(Delivered on 01/02/2019)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This appeal is filed by the original opposite party (for short O.P.), feeling aggrieved by an order dated 06/02/2015, passed by the District Consumer Forum, Nagpur in consumer complaint No. 100/2012, by which the said complaint has been partly allowed. We have heard learned Adv. Mr. C.B. Pande for the appellant and learned advocate Mr. Naukarkar for the respondent /original complainant. We have also perused the record and proceedings of the appeal.
2. The facts in brief giving rise to the present appeal are as under,
The original complainant M/s. Mal Construction Engineer & Contractor had engaged the deceased Bhagwan Bajrang Kahar as a labour. The complainant /respondent herein had also obtained insurance policy from the O.P. /appellant to cover the risk of the labours under Workmen Compensation Act. It is alleged by the respondent herein that the deceased Bhagwan Bajrang Kahar died, by falling from the building due to slipping of his legs, during the period of policy. The respondent also paid compensation of Rs. 3,63,576/- to the legal heirs of the deceased Bhagwan Bajrang Kahar as per direction given by the Labour Commissioner in an order dated 05/08/2010 in Misc. Application No. WCA No. A-37/2010. The respondent also made claim under the policy to the appellant in consequence of death of deceased Bhagwan Bajrang Kahar. The appellant repudiated the claim on the ground as under,
“The accident has not occurred during the course of employment i.e. accident has not occurred while the deceased workman was working as a meason, as he had already left the duties”.
3. Thus alleging deficiency in service on the part of the appellant , the consumer complaint was filed by the original complainant /respondent herein before the District Consumer Forum, Nagpur seeking direction to the appellant to pay complainant insurance claim of Rs. 3,63,576/- with interest at the rate orf 12% p.a. from 18/10/2010 and also to pay it compensation of Rs. 50,000/- for physical and mental harassment and litigation cost of Rs. 25,000/-.
4. The said complaint was resisted by the appellant by filing reply to it. The defence set out by the appellant in its reply in brief is as under,
The complainant does not fall within the definition of the Consumer as he obtained the insurance policy for the commercial purpose. It is admitted that the policy for the period from 24/02/2010 to 25/02/2011 was issued under the title as “Employee’s Compensation Insurance Policy”, to the respondent. As per terms and conditions of that policy if the employee died during the course of employment and arising out of employment in that case only the claim under the policy is payable. But deceased Bhagwan Bajrang Kahar did not die during the course of employment and arising out of the employment and hence, the claim of the respondent has been rightly repudiated. Therefore, the complaint is liable to be dismissed with cost.
5. The learned District Consumer Forum below, after hearing both parties and considering evidence brought on record and considering various authorities cited before it did not agree with the defence raised by the appellant /original O.P. and held under the impugned order that death of the deceased Bhagwan Bajrang Kahar had occurred during the course of employment as he while returning fell down from building of his working place and his dead body was found on the following day in the morning. The Forum below also observed that the respondent already paid compensation of Rs. 3,63,576/- as per direction given by the Commissioner under Workmen Compensation Act. Hence, the respondent is entitled to that amount with interest as per the policy. The Forum below therefore, directed the appellant to pay to the respondent insurance claim of Rs. 3,63,576/- with interest at the rate of 9% P.A. from 01/12/2010 and also to pay it compensation of Rs. 10,000/- for physical and mental harassment and litigation cost of rs. 5000/-. Thus feeling aggrieved by that order, the original O.P. has filed this appeal.
6. The learned advocates of both parties also filed written notes of arguments. We have also heard learned advocates of both parties and perused the entire record and proceedings of the appeal. We find that the Forum below has rightly held that the respondent falls within the definition of Consumer as it had purchased the policy from the appellant to cover the risk of its employee.
7. The learned advocate of the appellant submitted that as the deceased employee was not working or doing any work assigned to him and had left the premises at 5.30 p.m. due to his ill health, the respondent is not entitled to make nay claim under the aforesaid policy in consequence of death of deceased Bhagwan Bajrang Kahar. He has also drawn our attention to the policy, report and spot panchanama filed on record and requested that as same were not considered properly by the Forum below, the impugned order may be set aside, by allowing the appeal.
8. On the other hand, the learned advocate of the respondent supported the impugned order and submitted that appeal may be dismissed.
9. The learned advocate of the respondent relied on decisions in the following cases.
i. Leela Bai and another Vs. Seema Chouhan and another , in Civil Appeal No. 931/2019, decided by the Hon’ble Supreme Court. It is observed that in the fact 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 employment considered in General Manager, B.E.S.T. under taking Bombay Vs. Mrs. Agnes (1964) 3 SCR 930.
“It is now well settled, however, that this is subject to the theory of notioal 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 time this theory of notional extension.”
It is further observed that if the requirement of the deceased to stay with the bus was integrally connected with the efficiency of the service to be provided to the public by respondent No. 1 and the deceased was not present at the bus terminal with the bus in his nature as a member of the public by choice, we see not reason why the doctrine of national extension of the employment will not be applicable.
ii. General Manager, B.E.S. Vs. Mrs. Agnes, decided on 10/05/1963 by Hon’ble Supreme Court. It was found in that case that under the Rules, a bus driver given the facility in his capacity as a driver to travel in any bus belonging to the undertaking, presumably, to enable him to keep up punctuality and to discharge his onereous obligations. It is given to him not as a grace, but is of right because efficiency of the service demands it. Therefore, the right of a bus driver to travel in the bus in order to discharge his duties punctually and efficiently was a condition of his service and there was an implied obligation on his part to travel in the said buses as a part of his duty.
It is therefore held in the said case that the doctrine of reasonable or notional extension of employment developed in the context of specific workshops, factories or harbours, equally applies to such a bus service. The doctrine necessarily will have to be adopted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egress to the factory is a limited one, in the case of a city transport service, by analogy, the entire fleet of buses forming the service would be the “Premises”
Therefore, it was held in the said case that the High Court was right in saying that the accident occurred to Nanu Raman during the course of his employment and, therefore, the respondent was entitled to compensation.
iii. Divisional Manager, M/s. Oriental Insurance Co. Ltd. Vs. Subas Chandra Swain and another, decided by the Hon’ble Orissa High Court, reported in [2007(115)FLR 266]. In that case expression “Arising out of and in course of employment” was under consideration. It is observed that expression says “In course of employment” and not “In course of work”. Hence, there is notional extension of sphere of work of the workman. The contention raised on behalf of the appellant that the injuries were not sustained during course of employment is not at all tenable.
iv. Assistant Executive Engineer, Vs. Shantavva and other, decided by the Hon’ble Karnataka High Court, reported in [2001(90) FLR 584]. In that case accident had taken place while the deceased was on his way to his residence from work place. It is held that the accident took place during the course of employment & the claim is rightly allowed by the Commission.
It is also held that even if any injury or death were to take place during the course of journey from the residence to the place of employment and so also, from the place of his employment to his place of residence, it has to be construed in law as accident taken place during the course of employment. Moreover Courts have consistently held so by applying the principle of the notional extension of time of employment.
v. NTPC/VSTPP, Vindhya Nagar, Sidhi Vs. Smt. Rajwati Panika and another, decided by Hon’ble Madhya Pradesh High Court, reported in [2006(110)FLR989]. In that case it was found that accident had taken place in premises of employer. Said accident had occurred in course of employment within duty hours. It is held that inference drawn by Commissioner as regards death of workman, is well founded & that compensation of Rs. 2,11,799/- along with interest @ 12% P.A. is rightly awarded..
10. We find that the accidental death report produced on record though shows that the deceased Bhagwan Bajrang Kahar had left the place of his work due to his ill health at 5.30 p.m. on 12/03/2010. But on the subsequent date his dead body was found on 13/03/2010 at 8.a.m to 8.30 am. below the same building where the deceased Bhagwan Kahar was working. Moreover, the spot panchanama also shows that the dead body of deceased Bhagwan Bajrang Kahar was found below that building. It also shows the circumstances pointing towards the fact that the deceased had fallen down from the building and died. Moreover, the deceased was wearing the same clothes and shoes which were on his body at the time of his work. The post mortem examination report of the deceased also shows his cause of death as injury to his vital organs.
11. We further find that though there is no direct evidence as regards the falling down of the deceased Bhagwan Bajrang Kahar from the building on the ground, sill the documents produced on record prove that he while getting down from the building where he was working, accidently fell down and sustained fatal injuries and died. Therefore, we find no substance in defence raised by the appellant that he had already left the work place before his death.
12. It is also pertinent to note that the competent authority namely Labour Commissioner in legal proceeding under Workmen’s Compensation Act, directed the respondent to pay Rs. 3,63,576/- to the legal heirs of the deceased Bhagwan Bajrang Kahar as he died during the course of employment of the respondent. This circumstance also supports the claim of the respondent.
13. We are therefore of the considered view that the Forum below has rightly considered the material aspect of the case and evidence brought before it and passed legal, correct and proper order & no interference is called for in the impugned order in present appeal. Hence, the appeal deserves to be dismissed.
ORDER
i. Appeal is dismissed.
ii. No order as to cost in appeal.
iii. Copy of order be furnished to both parties, free of cost.
