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TMI Blog1996 (9) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it cannot be said that the injury was caused by an accident "arising out of ...his employment". A road accident may happen anywhere 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyee 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 reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rican 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 revers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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