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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 ..... ed 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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