Society Magazine
Workmen Compensation ~ What Constitutes Working Hours ! - Apex Court
Posted on the 28 January 2019 by Sampathkumar SampathEvery industry, every entrepreneurial activity requires labor – and people are employed in various capacities of manual labour – there is employment – while people work, there are also mishaps ! - Misfortunes can occur at any workplace harming those at work. Duty is cast on theEmployer to pay compensation arising out ofpersonal injury/ deathcaused to a workman at such workplace. Employees Compensation Act (Amended) 2009 [Workmen Compensation Act 1923 earlier] – provides for payment of compensation by the employer to his employees (or their dependents in the event of fatal accidents) in respect of personal injury due to accidents arising out of and in the course of their employment. The beneficial enactmentaims not at compensating the workmen the wages,but provides for compensation for the injury or death.The amount of compensation depends on the nature of the injury and the average monthly wages and age of workmen.
The primary aspects that would be looked into are : 1. Whether there was employment 2. Whether there is causal connection between the employment and the injury / death- whether the occurrence is ‘arising out and in the course of employment’ .. .... however, it is clear that the occurrence need not occur at the workplace or during the workhours (again what constitutes work hours) but occurrence should be attributed to workmen being present in that particular place at that specified time – as arising out of employment and not a risk posed when the workman was there as a commoner / member of public.
There are of course times, when even common things get interpreted differently and perhaps the impugned case is one.In this appeal dealt by a Bench of Apex Court recently,theappellants are the legal heirs of the deceased aggrieved by the rejection of their claim for compensation under the Employee’s Compensation Act, 1923 as amended by the Workmen’sCompensation(Amendment)Act,2009. The person in respect of whom the petition had been made was a bus driver – he fell off the roof.It was earlier contended that he being a driver, he was no longer discharging his employment when the ill-fated accident occurred.
The petitioners contended that the driver was required to be there at that time and accident occurred while the deceased was coming down the roof of the bus after having his meals while the respondents observed that the duty of the deceased got over at 7:30 pm; and the claim was that the deceased had fallen off the bus after duty hours at 8:30 pm.The deceased cannot be said to have died in course of and arising out of the employment and that there was no proximity between the death and discharge of duties. The deceased cannot be said to have been on duty while he was eating food on the roof of the bus by choice ![though it might look obvious, deeper reading of the circumstances could provide a different perspective.]
The deceased, aged around 42 years, was the driver of the public bus belonging to respondent no.1. He met an accidentaldeathon 18.07.2010 atthe Burhanpur bus stand while coming down the roof of the bus of which he was a driver, after eating his meal.The salary of the deceased at the time of death was determined by the Tribunal at Rs.4,275/- per month.The deceased was required to drive the public bus daily, ferrying passengers from Indore to Burhanpur and back from Burhanpur to Indore. The traveling time in one direction was approximately 5 hours, according to PW2. The bus ferried passengers from Burhanpur at 6:30 AM and reached Indore at about 11:00 AM. The return journey would commence from Indore at 3:00 PM and terminate at Burhanpuron or after 7:30PM.According to PW-2, because of the nature of their duty, the deceased and the conductor of the bus, were required to remain with the bus twenty-four hours. The appellants also deposed that because of the nature of his duty, the deceased at times, would not come home for as long as a week. On the fateful day the deceased had returned from Indore to the Burhanpur terminus at about 7:30 pm. He met an accidental death while he was coming down the roof of the bus after having his meal at about 8:30 pm.The short question for consideration is whether the death occurred during the course of, and arising out of the employment.In the facts of the case, and the evidence available, it is 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 being provided by respondent no. 1 remained efficient and was not affected.If the deceased would have gone home every day after parking the bus and returned the nextmorning, theefficiency ofthe timingof thebus service facility to the traveling public would definitely have beenaffected, dependent on the arrival of the deceased at the bus stand from his house.Naturally that would bring an element of uncertainty in the departure schedule of the bus and efficiency of the service to the traveling public could be compromised.
Adherence to schedule by the deceased would naturally inure to the benefit of respondent no.1 by enhancement of income because oftimely service. Itisnotwithoutreason thatthe 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. The deceased did not remain at the bus stand living in the bus asa member of the public orby choice after arrivalat Burhanpur till departure for Indore the next morning.It is not the case of the respondent that the deceased was at liberty to proceed home and return at leisure the next morning after parking the bus at the Burhanpur bus stand at night.The Act being a welfare legislation, will have to be interpreted in the facts of each case and the evidence available, to determine if theaccident took place in the course of employment and arose out of the employment.
In Agnes (supra) it was observed :“…The man’s work does not consist solely in the task which he is employed to perform. It includes also matters incidental to that task. Times during which meals are taken, moments during which the man is proceeding towards his work from one portion of his employers’ premises to another, and periods of rest may all be included.” 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: “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 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.”
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 no reason why the doctrine ofnotional extension of the employment will not be applicable.
The courts below have misdirected themselves while dealing with this question and the finding rendered by them is perverse and unsustainable.”The appellants are held to have wrongly been denied compensation under the Act. The impugned orders are accordingly set aside. The Workmen’s Compensation Commissioner, Labour Court, Khandwa has already determined the salary of the deceased at the time of death as Rs.4,275/- per 7 month andis upheld.The compensation payable to the appellants shall be calculated on the aforesaid basis under Section 4 along with default penalty under Section 4A and costs to be awarded under Section 26 of the Act. Respondent no.2 shall pay the determined amount to the appellants within three weeks from the date of such computation by the Tribunal. The appeal is allowed.
With regards – S. Sampathkumar 24th Jan 2019. PS:this appears to be a case between employee (driver) and the Transport company (employer) and there is no reference to any Insurer, though the findings are of relevance and interest to every Insurer and insuring public.Supreme Court of India Civil Appeal No(s). 931 OF 2019(arising out of SLP(C) No.5576 of 2017)