ORDER

1. Heard learned advocate Mr. Vibhuti Nanavati for the appellant in First Appeal No.2994 of 2007, learned advocate Mr. Palak Thakkar for the appellant in First Appeal No.3637 of 2007 and learned advocate Mr. Hiren Modi for the claimants in both the matters.

2. The judgment and order dated 28.7.2006 passed by the learned Workman Commissioner, Surat in WC Fatal Application No.2 of 2003 is assailed in this First Appeals, whereby the the learned Workman Commissioner directed the appellant herein to pay Rs.2,88,210/- with 12% interest for death of Vijaykumar Champaklal. The insurance company was liable to pay the amount on the principle of joint and several liability and in addition thereto, the appellant is also directed to pay 50% penalty at the rate of Rs.1,44,105/- to the claimant with interest.

3. Brief facts of the case are as under:-

3.1 Vijaykumar Champaklal, husband of orig. applicant No. 1 and father of orig. applicant No. 2 and 3 and son of orig. applicant No. 4, was working as a delivery clerk in the respondent company for a long time with a monthly salary of Rs. 3,000/- and was performing his duties.

3.2 The owner of the vehicle has M-80 No. GJ-5-AF-1475 for his business. On 3/5/2002, on the instructions of the owner of the vehicle and for his benefit, as part of his duty, the owner was riding on M-80 during his working hours and was passing by Sardar Market. At around 00-15 hours at night, the driver of a three-wheel tempo No. GJ-5-U-1398 drove the tempo at high speed and in a reckless manner, violating traffic rules and hit the owner of the vehicle.

3.3 Vijaykumar Champaklal Vankawala was hit violently due to which he suffered very serious injuries in the head and body parts as mentioned in the PM report and was admitted to Mahavir Hospital, Surat, where he died during treatment on 5/6/2002.

3.4 The respondents herein has filed WC Fatal Application No.2 of 2003, wherein the learned Workman Commissioner has passed the order as stated herein above.

3.5 First Appeal No.2994 of 2007 is filed by the appellant to challenge the judgment and order to the extent that the learned Workman Commissioner directed the appellant herein to pay Rs.2,88,210/- with 12% interest for death of Vijaykumar Champaklal so also to pay 50% penalty at the rate of Rs.1,44,105/- to the claimant with interest.

3.6 First Appeal No.3637 of 2007 is filed by the appellant – insurance company to challenge the judgment and order to the extent that the insurance company was liable to pay the amount on the principle of joint and several liability.

4. Learned advocate Mr. Vibhuti Nanavati for the appellant raised contention that the vehicle, upon which the deceased was travelling, belongs to Balaji Rayons and therefore, joining of present appellant – owner is wrong and incorrect approach of the claimants and only on this count, the appellant is to be exonerated.

5. As against the aforesaid submission, learned advocate Mr. Hiren Modi would submit that the deceased was working the Salasar Polytex Pvt. Ltd. and it is proved on record and he met with the accident while he was going back to his home after completing his job in Salasar Polytex Pvt. Ltd. He would further submit that under the principle of extension of notional employment, the deceased while he was in employment, received fatal injury in the night and therefore, the learned Workman Commissioner has not committed any error.

6. The principle of extension of notional employment has been recently discussed by Hon’ble Apex Court in the case of Daivshala v/s. Oriental Insurance Co. Ltd. [AIR 2025 SC 3532], whereby, it is held that if person dies in accident during the course of reaching to employment or reaching home after completing his service, it would fall within principle of notional extension of employment and therefore, compensation is liable to be assessed under Employees Compensation Act, 1923. In view of above, the contention that the deceased died while he was not