1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT The National Insurance Company Ltd. Vs. Smt. Tulsi Devi & Ors. (S. B. Civil Misc. Appeal No.2002/2010) S. B. Civil Misc. Appeal under Under Section 30 of Workmen's Compensation Act, 1923. Date of Judgment: August 27, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.R.P. Vijay, for the appellant. BY THE COURT: Aggrieved by the award dated 28.01.2010, passed by the Workmen's Compensation Commissioner, Jaipur District-II, Jaipur, whereby the learned Commissioner has awarded a compensation of Rs.2,76,255/- to the claimants-respondents, the appellant-Insurance Company has challenged the same before this Court. Briefly, the facts of the case are that the claimants-respondents filed a claim petition before the learned Commissioner on 17.11.2008. They claimed that Om Prakash, the husband of respondent No.1, and the father of respondent Nos.2 to 6, and the son of respondent No.7, was a Khallasi on a 2 mini-bus, bearing registration No. RJ-14-PA-2838. The said mini-bus was owned by Shivraj Meena, the non-claimant-respondent No.8 and was insured by the appellant. They further claimed that on 05.10.2008, while the mini-bus was going, it developed mechanical failure. Therefore, on the instruction of the owner, Om Prakash went out to get some parts for the bus. For this purpose, he was riding on a scooter, bearing registration No. RJ-14-10M-442. While he was coming back, near Graver Hospital, unfortunately the scooter slipped on a speed breaker. Consequently, Om Prakash sustained grievous injuries. Subsequently, he expired. According to the claimants, at the time of his death, he was getting a salary of Rs.150/- per day and Rs.50/- as diet expenses. The owner filed his reply and admitted the factum of employment and the fact of Om Prakash's death in the manner stated by the claimants. He further stated that the deceased was paid Rs.3,000/- per month and was given Rs.50/- per day as diet expenses. On the other hand, the appellant, in their written statement, contended that since the deceased was riding on a scooter at the time of his death, he was doing so independently while he was not in the course of employment. Therefore, at the moment of his death, the relationship between the employer and the employee did not exist. 3 Moreover, the alleged accident neither arose out of, nor occurred in the course of employment. Hence, the claim petition was not even maintainable. On the basis of the pleadings of the parties, the learned Commissioner framed five issues. In order to prove their case, the claimants examined the respondent No.1, Smt. Tulsi Devi, the wife of the deceased, as a witness and produced certain documents. After going through the oral and the documentary evidence, the learned Commissioner granted the compensation as mentioned above. Hence, this appeal before this Court. Mr. R.P. Vijay, the learned counsel for the appellant-Insurance Company, has vehemently contended that the learned Commissioner has erred in holding that the relationship between the employer and the employee was subsisting when Om Prakash met his death. According to the learned counsel, since Om Prakash had gone off on a scooter, therefore, he had gone off independently for work. Thus, there was no relationship between the deceased and the employer when Om Prakash's life was cut short. Furthermore, the accident neither arose out of, nor occurred in the course of employment. Thus, the claim petition did not fall within the ambit of Section 3 of the Workmen's 4 Compensation Act, 1923. In order to buttress this contention, the learned counsel has relied upon the case of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali & Anr. [(2007) 11 SCC 668] and upon the case of Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Company Limited & Anr. [(2009) 13 SCC 405]. Heard the learned counsel for the appellant and perused the impugned award. According to the learned Commissioner, the respondent No.8, the owner of the mini-bus, has clearly admitted that Om Prakash was employed by him as a Khallasi on the Mini Bus. He has further admitted that on 05.10.2008, the mini-bus had broken down. Therefore, he had directed Om Prakash to get certain parts for repairing the mini-bus. While Om Prakash was returning on the scooter along with the parts, the scooter slipped and Om Prakash sustained injuries. Subsequently, he died. The learned Commissioner is, thus, justified in holding that there is a relationship between the employer and the employee. After all, according to the owner of the mini-bus, the deceased was his employee. The question that arises is whether the death arose out of and in the course of employment or not ? In the case of Shakuntala Chandrakant 5 Shreshti (Supra), the Hon'ble Supreme Court has held that there must be causal connection between the injury and the accident and the accident and the work done in the course of employment. However, the expression “during the course of employment” has to be given a liberal interpretation. For, the Workman's Compensation Act, 1923 is a social beneficial piece of legislation. Considering the fact that it is beneficial in nature, considering the fact that it has a particular purpose and aim – to ameliorate the condition of the workers, to provide financial assistance to the workers who are injured or who die during the course of employment – the term “during the course of employment” will have to be interpreted in a wide scope. The employment need not be restricted only to the work assigned by an employer on a regular basis at a particular place. It would necessarily have to include the ancillary activities connected with the main purpose of work. Although it is true that a Khallasi's duty is mainly on the mini-bus, but the fact remains that in case the employer were to direct the Khallasi to fetch certain parts for repairing the bus, the Khallasi while on errand would be performing a duty connected with his employment. Moreover, he performs the said duty not out of his own free will, but because he has been directed by the employer. Therefore, the activity in which he is involved has been triggered by the 6 employer and the activity is being performed in the capacity of an employee. Hence, the element of “an employer-employee relationship”, and the element of “during the course of employment”, both of these elements abundantly exist. Hence, the learned counsel for the appellant is not justified in claiming that while Om Prakash was returning with the parts for repairing the bus, he was not engaged “in the course of employment”. The scenario would have been totally different in case Om Prakash were on errand for his family, or friends, or was engaged in activity which had no relationship with his employment. However, in the present case, having been directed by the employer to fetch certain parts, Om Prakash continued to perform his duty as an employee. The discharge of his duty was closely related to the maintenance of the bus on which he was employed. Hence, the contention raised by the learned counsel is unacceptable. The case of Shakuntala Chandrakant Shreshti (Supra) and the case of Malikarjuna G. Hiremath (Supra) are inapplicable to the present case. In the former case, the employee had died due to a heart attack. Therefore, the Hon'ble Supreme Court was of the opinion that the cause of heart attack must be shown to be related to the employment. Since there was no evidence to show the cause and the effect, the Hon'ble Supreme Court was 7 of the opinion that the injury was not caused out of or in the course of the employment. Moreover, in the latter case, the driver of the vehicle after taking the passenger to a temple was sitting on the steps of a pond, when he slipped and drowned. In such circumstances, the Hon'ble Supreme Court was of the opinion that again a causal relationship has to be shown between the injury and the accident and that the accident arose out of and was during the course of employment. However, in the present case, admittedly, Om Prakash was carrying out the instruction of his employer; admittedly, the scooter slipped while he was returning; admittedly, he sustained injuries and died. In case he were not sent to fetch the parts for repairing the mini-bus, he would not have slipped, he would not have injured himself, and he would not have died. Thus, there is a cause and effect relationship between the injury sustained and his employment. Hence, on factual matrix the cases of Shakuntala Chandrakant Shreshti (Supra) and Malikarjuna G. Hiremath (Supra) are distinguishable. Since a single contention has been raised, since this contention is unacceptable, this appeal, being devoid of any merit, is hereby dismissed. (R.S. CHAUHAN) J. Manoj solanki