IMPORTANT POINT
Doctrine of “notional extension” of employment.

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-2, Ajay Singh Chauhan. The denial of compensation under the Act to the appellants suffers from grave mis-appreciation of facts and the evidence available on record. The nature of duty performed by the deceased required him to be with the bus twenty-four 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. PW-2 deposed that the deceased was required to be with the bus and was therefore paid salary of Rs.6,000/-p.m. for twenty-four 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. 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, the deceased and the conductor of the bus, were required to remain with the bus twenty-four 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 ne