The
Regional Director, E.S.I. Corporation & Anr Vs. Francis De Costa & Anr
[1996] INSC 1111 (11
September 1996)
Cji,
Suhas C. Sen, Sujata V. Manohar Sen, J.
ACT:
HEAD NOTE:
Francis
De Costa, the first respondent herein, met with an accident on June 26, 1971 while he was on his way to his
place of employment, a factory at a Koratty. The accident occurred at a place
which was about one kilometer away to the north of the factory. The time of
occurrence was 4.15 P.M, It has been stated that the
duty-shift of the respondent would have commenced at. 4.30 P.M . The respondent
was going to his place of work bicycle. He was hit by a lorry belonging to his
employers, M/S J and P Coats(P) Ltd.
The
respondent's collar- bone was fractured as a result of the accident and he had
to remain in hospital for 12 days, His claim for disablement benefit was
allowed by the Employees' State Insurance Court. The appeal filed against that order was dismissed by the Kerala High
Court which also dismissed an application for a certificate of fitness to
appeal to the Supreme Court. The petitioner filed an application for Special
Leave to this Court on 16,4.1979.
Special
leave was given by this Court, but the employers' state Insurance Corporation
was directed to pay the first respondent the compensation due to him in terms
of the order of the Employees' State Insurance Court and also of this appeal in any event. It has been stated that the
compensation money has already been paid to the first respondent.
Since
there was difference of opinion between the two Judges who heard the appeal,
the matter was directed to be placed before a larger Bench for deciding the controversy
.
In
order to appreciate the scope of the controversy, it will be necessary to set
out the relevant, provisions of the Employees' State Insurance Act, 1948:
"2(8)"
"employment injury" means a personal injury to an employee caused by
accident. or an occupational disease arising out of and in the course of his
employment, being an insurable employment, whether the accident occurs or the
occupational disease is contracted within or outside the territorial limits of India;
51.
Disablement benefit.- Subject to the provisions of this Act- (a) a person who
sustains temporary disablement for not less than three days (excluding the day
of accident) shall be entitled to periodical payment at such rates and for such
period and subject to such conditions as may be prescribed by the Central
Government;
(b) a
person who sustains permanent disablement, whether total or partial, shall be
entitled to periodical payment at such rates and for such period and subject to
such conditions as may be prescribed by the Central Government.
51-C.
Accidents happening while travelling in employer's transport.-(1) An accident
happening while an insured person is, with the express or implied permission of
his employer travelling as a passenger by any vehicle to or from his place of
work shall, notwithstanding that he is under no obligation to his employer to
travel by that vehicle, be deemed to arise out of in the course of his
employment, if-
(a) the
accident would have been deemed so to have arisen had he been under such
obligation; and
(b) at
the time of the accident, the vehicle-
(i) is
being operated by or on behalf of his employer or some other person by whom it
is provided in pursuance of arrangements made with his employer, and
(ii) is
not being operated in the ordinary course of public transport service.
(2) In
this section" vehicle" includes a vessel and an aircraft." That
the first respondent has suffered a personal injury is not in dispute. The only
dispute is whether the injury will amount to "employment injury" with
in the meaning of Section 2(8), so as to enable the respondent to claim benefit
under the Act. The definition given to "employment injury" in
sub-section (8) of Section 2 envisages a personal injury to an employee caused
by an accident or an occupational disease "arising out of and in the
course of his employment", Therefore, the employee, in the order to
succeed in this case, will have to prove that the injury that he had suffered
arose out of and was in the course of his employment. Both the condition will
have to be fulfilled before he could claim any benefit under the Act.
It
does not appear that the injury suffered by the employee in the instant case
arose in any way out of his employment.
The
injury was sustained while the employee was on his way to the factory where he
was employed. the accident took place one kilometer away from the place of
employment.
Unless
it can be said that his employment began as soon as he set out for the factory
from his home, it cannot be said that the injury was caused by an accident
"arising out of ...his employment". A road accident may happen any
where at any time. But such accident cannot be said to have arisen out of
employment. unless it can be shown that the employee was doing something
incidental to his employment.
In our
judgment, by using the words "arising out of....his employment ", the
legislature gave a restrictive meaning to "employment injury ". the
injury must be of such an extent as can be attributed to an accident or an
occupational disease arising out of his employment. "Out of" in this
context, must mean caused by employment., Of course, the phrase "out
of" has an exclusive meaning also.
If a
man is described to be out of his employment, it means he is without a job. The
other meaning of the phrase "out of" is "influenced, inspired,
or caused by: out of pity;
out of
respect for him". (Webster Comprehensive Dictionary- lnternational Edition-1984).
In the context of Section 2(8), the words "out of" indicate that the
injury must be caused by an accident which had its origin in the employment. A
mere road accident, while an employee is on his way to his place of employment
cannot be said to have its origin in his employment in the factory. The phrase
"out of-the employment" was construed in the case of South Maitland
Railways Pty. Ltd. v. James, 67 C.L.R 496, where construing the phrase
"out or the employment", Starke, J,, held "the words 'out of'
require that the injury had its origin in the employment".
Unless
an employee can establish that the injury was caused or had its origin in the
employment, he cannot succeed in a claim based on Section 2(8) of the Act. The
words "accident . . . arising out of . . . his employment" indicate
that any accident which occurred while going to the place of employment or for
the purpose of employment, cannot be said to have arisen out of his employment.
There is no causal connection between the accident and the employment.
The
other words of limitation in sub-section(8) of Section 2 is "in the course
of his employment". The dictionary meaning of "in the course of"
is "during (in the course of time, as time goes by), while doing (The
Concise Oxford Dictionary, New Seventh Edition). The dictionary meaning
indicates that the accident must take place within or during the period or
employment. If the employee's work shift begins at 4.30 P.M., any accident before that time will not be "in the
course of his employment". The journey to the factory may have been
undertaken for working at the factory at 4.30 P.M. But this journey was certainly not in course of employment. If
employment begins from the moment the employee sets from his house for the
factory, then even if the employee stumbles and falls down at the door-step of
his house, the accident will have to be treated as to have taken place in the
course of his employment. This interpretation leads to absurdity and has to be
avoided.
We
were referred to a number of cases on this point. In the case of Regina v. National Insurance Commissioner.
Ex parte Michael, (1977) 1 Weekly Law Reports 109 the Court of Appeal in
England had to construe a phrase "caused by accident arising out of and in
the course of his employment" in Section 5(1) of the National Insurance
(Industrial Injuries) Act, 1965. Lord Denning M.R. started his judgment with
the observation:- "So we come back, once again, to those all too familiar
words 'arising out of and in the course of his employment'. They have been
worth-to lawyers-a King's ransom.
The
reason is because, although so simple, they have to be applied to facts which
very infinitely. Quite often the primary faces are not in dispute: or they are
proved beyond question. But the inference from them is matter of law. And
matters or law can be taken higher. In the old days they went up to the House
of Lords. Nowadays they have to be determined, not by the courts, but by the
hierarchy of tribunals set up under the National Insurance Acts." Under the
Employees' State Insurance Act 1948, a tribunal has been set up to decide,
inter alia, any claim for recovery of a benefit admissible in this Act. A
reference lies to the High Court on a question of law. In other words, the
decision of the Insurance
Court set up under
the statute is final and bindings, so far as the findings of fact are
concerned. But, if any error of law has been committed the Courts are expected
to correct it and to give guidance to the Insurance Court.
Construing
the meaning of the phrase "in the course of his employment", it was
noted by Lord Denning that the meaning of the phrase had gradually been widened
over the last 30 years to include doing something which was reasonably
incidental to the employee's employment. The test of "reasonably
incidental" was applied in a large number of English decisions. Buts Lord
Denning pointed out that in all those cases the workman was at the premises
where he or she worked and was injured while on a visit to the canteen or other
place for a break. Lord Denning, however, caution that the words
"reasonably incidental" should be read in that context and should be
limited to the cases of that kind. Lord Denning observed:- "Take a case
where a man is going to or from his place of work on his own bicycle, or in his
own car. He might i.e said to be doing something "reasonably
incidental" to his employment. But if he has an accident on the way it is
well settled that it does not "arise out of and in the course of his
employment". Even if his employer provides the transport, so that he is
going to work as a passenger in his employer's vehicle (which is surely
reasonably incidental" to his employment) nevertheless if he is injured in
an accident, it does not arise out of and in the course of his employment. It needed
a special "deeming" provision in a statute to make it
"deemed" to arise out of and in the course of his employment."
This is precisely the case before us. Here also, we have at case of a person
going from his home to his place of work. But he suffers injury in an accident
on the way. It cannot be said that the accident arose out of and in the course
of his employment. It was faintly suggested by Mr. Chacko, appearing on behalf
of the respondent that the bicycle was bought by taking a loan from the employer.
That however, is of no relevance. He might have borrowed money from his Company
or from somewhere else for purchasing the bicycle. But the fact remains that
the bicycle belonged to him and not the employer. If he meets with an accident
while riding his own bicycle on the way to his place of work, it cannot be said
that the accident was reasonably incidental to the employment and was in the
course of his employment. The deeming provision of Section 51-C which came into
force by way of an amendment effected by Employee's Life Insurance (Amendment)
Act of 1966 (Act No.44 of 1966), enlarged the scope of the phrase "in the
course of employment" to include tavelling as a passenger by the
employer's vehicle to or from the place of work. The legal fiction contained in
Section 51-C, however, does not come into play in this case because the
employee was not travelling as a passenger in any vehicle owned or operated by
or on behalf of the employer or by some other person in pursuance of an
arrangement made by the employer.
The
meaning of the words "in the course of his employment" appearing in
Section 3(1) of Workmen's Compensation Acts 1923. was examined by this Court in
the case of Saurashtra Salt Manufacturing Co. v, Bai Valu Raja, AIR 1958 SC
881. There, the appellant, a salt manufacturing company, employed workmen both
temporary and permanent. The salt works was situated near a creek opposite to
the town of Porbandar. The salt works could be reached by
at least two ways from the town, one an over land route nearly 6 to 7 miles
long and the other via a creek which had to be crossed by a boat. In the
evening of 12.6.1952, a boat carrying some of the workmen capsized due to bad
weather and over-loading.
As a
result of this, some of the workmen were drowned. One of the questions that
came up for consideration was whether the accident had taken place in the
course of the employment of the workers. S. Jafer Imam, J., speaking for the
court, held "As a rule, the employment of a workman does not commence
until he has reached the place of employment and does not continue when he has
left the place of employment, the journey to and from the place of employment
being excluded." After laying down the principle broadly, S. Jafer Imams,
J., went or to observe that there might be some reasonable extension in both
time and place to this principle. A workman might be regarded as in the course
of his employment even though he had not reached or had left his employer's
premises in some special cases. The facts and circumstances of each case would
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. But, examining the facts of the
case in particular, after noticing the fact that the workman used a boat, which
was also used as public ferry for which they had to pay the boatman's dues, S.Jafer
Imam, J. observed:- "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 workman 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 of which the employer is not liable to pay
compensation for any accident happening to him. In the present case, even if it
be assumed that the theory of notion extension extends upon point D, the theory
cannot be extended beyond it. The moment a workman left point B in a boat or
left point A but had not yet reached point B, he could not be said to be in the
course of his employment and any accident happening to him on the journey
between these two points could not be said to have arisen out of and in the
course of his employment. Both the Commissioner for Workmen's Compensation and
the High Court were in error in supposing that the deceased workmen in this
case were still in the course of their employment when they were crossing the
creek between points A and B.
The
accident which took place when the boat was almost at point A resulting in the
death of so many workmen was unfortunate, but for that accident the appellant
cannot be made liable." The point raised before us can be answered on the
basis of the principle laid down in the aforesaid two cases. But Mr. Chacko,
appearing on behalf of the respondent has contended that proximity of time end
place is a factor to the borne in mind. The employee was to report for duty at
4.30 P.M. The accident took place at 4.15 P.M. only one kilometer away from the
factory. In our view this cannot be a ground for departing from the principle
laid down by the aforementioned cases that the employment of the workman does
not commence until he has reached she place of employment.
What
happens before that is not in course of employment. It was also pointed out by
Lord Denning in the aforesaid case of Regina v. National Insurance
Commissioner, Ex. Parte Michael (supra) that the extension of the meaning of
the phrase "in the course of his employment" has taken place in some
cases but in all those cases, the workman was at the premises where he or she
worked and was injured while on a visit to the canteen or some other place for
a break. The test of what was "reasonably incidental" to employment,
may be extended even to cases while an employee is sent on errand by the
employer outside the factory premises. But in such cases it must be shown that
he was doing something incidental to his employment. There may also be cases
where an employee has to go out of his workplace in the usual course of his
employment. Latham, C.J. in South Maitland Railways Proprietary Limited v.
James (67 CLR 496) observed that when the workmen on a hot day in course of
their employment had to go for a short time to get some cool water to drink to
enable them to continue to work without which they could not have otherwise
continued, they were in such cases doing something in the course of their
employment when they went out for S water. But the case before us does not fall
within the exceptions mentioned by Lord Denning or Latham, C.J. The case
squarely comes within the proposition of law propounded by S. Jafar Imam, J.
Strong
reliance was placed by Shri Chacko on a decision of this Court in General
Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes (1964 (3) SCR 930). In this
case, one bus driver of the appellant- Corporation after finishing the day's
work left for home in a bus belonging to employer's undertaking which met with
an accident as a result of which he died. His widow claimed compensation under
the Workmen's Compensation Act and the question was whether the accident had
arisen out of and in course of employment. It was held by Subba Rao and Mudholkar,
JJ. (Raghubar Dayal, J. dissenting) that the bus driver was given facility by
the management to travel in any bus belonging to the undertaking. It was given
because efficiency of the service demanded it. Therefore, the right of the bus
driver to travel in the bus was to discharge his duty punctually and
efficiently. This was a condition of service and there was an obligation to
travel in the said the buses as a part of his duty. It was held that in the
case of a factory, the premises of an employer was a limited one but in the
case of City Transport Service, the entire fleet of buses forming the service
would be "premises". This decision in our view does not come to the
assistance of the employee's case. An employee of a Transport Undertaking was travelling
in a vehicle provided by the employer. Having regard to the purpose for which
he was travelling and also having regard to the obligation on the part of the
employee to travel in the said buses as a part of his duty, the Court came to
the conclusion that this journey was the Course of his employment because the
entire fleet of buses formed the premises within which he worked.
But in
the case before us, the facts are entirely different. The employee was not
obliged to travel in any particular way under the terms of employment nor can
it be said that he was travelling in a transport provided by the employer.
In the
case of Sadgunaben Amrutlal and others v. The Employees State Insurance
Corporation, Ahmedabad (1981 LAB.I.C 1653), it was held by the Division Bench
of the Gujarat High Court that though as a rule, employment of a workman did
not commence until he reach the place of employment and did not continue after
he has left the place of employment, the proposition was subject to the theory
of notional extension of the employer's premises. The notional extension theory
could not be related to the place of employment only. It could also be taken
recourse to in order to extend the time in a reasonable manner. The court took
the view in the case, where an employee on his way to the factory died of acute
cardiac arrest, that it was caused by accident arising out of and in course of
employment. The employee was employed as a jobber in the Wrapping Department of
the mill. He worked in the premise from 8 A.M. to 4.30 P.M. On December 22,1974,
while was on duty in the mill, he felt unwell. He took medical treatment on the
next day (December 23,1974) which was an off-day for him. On December 24, 1974,
he left his residence at about 7.20 A.M. i.e. 40 minutes before the reporting
time. Hi walked a short distance from his house to the nearest bus stop and was
waiting for a bus to take him to the mill. While waiting for the bus, he felt
unwell. He complained to an ex-employee of the mill who was also waiting to
board the that it was due to the excessive and strenuous nature of work which
he was required to do at the mill that he was feeling unwell. When the bus
arrived, Amrut Lal, the employee was about to step into the bus when he
collapsed and became unconscious. The postmortem reavealed that he died of
cardiac failure. Both the Employees Insurance Court and the single Judge of the
High Court held that the employee had not died as a result of an accident in
the course of employment. On appeal, the Division Bench held that both the
Employees Insurance Court and the single Judge were in error in holding that the
death was not in course of employment.
It is
doubtful whether this decision can be reconciled with the principle laid down
by S. Jafer Imam, J. in the case of Surashtra Salt Manufacturing Co.(supra). It
is also to be noted that the death was not caused by an accident.
The
death was due to acute cardiac failure. The causal connection between the death
and employment had not been established. Moreover, walking to the bus stop from
the employee's residence and boarding the bus for going to the place of work
cannot be acts in course of employment.
In the
case of Bhagubai v. Central Railway, Bombay, (1954) L.L.J., a Division Bench of Bombay High Court dealt with a case
where a workman on his way to work was murdered.
There
was no evidence to show that he murder was due to any motive against the
deceased workman. It was held that the death took place because of an accident
arising out of employment. Chagla, C.J. emphasised that there must be a causal
connection between the accident and the death before it could be said that the
accident arose out of employment of the concerned workman. In that case, the
deceased was employed by Central Railway at Kurla Station and he lived in the
railway quarters adjoining the station. It was found as a fact that the only
access for the deceased from his quarters to the Kurla railway station was
through the compound of the railway quarters. On December 20,1952, the decease left his quarters a few minutes before midnight in order to join duty. While on his way, he was
stabbed by some unknown persons. It is not disputed by the railway company that
the deceased died as a result of an accident nor was it disputed that the
accident arose in the course of his employment. The dispute was limited to the
question whether the accident arose out of the employment of the deceased.
It is
of significance that the deceased used to live in the railway quarters
adjoining the railway station and the compound through which he had to go the
place of work belonged to the railway company. In other words he died on the
premise belonging to the railways. It was found as a fact that the stabbing
which led to the death was not due to any personal enmity. That means it was an
occupational hazard of the employee who went to join work at midnight from the railway quarter to the railway station
through the railway compound. The facts of the case before us are quite
dissimilar to the facts on the basis of which the case of Bhagubai (supra) was
decided.
We
were also referred to two American decisions. The first case is J.J.O' Leary,
Deputy Commissioner Fourteenth Compensation District, Etc. v. Brown-Pacific-Maxon,
Inc., et al (95 L.ed. 483=340 us 504-510). In this case an employee of a
Government contractor was at a recreation center maintained by his employer
near an ocean shore along which ran a channel so dangerous for swimmers that
its use was forbidden and signs to that effect erected. On perceiving that two
men standing on a reef beyond the channel were signalling for help, he
undertook with others, to swim the channel, and was drowned. The Administrative
Tribunal found that the employee's death arose "out of and in course of
his employment". Six member of the U.S. Supreme Court concurred with the
opinion of Frankfurter J. that the administrative decision was supported by
"substantial evidence" and therefore was beyond the scope of
permissible judicial review. Minton, J., with whom Jackson and Burton ,JJ. agreed
was of the opinion that the administrative finding was without any evidence.
This
case really is an authority on the scope and extent of power of judicial review
of an administrative order. The important fact which was noted in that case was
that the deceased along with other employees had discovered that third persons
who were in danger were in a recreation area maintained by his employer for the
benefit of the employees. This finding was held to be based on substantial
evidence. Frankfurter, J. observed that "We do not mean that the evidence
compelled this interference; we do not suggest that when the Deputy
Commissioner had decided against the claim, the court had been justified in
disturbing his conclusion. We hold only that on this record, the decision of
the District Court that the award should not be set aside should be
sustained". In other words, Frankfurter, J. was of the view that from the
evidence on record, either of the two conclusion could have been drawn. It is
well settled that the Court will not disturb a finding of an administrative
tribunal merely because it could have taken a contrary view had it heard the
case on evidence, when the view taken by the Tribunal is also a plausible view.
The
other American decision is in the case of O' Keeffe, Deputy Commissioner. v.
Smith, Minchman & Grylls Associates, Inc., et al.(13 L.ed.2d 895). In that
case, a private engineering concern's employee hired to work in South Korea on
a 365-day basis was drowned while boating on a South Korea lake. The Deputy
Workmen's Compensation Commissioner determined that the employee's death arose
out of and in course of employment so as to entitle his widow and minor child
to death benefits. The decision being challenged by a writ, a panel of the
Court of Appeals for the Fifth Circuit reversed the award. The Supreme Court
held that there was no scope for reviewing the decision of the Deputy
Commissioner. The Court of Appeal erred in summarily reversing the judgment. It
was observed that "while this Court may not have reached the same
conclusion as the Deputy Commissioner, it cannot be said that his holding that
the decedent's death, in a zone of danger, arose out of and in the course of
his employment is irrational or without substantial evidence on the record as a
whole." Here again, the U.S. Supreme Court declined to intervene with the
decision reached by the Deputy Commissioner on evidence and reversed the
decision of the Court of Appeal for doing what it should not have done by
adopting what appeared to the Court to be a better view.
We
fail to understand how these tow American decision which really dealt with the
scope and extent of judicial review of a decision based essentially on finding
of fact can come to the aid of the employee in this case.
It has
to be borne in mind that this is not a case of judicial review. The Employees'
State Insurance Act, 1948 provides for reference to the High Court by the
statutory court set up under the Act, any question of law arising out of its
decision (Section 81). There is also a provision for appeal in certain cases on
a substantial question of law (Section 82).
We are
of the view that in the facts of this case, it cannot be said that the injury
suffered by the workman one kilometer away from the factory while he was on his
way to the factory was caused by an accident arising out of and in the course
of his employment.
In the
case of Dover Navigation Company Limited v. Isabella Craig(1940 A.C 190), it
was observed by Lord Wright that- "Nothing could be simpler than the
words" arising out of and in the course of the employment." It is
clear that there are two condition to be fulfilled. What arise "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 occur 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." Although the facts of this case are quite dissimilar, the
principle laid down in this case, are instructive and should be borne in mind.
In order to succeed, it has to be proved by the employee that
(1) there
was an accident,
(2) the
accident had a causal connection with the employment and
(3) the
accident must have bee suffered in course of employment.
In the
facts of this case, we are of the view that the employee was unable to prove
that the accident had any causal connection with the work he was doing at the
factory and in any event, it was not suffered in the course of employment.
The
appeal, therefore , succeeds. The judgement dated 25.11.1977 passed by the High
Court is set aside. However, in terms of the order passed by this Court on
16.4.1979, the appellants will have to bear the costs of this appeal in any
event. The costs are assessed at Rs.3000/- and will be paid by the appellant to
the fist respondent within a period of four week from date. The first respondent
will also be entitled to retain the money paid to them by the Regional
Director, Employees' State Insurance Corporation pursuant to the order of this
Court passed on 16.4.1979.
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