Theory of notional extension is applicable to death of driver on journey, who died during bathing in canal, and is entitled for compensation under Workmen Compensation Act; SC.

Supreme Court of India

Justice Navin Sinha & Justice Ashok Bhushan

The SC {POONAM DEVI AND OTHERS v. ORIENTAL INSURANCE CO. LTD. } holds that the deceased was driving   the   truck   of   respondent   no.2   from   Ambala   to   Meerut. Indisputably he was in the course of his employment. It was held the judicial   notice   of   the   fact is taken   that   considering   the   manufacturer’s specification, the cabin of the truck was not air conditioned and would have been a baking oven in the middle of the afternoon in the sultry   monsoon   heat   of   June   2003,   when   the   temperature   was touching 42.60C in Yamunagar (Haryana) (source: weatheronline.in). It was held that a compulsion for the deceased to stay fresh and alert not only to protect the truck of respondent no.2 from damage but also to ensure a smooth journey and protect his own life by safe driving. Further held that judicial notice of the fact is taken that the possibility of the truck   also   requiring   water   to   prevent   overheating   cannot   be completely ruled out. It was held that in these circumstances, can it be said that the act of the deceased in going to the canal to fetch water in a can for the truck and to refresh himself by a bath before continuing the journey was not incidental to the employment? It was held that every action of the driver of a truck to ensure the safety of the truck belonging to the employer and to ensure his own safety by a safe journey for himself has to be considered as incidental to the employment by extension of the notional employment theory. It was also held that a truck driver who would not keep himself fresh to drive in such heat would be a potential danger to others on the road by reason of any bonafide errors of judgement by reason of the heat. 

Accordingly, it was held that there was no reason why the application of the theory of notional extension would therefore not apply in the facts of the present case also. Therefore, the   order   of   the   High   Court   was  set   aside.     The   order   of   the   Workmen’s Compensation Commissioner dated 12.12.2005 was restored by the SC and it was directed that the payments in terms of the order of the Workmen’s Compensation Commissioner be made to the appellants.

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. The said view of the HC was set aside by the SC.