Navin Sinha, J. - (1.) Leave granted.
(2.) The appellants are the legal heirs of the deceased aggrieved by the rejection of their claim for compensation under the Employee's Compensation Act, 1923 as amended by the Workmen's Compensation (Amendment) Act, 2009 (hereinafter referred to as 'the Act'). The deceased was a bus driver under respondent no.1. He fell off the roof of the bus accidentally and died.
(3.) Learned counsel for the appellants submits that the deceased suffered an accidental death in the course of, and arising out of the employment, evident from the deposition of PW- 2, Ajay Singh Chauhan. The denial of compensation under the Act to the appellants suffers from grave misappreciation of facts and the evidence available on record. The nature of duty performed by the deceased required him to be with the bus twenty-four hours, failing which the employer's requirement could not be fulfilled. The presence of the deceased on the bus was by compulsion, and not by choice. PW-2 deposed that the deceased was required to be with the bus and was therefore paid salary of Rs.6,000/- p.m. for twenty-four hours. Merely because the accident took place while the deceased was coming down the roof of the bus after having his meals, cannot be sufficient, sans the evidence, to hold that death did not arise out of and was not in the course of employment. The facts of the case adequately reflect notional extension of the duty, relying on General Manager, B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes, 1964 3 SCR 930.;