ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainants against the Opposite Parties (herein referred to as OPs) under Section 12 of the Consumer Protection Act 1986 for the deficiency in service in repudiating the claim in respect of death of Ramashesh an employee of OP-2 and to pay the amount entitled in respect of him and for Rs.1,00,000/- as damages/compensation for causing pain, suffering, mental trauma and for cost and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the 1^st complainant is the wife of Ramashesh Kushwa and 2 to 4 are their children. OP-1 is the insurance company with whom OP.2 has purchased the insurance to his employees under Workmen’s Compensation Act. 

3.     Further it is contended that Ramashesh was working as a fitter with OP-2. On 25.06.2017 police had permitted OP-2 to construct a pedestrian sky walk from 11 pm to 5 PM (25.06.2017/26.06.2017). After finishing the work Ramashesh proceeded to his house at about 3 am and was waiting on the side of the road for conveyance. All of a sudden, a car bearing No.CKS 3481 driven by its driver in a rash and negligent manner jumped the divider of the road near Koramangala Ring Road and dashed to Ramashesh who had just finished his job and returning to the home. He suffered severe grievous injuries and admitted to Manipal hospital where he died on 28.06.2017.

4.     Being a workmen under OP-2, OP-2 had obtained insurance under Workmen’s Compensation Act and the policy was valid for a period of 23.08.2016 to 22.08.2017. After the death of Ramashesh Kushwa the employer i.e. OP.2 sought for claim application form and made a claim with all the relevant documents to the OP-1 who is the insurer.  OP-1 rejected the claim on the ground that the said accident has not taken place during course of employment as per the communication made by it.  The rejection of the claim is illegal as the said accident has taken place during the course of employment while returning to the home after attending to the work of the employer. 

5.     OP-1 has not at taken into consideration of the various decisions of  the Supreme Court and under the Workmen’s Compensation Act and also doctoriene of notional extension and during the course of employment. Under the Workmen’s Compensation Act, Section 3(1), the employment does not necessarily ends when the tool down signal is given or on the workmen leaves the actual workshop. There is a notional extension of both entry and exit space.  It is also well settled that the notional extension of the employer premises includes an area which the workmen passes or pass in leaving the actual place of work. 

6.     Without taking into  consideration the said facts and circumstances, and also the decisions on the said point rendered by law courts, OP-1 rejected their claim without rime or reason and no cause.  Hence there is deficiency in service on the part of OP-1 in rejecting the claim under the policy which was covering the employment of Ramashesh. Hence prayed the forum to allow the complaint and direct OP to pay the compensation LRs of Ramashesh along with interest at 24% per annum.  

7.     Earlier this complaint was filed only against insurance company afterwards the employer was also impleaded as OP-2.

8.     Upon the service of notice, OPs appeared through their counsel filed its version. In the version filed by OP-1, it is contended that, claim is not maintainable against OP-1 before this Forum.  It is filed under misconceived, erroneous assumption of facts. The insurance policy is issued subject to various terms and conditions exceptions, limitations.  The present complaint is filed on baseless, false, frivolous ground which is liable to be dismissed.

9.     It has admitted that the Ramashesh was an employee under OP-2 and OP-2 had taken insurance which is valid during the period of the incident.  It has also admitted the claim made by OP-2 in respect of the death of Ramashesh Khushva. 

10.   It is contended that there is no contractual obligation between the complainants/Ramashesh Khushva and Ops.  Complainants are to be redressed in an appropriate court under Employees Compensation Act 1923 and hence this complaint is not maintainable before this commission. Further under Section 3(1) of the Workmen’s Compensation Act injury must be caused by a person by an accident arising out of in the course of an employment.  That the employers has insured the employees under Workmen’s Compensation Act and further as per Section 10(B) of the WC Act notice is required to be given to the authority by and on behalf of  the employer in respect of any accident in the working premises and further the notice of death of the employee is to be given within 7 days from date of death, and also report the commissioner under Workmen’s Compensation Act. Further the employer is liable to deposit the compensation amount within 30 days from the date of service of notice from the commissioner, in the prescribed form, giving the circumstances leading to the death of the employee and also to indicate whether the employer is liable or not liable to deposit the compensation. 

11.   In case the employer is not liable to pay the compensation and deposit the claim and denies his liability, he shall make a statement indicating the ground in which he disclaims his liability. When such being the possession of law, the claim made by the employer of the complainant to the OP-1 in respect of the death of Ramashesh Khushava on 05.07.2017 was rejected vide letter dated 25.07.2017 and this forum has no right to decide the compensation i.e. to be paid to the complainants, since there is no relationship of any contractual or otherwise or customer service provider relationship between OP-1 and complainant. OP No.1 is not liable to pay any of the claim/demand made by the complainant. 

12.   The matter cannot be adjudicated by this commission whereas it has to be referred to the Civil Court which requires voluminous evidence both oral and documentary and also the matter involves interact questions of facts and law and hence denying all the other allegation of the complainant. Prayed the forum to dismiss the same.

13.   Upon impleading the employer “:Mark Solutions as additional party i.e. Op-2 , OP -2 appeared before the forum and filed a memo stating that he has no objection in allowing the claim of the complainant. That it has already issued a letter dated 01.08.2017 to the complainants about the insurance policy taken by him and regarding its validity and also regarding the death of Ramashesh Khushava on duty.

14.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

15.   Our answers to the above points are:-

POINT NO.1 :   Affirmative

POINT NO.2 :   Partly in the Affirmative

                        For the following.

REASONS

POINT No.1:-

16.   We have perused the documents produced and also the affidavit evidence adduced by the respective parties. It is not in dispute that complainants  are the legal representatives of the Ramashesh Khushva. It is also not in dispute as an employee (as a Fitter of OP-2) attended the duties on 26.06.2017 and after the work was over, he was proceeding to his house at 3 am.  While waiting for transportation to reach his house, by the side of road, during that time, a car bearing No.CKS-3481 came in a rash and negligent manner being driven by its driver and dashed to and jumped the divider and caused accident to the said Ramashesh Khushava and due to said accident, he suffered with severe  grievous injuries and taken to Manipal hospital where he died on 28.06.2017 due to the injuries.

17.   It is also not in dispute that the employer of Ramashesh Khushava reported the matter to the insurance company and sought for the claim form and claimed the insurance amount with OP-1, OP-1 upon receiving the claim sent its surveyor for inspection and report. In the survey report he has arrived at the valuation of the entitlement of compensation of the deceased at Rs.5,70,720/-, upon the wages the deceased employed earned.  He has mentioned regarding the accident details as the date of accident on 26.06.2017 at 03.00 hours near Koramangala inner Ring Road. He has not at all mentioned anything regarding the claim made by the employer.

18.   After receiving the report of the surveyor the insurance company OP-1 without prejudice to its stand on 25.07.2017 informed the employer Ramashesh Khushva that “It is observed that on 03.00 hours Mrs. Rameshash Khushva after completing the work and while returning to the home near Dommalur has sustained injury due to accident by vehicle No.CKS 3481 upon examining from all the facts it was observed that the accident was resulted in death of the employee Mr Ramashesh Khushva was not during the course of employment, hence we regret our inability to consider the claim and hence rejected “the claim made by the employer on behalf of the complainants.”

19.   It is to be observed here that for repudiating the claim on behalf of the complainant the insurance company has not at all taken any defence except that the accident and the death of Ramashesh Khushva was not during the course of the employment.

20.   When the claim of the employer made with OP-1 and further reports and the police report and the FIR and the PM report is considered it clearly establishes that the deceased Ramashesh Khushwa an employee of the OP-2 after completing his work was proceeding to his house and thereby while waiting for transportation was hit by a speedy car as a result he suffered grievous injury and was admitted to Manipal hospital where he died two days after. The decision of various Hon’ble Supreme Courts and Hon’ble High Courts are to the effect that the employment of a workmen does not commence until he has reached the place of employment and does not continue when he has left the place of employment. The journey to and from the place of employment being excluded. On the contrary, it is now well settled, that, this is subject to the theory of notional extension of employers premises so as to include an area which the workmen passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extention in both time and place and a workmen may be regarded as in the course of his employment. Even though he had not reached or had left his employment 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 employment of a workmen keeping in view at all time this theory of notional extensions. 

21.   From the facts and circumstances of this case, it becomes clear that employer has not provided any transportation for the commutation of the deceased person from his resident to the work place and back.  It is held in decision General Manager BEST undertaking Bombay Vs. Agnes, AIR 1964 SC 193 wherein it is held that the bus drivers were given the facility not as a member of the public but as employees, not as a grace but as the right. Because efficiency of the service demands it. We would therefore hold that, when a driver when going home from the Depot or coming to the Depot uses the bus any accident that happens to him is an accident is a course of an employment.

22.   In the present case also, the accident has taken place in a public place i.e. by the side of the road, when the deceased Ramashesh was standing by the side of the road waiting for a transportation to go to his house after the completion of the duty.  The fact of the employment of the deceased has not been denied by the employer. On the other hand, OP while rejecting the claim has contended that at the time of accident, the deceased was not carrying on any of the duties assigned to him as an employee and the accident was not during the course of an employment. There is no evidence placed by OP to prove the same. In view of the employer stating that he attended the work on that day and after finishing when he was going to his house met with an accident is considered, the accident has taken place during the course of an employment. Hence, the repudiation of the claim of the LRs of the deceased through the insurance obtained by the employer amounts to deficiency in service and hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2

23.   OP has raised the contention that this forum has no jurisdiction to entertain the complaint as the deceased wan an employee of the employer who has been registered under the Workmen’s Compensation Act and the authorities under the said Act alone competent to decide the payment of the insurance amount and that the employer has to follow the rules and procedure laid down therein. Though it may be true, in view of Section 3 of the Consumer Protection Act, 1986 this commission has also right and jurisdiction to decide the complaint filed by the complainant in respect of the deficiency in service on the part of the insurance company in repudiating the claim made by the LRs of the deceased. 

24.   Ex.R11 is produced by the Ops wherein one P.Upendra the Surveyor, Loss Assessor, Investigator, Claim Examiner has surveyed and assessed the compensation payable to the LRs of deceased Ramesh Kushwaha, wherein he has arrived at Rs.8,000/- as the wages to be considered as maximum wage under the Workmens Compensation Act for payment of compensation. Since the deceased was aged about 52 years, the relevant factor applicable to calculate the compensation is mentioned as 142-68.  The compensation worked out is 50% of the monthly wages multiplied by the relevant factor i.e. Rs.4,000 X 142.68 which works out to be Rs.5,70,720/- to be paid from the date of accident i.e. 26.06.2017 which falls within the policy period. In view of this since the said documents are filed by OPs itself, we deem it proper to award the LRs of deceased Ramashe Kushva the above compensation of Rs.5,70,720/- along with interest at 12% per annum o the said amount till payment of the entire amount. Further OP made the complainants to suffer both mentally and physically and that too harassed them in not paying the amount though the employer got insured taking into consideration the death of the earning member of the family which is very cruel under the circumstances. Hence we impose a punitive damages of Rs.1,00,000/- on the insurance company to be paid to the complainants besides ordering to pay Rs.50,000/- as damages for causing mental agony, and hardship. Further OP are also directed to pay a sum of Rs.10,000/- towards costs of the litigation expenses.   Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is partly allowed with cost.

2. OP-1 and 2 are jointly and severally hereby directed to pay a sum of Rs.5,70,720/- to the complainants along with interest at 12% per annum on the said amount from 28.06.2017 (date of death of Sri Ramashesh Kushva)  till payment of the entire amount. And further OPs are to pay punitive damages of Rs.1,00,000/- to the complainants.

3. OPs  are also directed to pay a sum of Rs.50,000/- towards damages for causing mental agony and strain and further Rs.10,000/- towards litigation expenses.

4. OPs are hereby directed to comply the above order within six months from the date of receipt of this order and submit the compliance report thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 15^th day of November 2021)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the PM Report of Ramashesh Kushva.

Ex P2: Copy of the death certificate.

Ex P3: Copy of Letter written by organization.

Ex P4: Copy of the policy details

Ex P5: Copy of email correspondences.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Smt.Prathibha.S. Authorized Signatory of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1:Copy of the Policy

Ex R2: Copy of the policy wordings/terms and conditions

Ex R3: copy of the Claim Intimation by Insured.

Ex R4: Employers’ Liability claim form.

Ex R5: Statement of injured persons

Ex R6: Copy of the policy

Ex R7: Monthly statement by insured.

Ex R8: Copy of the FIR

Ex R9: Copy of the PM Report.

Ex R10: Copy of he Death Certificate

Ex R11: Surveyor’s Report dt: 13.07.2017

Ex R12: Copy of the Repudiation letter dt:25.07.2017

Ex R13: Copy of the Death Report.

MEMBER                        PRESIDENT

RAK*