NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).  931 OF 2019 (arising out of SLP(C) No.5576 of 2017)

LEELA BAI AND ANOTHER           ….APPELLANT(S)

VERSUS

SEEMA CHOUHAN AND ANOTHER ….RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellants 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’s  Compensation (Amendment) Act, 2009 (hereinafter

referred to as  ‘the Act’).  The deceased was a bus driver under

respondent no.1.  He fell off the roof of the bus accidentally and

died.

3. Learned counsel for the appellants submits that the

deceased suffered an accidental death in the course of, and

arising out of the employment, evident from the deposition of PW­

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2, Ajay Singh Chauhan.   The denial of compensation under the

Act to the appellants suffers from grave misappreciation of facts

and the evidence available on record.   The nature of duty

performed by the deceased required him to be  with the bus

twenty­four hours, failing which the employer’s requirement

could not be fulfilled.   The presence of the deceased on the bus

was by compulsion, and not by choice. PW­2 deposed that the

deceased was required to be with the bus and was therefore paid

salary of Rs.6,000/­ p.m. for twenty­four hours. Merely because

the accident took place while the deceased was coming down the

roof of the bus after having his meals, cannot be sufficient, sans

the evidence, to hold that death did not arise out of and was not

in the course of employment.   The facts of the case adequately

reflect notional extension of the duty, relying on  General

Manager, B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes,

(1964) 3 SCR 930.   

4. Learned counsel for the respondent contended that the duty

of the deceased got over at 7:30 pm.  He is stated to have 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.

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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.

5. We have considered the submissions on behalf of the

parties.   The deceased, aged around 42 years, was the driver of

the public bus belonging to respondent no.1.   He met an

accidental death on  18.07.2010  at the  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

while dismissing the claim case.

6. The deceased was required to drive  the public bus daily,

ferrying  passengers from  Indore to  Burhanpur  and back from

Burhanpur  to  Indore.  The travelling  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 Burhanpur on or after

7:30PM.  According to PW­2, because of the nature of their duty,

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the  deceased  and the  conductor  of the  bus,  were required to

remain  with the  bus twenty­four  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.   

7. 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

next  morning, the efficiency of the timing of the bus service

facility to the travelling public would definitely have been

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affected,  dependant  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 travelling 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 of timely service.   It is not  without reason that 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.   

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 legislation, will have to be interpreted in the facts

of each case and the evidence available, to determine if the

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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 well­settled, 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.”

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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

member of the public by choice,  we see no reason  why the

doctrine of notional extension of the employment  will not be

applicable.

11. Agnes  (supra) has been followed  in  Manju Sarkar and

Ors. vs. Mabish Miah and Ors., (2014) 14 SCC 21, observing as

follows:

“As rightly contended by the 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 Respondents 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. 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 and which is 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.  The quantum of

compensation shall be finally computed after hearing the parties

within one month from the date of receipt and/or production of a

copy of  this order before the Commissioner.   Respondent no.2

shall pay the determined amount to the appellants within three

weeks from the date of such computation by the Tribunal.

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13.  The appeal is allowed.          

.……………………….J.     (Arun Mishra)                   

………………………..J.    (Navin Sinha)   

New Delhi, January 22, 2019.

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