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  REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 5847    OF 2014 [ Arising out of  SLP (Crl.) No.27614 OF 2011]

Manju Sarkar & Ors.      …     Appellant(s)  

versus

Mabish Miah and ors.           …    Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.  

1. Leave granted.

2. This  appeal  is  directed  against  the  judgment  and  

order dated 16.3.2009 passed by the Guwahati High Court,  

Agartala  Bench,  in  MFC (W.C.)  03 of  2009  dismissing the  

appeal  of  the  appellants  herein  against  the  order  dated  

12.12.2008  of  the  Commissioner   for  Workmen’s  

Compensation West Tripura, Agartala, whereby the appellants  

were denied compensation for the demise of employee Sajal  

Sarkar.

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3. The facts  in brief are stated as follows: Respondents  

1  and 2  are  the  joint  owners  of  the  truck  vehicle  bearing  

Registration No.TR 01-B-1689 and they had taken policy of  

insurance  for  the   said  truck  with  respondent  No.3.  Sajal  

Sarkar, the husband of the appellant No.1 was driver of the  

said  truck  vehicle  under  the  employment  of  respondents  

Nos.1  and  2  on  14.5.2005   and  he  drove  the  truck  and  

reached  Dharmanagar  from  Agartala  and  at  that  time  he  

noticed some mechanical  trouble in the truck  and he got  

down to make arrangement for repair of the vehicle but on  

the intervening night of 14/15-5-2005 at about 1.00 – 1.30  

a.m.  he met with a road accident  and sustained grievous  

injuries  in  Assam Agartala   road in  between S.T.  Para and  

Kherengjuri under Churaibari Police Station limit and he was  

taken to Dharmanagar hospital where he succumbed to the  

injuries in the early hours on 15.5.2005.  The helper of the  

truck  Bikram  Deb  who  was  waiting  in  the  truck,  went  in  

search of   Sajal Sarkar in the morning on 15.5.2005 and after  

coming  to  know of  the  accident,  he  went  to  hospital  and

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confirmed  the death  of  driver  Sajal  Sarkar  and thereafter  

went to Churaibari  Police Station and gave a complaint on  

which  a  case  under  FIR  No.28/05  for  the  alleged offences  

under  Section  279  and  304  (A)  IPC  was  registered.  The  

appellant  No.1  the  widow  along  with  appellant  No.2,  her  

minor daughter and appellant No.3, the mother-in-law, filed a  

suit  under  the  Workmen’s  Compensation  Act,  1923  in  T.S.  

W.C.  39  of  2005  before  the  Commissioner,  Workmen’s  

Compensation, West Tripura at Agartala contending that Sajal  

Sarkar  met  with  a  road  accident  in  the  course  of  his  

employment under respondent Nos.1 and 2 resulting in his  

death and the respondents were liable to pay compensation  

of Rs. 7 lakhs along with interest as per the provisions of the  

Act.  The Commissioner dismissed the suit on contest.  The  

appellants challenged the same by filing appeal in MFA(WC)  

03  of  2009  and  the  High  Court  dismissed  the  appeal.  

Aggrieved  by  the  same the  appellants  have  preferred  the  

present appeal.

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4. The  learned  counsel  for  the  appellants  contended  

that Sajal  Sarkar met with a road accident resulting in his  

death during the course of his employment as truck driver  

under  respondent  Nos.1 and 2 and the Courts below have  

failed to note the principle of notional extension at both the  

entry and exit by time and space and apply the same to the  

present  case   and  the  appellants  are  entitled  to  

compensation.

5. Per contra the learned counsel for the respondents  

contended that Sajal Sarkar parked the truck in the godown  

complex  of  FCI   Churaibari  and  considering  the  delay  of  

loading goods, he left the truck and went away towards an  

unknown destination in connection with his personal affairs,  

saying to helper Bikram Deb  that he would return by night,  

and  the  appellants  have  not  proved  that  there  was  

mechanical trouble in the truck on the way to Churaibari FCI  

godown as pleaded by them and Sajal Sarkar did not suffer  

the injuries in the course of his employment and, therefore,

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the appellants are not entitled to receive any compensation  

under the Act, as rightly held by the Courts below.

6. We have carefully considered  the rival contentions  

and perused the records.  The case of the appellants is that  

on 14.5.2005 Sajal Sarkar was driving the truck vehicle under  

the employment of respondents 1 and 2  from Agartala to  

Churaibari FCI godown and when he reached Dharmanagar  

he  got  down  to  make  arrangement  for  repairing  the  

mechanical trouble in the truck and in the same night he met  

with a road accident and sustained  injuries which led to his  

death  in  the hospital  and since death has occurred in  the  

course  of  employment,  they  are  entitled  to  compensation  

from the respondents.  Respondent Nos.1 and 2 in their joint  

written statement filed before the Commissioner have stated  

that  one Gopal  Sharma was the permanent  driver  of  their  

truck  vehicle  and  on  13.5.2005  in  the  absence  of  their  

permanent driver they entrusted their truck to Sajal Sarkar to  

drive  to  Churaibari  FCI  godown and  on  the  same day  the  

truck entered the godown complex of FCI at Churaibari and

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Sajal  Sarkar left  the truck handing over the key to Bikram  

Deb, helper of the truck and thereafter Sajal Sarkar ceased to  

be in their  employment  and on 17.5.2005 the permanent  

driver  Gopal  Sharma  drove  the  truck   from  Churaibari  to  

Agartala  and  hence  they  are  not  liable  to  pay  any  

compensation for the death of Sajal Sarkar and in any event  

their vehicle is insured with Respondent No.3 and it is liable  

to pay compensation.

7. From the pleadings it is clear that Sajal Sarkar was  

employed  by respondent Nos.1 and 2 to drive their truck  at  

the  relevant  time.   Though  respondent  Nos.  1  and  2  had  

stated in the counter that Sajal Sarkar was entrusted to drive  

the truck on 13.5.2005 and on the same day the said truck  

entered  the  godown  complex  of  FCI  at  Churaibari,  this  

statement about the date does not appear to be correct. It is  

categorically  stated  in  the  claim petition  that  Sajal  Sarkar  

drove  the  truck  vehicle  on  14.5.2005 and the  said  fact  is  

corroborated   by  the  averments  in  the  First  Information

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Report as well as final report which specifically states that the  

truck reached the FCI godown at Churaibari on 14.5.2005.

8. Further case of respondent Nos.1 and 2 is that Sajal  

Sarkar  was employed by them to drive the truck vehicle from  

Agartala to Dharmanagar FCI godown at  Churaibari and on  

the truck reaching the godown, Sajal Sarkar ceased to be in  

their employment.  This  also appears to be an after thought  

and  factually  incorrect.  As  per  the  averments  in  the  First  

Information Report  lodged by helper Bikram Deb the truck  

reached Churaibari FCI godown on 14.5.2005 and Sajal Sarkar  

was to return back to Agartala with the truck laden with rice  

bags. According to the complainant, on reaching FCI godown  

in  the  afternoon  on  14.5.2005,  considering  the  delay  of  

loading  goods,  Sajal  Sarkar   left  the  place  by  leaving  the  

truck in his care and told him that he would return in the  

night  and  since  he  did  not  return  during  the  night,  he  

searched him the next  morning and after  coming to  know  

about  the accident  and death,  he lodged the complaint.  If  

Sajal  Sarkar  was  actually  employed  only  for  the  trip  from

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Agartala to FCI godown Churaibari there was no need for him  

to inform the helper that he would come back in the night to  

the godown for the return trip  and in the same way  there  

was no obligation on the part of the helper Bikram Deb to  

search  for  Sajal  Sarkar  the  next  day  morning   leading  to  

lodging  of  the  complaint.   These  circumstances  clinch  the  

issue and prove that Sajal Sarkar was employed to drive the  

truck from Agartala to FCI godown Churaibari and return back  

to Agartala with the truck laden with the rice bags.    It  is  

also relevant to point out that respondent Nos.1 and 2 neither  

examined themselves in the trial nor examined helper Bikram  

Deb or permanent driver Gopal Sharma to substantiate their  

plea.

9. According to the appellants,  Sajal Sarkar on reaching  

Dharmanagar noticed some mechanical trouble in the truck  

and he  got  down to  make arrangement  for  repairing   the  

same and in the 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

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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 SC 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

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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 dealing with this question and the finding  

rendered by them is perverse and unsustainable.

12. In the claim petition the appellants have stated that  

Sajal Sarkar at the time of death was aged about 22 years  

and used to get monthly wages of Rs. 4,500/- at the time of  

accident. The first appellant herein examined herself as PW1  

in  the trial  and has  reiterated the age and income of  the  

deceased. Three documents were marked on her side.  Her

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testimony deserves acceptance. As per Section 4 clause 1(a)  

of the Act where death results from the injury, 50% of the  

monthly wages of  the deceased multiplied by the relevant  

factor would be the amount of compensation. In the present  

case  the  compensation  would  be  a  sum of  Rs.2250 being  

50%  of  the  monthly  wages  multiplied  by  factor  221.37,  

which  comes  to  Rs.4,98,082.50  and  a  further  sum  of  

Rs.10,000/- could  be awarded towards funeral expenses as  

per Section 4 Clause (4).  In the circumstances of the case we  

deem it just and proper to award interest at the rate of 9%  

per  annum on  the  compensation   from the  date  of  claim  

petition.

13. A contention was raised by the learned counsel for  

the Respondent No.3 Insurance Company that they are not  

liable to pay the interest component and reliance was placed  

on the decision  of   New India Assurances Co. Ltd.  Vs.  

Harshad Bhai Amrut Bhai Modhiya and another  [(2006)  

5 SCC 192] In the facts of the case on which the said decision  

arose,  the contract of insurance entered into between the

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parties contained a proviso that the insurance granted is not  

extended to include any interest.  In the present case there is  

nothing on record to show that respondent No.3 Insurance  

Company either pleaded about existence of such a clause in  

the  contract  of  insurance  or  led  any evidence  to  the  said  

effect and hence the said decision will not help respondent  

No.3 in any way and the contention raised is devoid of merit.

14. In the result the appeal is allowed and the judgment  

and order of the Courts below are set aside and the claim  

petition is allowed and there shall be a Decree directing the  

respondents to pay a sum of Rs.5,08,082.50 as compensation  

together with interest at the rate of 9 per cent per annum  

from the date of claim petition  with costs.

…………………………….J. (T.S. Thakur)

……………………………J. (C. Nagappan)

New Delhi; June 30, 2014