MANJU SARKAR & ORS.versusMABISH MIAH AND ORS.

                        [2014] 6 S.C.R. 126


A                    MANJU SARKAR & ORS.
                                  v.
                     MABISH MIAH AND ORS.
                  (Civil Appeal No. 5847 of 2014)

B                          JUNE 30, 2014

             [T.S. THAKUR AND C. NAGAPPAN, JJ.]

        Workmen's Compensation Act, 1923:

C         s.3(1) - Accident arising out of and in the course of
    employment - Claim for compensation - Victim-deceased
    employed by respondent 1 and 2 to drive truck on the relevant
    day from Agartala to godown - After entering the godown, he
    left the truck on the pretext that there was a mechanical fault
D   in the truck and informed the helper that he would come at
    night - Thereafter he met with road accident and died - Suit
    by wife and children claiming compensation - Commissioner
    dismissed the suit accepting the contention of respondents
    that on reaching the godown the deceased ceased to be in
E   their employment - Held: Such contention of the respondents
    was an after thought - It was mentioned in the First
    Information Report lodged by the helper that the truck reached
    godown and the deceased was to return back to Agartala with
    the truck laden with rice bags - The employment does not
F   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 -
G   There was a notional extension in the instant case also -
    Thus, deceased met with the road accident in the course of
    his employment - Courts below misdirected themselves while


H                                126
           MANJU SARKAR v. MABISH MIAH                        127

· dealing with this question and the finding rendered by them        A
  was perverse and unsustainable.

       s.4 - Quantum of compensation - Victim-deceased at the
  time of death was aged about 22 years and getting monthly
  wages of Rs. 4, 5001- - As per s. 4 clause 1(a) of the Act where   B
1
  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 instant case, the
  compensation would be a sum of Rs. 2250 being 50% of the
  monthly wages multiplied by factor 221.37, which comes to          c
  Rs. 4, 98, 082. 50 - A further sum of Rs. 10, 0001- awarded
  towards funeral expenses as per s.4 Clause (4) - Interest @
  9% p.a. on the compensation from the date of claim petition
  also awarded.
                                                                     D
      The deceased was the husband and father of
 appellants-claimants. The case of appellant was that on
 14.05.05, the deceased was employed to drive truck
 owned by Respondent no.1 and 2 from Agartala to their
 godown. On reaching the godown, he noticed some
                                                           E
 mechanical trouble in the truck and he got down to make
 arrangement for repair of the truck and informed the.;.
 helper that he would be back by night for return trip. On
 intervening right of 14115.05.2005, he met with a road
 accident and sustained grievous injuries and was taken
                                                           F
 to hospital where he died. The helper of the truck who
 was waiting in the truck went in search of the deceased
 in the morning and came to know about the accidental
 death of the deceased and thereafter he lodged an FIR.

      The appellants filed suit under the Workmen's                  G
 Compensation Act, 1923. The Commissioner dismissed
 the suit. The High Court dismissed the appeal. The instant
 appeal was filed challenging the order of the High Court.

     Allowing the appeal, the Court                                  H
    128      SUPREME COURT REPORTS              [2014] 6 S.C.R.


A        HELD: 1. The pleadings showed that the deceased
    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 the deceased was
    entrusted to drive the truck on 13.5.2005 and on the same
B   day the said truck entered the godown complex of FCI at
    Churaibari, this statement about the date did not appear
    to be correct. It was categorically stated in the claim
    petition that the deceased drove the truck vehicle on
    14.5.2005 and the said fact was corroborated by the
C   averments in the First Information Report as well as final
    report which specifically stated that the truck reached the
    FCI godown at Churaibari on 14.5.2005. Further case of
    respondent Nos.1 and 2 was that the deceased was
    employed by them to drive the truck vehicle from Agartala
D   to Dharmanagar FCI godown at Churaibari and on the
    truck reaching the godown, the deceased ceased to be in
    their employment. This was also an after thought and
    factually incorrect. As per the averments in the First
    Information Report lodged by the helper the truck reached
E   Churaibari FCI godown on 14.5.2005 and the deceased
    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, the deceased left the place by
F   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 acciolent and death, he lodged the
    complaint. If the deceased was actually employed only for
G   the trip from 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 to search for the deceased the next day morning
H
          MANJU SARKAR v. MABISH MIAH                   129

leading to lodging of the complaint. These circumstances       A
clinch the issue and prove that the deceased 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. Respondent Nos.1 and 2 neither
e~amined themselves in the trial nor examined helper or        B
permanent driver to substantiate their plea. [Paras 7 and
8) [134-A-H; 135-A-B)

     2. Under Section 3(1) of the Workmen's
Compensation Act, 1923 Act, the injury must be caused          c
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          o
"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                E
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. There is a notional
extension in the instant case also. The deceased met with      F
the road accident in the course of his employment under
respondent Nos.1 an-cl 2. The Courts below have
misdirected themselves while dealing with this question
and the finding rendered by them was perverse and
unsustainable. [Paras 10, 11) [135-F-H; 136-A-C]               G
     General Manager B. E. S. T. Undertaking, Bombay vs.
Mrs. Agnes AIR 1964 SC 193: 1964 SCR 930 - relied on.

    3. In the claim petition, the appellants had stated that
the deceased at the time of death was aged about 22            H
     130      SUPREME COURT REPORTS.           [2014] 6 s.c.R,


· A years and used to get monthly wages of Rs. 4,500/- at the
    time of accident. The first appellant examined herself as
    PW1 in the trial and reiterated the age and income of the
    deceased. Three documents were marked on her side.
    Her testimony deserved acceptance. As per Section 4
  B 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 instant case, the compensation would be a sum of
    Rs.2250 being 50% of the monthly wages multiplied by
  C 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, it is deemed just and proper
    to award interest at the rate of 9% per annum on the
  D compensation from the date of claim petition. [Para 12]
    [136-C-F]

         5. A contention was raised for the Respondent No.3
    Insurance Company that they are not liable to pay the
  E interest component and placed· reliance on *New India
    Assurances Co. Ltd. In the facts of the case on which the
    said decision arose, the contract of insurance entered
    into between the parties contained a proviso that the
    insurance granted i~ not extended to include any interest.
  F In the instant case, there was 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
  G in any way and the contention raised is devoid of merit.
    [Para 13] [136-G-H; 137-A-B]

        *New India Assurances Co. Ltd. v. Harshad Bhai Amrut
    Bhai Modhiya and Anr. (2006) 5 SCC 192: 2006 (1) Suppl.
  H SCR 444 - Distinguished.
           MANJU SARKAR v. MABISH MIAH                       131


                      Case Law Reference:                            A
    1964 SCR 930                    relied on         Para 10
    2006 (1) Suppl. SCR 444         Distinguished Para 13

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.                  B
5847 of 2014.

    From the judgment and Order dated 16.03.2009 in MFA
No. 3/2009, of the High Court of Guhati at Agarthala.

    Rukhsana Choudhury for the Appellant.                            c
     Nidhi, Ajay Pal, Vishal Yadav, Rupinder Sheroan, Aman
Pal, Priya Janghu, Nilofar Qureshi for the Respondent.

    The Judgment of the Court was delivered by                       D .
    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         E
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.
                                                                     F
     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-1G89 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       G
vehicle under the employment ofrespondents 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   H
    132      SUPREME COURT REPORTS                 [2014] 6 S.C.R.


A   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
B   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
    confirmed the death of driver Sajal Sarkar and thereafter went
    to Churaibari Police Station and gave a complaint on which a
C   case under FIR No.28/05 for the alleged offentes under Section
    279 and 304 (A) IPC was registered. The appellant No.1 the
    widow along with appell2nt 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.G. 39 of 2005
D   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 cof']'lpensation of Rs. 7 lakhs along with interest
E   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.
F
       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
G 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
H contended that Sajal Sarkar parked the truck in the godown
           MANJU SARKAR v. ·MABISH MIAH                      133
                 [C. NAGAPPAN, J.]
complex of FCI Churaibari and considering the delay of loading      A
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         B
by them and Sajal Sarkar did not suffer the injuries in the
course of his employment and, therefore, the appellants are not
entitled to receive any compensation under the Act, as rightly
held by the Courts below.
                                                                    c
      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              D
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           E
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           F
same day the truck entered the godown complex of FCI at
Churaibari and 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                  G
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.
                                                                    H
    134      SUPREME COURT REPORTS                [2014] 6 S.C.R.


A      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
B 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 Report as well as final report which
c 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
D   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
E   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 _
F   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 Agartala to FCI godown Churaibari there was no
G   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 Bi~ram Deb
    to search for Sajal Sarkar the next day morning leading to
    lodging of the complaint. These circumstances clinch the issue
H   and prove that Sajal Sarkar was employed to drive the truck
           MANJU SARKAR v. MABISH MIAH                          135
                 [C. NAGAPPAN, J.]

from Agartala to FCI godown Churaibari and return back to               A
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.
                                                                        B
     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              c
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               D
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.
                                                                        E
      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            F
     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        G
     workshop where he is working. There is a notion-al
     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
                                                                        H
    136       SUPREME COURT REPORTS              [2014] 6 S.C.R.


A         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
B 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
c 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
0 in the trial and has reiterated the age and income of the
   deceased. Three documents were marked on her side. Her
   testimony deserves acceptance. As per Section 4 clause 1(a)·
   of the Act where death results from the injury, 50% of the
E .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
F
   (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
G Respondent No.3 Insurance Company that they are not liable
  to pay the interest component and reliance was placed on the
  decision of New lndia·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
H
                MANJU SARKAR v. MABISH MIAH                  137
                      [C. NAGAPPAN, J.]

of insurance entered into between the parties contained a           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 re~pondent 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           B
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          c
 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.
                                                                    D
Devika Gujral                                     Appeal allowed.