POONAM DEVI AND OTHERSversusORIENTAL INSURANCE CO. LTD.

922                     [2020] 4REPORTS
               SUPREME COURT     S.C.R. 922               [2020] 4 S.C.R.


A                      POONAM DEVI AND OTHERS
                                         v.
                     ORIENTAL INSURANCE CO. LTD.
                        (Civil Appeal No. 1836 of 2020)
B
                               MARCH 06, 2020
              [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
             Employee’s Compensation Act, 1923: Theory of notional
      extension – Victim-deceased was a truck driver – On 11 June 2003,
C     he was driving truck of respondent no.2 from Ambala to Meerut,
      a distance of 200 Kms – At about 12.30 p.m., he stopped the truck
      near bridge to fetch water from the canal and also to have bath
      when he slipped into the canal and died – PW-2 standing near
      bridge tried to save him but he also slipped in the canal and could
D     not save the deceased – Workman Commissioner granted
      compensation to LRs of the deceased – However, High Court held
      that death did not arise out of the employment but was at the peril
      of the workman as he had gone to fetch water for his personal
      consumption and it was not case that the truck was over heated –
      On appeal, held: The deceased was driving the truck of respondent
E     no.2 from Ambala to Meerut – Indisputably he was in the course
      of his employment – The cabin of the truck was not air conditioned
      and it would have been a baking oven in the middle of the
      afternoon in the sultry monsoon heat of June 2003, when the
      temperature was touching 42.60C in Yamunagar (Haryana) – It was
F     a compulsion for the deceased to stay fresh and alert not only to
      protect the truck from damage but also to ensure a smooth journey
      and protect his own life by safe driving – The possibility of the
      truck also requiring water to prevent overheating could not be
      completely ruled out – In such circumstances, it cannot be said that
      the act of the deceased in going to the canal to fetch water for
G     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 – The application of
H
                                   922
                POONAM DEVI AND OTHERS v.                                    923
                ORIENTAL INSURANCE CO. LTD.

the theory of notional extension will therefore apply in the facts           A
of the instant case – Order of Commissioner is restored.
      Allowing the appeal, the Court
       HELD: 1.The Workmen’s Compensation Act, 1923 (now
christened as “Employee’s Compensation Act, 1923”) is a piece
                                                                             B
of socially beneficial legislation. The provisions will therefore
have to be interpreted in a manner to advance the purpose of
the legislation, rather than to stultify it. In case of a direct conflict,
when no reconciliation is possible, the statutory provision will
prevail only then. [Para 7] [925-H; 926-A]
                                                                             C
      2. The deceased was driving the truck of respondent no.2
from Ambala to Meerut. Indisputably he was in the course of
his employment. 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 afternoon in the sultry
monsoon heat of June 2003, when the temperature was touching                 D
42.60C 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 no.2 from damage but
also to ensure a smooth journey and protect his own life by safe
driving. The possibility of the truck also requiring water to
                                                                             E
prevent overheating cannot be completely ruled out. In these
circumstances, it cannot 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. A truck driver who would not keep
himself fresh to drive in such heat would be a potential danger              F
to others on the road by reason of any bonafide errors of
judgement by reason of the heat. The application of the theory
of notional extension will therefore apply in the facts of the
present case also. The order of Commissioner is restored.
[Paras 11, 13, 15] [927-B-D; 928-G; 929-A]
                                                                             G
      Manju Sarkar & Ors. v. Mabish Miah & Ors. (2014)
      14 SCC 21 : [2014] 6 SCR 126 – relied on.
      Malikarjuna G. Hiremath v. Branch Manager, Oriental
      Insurance Company Limited and Another (2009) 13
      SCC 405 : [2009] 2 SCR 320 – distinguished.                            H
924            SUPREME COURT REPORTS                        [2020] 4 S.C.R.


A           Leela Bai and Anr. v. Seema Chouhan and Anr. (2019)
            4 SCC 325 ; B.E.S.T. Undertaking v. Agnes, AIR 1964
            SC 193 : [1964] 3 SCR 930 ; Daya Kishan Joshi &
            Anr. v. Dynemech Systems Pvt. Ltd. (2018) 11 SCC 642
            : [2017] 7 SCR 587 – referred to.
B                            Case Law Reference
      (2019) 4 SCC 325                   referred to           Para 4
      [2009] 2 SCR 320                   distinguished         Para 5
      [2014] 6 SCR 126                   relied on             Para 9
C     [1964] 3 SCR 930                   referred to           Para 9
      [ 2017] 7 SCR 587                  referred to           Para 10
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1836
      of 2020.
D           From the Judgment and Order dated 09.05.2014 of the High
      Court of Judicature at Allahabad in First Appeal from Order No. 336
      of 2006.
            Vikas Bhadana, Parijat Kishore, Ajay Singh, Debasish Mukherjee,
      Dr. Nafis A. Siddiqui, Advs. for the appearing parties.
E           The Judgment of the Court was delivered by
            NAVIN SINHA, J.
             1. The appellants are the legal heirs of the deceased. They were
      granted compensation of Rs. 4,45,420/- with interest at the rate of 12
F     per cent by the Commissioner, Workmen’s Compensation Act from the
      date of accident up to the date of deposit in addition to a penalty
      imposed on the employer under Section 4A(3)(b) of the Workmen’s
      Compensation Act, 1923 (hereinafter called “the Act”). The High Court
      on 09.05.2014 has allowed the appeal of the respondent holding that
      the death occurred during the course of employment but did not arise
G     out of the employment.
            2. The deceased was aged 21 years, in the employment of
      respondent no.2 (since deleted), and was driving her TATA 407 vehicle
      bearing registration No. UP 15P 1689 on 11.06.2003 from Ambala to
      Meerut, a distance of approximately 200 Kms. At about 12.30 PM,
H     when he approached the bridge near village Fatehpur, the deceased
             POONAM DEVI AND OTHERS v.                                       925
     ORIENTAL INSURANCE CO. LTD. [NAVIN SINHA, J.]

went to the Yamuna canal to fetch water and also to have a bath.             A
Unfortunately, he slipped into the canal and died. The vehicle was
insured with the respondent Insurance Company. P.W.2, who was
standing near the bridge, deposed that the deceased had gone to fetch
water in a can along with the cleaner who tried to save him, but both
slipped into the canal. The Workmen’s Compensation Commissioner
                                                                             B
by order dated 12.12.2005 allowed the claim as aforesaid.
       3. The High Court in appeal by the Insurance Company held that
the deceased may have died during the course of the employment but
death did not arise out of the employment, as bathing in the canal was
not incidental to the employment but was at the peril of the workman.
                                                                             C
There was no casual connection between the death of the workman
and his employment. He had gone to fetch water for personal
consumption and it was not his case that the truck was over heated.
       4. Mr. Vikas Bhadana, learned counsel for the appellants,
submitted that there was a causal connection of the death with the
                                                                             D
employment. In the extreme heat of the month of June at noon, a
presumption would arise that the deceased had gone to the canal to
fetch water not only to cool the truck but also himself to ensure a proper
and safe journey of the vehicle belonging to the employer and his own
safety. Reliance was placed on Leela Bai and anr. vs. Seema
Chouhan and anr., (2019) 4 SCC 325.                                          E
       5. Mr. Ajay Singh, learned counsel for the respondent opposing
the appeal, submitted that the High Court has rightly held that there
was no casual connection between the death of the deceased with the
employment. Merely because death may have occurred in the course
of the employment will not suffice unless it is established that it was      F
incidental and arose out of the employment. Reliance was placed on
Malikarjuna G. Hiremath vs. Branch Manager, Oriental Insurance
Company Limited and another, (2009) 13 SCC 405.
      6. We have considered the submission on behalf of the parties
and have also perused the impugned orders as also the case law cited         G
before us.
       7. The Workmen’s Compensation Act, 1923 (now christened as
“Employee’s Compensation Act, 1923”) is a piece of socially beneficial
legislation. The provisions will therefore have to be interpreted in a
manner to advance the purpose of the legislation, rather than to stultify    H
926            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A     it. In case of a direct conflict, when no reconciliation is possible, the
      statutory provision will prevail only then.
            8. Relevant to the discussion is Section 3 of the Act. The relevant
      extract reads as follows:
            “3. Employer’ s liability for compensation.-
B
            (1) If personal injury is caused to a workman by accident arising
            out of and in the course of his employment, his employer shall
            be liable to pay compensation in accordance with the provisions
            of this Chapter:
C                                        XXXX”
            9. In Manju Sarkar & Ors. vs. Mabish Miah & Ors., (2014)
      14 SCC 21, 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
D     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
      B.E.S.T. Undertaking vs. Agnes, AIR 1964 SC 193, at paragraph 12
            “Under Section 3(1) of the Act the injury must be caused to the
E           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 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
F           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
G           and from the place of employment.”
            10. More recently in Daya Kishan Joshi & Anr. vs. Dynemech
      Systems Pvt. Ltd., (2018) 11 SCC 642, 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
H     work, he met with an accident resulting in death. Holding that his being
             POONAM DEVI AND OTHERS v.                                         927
     ORIENTAL INSURANCE CO. LTD. [NAVIN SINHA, J.]

on the road related to the nature of his duties, not only the injury was       A
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 no.2 from Ambala to Meerut.
Indisputably he was in the course of his employment. We can take               B
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 afternoon in the sultry
monsoon heat of June 2003, when the temperature was touching 42.60C
in Yamunagar (Haryana) (source: weatheronline.in). It was a
                                                                               C
compulsion for the deceased to stay fresh and alert not only to protect
the truck of respondent no.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         D
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
                                                                               E
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 bonafide
errors of judgement by reason of the heat. The theory of notional
extension noticed in the Agnes (supra) and followed in Leela Bai
(supra) is extracted hereunder:                                                F
      “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
      employment considered in Agnes (supra) as follows:
                                                                               G
      “…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            H
928            SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A           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.”
B           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
      paragraph 7 as follows:
            “7. In the facts of the case, and the evidence available, it is
C
            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 route timings of the bus required the deceased
            to be readily available with the bus so that the passenger service
D           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 bus-stand from his house. Naturally that would
E           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
F           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.”
            13. We see no reason why the application of the theory of notional
G     extension will therefore not apply in the facts of the present case also.
             14. Malikarjuna (supra) is distinguishable on its own facts as
      the deceased had completed his journey from Siraguppa to the Gurugunta
      Angreshwar temple, after which he went to the pond and while taking
      a bath slipped and drowned. The case is completely distinguishable on
H     its own facts.
             POONAM DEVI AND OTHERS v.                                      929
     ORIENTAL INSURANCE CO. LTD. [NAVIN SINHA, J.]

       15. We, therefore, find the order of the High Court to be            A
unsustainable. It is set aside. The order of the Workmen’s Compensation
Commissioner dated 12.12.2005 is restored. The payments in terms of
the order of the Workmen’s Compensation Commissioner be made to
the appellants within a period of six weeks from today. Since respondent
no.2 stands deleted, the question of payment of penalty by her does
                                                                            B
not arise.
       16. The appeal is allowed.


Devika Gujral                                             Appeal allowed.
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