IMPORTANT POINT
Every action of driver of a truck to ensure safety of truck belonging to employer and to ensure his own safety by a safe journey for himself has to be considered as incidental to employment by extension of notional employment theory.

JUDGMENT

NAVIN SINHA, J.

The appellants are the legal heirs of the deceased. They were granted compensation of Rs.4,45,420/­ with interest at the rate of 12 per cent by the Commissioner, Workmen’s Compensation Act from the date of accident up to the date of deposit in addition to a penalty imposed on the employer under Section 4A(3)(b) of the Workmen’s Compensation Act, 1923 (hereinafter called “the Act”). The High Court on 09.05.2014 has allowed the appeal of the respondent holding that the death occurred during the course of employment but did not arise out of the employment.

2. The deceased was aged 21 years, in the employment of respondent no.2 (since deleted), and was driving her TATA 407 vehicle bearing registration No.UP 15P 1689 on 11.06.2003 from Ambala to Meerut, a distance of approximately 200 Kms. At about

12.30 PM, when he approached the bridge near village Fatehpur, the deceased went to the Yamuna canal to fetch water and also to have a bath. Unfortunately, he slipped into the canal and died. The vehicle was insured with the respondent Insurance Company. P.W.2, who was standing near the bridge, deposed that the deceased had gone to fetch water in a can along with the cleaner who tried to save him, but both slipped into the canal. The Workmen’s Compensation Commissioner by order dated 12.12.2005 allowed the claim as aforesaid.

3. The High Court in appeal by the Insurance Company held that the deceased may have died during the course of the employment but death did not arise out of the employment, as bathing in the canal was not incidental to the employment but was at the peril of the workman. There was no casual connection between the death of the workman and his employment. He had gone to fetch water for personal consumption and it was not his case that the truck was over heated.

4. Mr. Vikas Bhadana, learned counsel for the appellants, submitted that there was a causal connection of the death with the employment. In the extreme heat of the month of June at noon, a presumption would arise that the deceased had gone to the canal to fetch water not only to cool the truck but also himself to ensure a proper and safe journey of the vehicle belonging to the employer and his own safety. Reliance was placed on Leela Bai and anr. v. Seema Chouhan and anr., (2019) 4 SCC 325.

5. Mr. Ajay Singh, learned counsel for the respondent opposing the appeal, submitted that the High Court has rightly held that there was no casual connection between the death of the deceased with the employment. Merely because death may have occurred in the course of the employment will not suffice unless it is established that it was incidental and arose out of the employment. Reliance was placed on Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Company Limited and another, (2009) 13 SCC 405.

6. We have considered the submission on behalf of the parties and have also perused the impugned orders as also the case law cited before us.

7. The Workmen’s Compensation Act, 1923 (now christened as “Employee’s Compensation Act, 1923”) is a piece of socially beneficial legislation. The provisions will therefore have to be interpreted in a manner to advance the purpose of the legislation, rather than to stultify it. In case of a direct conflict, when no reconciliation is possible, the statutory provision will prevail only then.

8. Relevant to the discussion is Section 3 of the Act. The relevant extract reads as follows:

“3. Employer' s liability for compensation.­

(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

XXXX”

9. In Manju Sarkar & Ors. v. Mabish Miah & Ors., (2014) 14 SCC 21, the deceased was driving the employer’s truck from Agartala to Churaibari FCI godown. When he reached near Dharam Nagar, he got down to make arrangements for repairing some mechanical problems in the truck when he was