KAHC010371442012_1

Appeal and cross-objection against an award of compensation under the Employee's Compensation Act, 1923, by the Commissioner for Workmen's Compensation.

The insurance company sought to set aside the award; the claimants sought enhancement of compensation.

The Commissioner awarded Rs.3,79,593/- with interest for the death of a cleaner in a road accident. The insurance company disputed liability, while claimants sought higher compensation.

The Labour Officer and Commissioner for Workmen's Compensation, Kolar District, Kolar, passed judgment dated 24.02.2012 in WCA/FC/CR-04/2009 awarding Rs.3,79,593/- with interest.

Whether the learned Commissioner is justified in holding that there is a relationship of employer and employee proved? Whether Cross Objection under Order XLI Rule 22 of Code of Civil Procedure is maintainable challenging the order and award passed by the Commissioner for Workmen's Compensation? Whether theory of Notional Extension Employment can be applied so as to hold that the death of the deceased is out of and in the course of employment?

Insurance Company argued: No proof of employer-employee relationship; the cross-objection is not maintainable under Workmen's Compensation Rules; the death did not occur out of and in the course of employment because the cleaner was hit while fetching tea, not performing his duties; reliance on various precedents. Claimants argued: Police records established the deceased was a cleaner; cross-objection is a statutory right under CPC and not excluded by the Rules; the accident occurred during the course of employment under the theory of notional extension, as fetching tea was incidental to the employment; reliance on several High Court and Supreme Court judgments.

The brief facts of the case are that the deceased K. Jagadish Kumar was working as a Cleaner in heavy transport trailer bearing No.HR-38-J-2177 under the employment of respondent No.3-onwer of the heavy transport trailer. On 01.10.2008, on instruction of respondent No.3, the deceased was proceeding on NH-46, Bengaluru-Chennai Road... the driver stopped the vehicle for the purpose of recreation by drinking tea... while bringing tea to the driver, at that moment, the deceased was hit by another vehicle and died on the spot. the claim petition filed by the claimants is not maintainable as there is no proof regarding relationship of employer and employee. the cross objection filed by the claimants for seeking enhancement of compensation is not maintainable as per Rule XLI of the Workmen's Compensation (Central) Rules 1924 and as per Rule XLII of the Workmen's Compensation (Karnataka) Rules, 1966. the deceased being the cleaner while taking tea to the driver, at that moment the death caused is due to accident is nothing but out of and in the course of employment by application of theory of national extension employment.

The claimants filed a claim petition under the Employee's Compensation Act before the Labour Officer and Commissioner for Workmen's Compensation, Kolar District, which was allowed by judgment dated 24.02.2012 in WCA/FC/CR-04/2009, awarding Rs.3,79,593/- with interest. The insurance company filed MFA No.9035/2012 under Section 30(1) of the Act challenging the award. The claimants filed MFA CROB No.47/2014 under Order 41 Rule 22 CPC read with Section 30(1) seeking enhancement of compensation. Both were heard together.

• Employee's Compensation Act, 1923: Section 3, Section 30(1)
• Code of Civil Procedure, 1908: Order 41 Rule 22
• Workmen's Compensation (Central) Rules, 1924: Rule XLI, Rule XLII
• Workmen's Compensation (Karnataka) Rules, 1966: Rule XLII