- 1 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 25TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. JOSHI MISCL. FIRST APPEAL NO.202340/2018(WC) BETWEEN: THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., VIJAYAPURA-586 101, THROUGH ITS AUTHORISED SIGNATORY. …APPELLANT (BY SRI MANVENDRA REDDY, ADVOCATE) AND: 1. PRAVEEN S/O MAKBOOL MALLI, AGE: 34 YEARS, OCC: NIL, 2. SAMARIN D/O MAKBOOL MALLI, AGE: 08 YEARS, OCC: STUDENT, MINOR GUARDIAN BY RESPONDENT NO.1, BOTH ARE R/O. TORAVI, TQ. & DIST. BIJAPUR-586 101. 3. SARDAR S/O TAJODDIN PATEL, AGE: 44 YEARS, OCC: BUSINESS, R/O NAVARASAPUR COLONY, Digitally signed by SUMITRA SHERIGAR Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 NEAR YASEEN MASJID, VIJAYAPUR-586 101. …RESPONDENTS (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE, FOR R3; R1-SERVED; [R2 IS MINOR U/G OF R1]) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN’S COMPENSATION ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05.07.2018 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES’ COMPENSATION, VIJAYAPURA, IN ECA NO.494/2014 BY ALLOWING THE APPEAL AS PRAYED FOR. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.04.2025 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE C.M. JOSHI CAV JUDGMENT (PER: HON'BLE MR. JUSTICE C.M. JOSHI) 1. Being aggrieved by the judgment and award in ECA No.494/2014 dated 05.07.2018 by learned II Addl. Senior Civil Judge and Commissioner for Employees Compensation, - 3 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 Vijayapur, (for short ‘the Commissioner’), the respondent No.2 – Insurance Company is before this Court in appeal. 2. The parties would be referred to as per their rank before the Commissioner for the sake of convenience. 3. The petitioners are the wife and daughter of deceased Makbool Malli. They filed claim petition before the Commissioner contending that the deceased Makbool was under the employment of respondent No.1 as a Driver of his truck bearing No.MH-09/Q-6712 on a monthly wages of Rs.4,500/- and bhatta of Rs.50/- per day. On 27.02.2005 the deceased Makbool was on duty as a driver and was going towards Vijayapura from Sindagi. When the said lorry was near Shivanagi, the lorry suffered a break down and it stopped near Padaganur Cross. The another driver informed the same to respondent No.1, who came to the spot on his motorcycle. It was found that some spares are necessary to make the truck roadworthy. The deceased Makbool was asked to go to Vijayapur and bring the spares. He was lent with the motorcycle of respondent No.1 and while the deceased Makbool was going towards Vijayapur, he visited his wife at Shivanagi - 4 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 Village, who had come to her parental house. After a short while, he started his journey towards Vijayapur and on the way he lost control over the motorcycle, fell in to a ditch by the side of the road, sustained injuries and while he was being shifted to higher facilities, he died on the way. Claiming that the death of the deceased Makbool was during and in the course of the employment, the petitioners sought compensation from the owner and the insurer of the lorry. 4. On being served with the notice, the respondent Nos.1 and 2 appeared before the learned Commissioner and filed their written statements. Respondent No.1 – owner of the lorry contended that the wages of the deceased Makbool was Rs.3,750/- per month and bhatta of Rs.50/- per day. He admitted that the deceased was under his employment as a Cleaner, but not as a Driver. The vehicle being insured with respondent No.2, any liability has to be fastened upon respondent No.2. 5. Respondent No.2 – Insurance Company contended that there is no nexus between the cause of death and accident to the vehicle insured by it. It denied its liability contending - 5 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 that the cause of death of the deceased Makbool was not during the employment but out of the employment and he met with the accident while riding a motorcycle. The vehicle insured by respondent No.2 is no where concerned to the death of the deceased Makbool and therefore, there is no causal connection between the lorry and the death of the deceased. Inter alia, it also denied the age, occupation and the wages of the deceased. 6. On the basis of the above contentions, the learned Commissioner framed issues. The petitioner No.1 was examined as PW1 and two witnesses were examined on their behalf. The Exs.P1 to P16 were marked in evidence. The official of the respondent No.2 – Insurance Company was examined as RW1 and Exs.R1 and R2 were marked. After hearing the arguments, the learned Commissioner held that the death of deceased Makbool was during the course of the employment under respondent No.1 and directed the respondent No.2 – Insurance Company to pay the compensation of Rs.3,20,600/- by assessing the wages at Rs.3,000/- per month. - 6 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 7. Being aggrieved by the same, the Insurance Company is before this Court. 8. Though, the appeal came to be admitted on 15.02.2024, substantial questions of law were not framed. The substantial question of law that arises is as follows: Whether the learned Commissioner is justified in holding that the death of the deceased Makbool was in the course of employment under respondent No.1, in the light of the evidence available on record? 9. The arguments by learned counsel appearing for the appellant-Insurance Company and learned counsel for respondent Nos.3 (owner of the vehicle) are heard. 10. The learned counsel appearing for the appellant- Insurance Company would submit that the lorry bearing No.MH-09/Q-6712 which was insured by the appellant had not at all met with any accident. The deceased died due to the accidental injuries, which he suffered while he was using a motorcycle. It is submitted that since the deceased was riding the motorcycle without a valid driving license, he met with an accident and therefore, the petitioners are claiming - 7 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 compensation from the owner and insurer of the lorry. He submits that there is no casual connection between the accident and the lorry insured by the appellant and therefore, the impugned judgment is not sustainable. He submits that the deceased was not on his way to Vijayapur, but he had visited his wife at Shivanagi Village and therefore, it cannot be held that the accident was during the course of and out of the employment of the deceased. Therefore, he submits that the liability fastened upon the insurer by the learned Commissioner to pay the compensation is erroneous and illegal. In this regard, he places reliance on catena of decisions. 11. On the other hand, learned counsel for respondent No.3 would submit that the death was in the course of the employment of the deceased and there is connection between his death and use of the vehicle. He submits that the deceased was on way to Vijayapur to fetch spares to the lorry which had broken down. Even though, the deceased visited his wife at Shivanagi, the village which is on the way to Vijayapur, that cannot be a ground to contend that the death was not during the course of the employment. Therefore, he submits that the Commissioner was justified in passing the impugned judgment. - 8 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 12. The pleadings and the scrutiny of the evidence placed on record would reveal that the deceased Makbool and one Nissarahmed were under the employment of respondent No.1 as Cleaner and Driver and they had started their trip from Sindagi to go to Vijayapur with load of Jowar on the truck. The truck broke down near Padaganur Cross and when it was informed to the owner, he came on a motorcycle and asked the deceased Makbool to go to Vijayapura and bring the spares. The respondent No.1 had lent his motorcycle to the deceased Makbool. However, the deceased Makbool visited his wife at Shivanagi for about 45 minutes and while he was going towards Vijayapur, he met with the accident and suffered injuries. While he was being taken to the hospital he succumbed to the injuries. A case was registered in Crime No.54/05 of Vijayapur Rural Police Station and an abate summery charge-sheet was filed against the deceased. 13. Reliance is placed by the learned counsel for the appellant on the decision of the Apex Court in the case of MAMTAJ BI BAPUSAB NADAF AND OTHERS Vs. UNITED INDIA INSURANCE CO. AND OTHERS1, wherein, two 1 (2010) 10 SCC 536 - 9 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 labourers engaged for unloading Maize from a tractor-trailer to an underground storage, they climbed grocery pit in order to clean the same for storing Maize and while cleaning they fell in pit and died due asphyxia. The Apex Court held that the cause of death was not proximate to the actual user of the vehicle and therefore, exonerated the insurer from the liability to pay the compensation. 14. He also relied on the decision in the case of BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD. V. ANJINAPPA & ANR.,2 wherein, when a Cleaner was sleeping in the vehicle which was stopped at a place and he sustained bullet injuries in a clash between Naxalites and police and though the Cleaner was in the vehicle it was held that there was no causal connection between the death and employment of the Cleaner. 15. He also relied on the judgment in the case of The Divisional Manager, M/s. United India Insurance Company Limited Vs. Smt. Renuka W/o. Chana Mallappa (MFA 31715/2009 (WC) DATED 30.04.2014), wherein, this Court exonerated the Insurance Company on the ground that 2 2011(1) AIR KANT HCR 392 - 10 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 the deceased Channa Mallappa, who was Driver of the Bus, had gone to attend the call of nature while the bus was being repaired in the garage, suffered a train hit while he was crossing the railway track and had died. 16. He also placed reliance on the decision in the case of SHAKUNTALA CHANDRAKANT SHRESHTI VERSUS PRABHAKAR MARUTI GARVALI,3 where it was stated as below: 2. Prakash Chandrakant Shreshti (hereinafter called “the deceased”) was working as a cleaner in Vehicle No. MH 09 A 9727. The said vehicle belonged to Respondent 1. He was travelling in the said vehicle in the night of 27-9-2002. He suddenly developed chest pain. He was admitted to Government Hospital, Mangaon where the doctor declared him dead. Indisputably, the incident had occurred while deceased was performing his duties. Xxxxxxxxx 20. This Court in ESI Corpn. [(1996) 6 SCC 1] referred to, with approval, the decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella 3 (2007) 11 Supreme Court Cases 668 - 11 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 Craig [1940 AC 190] wherein it was held: (All ER p. 563 G-H) “Nothing could be simpler than the words ‘arising out of and in the course of the employment’. It is clear that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment—that is, directly or indirectly engaged on what he is employed to do—gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.” 21. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Ltd. [1903 AC 443] by the Court of Appeal: “I come, therefore, to the conclusion that the expression ‘accident’ is used in the popular and ordinary sense of the word as - 12 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 denoting an unlooked-for mishap or an untoward event which is not expected or designed.” Lord Lindley opined: “The word ‘accident’ is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word ‘accident’ is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.” 22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn. [(1996) 6 SCC 1] in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are: - 13 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 33. In Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak [(1969) 2 SCC 607] this Court held: “5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words ‘in the course of the employment’ mean ‘in the course of the work which the workman is employed to do and which is incidental to it’. The words ‘arising out of employment’ are understood to mean that ‘during the course of the employment, injury has resulted from - 14 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered’. In other words there must be a causal relationship between the accident and the employment. The expression ‘arising out of employment’ is again not confined to the mere nature of the employment. The expression applies to employment as such—to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises ‘out of employment’. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.” 17. He further relied on the judgment in the case of POONAM DEVI AND OTHERS Versus ORIENTAL - 15 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 INSURANCE COMPANY LIMITED4, wherein, it is observed as below: 11. Coming to the facts of the present case, the deceased was driving the truck of Respondent 2 from Ambala to Meerut. Indisputably he was in the course of his employment. We can take judicial notice of the fact 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 42.6° C in Yamunagar (Haryana) (source : weatheronline.in). It was a compulsion for the deceased to stay fresh and alert not only to protect the truck of Respondent 2 from damage but also to ensure a smooth journey and protect his own life by safe driving. We can also take judicial notice of the fact that the possibility of the truck also requiring water to prevent overheating cannot be completely ruled out. 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? 4 (2020) 4 Supreme Court Cases 55 - 16 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 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. 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 bona fide errors of judgment by reason of the heat. The theory of notional extension noticed in the Agnes [BEST Undertaking v. Agnes, AIR 1964 SC 193] and followed in Leela Bai [(2019) 4 SCC 325] is extracted hereunder: “9. In the facts of the present case and the nature of evidence, there was a clear nexus between the accident and the employment to apply the doctrine of “notional extension” of the employment considered in Agnes [BEST Undertaking v. Agnes, AIR 1964 SC 193] as follows : ‘11. …“7. … It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and - 17 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension. [Ed. : See also Saurashtra Salt Mfg. Co. v. Bai Valu Raja, AIR 1958 SC 881 p. 882, para 7] ”’” 12. In Leela Bai [Leela Bai v. Seema Chouhan, (2019) 4 SCC 325] , the deceased having completed his journey as a driver stayed back on the roof of the bus to ensure early scheduled departure the next morning by not going home. While he was coming down the roof of the bus he slipped and died. It was held at para 7 as follows : “7. 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, - 18 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 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 1 remained efficient and was not affected. If the deceased would have gone home every day after parking the bus and returned the next morning, the efficiency of the timing of the bus service facility to the travelling public would definitely have been affected, dependent on the arrival of the deceased at the bus-stand from his house. Naturally that would bring an element of uncertainty in the departure schedule of the bus and efficiency of the service to the travelling public could be compromised. Adherence to schedule by the deceased would naturally enure to the benefit of Respondent 1 by enhancement of income because of timely service. It is not without reason that the deceased would not go home for weeks as deposed by the appellant. Merely because the deceased was coming down the roof of the bus after having his meal, cannot be considered in isolation and interpreted so myopically to hold that he was off duty and therefore would not be entitled to compensation.” - 19 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 18. Per contra, learned counsel appearing for respondent No.1(owner of the Truck) placed reliance on the judgment in the case of M/s. United India Insurance Company Limited Versus Smt. Shamala and Others5, where the Co-ordinate Bench of this Court held that the Insurance Company is liable to pay the compensation when the auto rickshaw driver employed by owner of vehicle getting murdered by inmates of another vehicle for not allowing way for their vehicle. 19. He also placed reliance on the judgment of this Court in M/s. Oriental Insurance Company Limited Versus Sri Murthaiah and Others6, wherein the Insurance Company is held liable in a case where the cleaner after loading truck going to nearby reservoir to take bath and dying due to drowning was held to be during the course of employment. 20. He also relied on the judgment in the case of The Divisional Manager, Oriental Insurance Co. Ltd., Belgaum Versus Smt. Laxmibai @ Ramakka and Others7, wherein, the Driver while opening the main gate of the factory so as to 5 (2019)2 KCCR 1898 6 2019(2) KCCR 985 7 2015 (1) KCCR 253 - 20 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 take the vehicle inside, getting electrocuted and dying was held to be during the course of the employment. 21. Coming to the facts of the present case, the evidence reveals that when the lorry had broken down near Padadanur Cross which was near Shivanagi Village, the owner was informed of the incident and he came to the spot on his motorcycle. He instructed the deceased to go to Vijayapur and bring some spares so that the lorry can proceed after the repairs. The deceased, on the way to Vijayapura had to pass through Shivanagi Village, where he took a break for 45 minutes to meet his wife. This may be found in the statement of his wife who is none else than the petitioner No.1, as recorded by the Police at Ex.P13. While he was going towards Vijayapur, he met with the accident and died on the way to the hospital. Obviously, the deceased was going to Vijayapur on the instructions of the employer; he was using the motorcycle belonging to the employer; it was for bringing the spares of the Truck. 22 It is relevant to note that under the provisions of Section 3(1) of the Workmen’s Compensation Act, the injury or - 21 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 the death must arise out of and in the course of the employment. There must be causal connection between injury or death with duties that he had to discharge as a Cleaner. The words ‘in the course of employment’ used in the aforesaid provision means in the course of work which the workman employed was to do and which is incidental to it. The works arising out of the employment are understood to be that it should be during the course of the employment that the injury resulted for some risk incidental to the duties as a Cleaner. Evidently, the act of the deceased riding the motor cycle was incidental to the duty as Cleaner. 23. In the case on hand, the deceased was instructed by respondent No.3 to go to Vijayapur and fetch the spares of the lorry. On the way, though the deceased had taken a diversion to visit his wife, he met with an accident and died. Here the accident is the breaking down of the lorry of the respondent No.1. If it had not broken-down, the owner would not have instructed the deceased to go to Vijayapur on motorcycle. Therefore, it is evident that the breaking down of the lorry is the accident and it resulted in the deceased going to Vijayapura. There cannot be any doubt that such travel from - 22 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 Padaganur Cross to Viajayapura was in the course of the employment of the deceased. 24. The principle of notional extension as laid down by the Apex Court in the case of ‘POONAM DEVI’ supra would definitely come in play and would be applicable to the facts of the present case. If a driver on the way to the destination, at the instructions of the employer entered into a Canal for taking bath and drowns, resulting in death would be in the course of the employment; the Cleaner who is going to fetch a spares of the broken lorry at the instructions of the employer dying due to an accident, definitely come within the scope of the principle of notional extension. 25. Therefore, this Court has no hesitation to hold that the Appellant-Insurance Company cannot contend that the death of the deceased was not during the course of employment. It is pertinent to note that the judgment of the Apex Court in the case of ‘SHAKUNTALA’ referred supra and the judgment in the case of ‘RENUKA W/O CHANNA MALLAPPA’ laid down the principles governing the issue. The - 23 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 judgment in the case of ‘Renuka’ referred supra distinguishes on the case of ‘ANJINAPPA’ referred supra. 26. Under these circumstances, the impugned judgment, which had relied on the principles laid down in paragraph Para No.22 in the case of ‘SHAKUNTALA’ referred supra cannot be faulted with. It is pertinent to note that the case of ‘ANJINAPPA’ had not considered the principles laid down in the case of M/s Oriental Insurance Company Limited and another Vs. Shylaja and Others8, wherein, the deceased while returning to his home after his duties was killed by a wild elephant trampling on him and such injury was held to be in an accident arising out of the employment. 27. In the result, the substantial question of law is answered in the affirmative. As a consequence, appeal is bereft of any merits and therefore, the same deserves to be dismissed. Hence, following: ORDER i) The appeal is dismissed. 8 (2010) KANT MAC 85 - 24 - NC: 2025:KHC-K:2495 MFA No. 202340 of 2018 ii) The impugned judgment in ECA No.494/2014 is hereby confirmed. iii) The Registry is directed to send back the records to the learned Commissioner along with a copy of this judgment. Sd/- (C.M. JOSHI) JUDGE SBS List No.: 1 Sl No.: 68 CT: AK