EMPLOYMENT INJURIES – SOME ISSUES

[Mr. M. GOVINDARAJAN]

Section 2(8) of the ESI Act defines employment injury, which would mean to say, a personal injury to an employee caused by an accident or an occupation disease caused arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupation disease is contacted within or outside the territorial union of India.

In the context of Section 2(8) the words ‘out of’ indicate that injury must be caused by an accident which had its origin in the employment. The words ‘in the course of his employment’ include the accident must take place within or during the period of employment.

The meaning of the words ‘in the course of employment’ was examined by the Supreme Court in ‘Saurashtra Salt Manufacturing Company V. Bai Valu Raja’ 1958 (4) TMI 97 - SUPREME COURT the appellant, a salt manufacturing company, employed workmen both temporary and permanent.  The salt works was situated near a creek opposite to the town or Porbandar. The salt works could be reached by at least two ways from the town, one an overland route nearly 6 to 7 miles long and the other via a creek which had to be crossed by a boar.  In the evening of 12.06.195, a boat carrying some of the workmen, capsized due to bad weather and overloading.   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 employment of the workers.  The Court held that 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.

The Supreme Court further went on to observe that there might be some reasonable extension of time and place to this principle. A workman might be regarded as in the course of employment even though he had not reached or left out his employer’s premises in some special cases. The Supreme Court held that the facts and circumstances of each case would have to be examined carefully in order to determine whether accident arose out of and in the course of employment of a workman, keeping in view at all times this theory of notional extension.  In this case even it be assumed that the theory of notional extension extends up to the point, the theory cannot be extended beyond that.  It cannot be said that the accident arised in this case is arisen out of and in the course of employment. taxmanagementindia.com

In ‘R V. National Insurance Commissioner, Ex P. Michael’ – (1977) 2 ALL ER 420 it was held 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 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 case where an employee has to go out of his workplace in the usual course of his employment.

In ‘South Maitland Railways Proprietary Limited V. James’ -67-CLR-496 it was 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 water.

In ‘Bhagubai V. Central Railway, Bombay’ 1954 (1) TMI 10 - BOMBAY HIGH COURT 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 the murder was due to any motive against the deceased workman. It was held that the death took place because of an accident arising out employment.  The deceased was employment 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 the particular dy the deceased 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 employment.   It is 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. 

In ‘Gajanan Bhan Magat V. Employees State Insurance Corporation’ – 1972 (11) TMI 81 - BOMBAY HIGH COURT it was held that a person could be said to be in the course of his employment only if he was under an obligation, expressed or implied to his employer to do something reasonably incidental thereto.  The test in all such cases is whether the employee was exposed to the particular risk by reason of his employment or whether he took the same risks as those incurred by any member of the public using the road.  In view of the clear finding of the court that the insured employee was assaulted by the coolie and the cause of the assault was due to an earlier incident of reprimanding him, it was held that the assault that had resulted in an injury to the insured employee arose out of his employment.  It was also further held that the injury was sustained by the insured employee during the course of his employment not only when the injury was caused to him while doing something which an employee was under an obligation express or implied to do but also when he was doing something reasonably incidental thereto.  The time when and the place where, he was attacked clearly showed that they were incidental to the course of employment.   The applicant would not have been at that time at that place when he was assaulted but for his employment.  It was under such circumstances held that the injury sustained by the insured person was an ‘employment injury’ as defined under Section 8 of ESI Act.

In ‘Regional Director, ESI Corporation and another V. Francis De Costa and another’ – 1996 (9) TMI 562 - SUPREME COURT it was held by the Supreme Court that a workman might be regarded as in the course of his employment even though he had not reached or had left his employers premises in some special cases.   The facts and circumstances of each case would have to be examined whether the accident arose out of and in the course of employment of a workman, keeping in view at all times this theory of notional extension. A workman is not in the course of his employment from 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 are which comes within the theory of notional extension.

The position of law on the subject can be summarized as follows:

• To come within the Act the injury by accident must arise both out of and in the course of employment;
• The words ‘in the course of employment’ mean in the course of the work which the workman is employed to do and which is incidental to it;
• The words ‘arising out of employment’ are understood to mean ‘during the course of employment, injury has resulted from some risk incidental to the duties to the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered’.  In other words, there must be a casual relationship between the accident and the employment;
• The words ‘arising out of employment’ is again not confined to the mere nature of the employment. The expression applies to the employment as such to its nature, its conditions, its obligations and its incidents.  If by any reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment;
• The onus of proving that the injury by accident arose out of and in the course of employment rests upon the applicant but these essentials may be inferred when the proved facts justify the inference.