Driver Accidentally Falling From Bus Roof While Sleeping In Absence Of Rest-Rooms Is Entitled To Compensation: Gujarat High Court
The Gujarat High Court upheld an order by Workmen's Compensation Commissioner who applied principle of notional extension of employment and awarded over Rs. 6 Lakh to the kin of a deceased driver of transport corporation who accidentally fell off the roof of a bus while sleeping in absence of a rest room. In doing so the court noted that the Corporation had not led any evidence prohibiting...
The Gujarat High Court upheld an order by Workmen's Compensation Commissioner who applied principle of notional extension of employment and awarded over Rs. 6 Lakh to the kin of a deceased driver of transport corporation who accidentally fell off the roof of a bus while sleeping in absence of a rest room.
In doing so the court noted that the Corporation had not led any evidence prohibiting the driver from staying with the bus, or prescribing what should be done when rest rooms are not available in remote villages, or how the security of the bus is to be maintained in such places where proper bus stand facilities are not available.
Justice JC Doshi noted:
"In the above factual background, upon perusal of the judgment of the learned Trial Court, it appears that the Court applied principle of notional extension of employment, relying upon the judgment of the Hon'ble Supreme Court in the case of Leela Bai and Anr. Vs. Seema Chouhan and Anr. reported in 2019-II-LJ-148 and held that when a driver, as part of his duty, stays at a particular village and sleeps on the top of the S.T.Bus due to the absence of a rest room for security of the bus, and accidentally falls on the ground, the same amounts to an untoward incident occurring in the course of employment...In identical fact situation, the Co-ordinate Bench adopted and accepted the principle of “notional extension” of the employment".
The court noted that the claimants had examined the conductor of the bus, at the relevant point of time who had unequivocally stated that it is the duty of both, the driver and conductor to ensure the security of the S.T. Bus assigned to them for the day, and that if they fail to do so, the S.T.Corporation would take necessary action against them.
He had further stated that they are paid a night allowance for maintaining the security of the bus. In his cross-examination, in response to the questions put by the advocate for the S.T.Corporation, he stated that he was aware of the rules of the S.T. Corporation permitting them to stay in the bus.
He denied the suggestion that it was necessary only in remote areas for the driver and conductor to sleep in the bus. He further admitted that at the time of the accident, the deceased driver Maganbhai was sleeping on the top of the bus and, while turning, accidentally fell down.
"On the other hand, the S.T. Corporation has not led any evidence nor produced any rules prohibiting the driver from staying with the bus, or prescribing what should be done when rest rooms are not available in remote villages, or how the security of the bus is to be maintained in such places where proper bus stand facilities are not available. When confronted with these factual position, learned advocate Ms.Gautam could not reply any other aspects," the court said.
The court was hearing two appeals challenging a 2019 award by the Workmen's Compensation Commissioner who awarded compensation of Rs.6,52,280 alongwith 12% accrued interest, 40% penalty and costs of Rs.3,000 to the deceased's kin under the Employees' Compensation Act.
The deceased Maganbhai Shnabhai Zala, the husband of claimant No.1 and the father of claimant Nos. 2 to 4, was working as a driver with the S.T. Corporation since 1993 and was earning a monthly salary of Rs.9,128 prior to his death. On 31st May, 2008, the deceased, while performing his duties as a driver with S.T.Corporation, was assigned to drive an S.T. Bus from Mahudha Depot alongwith conductor.
During his night duty, he was assigned the Nadiad-Ghodasar route and was instructed to remain at the Ghodasar bus stand overnight.
According to the claimants, there was no rest room at the Ghodasar S.T. Bus stand. As the custody of the bus was with the conductor, the deceased slept on the top of the bus during the night. Unfortunately, he accidentally fell from the top of the bus and sustained serious injuries, and died as a result thereof.
The Corporation had contended that deceased had been assigned duty between Nadiad and Ghodasar, and after completing his last trip, he remained at Ghodasar. It is stated that though, there was no rest room at the Ghodasar Bus Stand, the deceased was expected to remain with the bus.
For the purpose of safeguarding the bus, the deceased was required to sleep inside the cabin and not on the top of the bus. However, of his own volition, the deceased climbed to the top of the bus from where he accidentally fell and sustained fatal injuries. It is also stated that the incident occurred during the night hours, which was not part of his active duty period, and therefore, it could not be said that the death occurred in the course of employment.
Being aggrieved, both parties preferred appeals; the claimants, on the ground that the compensation awarded was inadequate, and the S.T. Corporation, on the ground that the deceased did not die during the course of his employment and therefore, the dependents were not entitled to compensation.
The court thus rejected the State Corporation's appeal. It also rejected the claimants' appeal for enhancement of compensation after finding that the claimants had failed to make out any ground warranting interference with the award.
The court rejected both the appeals.
Case title: SHARDABEN MAGANBHAI ZALA & ORS. v/s DIVISIONAL CONTROLLER
R/FIRST APPEAL NO. 1315 of 2020, R/FIRST APPEAL NO. 538 of 2020