Punjab-Haryana High Court
Reliance General Insurance Co. Ltd vs Pyari And Anr on 4 October, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:132775
FAO No.940 of 2016 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 13th of September, 2024
Pronounced on 4th October, 2024
FAO No.940 of 2016 (O&M)
Reliance General Insurance Co. Ltd. ....Appellant
Versus
Pyari and another ....Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Sanjeev Kodan, Advocate
for the appellant.
Mr. Vipul Sharma, Advocate/Amicus Curiae
for respondent No.1.
Mr. Shivam Sachdeva, Advocate
for respondent No.2.
PANKAJ JAIN, J.
CM No.2957-CII of 2016
This is an application filed under Section 5 of Limitation
Act seeking condonation of delay of 165 days in filing the instant
appeal.
For the reasons recorded in the application, this Court is
satisfied that the applicant/appellant has made out a sufficient cause for
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condonation of delay.
Consequently, the present application is allowed. The delay of
165 days in filing the instant appeal is hereby condoned.
FAO No.940 of 2016 (O&M)
Insurer Company is in appeal against the order passed by
Commissioner under the Employees’ Compensation Act, 1923
(hereinafter referred to as ‘the Act of 1923) whereby the respondent/
claimant has been awarded compensation to the tune of Rs.5,84,800/-
as compensation along with interest calculated at the rate of 12% per
annum from the date of one month after the accident till the actual date
of realization.
2. Claimant filed claim petition under the Act of 1923 seeking
compensation on account of death of her husband Radha Krishan who
was employed as Boiler Coolie in a Sugar Mill/respondent No.1. As
per the claimant, her husband left the house on 18th of December, 2007
for duty in the premises of respondent No.1 at District Karnal. While
he was coming back to his house on foot, he was hit by some unknown
vehicle near Kohand crossing on G.T. Road. He sustained serious
injuries and later succumbed to the same.
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3. The employment is not in dispute. There is no dispute w.r.t.
the salary of the deceased. The appellant disputes the invocation of
doctrine of notional extension by the Commissioner to hold that the
deceased died during the course of employment.
4. Mr. Kodan counsel for the appellant submits that the
deceased suffered injury while coming back to his house while on
public road and thus, Commissioner erred in invoking doctrine of
‘notional extension’ in favour of the claimant and awarding
compensation. He submits that the deceased died on a public road and
cannot be held to have sustained injuries or died during the course of
employment as required under Section 3 of the Act of 1923. Thus, the
impugned order passed by the Commissioner deserves to be set aside.
5. Mr. Vipul Sharma, Advocate appearing as Amicus Curiae
for respondent No.1 submits that as per settled proposition of law the
doctrine of notional extension is applicable in cases arising out of
Employees’ Compensation Act. It has come on record that the deceased
was coming back to his house after attending his duties and thus the
Commissioner has rightly invoked the doctrine of notional extension
and held the employer and insurer liable to pay compensation. Mr.
Sharma has relied upon plethora of judgments to submit that the
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moment the employee starts from his house to join duty, he is deemed
to be in course of employment till the time he reaches back to his house
as per the doctrine of notional extension.
6. I have heard counsel for the parties and have carefully gone
through records of the case.
7. The pleaded case of the claimant is that her husband met
with an accident on G.T. Road while he was coming back to his house
on foot after attending his duty. Thus, the point of consideration is:
“Whether death of employee/deceased on a public road
while coming back to his house from place of employment
can be said to be injury caused by accident arising out of or
in course of his employment?”
8. Before going into the facts of the case, it is imperative to
peruse Section 3 of the Act of 1923. The expression ‘arising out of or
in course of employment’ has been deployed in Section 3 of the Act of
1923. It deals with liability of employer for compensation and the
same reads as under:
“3. Employer’s liability for compensation.- (1) If personal injury
is caused to a *[employee] 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:
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Provided that the employer shall not be so liable —
(a) in respect of any injury which does not result in the
total or partial disablement of the *[employee] for a
period exceeding three days;
(b) in respect of any injury, not resulting in death or
permanent total disablement caused by an accident
which is directly attributable to–
(i) the *[employee] having been at the time
thereof under the influence of drink or drugs,
or
(ii) the wilful disobedience of the *[employee] to
an order expressly given, or to a rule
expressly framed, for the purpose of securing
the safety of *[employees], or
(iii) the wilful removal or disregard by the
*[employee] of any safety guard or other
device which he knew to have been provided
for the purpose of securing the safety of
*[employee],
(c) Omitted by Act 5 of 1929.
(2) If an *[employee] employed in any employment specified
in Part A of Schedule III contracts any disease specified therein as
an occupational disease peculiar to that employment, or if a
*[employee], whilst in the service of an employer in whose service
he has been employed for a continuous period of not less than six
months (which period shall not include a period of service under
any other employer in the same kind of employment) in any
employment specified in Part B of Schedule III, contracts any
disease specified therein as an occupational disease peculiar to that
employment, or if a *[employee] whilst in the service of one or
more employers in any employment specified in Part C of Schedule
III for such continuous period as the Central Government may
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specified therein as an occupational disease peculiar to that
employment, the contracting of the disease shall be deemed to be
an injury by accident within the meaning of this section and, unless
the contrary is proved, the accident shall be deemed to have arisen
out of, and in the course of, the employment:
Provided that if it is proved,–
(a) that an *[employee] whilst in the service of one or
more employers in any employment specified in
Part C of Schedule III has contracted a disease
specified therein as an occupational disease peculiar
to that employment during a continuous period
which is less than the period specified under this
sub-section for that employment; and
(b) that the disease has arisen out of and in the course
of the employment,
the contracting of such disease shall be deemed to be an injury
by accident within the meaning of this section:
Provided further that if it is proved that a *[employee] who
having served under any employer in any employment specified in
Part B of Schedule III or who having served under one or more
employers in any employment specified in Part C of that Schedule,
for a continuous period specified under this subsection for that
employment and he has after the cessation of such service
contracted any disease specified in the said Part B or the said Part
C, as the case may be, as an occupational disease peculiar to the
employment and that such disease arose out of the employment, the
contracting of the disease shall be deemed to be an injury by
accident within the meaning of this section.
(2A) If a *[employee] employed in any employment
specified in Part C of Schedule III contracts any occupational
disease peculiar to that employment, the contracting whereof is
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section, and such employment was under more than one employer,
all such employers shall be liable for the payment of the
compensation in such proportion as the Commissioner may, in the
circumstances, deem just.
(3) The Central Government or the State Government,
after giving, by notification in the Official Gazette, not less than
three months’ notice of its intention so to do, may, by a like
notification, add any description of employment to the
employments specified in Schedule III and shall specify in the case
of employments so added the diseases which shall be deemed for
the purposes of this section to be occupational diseases peculiar to
those employments respectively, and thereupon the provisions of
sub-section (2) shall apply, in the case of a notification by the
Central Government, within the territories to which this Act
extends or, in case of a notification by the State Government,
within the State as if such diseases had been declared by this Act to
be occupational diseases peculiar to those employments.
(4) Save as provided by sub-sections (2), (2A)] and (3)
no compensation shall be payable to a *[employee] in respect of
any disease unless the disease is directly attributable to a specific
injury by accident arising out of and in the course of his
employment.
(5) Nothing herein contained shall be deemed to confer
any right to compensation on a *[employee] in respect of any
injury if he has instituted in a Civil Court a suit for damages in
respect of the injury against the employer or any other person; and
no suit for damages shall be maintainable by a *[employee] in any
Court of law in respect of any injury–
(a) if he has instituted a claim to compensation in
respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the
*[employee] and his employer providing for the
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payment of compensation in respect of the injury in
accordance with the provisions of this Act.”
9. The expression, ‘arising out of and in the course of his
employment’ has been a matter of continuous debate. The doctrine of
‘notional extension’ to interpret the aforesaid expression caught
attention of the Apex Court in the case of ‘Saurashtra Salt
Manufacturing Co. vs. Bai Valu Raja and others’, 1958 AIR
Supreme Court 881 wherein it was held as under:
“7. ………….It is well settled that when a workman is on a public
road or a public place or on a public transport he is there as any
other member of the public and is not there in the course of his
employment unless the very nature of his employment makes it
necessary for him to be there. A workman is not in the course of
his employment from the moment he leaves his home and is on his
way to his work. He certainly is in the course of his employment if
he reaches the place of work or a point or an area which comes
within the theory of notional extension, outside of which the
employer is not liable to pay compensation for any accident
happening to him.”
10. This doctrine was further clarified in the case of ‘General
Manager, B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes’, 1964
AIR Supreme Court 193 wherein after considering various judgments
passed under the English Law, Supreme Court observed as under:
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“12. Under Section 3(1) of the Act the injury must be caused to
the 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 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 and from the place of
employment. A contractual duty or obligation on the part of an
employee to use only a particular means of transport extends the
area of the field of employment to the course of the said transport.
Though at the beginning the word “duty” has been strictly
construed, the later decisions have liberalized this concept. A
theoretical option to take an alternative route may not detract from
such a duty if the accepted one is of proved necessity or of
practical compulsion. But none of the decisions cited at the Bar
deals with a transport service operating over a large area like
Bombay. They are therefore, of little assistance, except in so far as
they laid down the principles of general application. Indeed, some
of the law Lords expressly excluded from the scope of their
discussion cases where the exigencies of work compel an
employee to traverse public streets and other public places. The
problem that now arises before us is a novel one and is not covered
by authority.
14. …….Though the doctrine of reasonable or notional
extension of employment developed in the context of specific
workshop 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
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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”.
An illustration may make our point clear. Suppose, in view of the
long distances to be covered by the employees, the Corporation, as
a condition of service, provides a bus for collecting all the drivers
from their houses so that they may reach their depots in time and to
take them back after the day’s work so that after the heavy work till
about 7 p.m. they may reach their homes without further strain on
their health. Can it be said that the said facility is not one given in
the course of employment? It can even be said that it is the duty of
the employees in the interest of the service to utilise the said bus
both for coming to the depot and going back to their homes. If that
be so, what difference would it make if the employer, instead of
providing a separate bus, throws open his entire fleet of buses for
giving the employees the said facility? They are given that facility
not as members of the public but as employees; not as a grace but
as of 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 in the course of his employment.”
11. Supreme Court in the aforesaid case referred to the ratio of
law laid down in the case of ‘Weaver vs. Tredegar Iron and Coal Co.
Ltd.’ (1940)3 All England Reporter 157. Reference is to the
following observations made by Lord Porter:
“In some cases, no doubt, it may be helpful to consider whether
the man owed a duty to his employers at the time of the accident,
and, indeed, if duty be construed with sufficient width, it may be a
decisive test, but, so construed, to say that the man was doing his
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employment. 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. Nor is his work necessarily confined to
his employer’s premises. The man may be working elsewhere e. g.
in building a house or in work on the road, or in work at a dock.
The question is not, I think whether the man was on the employer’s
premises. It is rather whether he was within the sphere of area of
his employment”.
(emphasis supplied)
12. Thus, the question is not of the employer’s premises, but
the sphere of area of employment. The doctrine was again considered
in ‘Mackinnon Mackenzie and Co. Private Ltd. vs. Ibrahim
Mahommad Isaak’, (1969) 2 SCC 607 wherein the Apex Court
observed as under:
“5. To come within the Act the injury by accident must arise
both out of and in the course. of employment. The words “in the
course of the employment” mean “in the course of the work which
the workman is employed to do and which is incidental to it.” The
words “arising out of employment” are understood to mean that
“during the course. of the employment, injury has resulted from
some risk incidental to the duties of the service, which unless
engaged in the duty owing to the master, it is reasonable to believe
the workman would not otherwise have suffered.” In other words
there must be a causal relationship between the accident and the
employment. The expression “arising out of employment” is again
not confined to the mere nature of the employment. The expression
applies to employment as such to its nature, its conditions, its
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the workman is brought within the scene of special danger the
injury would be one which arises ‘out of employment’. To put it
differently if the accident had occurred on account of a risk which
is an incident of the employment, the claim for compensation must
succeed, unless of course the workman has exposed himself to an
added peril by his own imprudent act. ”
13. The aforesaid observations made by Supreme Court were
reiterated in the case of ‘Rajanna vs. Union of India’, 1995 AIR
Supreme Court 1966 wherein Supreme Court held as under :
“11. xxxx
This indicates that there must be a causal relationship between the
accident and the employmentor the accident must be related to a
risk which is an incident to the employment. The House of Lords
in Lancashire and Yorkshire Railway Co. v. Highley, [1917] A.C.
352, relied on in the above decision, indicated the test as under :
“There is, however, in my opinion, one test which is always
at any rate applicable, because it arises upon the very words
of the statute, and it is generally of some real assistance. It
is this: Was it part of the injured person’s employment to
hazard, to suffer, or to do that which caused his injury? If)
yea, the accident arose out of his employment…………..”
(emphasis supplied)
12. In Halsbury’s Laws of England, Volume 33, Fourth Edition,
the summary is stated thus :
“490. ACCIDENT TRAVELLING TO AND FROM
WORK. – The course of employment normally begins when
the employee reaches his place of work. To extend it to the
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travelling by the particular method and route and at the
particular time, the employee was fulfilling an express or
implied term of his contract of service. One way of doing
this is to establish that the home is the employee’s base
from which it is his duty to work and that he was travelling
by direct route from his home to a place where he was
required to work, but that is only one way of showing this;
the real question at issue is whether on the particular
journey he was travelling in the performance of a duty, or
whether the journey was incidental to the performance of
that duty and not merely preparatory to the performance of
it. If the place where the accident occurs is a private road or
on the employer’s property, the accident is in the course of
the employment because he is then at the scene of the
accident by reason only of his employment and he has
reached the sphere of his employment. The test is whether
the employee was exposed to the particular risk by reason
of his employment or whether he took the same risks as
those incurred by any member of the public using the
highway.”
“496. ACCIDENTS TRAVELLING T0 OR FROM WORK
IN EMPLOYER’s TRANSPORT. – An accident happening
while an employed earner is, with the express or implied
permission of his employer, travelling as a passenger to or
from his place of work In any vehicle which is being
operated by or on behalf of his employer, or which is
provided by some other person in pursuance of
arrangements made with his employer, must be deemed to
arise out of and in the course of his employment, even
though the employed earner is not obliged to travel by that
vehicle, if it would have been deemed so to have arisen if
he had been under an obligation to travel by it provided that
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the vehicle is not operated in the ordinary course of a public
transport service.”
(emphasis supplied)
13. There can be no doubt that there was a causal relationship
between the accident in which the appellant sustained the injuries
and his employment in the SPG for actual VEP security duty; and
it was an incident of his employment to travel from the staff
quarters to the South Block in the SPG vehicle according to the
official arrangement. In our opinion, the meaning of the expression
“actual VIP security duty” in the above circular must be the same
as that of the words “in the course of the employment” in the
Workmen’s Compensation Act; and, therefore, the test for
determining the liability for payment under the circular should also
be the same. In our view, the tribunal was in error in making an
unduly strict and narrow construction of the expression used in the
circular.”
14. The principle was again considered by Apex Court in the
case of ‘Manju Sarkar and others vs. Mabish Miah and others’,
(2014) 14 SCC 21. In the said case, the deceased was employed by
owner of a vehicle for a trip from place ‘A’ to ‘B’ and back. Truck
developed a mechanical defect. Driver went to arrange the repair.
Driver met with road accident. In these circumstances, Supreme Court
held that the death was in due course of employment observing as
under:
“9. According to the appellants, Sajal Sarkar on reaching
Dharmanagar noticed some mechanical trouble in the truck and he
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night he met with an accident. Churaibari FCI godown is located in
Dharmanagar. The Courts below have rejected the claim petition
on the ground that there is contradiction in the claimants case since
there was no mention of mechanical defect in the truck in the First
Information Report. What is relevant is as to whether Sajal Sarkar
continued to be in course of employment under respondent Nos.1
and 2 at the time of sustaining injuries in the accident culminating
in his death. Sajal Sarkar was at Churaibari, Dharmanagar only on
account of his employment as driver of the truck and there he met
with the road accident.
10. This Court has in the celebrated decision in General
Manager B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes AIR
1964 Supreme Court 193 laid down as follows:
“Under Section 3(1) of the Act the injury must be caused to
the 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 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 and from the place of employment.”
11. As rightly contended by learned counsel appearing for the
appellants there is a notional extension in the present case also and
we would, therefore, hold that Sajal Sarkar met with the road
accident in the course of his employment under respondent Nos.1
and 2. The Courts below have misdirected themselves while
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dealing with this question and the finding rendered by them is
perverse and unsustainable.”
15. Section 3 of the Act of 1923 was again interpreted by
Supreme Court in the case of ‘Daya Kishan Joshi and another vs.
Dynemech Systems Pvt. Ltd.’, (2018) 11 SCC 642. Supreme Court
held as under:
“18. Again, in the case of Union of India v. Surendra Pandey
[(2015) 13 SCC 625] this Court has explained the principle of
notional extension of employment giving examples as under:
“It was also pointed out by Lord Denning in the aforesaid
case of R. v. National Insurance Commr., ex p Michael
that the extension of the meaning of the phrase “in the
course of his employment” has taken place in some cases
but in all those cases, the workman was at the premises
where he or she worked and was injured while on a visit to
the canteen or some other place for a break. The test of
what was “reasonably incidental” to employment, may be
extended even to cases while an employee is sent on an
errand by the employer outside the factory premises. But in
such cases, it must be shown that he was doing something
incidental to his employment. There may also be cases
where an employee has to go out of his work place in the
usual course of his employment. Latham, C.J. in South
Maitland Railways Pty. Ltd. v. James observed that when
the workmen on a hot day in course of their employment
had to go for short time to get some cool water to drink so
as to enable them to continue to work without which they
could not have otherwise continued, they were in such cases
doing something in the course of their employment when
they went out for water.”
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(emphasis supplied)
19. The aforementioned observations are reiterated by this
Court in a number of subsequent judgments, including in the case
of Manju Sarkar v. Mabish Miah [(2014) 14 SCC 21)].
20. From the aforementioned, it is clear that the presence of the
deceased on the road in question was incidental to his employment
as a sales engineer. As he had to go to the Hero Honda Factory to
conduct a filter test, he was merely doing what was required of him
as an employee. Thus, his accidental death on the way back after
completing his work falls squarely within Section 3(1) of the Act.”
16. The theory of notional extension was further elucidated by
the Apex Court in the case of Leela Bai and another vs. Seema
Chouhan and another, (2019) 4 SCC 325. Deceased in this case was
a bus driver who fell off the roof of the bus where he was eating his
meals. Supreme Court applying the doctrine of notional extension
observed as under:
“7. ……….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.
8. The deceased did not remain at the bus stand living in the
bus as a member of the public or by choice after arrival at
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
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legislation, will have to be interpreted in the facts of each case and
the evidence available, to determine if the accident 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.”
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:-
“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.”
10. 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
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member of the public by choice, we see no reason why the doctrine
of notional extension of the employment will not be applicable.”
17. The question of notional extension was considered by
Three Judges Bench in the case of Regional Director, E.S.I.
Corporation vs. Francis De Costa, (1996) 6 SCC 1 wherein the
Supreme Court while laying down three tests held as under:
“9. ….In the case of Regina v. National Insurance
Commissioner, Ex parte Michael, 1977(1) Weekly Law Reports
109, the Court of Appeal in England had to construe a phrase
“caused by accident arising out of and in the course of his
employment” in Section 5(1) of the National Insurance (Industrial
Injuries) Act, 1965. Lord Denning M.R. started his judgment with
the observation :-
“So we come back, once again, to those all too familiar
words ‘arising out of and in the course of his employment’.
They have been worth – to lawyers – a King’s ransom. The
reason is because, although so simple, they have to be
applied to facts which vary infinitely. Quite often the
primary facts are not in dispute : for they are proved beyond
question. But the inference from them is matter of law. And
matters of law can be taken higher. In the old days they
went up to the House of Lords. Nowadays they have to be
determined, not by the courts, but by the hierarchy of
tribunals set up under the National Insurance Acts.”
10. xxxx
11. Construing the meaning of the phrase “in the course of his
employment”, it was noted by Lord Denning that the meaning of
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the phrase had gradually been widened over the last 30 years to
include doing something which was reasonably incidental to the
employee’s employment. The test of “reasonably incidental” was
applied in a large number of English decisions. But, Lord Denning
pointed out that in all those cases the workman was at the premises
where he or she worked and was injured while on a visit to the
canteen or other place for a break. Lord Denning, however,
cautioned that the words “reasonably incidental” should be read in
that context and should be limited to the cases of that kind. Lord
Denning observed :
“Take a case where a man is going to or from his place of
work on his own bicycle, or in his own car. He might be
said to be doing something “reasonably incidental” to his
employment. But if he has an accident on the way, it is well
settled that it does not “arise out of and in the course of his
employment”. Even if his employer provides the transport,
so that he is going to work as a passenger in his employer’s
vehicle (which is surely “reasonably incidental” to his
employment), nevertheless, if he is injured in an accident, it
does not arise out of and in the course of his employment. It
needed a special “deeming” provision in a statute to make it
“deemed” to arise out of and in the course of his
employment.”
29. Although the facts of this case are quite dissimilar, the
principles laid down in this case, are instructive and should be
borne in mind. In order to succeed, it has to be proved by the
employee that (1) there was an accident, (2) the accident had a
casual connection with the employment, and (3) the accident must
have been suffered in course of employment. In the facts of this
case, we are of the view that the employee was unable to prove that
the accident had any causal connection with the work he was doing
at the factory and in any event, it was not suffered in the course of
employment.”
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18. In the case of ‘Poonam Devi and other vs. Oriental
Insurance Co. Ltd.’ (2020) 4 SCC 55, Supreme Court after
considering the series of binding precedents held as under :
“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
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 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 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
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:
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“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:
“..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.”
19. The aforesaid principle has been invoked by this Court also
in the case of State of Punjab and others vs. Manjit Kaur and
others, FAO No.64 of 1994 decided on 29th of July, 2024 holding as
under:
“9. In the present case the deceased was employed for
filling gharas on the slope of embankment of ‘APS Hydel
Channel’ R.D.25300 to 25500 MTRS left side in Jhinjri
valley. For reaching place of his duty he was to travel on the
canal embankment. On the fateful day unfortunately while
traveling on the canal embankment he died falling in the22 of 24
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canal. Thus no fault can be found with the findings recorded
by the Commissioner that the death of deceased had
connection with his employment and is thus result of an
accident arising out of and in the course of employment of the
deceased applying doctrine of notional extension.”
20. Thus, from the aforesaid precedents relating to the
application of ‘notional extension’ the following propositions emerge:
(i) As a rule, the employment of an employee does not
commence until he has reached the place of
employment and does not continue after he leaves the
place of employment. However, this is subject to the
theory of notional extension of the employer’s
premises;
(ii) Theory of notional extension connotes that there may
be some reasonable extension in both time & place.
An employee may be regarded to be in the course of
employment even though he had not reached or had
left the employer’s premises;
(iii) An employee while on public road or in public place
or in a public transport, is present there as a member
of public and not in the course of employment unless
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very nature of the employment necessarily requires
for him to be there. The test for determining is
“whether he was within the sphere of area of
employment or not”; and
(iv) The accident must have a causal connection with the
employment.
21. Applying the aforesaid parameters to the present case, this
Court finds that the Commissioner erred in the present case in invoking
the doctrine of notional extension to hold that the deceased who was on
public road while going back to his house after attending his duties died
during the course of employment. Resultantly, the instant appeal is
allowed. Impugned order is hereby set aside.
22. Pending application(s), if any, shall also stand disposed off.
October 04, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes
Whether reportable : Yes
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