High Court dismissed insurer's appeal against workmen compensation award. Court held driver's death from falling asleep on lorry while guarding goods during unloading was employment-related
Appeal dismissed; award confirmed; amount to be transmitted to Jurisdictional Court.
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON’BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.21200/2012
BETWEEN:
The Divisional Manager, Oriental Insurance Co., Ltd., Club Road, Belgaum. Represented through its Regional Office, Sumangala Complex, IInd Floor, Station Road, Hubli, Rep. by its Assistant Manager.
... Appellant
(By Shri. N.R. Kuppelur, Advocate)
AND
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All are residents of Pangeri Village, Tq: Chikkodi, Dist: Belgaum
(By. Smt. Chitra M. Goundolkar, Advocate for Sri. N.D. Gunde, Advocate for R1, 2 and 4; R3 and R5 served)
This M.F.A. is filed under Section 30(1) of the W.C. Act. Against the judgment and award dated 21.10.2011 passed in WCA:SR No.75/2010 on the file of the Labour Officer and Commissioner for Workmen Compensation, Sub-Division –I, Belgaum, awarding the compensation of Rs.3,06,180/- with interest at the rate of 12% p.a. from the date of petition and shall be deposited within one month from the date of the order.
This M.F.A coming on for Hearing, this day, the Court, delivered the following:
JUDGMENT
Challenging the judgment and award dated 21.10.2011 passed by the Labour Officer and Commissioner for Workmen Compensation, Sub-Division –I, Belagavi, in WCA:SR No.75/2010, the insurer has filed this appeal.
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seeking compensation of Rs.20,00,000/- against owner and insurer of the lorry bearing registration No. MH-09-Q7299 was filed. It was stated in petition that one Dinakar Barge was employed by respondent No.1 as driver of Lorry. As such he had driven the lorry bearing No. MH-09Q-7299 loaded with Saffola oil from Islampur to Bengaluru. That on 13.02.2010, when he reached Bengaluru, for unloading was not possible on same day. Hence he halted the vehicle waiting for unloading, at Bengaluru. After dinner he slept on top of the lorry as it was loaded with goods. During his sleep, he fell down, suffered head injury and died due to the same. An Unnatural Death Report was filed by Byatarayanapura Police Station, Bengaluru in UDR No.6/2010 under Section 174 of Code of Criminal Procedure, 1973. It was stated that as on date of death, Dinakar Barge was aged about 50 years and employed with respondent No.1 as driver, who was being paid monthly salary of Rs.5,000/- and daily bhata of Rs.100/-. The claimants are the wife, son, daughter and father of deceased Dinakar Barge and were
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depending on his income. The death occurred during course of and arose out of employment. The lorry belonging to respondent No.1 was insured with respondent No.2. Therefore, respondents were liable to pay
compensation.
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examined as PW-1. In her oral evidence she reiterated the complaint averments and got marked Exhibits P.1 to P.11. On behalf of respondents, two witnesses were examined as RW-1 and RW-2, and Exhibits R.1 to R.6 were marked.
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answered issue Nos.1 and 2 in the affirmative, and issue Nos.3 and 4 were answered holding that deceased was aged 50 years, earning monthly income of Rs.4,000/- and the claimants were entitled for compensation of Rs.3,06,180/-. The Commissioner, determined interest to be payable at the rate of 12% per annum from 30 days after the award till realization and answered issue No.5. The Commissioner held respondent No.2 liable to pay the compensation, while answering issue No.6. While answering issue No.7, Commissioner held petitioners No.1, 3 and 4 as dependants of deceased and entitled for the compensation. Assailing the award, the insurer is in appeal.
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and died. The said incident therefore did not occur during course of employment and out of employment. The deceased was not driving the vehicle nor did the vehicle meet with any accident. Therefore, there was no causal connection between death and employment. Hence, the insurer was not liable to pay compensation. Relying upon the decision of the Hon’ble Supreme Court in the case of Regional Director, E.S.I. Corporation and Another Vs.Francis De Costa and Another reported in (1996) 6 SCC 1 , learned counsel for the appellant submitted that the death caused when the insured vehicle was stationary, cannot be said to be an accident arising during the course of employment and arising out of the employment.
28 of the said judgment, which reads as under:
“28. In the case of Dover Navigation C.Ltd. v. Isabella Craig1 , it was observed by Lord Wright that-
“Nothing could be simpler than the words ‘arising out of and in the course of employment’. It is clear
1 1940 AC 190
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that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is on his employed to do- gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.”
succeed in the application filed under Section 22 of the W.C.Act has to establish the following three factors:
substantiated in this case and therefore sought for allowing the appeal and rejection of the claim petition.
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upon the decision of Hon’ble Supreme Court in the case of Poonam Devi Vs. Oriental Insurance Company Ltd., reported in AIR 2020 SCC 1305.
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“27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.”
the workman after taking the vehicle to a temple as per the instructions of his employee had slipped, fell down and drowned in pond where he was taking bath. Under such circumstances, the Hon’ble Supreme Court held that there was no causal connection between the incident of death and the employment. The Hon’ble Supreme Court in Poonam Devi ( supra ) after reviewing the law on the said aspect has held that every action of a driver of a truck to ensure the safety of the truck belonging to the employer and his own safety has to be considered as incidental to the employment by extension of notional employment theory. The death in the said case occurred when the deceased went to a canal to fetch water in a can for the truck and to refresh himself by taking a bath. In the
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instant case, it is not in dispute that the vehicle was carrying goods from Islampur to Bangalore and on reaching the destination and unable to find slot for unloading the deceased-driver parked the lorry awaiting unloading of goods on the subsequent day. While the vehicle was parked, the deceased after taking dinner was sleeping on the top of the loaded lorry in order to guard the goods. While he was sleeping, he fell down, suffered head injury and died. Hence, the causal connection of he sleeping on top of the loaded lorry with his employment is established and therefore applying the principle of notional extension of employment, as applied in the case of Poonam Devi , it is held that the accident in question occurred during the course of and arose out of employment. The lorry and the goods are deemed to be in transit until unloading and are the responsibility of the driver and the carrier.
deceased had consumed alcohol and fell down from the
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top of lorry in a state of intoxication, a perusal of exhibit P.9, the postmortem report belies any such doubt. The reference of insurer to the contents of Ex.P.1 containing statement of complainant that deceased had consumed alcohol would also be contrary to Ex.P.9- postmortem report. The said contention in any case would be a question of fact, on which no evidence was led by the insurer.
Amount in deposit to be transmitted to the
Jurisdictional Court for disbursement.
Sd/-
JUDGE
BVK/KGK
3 issues framed by the court
Whether sleep on top of a loaded lorry while awaiting unloading constitutes 'course of' and 'out of' employment.
Whether the accident was covered under the Workmen Compensation Policy despite being stationary.
Whether the insurer's liability arises despite alleged intoxication of the deceased.
Colour shows how this judgement treated each authority
Regional Director, E.S.I. Corporation and Another Vs. Francis De Costa and AnotherDistinguished¶48
Regional Director, E.S.I. Corporation and Another Vs. Francis De Costa and Another (1996) 6 SCC 1 · Who else cites this
Mallikarjun G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. & Anr.Distinguished¶14
Mallikarjun G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. & Anr. (2009) 13 SCC 405 · Who else cites this
Poonam Devi Vs. Oriental Insurance Company Ltd.Followed¶66
Poonam Devi Vs. Oriental Insurance Company Ltd. AIR 2020 SCC 1305 · Who else cites this
2 provisions across 1 enactments
The Divisional Manager, Oriental Insurance Co., Ltd.
Smt. Shevanta W/o. Late Dinakar Barage
Kum. Prakash S/o. Late Dinakar Barage
Kumari. Poonam D/o. Late Dinakar Barage
Bhima S/o. Krishna Barage
Sri. Digvijay S/o. Dattatreya Salunke
Ravi V. Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
