IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.06.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2405 OF 2010 and M.P.No.1 of 2010 The New India Assurance Company Limited, 77, First Avenue, Indira Nagar, Adyar, Chennai – 20. ...Appellant/Respondent 2 Versus 1.Tmt.S.Jayanthi 2.Tmt.E.Kuppu 3.Elumalai 4.National Asphalt Products and Constructions Company Ltd., Khivraj Complex, 480 Anna Salai, Nandanam, Chennai – 35. ...Respondents/Appellants & Respondent 1 Prayer: This appeal is preferred against the order dated 07.12.2009, made in W.C.Case No.97 of 2007, on the file of Court of Commissioner for Workmen's Compensation-2 (Deputy Commissioner of Labour-2), Chennai – 600 006. For Appellant : M/s.S.Manohar For Respondents : Mr.M.Pachaiyappan - - - J U D G M E N T The above appeal has been filed by the appellant / The New India Assurance Company Limited, against the order dated 07.12.2009, made in W.C.Case No.97 of 2007, on the file of Court of Commissioner for Workmen's Compensation-2 (Deputy Commissioner of Labour-2), Chennai – 6. 2.The short facts of the case are as follows: The (deceased) Sekar was working as a labourer under the first opposite party engaged in laying of road from Paruvakudi to https://hcservices.ecourts.gov.in/hcservices/ Kovilpatti at Tiruvengadam, Tirunelveli District. On 9.4.2005, while the deceased was returning from the work spot to his Cottage residence, which was provided by the first opposite party at Sangupattivilakku nearby the work spot, an unknown vehicle came in a negligent manner and hit against the deceased Sekar. In the above said accident the deceased Sekar sustained multiple fractures. The applicants submit that immediately afterwards the deceased Sekar was given first aid at Kovilpatti Government Hospital, but he died there on 10.04.2005. The applicants submit that the deceased Sekar was 28 years at the time of accident and he died leaving behind the applicants as his surviving legal heirs. The first opposite party took the workman policy for (deceased) Sekar with the second opposite party and hence the applicants have filed the claim for Rs.6,00,000/- against the first and second opposite parties. 3.The second opposite party in his counter has resisted the claim denying the averments in the claim regarding the age, income and occupation of the (deceased) Sekar. The averments in the claim that the (deceased) Sekar had died while doing his duty during the course of his employment under the first opposite party was also denied. It was stated that on the date of accident, the (deceased) Sekar had been intoxicated as he had consumed alcohol and subsequent to this, an unknown vehicle had dashed against him and caused the accident. As such it was contended that the accident did not happen during the period when the (deceased) Sekar was doing his duty during the course of his employment under the first opposite party, but had occurred while he was returning to his home. It was also submitted that the applicant should prove that they are the legal heirs of the deceased through proper documentary evidence. 4.On the averments of both the parties, the Deputy Commissioner of Labour, had framed five issues for consideration, namely; “(i)Did the (deceased) Sekar work as a labourer under the employment of the first opposite party? (ii)If so, did he die while doing his work during the course of his employment under the first opposite party? (iii)What is the age and income of the (deceased) Sekar? (iv)What is the compensation that the applicants are entitled to get? (v)Who is liable to pay compensation?” 5.On the applicants side, the first applicant (wife of deceased) was examined as PW1. PW1 has given her sworn affidavit and marked exhibits P1 to P5 namely:- https://hcservices.ecourts.gov.in/hcservices/ 1. Ex.P1 - First Information Report; 2. Ex.P2 – Postmortem report; 3. Ex.P3 – Death certificate; 4. Ex.P4 – Legal heir certificate and; 5. Ex.P5 – Copy of Insurance policy. 6. On the applicants side, one witness was examined as PW2, on the second opposite party's side, the administrative officer working in the second opposite party's side had given his sworn affidavit and marked two documents Ex.R1 and Ex.R2 namely:- 1.Ex.P1 – Authorisation letter and; 2.Ex.P2 – Insurance Policy. 7.PW1 in her sworn affidavit had stated the same version of accident as mentioned in the claim. During Cross-examination she had stated that she was also working as a labourer under the employment of first opposite party; that the working hours are from 9.00 a.m. to 5.00 p.m.; that for subsequent periods of working, overtime was paid; that she had come to her husband's native place, situated at Gingee Taluk of Villupuram, 2 days prior to the accident; that she had been informed of the accident by the first opposite party; that the complaint had been lodged by one Murugan, working under the first opposite party, that the said Murugan had found her husband lying in a ditch after having sustained grievous injuries on his hip; that he had taken him to the Government Hospital at Kovilpatti; she had further denied that her (deceased) husband had consumed liquor, while he was walking home after doing his duty. 8. On the petitioners side, one Veeramani was examined as PW2. PW2 adduced evidence that he and the (deceased) Sekar were working as Labourers under the employment of first opposite party; that the first opposite party used to arrange for transportation from their house to place of duty and also used to drop them back to their house after duty, that they would finish their work and return by 10.00 p.m. everyday; that on the date of accident the (deceased) Sekar had come for work but on their way home had got down to answer the calls of nature. On cross examination by first opposite party, he had informed that they are daily wage earners; that on the date of accident, about 19 persons had worked overtime till 8.30 p.m. and that the (deceased) Sekar was also one amongst them; that on their way home, at 9.00 p.m. the (deceased) had got down from the vehicle to answer the calls of nature and that he had subsequently not seen him. 9.On the second opposite party's side, one Mallikarjunarao, in his sworn affidavit, had stated that no reasons has been stated in the F.I.R. regarding manner of death; that the (deceased) Sekar https://hcservices.ecourts.gov.in/hcservices/ had not died due to injuries caused while doing his duty and during the course of his employment with the first opposite party; As such the second opposite party is not liable to pay compensation as per the Workmen Compensation Act. 10.The Tribunal, on considering that the place of duty in the instant case was a stretch of road and hence the whole stretch of road, wherein road laying work was being carried out, was considered as the place of duty for the Labourers, and hence held that the (deceased) Sekar had died while doing his duty under the course of employment under the first opposite party. 11. Further, on the first opposite party's side, it has been stated that the (deceased) Sekar had been working as a labourer under the employment of first opposite party, that the accident h ad occurred on 9.4.2005 and that he was getting a monthly salary of Rs.4,500/-; that an insurance policy as per the Workmen Compensation Act had been taken by the first opposite party with the second opposite party for the labourers working under them. No contra evidence had been let in on the part of the second opposite party to counter the evidence given by the first applicant and PW2. Further no contra evidence had been let in to rebut the charges in the F.I.R. The Tribunal, on considering that no documentary evidence had been marked on the applicants side to prove that the income of the (deceased) Sekar was Rs.4,500/- held that the nominal income of the (deceased) Sekar could be taken as Rs.4,000/- per month. Considering that the deceased was aged 33 years at the time of accident, and adopting a multiplier of 201.66, the Deputy Commissioner of Labour awarded a compensation of Rs.4,03,320/- as Loss of Income sustained by the applicants (50/100 X 4000 X 201.66), For funeral expenses Rs.2,500/- was awarded. In total, the Deputy Commissioner of Labour awarded a total compensation of Rs.4,05,820/- together with interest at the rate of 12% per annum from the date of accident till the date of payment of compensation payable by the second opposite party. 12.Aggrieved with the award passed by the Deputy Commissioner of Labour-2, the second opposite party has filed the present appeal to dismiss the claim. The learned counsel for the appellant has argued that the learned Commissioner was wrong in holding that the deceased died in an accident arising out of and in the course of his employment as the cause of death of the deceased is not known to anybody and that he went on his own after the completion of work for the day and he was found dead in a suspicious condition. It was also pointed that the learned Commissioner failed to appreciate that as per the version in F.I.R., the deceased left the work place after receiving his wages and went to take liquor and that he was found dead the next day. It was also pointed out that the entire highway cannot be treated as workplace and it is also not known where, when and how the https://hcservices.ecourts.gov.in/hcservices/ deceased died. As such, the learned Commissioner was wrong in fixing the age of the deceased at 33 and his income at Rs.4,000/- per month and assessing the compensation at Rs.4,03,320/- and funeral expenses at Rs.2,500/-. Hence it was prayed that the order, made in W.C.Case No.97 of 2007, on the file of Court of Commissioner for Workmen's Compensation (Deputy Commissioner of Labour-2), be dismissed. 13.The learned counsel in support of his appeal, had cited two judgments made in the below mentioned citations which are reported in:- (i)Employees' State Insurance Corporation v. Francis De Costa reported in 1996 ACJ 1281 “Employees' State Insurance Act, 1948, section 2 (8) - Employment injury - Notional extension - Arising out of and in the course of employment - Workman proceeding on a cycle to his place of employment when he was hit by a lorry and sustained injuries - Whether the injuries arose out of and in the course of employment to enable the workman to claim disablement benefit - Held: no; no causal connection between the accident and the work the workman was doing at the factory established. [AIR 1958 SC 881 relied on: 1958- 65 ACJ 473 (SC) distinguished: 1978 ACJ 273 (Kerala) reversed].” (ii)Malikarjuna G.Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. and another reported in 2009 ACJ 721. “Workmen's Compensation Act, 1923, section 3 (1) and Motor Vehicles Act, 1988, section 147 (1) – Arising out of and in the course of employment – Motor insurance – Liability of insurance company – Driver took some passengers in his truck to a temple as per directions of his employers – On reaching the temple driver went to a pond for taking bath where he slipped and drowned – Whether the death arose out of and in the course of employment and owner and insurance company of the vehicle are liable – Held: no; there was no causal connection between death of driver and his employment.“ 14. The learned counsel for the claimant argued that the deceased was a labourer engaged in road formation work. The first opposite party/employer had provided accommodation to the deceased. After finishing his work, the deceased had returned to the cottage residence, which the first opposite party had allotted. Therefore, the deceased all along has been under the control of the first opposite party. Whenever, any urgent work is https://hcservices.ecourts.gov.in/hcservices/ to be carried out, the first opposite party would avail the service of the deceased, since the deceased was available at all hours of the day and night. The learned counsel vehemently argued that the allegation made by the insurance company that the deceased had consumed alcohol and that in the result he was in an intoxicated position and had fallen down into a ditch and died, had not been proved by way of documentary evidence or oral evidence. There is a crystal clear finding that the deceased was an employee under the first opposite party. The occurrence was also informed to the wife of the deceased by the employee of the first opposite party. The deceased was assigned work even after working hours and overtime wages were paid for this period. Supporting his case, the learned counsel for the claimant cited the following citations:- (i)New India Assurance Co. Ltd. v. Rajamani and others reported in 2003 ACJ 1413 “Motor Vehicles Act, 1988, sections 166 and 147 (1) (b) (i) – Claim application – Arising out of the use of motor vehicle – Motor insurance – Liability of insurance company – Loadman engaged for loading crushed stones into a truck – Truck was parked at the entrance of the quarry about 250 ft. from where the accident occurred – At the time of loading the crushed stones, a wall standing in the quarry fell down resulting in injuries on the right leg of the loadman – Insurance company disputed its liability on the ground that truck was nowhere near the spot where the accident occurred and injury caused by toppling down of wall is not an accident arising out of use of motor vehicle – Whether the accident arose out of use of motor vehicle and insurance company is liable – Held: yes; activity of loading provides the close link between the accident and the use of motor vehicle; fact that the lorry was parked away from the quarry is irrelevant.” (ii)National Insurance Co. Ltd. v. Prembai Patel and others reported in 2005 ACJ 1323. “Motor Vehicles Act, 1988, section 147 (2) – Motor insurance – Act policy – Extent of liability of insurance company – Death of driver when truck overturned – Death arose out of and in the course of employment – Claimants preferred claim under Motor Vehicles Act – Vehicle was insured under 'Act liability only' policy – High Court held that liability of insurance company is not limited to the extent provided under Workmen's Compensation Act and directed the insurance company to pay the awarded amount – Whether https://hcservices.ecourts.gov.in/hcservices/ liability of insurance company is limited to the extent arising under Workmen's Compensation Act – Held: yes; owners to satisfy the remaining portion of the award. [2002 ACJ 271 (SC) followed: 2000 ACJ 1359 (MP) modified].“ (iii)Superintending Engineer, Tamil Nadu Electricity Board and another v. Sankupathy reported in 2005 ACJ 630 “Workmen's Compensation Act, 1923, section 3 (1) – Arising out of and in the course of employment – Notional extension – Death of workman when he was proceeding to the place of work – Whether applying the principle of notional extension of employer's premises, the place of accident has to be construed as place of duty of the workman even if he had not reached the actual place of work and the dependant is entitled to compensation – Held: yes. [1958-65 ACJ 473 (SC) followed].” (iv)Divisional Manager, Oriental Insurance Co. Ltd. v. Subas Chandra Swain and another reported in 2008 ACJ 2210. “Workmen's Compensation Act, 1923, section 3 (1) – Arising out of and in the course of employment – Workman while returning home from his workplace on cycle after discharging his duty was hit by a truck and he sustained injuries – Whether the injuries arose out of and in the course of employment – Held: yes. [1977 ACJ 430 (Calcutta) and 1982 ACJ (Supp) 240 (MP) relied: 1996 ACJ 1281 (SC) distinguished].“ (v)National Insurance Co. Ltd. v. Suman Devi and another reported in 2010 ACJ 1093 “Workmen's Compensation Act, 1923, section 3 (1) – Notional extension – Arising out of and in the course of employment – Tree fell on workman when he was returning to his house after duty and he sustained fatal injuries – Contention that death of workman neither took place within the factory premises nor during the course of actual employment or during the period of his duty – Expression 'employment' in section 3 is wider than the actual work or duty which the workman had to do – Accident occurring when the workman is proceeding from place of employment to his residence is regarded as arising out of and in the course of employment – Whether applying the principle of notional extension the Commissioner was justified in concluding that death of workman arose out of accident during the https://hcservices.ecourts.gov.in/hcservices/ course of his employment – Held: yes.” 15.On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned decision of the learned Deputy Commissioner of Labour, this Court is of the considered opinion that (a) the deceased was an employee under the employer, who provided accommodation for staying in order to facilitate the work to be carried out at any time of the day or night. (b) As per evidence of the co-employee, overtime work was also assigned to the employees, including the deceased. (c) There is no medical evidence to show that the deceased had consumed alcohol and was in an intoxicated position. (d) In this case, the employer/employee relationship does not exist only for scheduled periods of work but also extends to other periods of time, which are classified as overtime job. Supporting this contention, the deceased was accommodated in the shelter provided by the first opposite party / employee. 16.Therefore, this Court does not find any discrepancy in the said award. Hence, the award passed by the Learned Deputy Commissioner of Labour-2 in Chennai in W.C.No.97 of 2007 dated 7.2.2009 is confirmed. It is open to the claimant to withdraw their compensation lying in the credit of W.C.No.97 of 2007, on the file of Court of Commissioner for Workmen's Compensation-2 (Deputy Commissioner of Labour-2), Chennai – 600 006, after filing a memo along with this order, subject to deduction of withdrawals, if any, made by the claimants. 17. In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the order dated 07.12.2009, made in W.C.Case No.97 of 2007, on the file of Court of Commissioner for Workmen's Compensation-2 (Deputy Commissioner of Labour-2), Chennai – 600 006 is confirmed. Consequently, connected Miscellaneous Petition is closed. There is no order as to costs. vs Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal, Commissioner for Workmen's Compensation-2, (Deputy Commissioner of Labour-2) Chennai.6. + 1 cc to Mr. M. Pachaiappan, Advocate SR No.37502/11 + 1 cc to Mr. S. Monohar, Advocate SR No.37352/11 SR(CO) SR/18.7.2011 ORDER MADE IN C.M.A.NO.2405 OF 2010 AND M.P.NO.1 OF 2010 https://hcservices.ecourts.gov.in/hcservices/