Employees' State Insurance Corporation v. Francis De Costa And Another

The Judgment of the Court was delivered by

Subramonian Poti, J.:— The application of the doctrine of notional extension of employment arises for consideration in this case. This is an appeal against the decision of the Industrial Tribunal, Calicut, in an application under S. 75 of the Employees' State insurance Act. The applicant before the Employees' Insurance Court, Calicut, which is respondent 1 in this appeal, was employed with J. & P. Coats (Private), Ltd., Koratty, respondent 2 in the appeal, and he is an insured employee. While proceeding to the factory from his house for reporting for duty on 26 June 1971, he met with an accident at about 4.15 P.M The accident took place at about one kilometre to the north of the factory. The applicant was riding a bicycle at that time and he was hit by a lorry belonging to the employer. As a result of the accident his collar bone was fractured and he sustained other injuries. He was under treatment till 6 July 1971. The worker was totally and permanently incapacitated for work in the factory using his left upper limb and it was so certified by the insurance medical officer after treatment. This, according to the applicant, is an employment injury and he brought this to the notice of the Regional Director, Employees' State Insurance Corporation, the appellant here. The case that it was an employment injury was disputed and thereupon the petition was moved by the worker for a declaration that he had suffered a permanent disablement injury which was an employment injury and consequently for grant of such benefits as are due to him under law. Since the accident took place outside the factory premises and that before the working hours commenced and further since it was at a place one kilometre away from the factory it was contended by the Employees' State Insurance Corporation that the injury cannot be characterized as an employment injury and the applicant was entitled only to the sickness benefit for the whole period, which he got from the Corporation. The management of J. & P. Coats also appeared and contended that injury was not one suffered as a result of employment. The Employees' Insurance Court found that the applicant met with the accident in the course of employment and so he is entitled to get the benefits contemplated under the provisions of the Act. The Employees' State Insurance Corporation was called upon to decide the amount payable under law in the circumstances of the case. It is this decision of the Court that is challenged in this appeal by the Regional Director, Employees' State Insurance Corporation, Trichur.

2. The circumstances under which the employee met with the injury are not disputed. These are stated in the order under appeal thus:

“It is not disputed that on the particular day he was due to report for duty at 4.30 P.M The accident was caused at about 4.15 P.M He was on his way from his house to the factory. Nobody has a case that this is not a usual route through which he has to go and report for work at the factory. It has also come out in evidence that the management has paid necessary amount as advance to purchase a cycle to facilitate the speedy transport to the factory…

In this case the worker was to report for duty at 4.30 P.M The company has given the necessary amount to purchase a cycle to facilitate his prompt arrival and speedy departure from the factory premises. No case that the injury was sustained while he was taking a different route. The worker's case is that he was using the usual route to reach the factory from his house. No body disputed this. Nobody accuses him of negligence while riding the cycle. It has to be stated that he was going to the factory at 4.15 P.M and he was to report at 4.30 P.M for duty and there is nothing contrary to prove that he was on leave or was likely to be absent in the factory.

These circumstances would show that he met with an accident while in the course of employment and so, he is entitled to get the benefits contemplated under the provisions of the Employees' State Insurance Act.”

3. The question, therefore, is whether in these circumstances it could be said that the employee sustained injury in the course of his employment and that it arose out of his employment. Whatever might have been the view once held as to the scope of the term “arising out of” and “in the course of employment,” it is settled law that even when the employee is outside the premises of the place where he is to work and an injury is caused to him such injury could be an employment injury. A Division Bench of this Court in the decision in Regional Director, Employees' State Insurance Corporation, Trichur v. Krishnan (K.) [1975-II L.L.N 307], had occasion to consider this question. The Division Bench was considering a case of a worker, who sustained an accident while returning from the factory to his residence after having completed his work in the shift between 5 P.M and 2 A.M While the worker was walking along the trunk road on his way to his residence from the factory he was knocked down by a motor car as a result of which he sustained a fracture in his right arm. The accident took place at a place far away from the factory premises. Under such circumstances the worker claimed disablement benefit from the Employees' State Insurance Corporation. This was disputed. The Employees' Insurance Court took the view that since the workman had to be on the trunk road at that particular time, 2.35 A.M, because of the fact that his working hours in the factory had to come to an end at 2 A.M there was a relationship between the accident and the employment. The Employees' State Insurance Corporation challenged the legality and the correctness of this decision. It is in this context that reference was made by the Division Bench to the earlier decision of the Division Bench of this Court in Appeal Suit No. 65 of 1973. In that case one of us speaking for the Bench had observed thus (in Para. 4 at page 308):

“While it may be said that in the case of an employee who meets with an accident while travelling in a transport provided by the employer as a facility to and from the work spot the employer is liable under the Workmen's Compensation Act it cannot be said that a person who is merely walking to the place of occupation meeting with an accident is suffering such accident in the course of his employment. That is because every member of the public walks along the road and in the case of an employee also he walks only as a member of the public. The theory of notional extension of employment does not extend to coverage in regard to such a situation. We need not examine the question any further for the case is covered by the decision in Saurashtra Salt Manufacturing Company v. Bai Valu Raja [A.I.R 1953 S.C 881].”

On the facts of that case the Court found that the worker sustained the injury as a result of the accident met with by him while he was walking along the public road at a place far away from the factory premises and the accident was, for that reason, not an employment injury. It is this decision that is sought to be relied on by appellant's counsel that here too it must be found that the worker having sustained the injury about one kilometre away from the factory while riding on his bicycle to the factory he was only exercising his right as any member of the public and it cannot, therefore, be said that the injury is an employment injury.

4. We feel the facts of the case are not identical with the case before the Division Bench in Regional Director, Employees' State Insurance Corporation, Tirchur v. Krishnan (K.) [1975-II L.L.N 307] (vide supra). In fact a subtle appreciation of the circumstances relating to an accident is called for in each case, and, therefore, on facts no case could be an authority for another since there would necessarily be some difference between the two cases. While it is well settled that an employment injury need not necessarily be confined to any injury sustained by a person within the premises of the concern where the employee works, whether in a particular case the theory of notional extension of employment would take, in the time and place of the accident so as to bring it within an employment injury will have to depend on the assessment of several factors. The question would be one of appreciation of the nexus between the circumstances in which the accident was caused and the employment. Before we refer to the features of this case we think it would be worthwhile to refer to an unreported decision of a Division Bench of this Court, in Miscellaneous First Appeal No. 8 of 1975, dated 20 June 1975. [Since reported as Cochin Dock Labour Board (by Chairman) v. P.J George (1976-II L.L.N 456)]. In that case the worker employed in the port trust in the Wellington island had to cross over to Mattancherry in rowing boat (mutchwa) after his working hours in the island. He was on duty between 6 P.M and 3 A.M on the relevant date and the accident took place sometime just after the duty hours. At that time for crossing over to the mainland the only conveyance available to the worker was the mutchwa and he availed of it. That collided with a water transport boat consequent on which he was wounded on his left leg and it had to be amputates above the knee. The question was whether it was an employment injury for which he was entitled to disablement benefit. He, like the other employees, was being paid twenty paise as expenses for crossing over from the island to the mainland. Though the claim was disputed the Commissioner for Workmen's Compensation found on the facts that the dock labour board was liable to pay compensation. In coming to this conclusion he relied upon certain facts. That the nature of the work spot was an island, that the worker had to work late hours in the night, that he had no other means of transport from the island to reach his home on the mainland after his work during that part of the night other than the mutchwa and that he was being paid travelling allowance on the basis of the boat fare even though the employees are free to travel by other vehicles, but during that part of the night those other means of transport were not available at that time and, therefore, the workmen were using the mode of transport contemplated by the terms of the employment were matters considered relevant in finding that the injury was employment injury. This Court after considering the facts said in the case thus (in Para. 4 at page 458):

“It is now well settled that concept of ‘duty’ is not limited to the period of time the workman actually commences his work and the time when he downs his tools. It extends further in point of time as well as place. As an illustration the case where an employee is obliged to travel by a particular means of transport to reach or to leave the business premises of the employer may be pointed out. The obligation may not be a legal obligation. But if the circumstances compel him to adopt that means of transport that would be sufficient to relate the period of such journey to the employment. There must be nexus between the time and place of the accident and the employment. If the presence of the workman concerned at particular point, was so related to his employment as to lead to the conclusion that he was acting within the scone of employment that would be sufficient to deem the accident as having occurred in the course of the employment.”

5. In coming to that conclusion the Court relied on the observation of Viscount Maugham in Weaver v. Tredegar Iron and Coal Company, Ltd. [(1940) 3 All. E.R 157 at page 161]. That passage may be quoted here too with advantage:

“That the principle of Hewitson case is not limited to case where the workman is in actual occupation of means of transport provided by the employer — e.g, a train or omnibus — is, I think, clearly established by the decision of this House in Newton v. Guest Keen and Nettlefolds, Ltd.. In that case the employers, by agreement with the Great Western Railway Company provided trains by which the men could travel to the colliery. The coaches and the platform were owned by the employers. The men were expected to travel by the provided trains, but not bound to do so. An employee on his way to work was going to such a train at about 5.35 A.M and to do so he had to cross the line. He was knocked down by a light engine, and suffered serious injury. The county Court Judge found that the man (page 120): … When crossing the line to the train, was in the act of using the only reasonable and practical means of access open to him when he met with the accident.”

The Court again said:

“6. If the obligation to travel by a particular means of transport which may no doubt be available not only to the workman but also to the members of the public may be implied in the circumstances of the case, it may be directly related to the employment. The obligation, as we have said, need not be a legal obligation on the part of the workman but the circumstances may oblige him to adopt that course. If the term ‘duty’ is to have a wide meaning and is not to be confined to the time when the workman is actually carrying out his work one can see no difference between the case where he sustains an injury when walking across a third party's premises with licence and a case where he uses a vehicle which could be used by others also for leaving the premises where he is working but he is obliged to use such vehicle. Just as an employee has a duty to reach the work spot in time he has a duty to leave the work spot when once his duty hours are over. He is, in such cases, obliged to leave the premises by available means. He may have the choice of leaving by several routes, the choice which is open to any number of public, as for example, when he is travelling along a public road when it may be said that he is there not by virtue of his status as an employee but as a member of the public. But there may be peculiar circumstances when he has no such choice and is obliged to adopt one and the only mode of conveyance available to him and to his class. Though it may not be possible to define the specific circumstances in which this can be said to be the situation on the facts of a case it may be possible to find so as has been found by the Commissioner for Workmen's Compensation here.”

6. We may in this context refer to a passage from the decision in Bhagubhai v. Central Railway, Bombay [1956 Bom. L.R 509]. Chief Justice Sri Chagla, speaking for the Bench said in that case thus:

“Now, it is clear that there must be a causal connexion between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The authorities have clearly laid down that if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connexion is established between the accident and the employment. It is now well settled that the fact that the employee shares that peril with other members of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him; the peril must be incidental to his employment. It is also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do with his own action or his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril, a causal connexion is established between the employment and the accident. In this particular case what is established is that the employee while in the course of his employment found himself in a spot where he was assaulted and stabbed to death. He was in the place where he was murdered by reason of his employment. He would have been safely in his bed but for the fact that he had to join duty, and he had to pass this spot in order to join his duty. Therefore, the connexion between the employment and accident is established. There is no evidence in this case that the employee in any way added to the peril. There is no evidence that he was stabbed because the assailant wanted to stab him and not anybody else.”

With great respect we must state that it appears to us that this is a very lucid statement of the law on the question with which we are concerned in this case. If in the course of his employment the employee has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connexion is established. The Supreme Court in General Manager, B.E.S.T Undertaking, Bombay v. Mrs Agnes [(1964) 3 S.C.R 930], said thus:

“Under S. 3 (1) of the Act the injury must be caused to the workman by an accident arising out and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the ‘down tool’ signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves his tools but also when he uses the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of the employee to use only a particular means of transport extends the area of the field of employment to the course of the said transport. Though at the beginning the word ‘duty’ has been strictly construed, the later decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deal with a transport service operating over a large area like Bombay. They are, therefore, of little assistance, except in so far as they laid down the principles of general application. Indeed, some of the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to traverse public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority.”

7. On the facts of this case the Insurance Court has found that an employment injury has been caused and that the employee met with the accident while in the course of his employment. This is on an appreciation of the circumstances particularly the fact that at the time the employee met with the accident he was on his way to the factory and in the normal course he would have been reporting for duty within a few minutes, that he was using the route through which normally he had to reach the factory from his home and he was using the conveyance which though he was not legally obliged to use was a vehicle which in the contemplation of the parties was a normal mode of transport from the employee's residence to the factory. We cannot see any reason to interfere with the finding based upon the appreciation of these circumstances. The appeal is dismissed with costs.