55 the deceased aged 21 years driver, having to drive a truck for an approximately 200 km route, on a hot summer day stopped by a canal to fetch water and also - 28 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 to have a bath, unfortunately, slipped to the canal and died. Thereafter appreciating the evidence that truck cabin was not having a facility of air condition and therefore under that hot summer season he was constrained to park the truck by the side of the road in order to cool down the engine and also for fetching water and to have bath, but unfortunately died in the canal due to slippery. Therefore, under those factual circumstances, their Lordships by applying the principle of notional extension of employment, as it was held by the Hon'ble Apex Court in the case of BEST Undertaking v. Agnes reported in AIR1964SC193 were pleased to hold that the death of the driver in the above stated case can be stated as arising out of and in the course of employment. For the purpose of brevity, it is worthwhile to extract the ratio laid down by the Hon'ble Apex Court in Poonam's case (supra) at paragraphs 9 to 12, which reads as follows:

"9. In Manju Sarkar. v. Mabish Miah, (2014) 14 SCC21 the deceased was driving the employer's truck from Agartala to Churaibari FCI godown. When he reached near Dharam Nagar, he got down to make arrangements for repairing some mechanical problems in the truck when he was hit on the road by another vehicle and died in the hospital. Applying the principle of notional extension, it was held that death occurred in the course of employment relying upon BEST Undertaking v. Agnes, AIR1964SC193 at para 12: (Agnes case, AIR p. 199)

"12. Under Section 3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it - 29 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the "down tool" signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment.

10. More recently in Daya Kishan Joshi & Anr. v. Dynemech Systems (P) Ltd., (2018) 11 SCC642 the deceased was employed as an engineer for promoting sales and installation of products which required him to move around in the field. While returning from field work, he met with an accident resulting in death. Holding that his being on the road related to the nature of his duties, not only the injury was caused during the currency of the employment but also arose out of the employment.

11. Coming to the facts of the present case, the deceased was driving the truck of Respondent 2 from Ambala to Meerut. Indisputably he was in the course of his employment. We can take judicial notice of the fact that considering the manufacturer's specification, the cabin of the truck was not air-conditioned and would have been a baking oven in the middle of the - 30 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 afternoon in the sultry monsoon heat of June 2003, when the temperature was touching 42.60 C in Yamunagar (Haryana) (source: weatheronline.in). It was a compulsion for the deceased to stay fresh and alert not only to protect the truck of Respondent 2 from damage but also to ensure a smooth journey and protect his own life by safe driving. We can also take judicial notice of the fact that the possibility of the truck also requiring water to prevent overheating cannot be completely ruled out. In these circumstances, can it be said that the act of the deceased in going to the canal to fetch water in a can for the truck and to refresh himself by a bath before continuing the journey was not incidental to the employment?. Every action of the driver of a truck to ensure the safety of the truck belonging to the employer and to ensure his own safety by a safe journey for himself has to be considered as incidental to the employment by extension of the notional employment theory. A truck driver who would not keep himself fresh to drive in such heat would be a potential danger to others on the road by reason of any bona fide errors of judgment by reason of the heat. The theory of notional extension noticed in the Agnes (supra) and followed in Leela Bai (supra) is extracted hereunder: (Leela Bai case, SCC99 327-28, para 9)

"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 - 31 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 employment considered in Agnes (supra) as follows: (AIR p. 199, para

11) '11. ..."

7. ... 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 times this theory of notional extension.

12. In Leela Bai (supra), the deceased having completed his journey as a driver stayed back on the roof of the bus to ensure early scheduled departure the next morning by not going home. While he was coming down the roof of the bus he slipped and died. It was held at para 7 as follows: (SCC p. 327)

"7. 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 - 32 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 route timings of the bus required the deceased to be readily available with the bus so that the passenger service being provided by Respondent 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, dependent on the arrival of the deceased at the busstand 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 enure to the benefit of Respondent 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.

26. Therefore, by applying the principle of notional extension of employment and considering Section 3 of the Employees Compensation Act, where the death or bodily injuries caused arising out of and in the course of employment, the death or bodily injury of the workman cannot necessarily be happened while actually working in the lorry as driver. Therefore, the principle of notional extension of employment on both point of entry and exit in time and space can be considered.” - 33 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 23. Therefore, as per the principles of law laid down as above stated and considering the present factual matrix involved in the case, the theory of Notional Extension of Employment can certainly be applied in the present case and as per Section 3 of EC Act, the death of the deceased is proved to be out of and in the course of employment. Therefore, the claim petition is maintainable.

24. Therefore, the death of the deceased in the present case is as he was doing the work as a cleaner and was in the employment of transporting huge packed machine being transported on the heavy transport vehicle, the death of the deceased was caused. Under these circumstances, as above stated, it is proved that the death of the deceased is out of and in the course of employment. Therefore, I answer substantial question of law No.3 in affirmative.

25. The judgments relied on by the learned counsel for the Insurance Company stated supra so far as relationship of employer and employee is concerned are - 34 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 not applicable in the present case for the reason that the facts and circumstances and evidence in the above cited cases are different from the present case. There is no strict rules of evidence are applicable proving the relationship of employer and employee in these type of cases. Considering the evidence in this regard on the basis of preponderance of probabilities based on the evidence available on record in the present case, the police records proves that the deceased was working as a Cleaner. As discussed above, it cannot be expected documentary evidence as appointment letter as a Cleaner. Therefore, the other facts, circumstances and evidence are to be appreciated. Therefore, under these differentiality on the evidence and circumstances, the decisions relied on by the learned counsel for the Insurance Company are not applicable. Regarding quantum of compensation:

26. Learned Commissioner has held the wage at Rs.3,500/- p.m., which is on the lesser side. Hence, - 35 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 Rs.4,000/- p.m., is to be taken into consideration in the absence of any proof of income as per Section 4 of EC Act. The deceased was aged 23 years and 4 months as per the transfer certificate produced at Ex.P7. The date of birth of the deceased is 01.06.1995, but the Tribunal based on the medical record which is the post mortem report has taken the age of the deceased as 25 years and accordingly, taken the age of the deceased as 25 years, which is not correct. When there is cogent evidence regarding the date of birth and proof of age is available, the other general evidence are not to be relied where the transfer certificate is produced in the present case mentioning the date of birth of the deceased that prevails more. Whatever age mentioned in the PM report is general in nature seeing physical appearance of the body of the deceased and this observation is always in fluctuation and approximate one ranging 2 to 3 years difference, but where proof regarding date of birth is produced that can be accepted. Therefore, in the present case, the age of the deceased proving to be 23 years and 4 months. Therefore, the relevant factor is - 36 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 219.95 as per Schedule IV of EC Act. Therefore, the compensation under the head loss of dependency is re- assessed and quantified as follows: Rs.4,000/- x 50% x 219.95=Rs.4,39,900/- Accordingly, compensation of Rs.4,39,900/- is awarded under the head loss of dependency.

27. The Tribunal has committed error in awarding the rate of interest. As per Section 4A(3) of the EC Act and as per the principle of law laid down by the Hon’ble Supreme Court in the case of Pratap Narain Singh Deo Vs. Srinimvas Sabata and Another1, the rate of interest is 12% per annum from the date of accident till realization.

28. Thus, the appellants/claimants are entitled to enhanced compensation of Rs.4,39,900/- as against Rs.3,79,593/- along with interest at the rate of 12% p.a., from the date of accident till realization. 1 AIR1976SC2221) - 37 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 29. Therefore, for the aforesaid reasons, the judgment and award passed by the learned Commissioner is modified to the above extent. Hence, the appeal filed by the Insurance Company is liable to be dismissed and MFA. Cross objection filed by the claimants is liable to be allowed-in-part.

30. Accordingly, I proceed to pass the following

ORDER

i. MFA.No.9035/2012 filed by the Insurance Company is dismissed. ii. MFA.Crob.No.47/2014 filed by the claimants is allowed-in-part. iii. The impugned judgment and award dated 24.02.2012 in WCA/FC/CR-04/2009 passed by the Commissioner for Workmen’s Compensation, Kolar, is modified. iv. The appellants/claimants are entitled to enhanced compensation of Rs.4,39,900/- along with interest - 38 - MFA No.9035 of 2012 C/W MFA.CROB No.47 of 2014 at the rate of 12% p.a., from the date of accident till realization. v. The remaining observations and findings made by the Tribunal in the aforesaid impugned judgment and award are kept in tact. vi. The amount in deposit shall be released in favour of the cross objectors/claimants upon proper identification by the counsel for the cross objectors/ claimants. vii. No order as to costs. viii. Registry is directed to transmit the TCR along with certificate copy of this order to the Tribunal forthwith. ix. Draw award accordingly. Sd/- JUDGE KA-Para 1 to 16 JJ- Para 17 to 20 PB- Para 21 to 25 CT: THK