E.S.I. Corporation vs Lakshmi

George Vadakkel, J.—Respondent''s husband, Parameswara Menon (hereinafter referred to as the insured), was an employee of the Indian Rare Earths Limited, Eloor. His working hours were 9 a.m. to 4-30 p.m. His house was at Ernakulam, From there to the factory and thence back home every day he travelled by bus. Formerly the company had its own transport service for the transport of its employees residing in places like Ernakulam, Alwaye and Trippunithura to the factory and back. When the company stopped its own transport service, it made arrangements with bus operators for such employees'' travel to the factory from those places and return journey home. Still later the company stopping such arrangements began paying the employees a substantial portion of their fare as subsidy. The insured was getting 2/3 of the actual fare he had to pay for his journey from Ernakulam to the factory and return the journey. By the joint effort of the management and the employees'' union permits were issued to the bus operators to operate the buses between the factory gate and the different places where the employees were residing with a time schedule that suited their (the employees'') convenience to come to the factory in time and leave it after their work. One such bus leaves the factory gate at 4.35 p.m. every day for Ernakulam and the employees from Ernakulam whose shift-work ends at 4.30 p.m. return home in this bus. On 15th September 1970 when the insured was returning home from the factory by the 4-35 p.m. bus, he met with an accident and died of it the same day. Did he die of an ''employment injury'' is the question for consideration.

Did the accident arise (1) out of the insured''s employment; and (2) in the course of his employment, are the points to be considered. The first point, -- whether the accident arose out of one''s employment -- is determined by applying the test of causal relationship between the accident and the employment, taking into account the nature of the employment, its conditions, its obligations and its incidents. See Thom or Simpson v. Sinclair (1917) A.C. 127 at 142 and Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, at 1908. However, in cases coming under the Employees'' State Insurance Act, 1948, on establishing the second point, namely, that the accident arose in the course of one''s employment u/s 51A thereof a rebuttable presumption arises that the accident arose also out of that employment, wherefore a claimant for the benefits conferred by that Act need in the first instance establish only the second requirement. But, note, there is no converse presumption, that is, from proof of causal relationship between the accident and the employment it does not follow that the accident arose in the course of that employment. This is because in the words of Lord Dunedin in Charles R. Davidson and Company v. M'' Robb or Officer (1918) A.C. 304 at 321:

It is obvious that the addition of the words ''and in the course of'' are meant in some way either to qualify or further explain the words ''out of''. My own view is that they do the latter. It is in one sense difficult to imagine that there could be any injury held as arising out of the employment which would not also be in the course of the employment. But it may well be that the determination of the question whether at the moment of the injury the workman was in the course of his employment may go to solve the question of whether the injury arose out of the employment. Let me instance the case of the domestic servant who is run over in the street. Given but the two facts that the man is e.g., a butler, and that he is run over in the street, you would not be able to decide whether the injury arose out of the employment or not. The facts are consistent with either supposition. But given the further fact that either (1) he has been sent by the master on a message, or (2) that he is enjoying an evening out, then you can determine whether he is in the course of his employment or not, and from that, if being run over is one of the inherent dangers of the street, you will be able to determine whether the injury arose out of the employment or not.

The expression ''in the course of his employment'' means ''in the course of the work which the workman is employed to do and which is incidental to it''. Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, at 1908. The first part of the above definition is determined with reference to the contract of employment. The difficulty arises when one begins to examine as to what is or are incidental to the work which the workman is employed to do. As ordinarily understood one begins doing his work only on reaching his work-spot; and when he lays down his tools and leaves the work-spot, that day''s work is over. ''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 repasses in going to and leaving the actual place of work. There may be some reasonable extension in both time and place and workman may be regarded as in the course of his employment even though he had not reached or had left his employer''s premises. Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and Others, at 882. What would be reasonable extension is a question of fact dependent upon the facts and circumstances in each case. This theory of notional extension in time of the work-hours and in place of the work-spot rests on the fiction that when the workman is on his way to that place or back from there, he is regarded as engaged in doing something incidental to the work he is employed to do. However, law is averse to stretch either work-hours or work-spot beyond a reasonable limit which means that neither of them extends upto the workmans home and that the limit has to be fixed somewhere between his home and the work-spot. Where? The Supreme Court in Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and Others, laid down the following guidelines on this aspect:

It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workmen is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension outside or which the employer is not liable to pay compensation for any accident happening to him.

Though the doctrine of notional extension may not normally apply to a workman on a public place, public road or on a public transport, it may be that it was in the contemplation of the employer and the employee that certain things are incidental to the principal work of the latter, and one such matter in their contemplation may be that the employer should provide or arrange for transport of the employees to and from the work spot by a particular mode. In such cases it is a condition of employment that the employee shall or may be, at his option may, utilise the mode of transport provided or arranged for, or, agreed upon, by the employer. When pursuant to such a condition of employment, be it express, or implied or inferred from circumstances such as practice and usage, the employee is on a public transport on his way to or from the work-spot, he is there in the course of his employment in that he is doing something incidental to his work. If the employee meets with an accident while so travelling, it is one arising in the course of his employment. This theory of extension in time and place of the course of the employment was recognized and applied in Cremins v. Guest, Keen and Nettlefolds, Limited (1908) 1 K.B. 469 at 471-72. However, the House of Lords in St. Helens Colliery Co. v. Hewitson (1924) A.C. 59 limited the scope of such extension to cases where the workman is under an obligation or duty to travel to and from the specific place of work by the particular mode of transport provided or arranged for, or, agreed upon, by the employer thereby excluding from the ambit of the principle cases where the workman has only the right or option to use such transport even if such right or option is an inseparable part of the contract of employment. Still later English decisions liberally construing the word ''duty'' for all practical purposes, brought within the scope of this rule the latter class of cases also. In Weaver v. Tredegar Iron Co. (1940) 3 All E.R. 157 (H.L.) Lord Atkinson said that the word ''duty'' gives little assistance as a practical guide; Lord Wright expressed the view that the ''idea of duty'' has no relevance and Lord Romer, that the test ought to be whether at the time the accident occurred this employee was in the place where it occurred ''in virtue of his status as a workman or in virtue of his status as a member of the public''. Reviewing all these decisions and taking not of the fact that the decision in Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja and Others, accepted the doctrine of notional extension, the Supreme Court in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes, at 199 said;

A contractual duty or obligation on the part of an 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.

Adverting to the House of Lords decision in Weaver v. Tredegar Iron Co. (1940) 3 All E.R. 157 (H.L.) the Supreme Court in the B.E.S.T. Undertaking case said as follows:

This decision, while it did not discard the test of ''duty'', gave it a wider meaning than that given by the earlier decisions. It was the duty of the employee to go to the work spot and leave it and it would be his duty to leave it by means of transit provided by the employer. The exigencies of the service, the practice obtaining therein and the nature of the service would be the guiding factors to ascertain the scope of the duty.

Therefore, when determining the question as to when the workman''s employment begins and as to when it ends in cases like the one on hand the consideration is: whether under the express or implied conditions of employment governing the parties, is it the duty of the employee (understanding the word, duty, in its wider and liberal meaning) to go to his place of work and return therefrom by means of transit provided or arranged for or agreed upon by the employer. This question has to be considered taking note of ''the exigencies of the service, the practice obtaining therein and the nature of the service'', and if on such consideration the answers is in the affirmative, then, the workman is in the course of his employment while using the means of transit to and from the place of work.

It is contended that Section 51C introduced into the Act by the Employee''s State Insurance (Amendment) Act, 1966 and which came into force with effect from 28th January 1968 is exhaustive on this branch of the doctrine of notional extension founded on the terms of the contract of employment. In the alternative it is argued that the said provision, at any rate, curtails the scope of the principles stated in the preceding paragraph. u/s 51C, if an employee while he by permission of his employer is travelling by a vehicle which is operated by or on behalf of the latter or by someone else by arrangement with him (the employer) but is not being operated in the ordinary course of public transport service, meets with an accident, then, even though the employee is under no obligation to his employer to travel by that vehicle, the accident would be deemed to have arisen in the course of his employment, if it would be deemed so to have arisen had he been under an obligation to travel by that vehicle. Obviously the section is not exhaustive, for, it does not cover cases where an employee is under an obligation or duty to use particular means of transit to go to and return from the work spot, but deals only with the case of an employee who is under no such obligation or duty. The provision assumes that an employee of the former class (one under obligation) while using the particular mode of transport in the contemplation of the parties, is in the course of his employment and says that the same would be the case when one of the latter class (one not under such obligation) uses a vehicle if the two conditions mentioned in Clause (b) of the section arc satisfied, viz., (i) the vehicle is one operated by or on behalf of his employer or some other person pursuant to arrangements made with his employer; and (ii) it is not being operated in the ordinary course of public transport service Section 51C therefore obviates the need for an examination of the question whether it is the duty of the employee to go to his work spot and return therefrom by any particular means of transit if the two conditions mentioned in Clause (b) thereof are obtained and in a way, it enlarges the scope of the expression: ''course of employment''.

Regional Director, E.S.I. Corporation, Trichur v. Krishnan 1975 KLT 712 and A.P. Mathai v. Regional Director, Employee''s State Insurance Corporation A.S. No. 65 of 1973 are cases where the concerned employee was walking along the public road, in the first mentioned case on his way back home after work and in the other, on his way to the work spot, when the respective accidents arose. On the facts of each case it was held that the place of accident was outside the limit upto which the place of work could notionally be extended. Poti, J. in the latter mentioned case said:

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.

Employees'' State Insurance Corporation Vs. Smt. Suhara Beevi, was a case almost identical to the one before us. There the employer had permitted the employee to come to the factory for work and return therefrom after work by travelling in public transport vehicles; the employee was being paid 70 per cent of the bus fare as subsidy. The accident occurred while the workman was travelling in such a vehicle on his way to the work spot. Balagangadharan Nair, J. said:

He was not expected to arrive on feet -- that theory is negatived by the payment of the subsidy -- and the time of the accident, 7.45 a.m. points that he was going straight to the company to be there at 8 a.m. In my view, the use of this bus is a proved necessity and gives rise to an implied obligation on his part to travel in the said bus as part of his duty. I hold that Abdul Rahiman died of injuries caused by the accident arising out and in the course of his employment.

In the Chairman, Cochin Dock Labour Board v. T.J. George M.F.A. No. 8 of 1975 a decision to which one of us was a party, Poti, J. for the court said:

It is now well settled that the 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 the particular point was so related to his employment as to lead to the conclusion that he was acting within the scope of employment that would be sufficient to deem the accident as having occurred in the course of the employment.

In this case the place of work was in an island. The work lasted till the small hours of the night. The workman could reach the mainland at that hour of the night only by travelling in Mutchwa across the waters separating the island and the mainland. He and other similar employees were paid 20 paise as travelling allowance. This was on the basis of boat fares but at that late hour no boats ply. The Commissioner held that an accident that happened while the employee was going to the mainland on the Mutchwa after his work in the island arose out of and in the course of his employment. This was upheld by this Court. Here the principle evolved is that where out of sheer necessity the employee is forced to use a particular mode of transport for going to or from the place of work, such user is in the course of his employment. Perhaps it could very well be said that it was an implied condition of employment that the workman could cross over to the mainland on the Mutchwa.

In the next case cited at the bar, E.S.I. Corporation v. Francis De costa 1973 KLT 218 Poti, J. on behalf of another Bench said:

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.

We are satisfied that it was an implied condition of the employment of the insured that he may travel to and from his work place by bus, and that on 15th September 1970 when the accident happened he was using the means of egress (from the place of employment) which was in the contemplation of parties. The accident arose in the course of his employment. There is no evidence that the insured''s employment which, as said above included the incident thereof, namely, the bus travel to and from the work spot examined objectively applying the causal test is one out of which the accident in question cannot arise, and therefore we have, u/s 51A of the Act, to presume also that it has arisen out of his employment.

We dismiss this appeal with costs.