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PETITIONER: REGIONAL DIRECTOR, E.S.I CORPN. AND ANR.

       Vs.

RESPONDENT: FRANCIS DE COSTA AND ANR.

DATE OF JUDGMENT05/05/1992

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. JEEVAN REDDY, B.P. (J)

CITATION:  1992 SCR  (3)  23        1993 SCC  Supl.  (4) 100  JT 1992 (3)   332        1992 SCALE  (1)1083

ACT:      Employees’  State Insurance Act, 1949:  Sections  2(8), 51A, 51C, 51D, 75 and 76.      ’Employment    Injury’-Test   to   determine-What    is Expressions-’In  the course of employment’ and ’Arising  out of   employment’-Scope  of-Injury  caused  to  employee   by Employer’s lorry on public road while employee was on way to join  duty-Whether  arises  out  of and  in  the  course  of employment.      ’Employment Injury’-Relief-Availability of remedy under General  Law  of tort or under Special Law  in  other  Acts- Whether bars relief under E.S.I. Act.      Doctrine  of  Coming  in and  Going  from  Work  Place- Exceptions.      Maxim-’Eundo Morando. et Redeundo’-Meaning of.      Words and Phases:      ’Accident’-Meaning of.      Interpretation    of   Statutes-Social     Legislation- Interpretation of.      Constitution of India, 1950: Articles 38,39,41 and 43.      Social  Justice-Workers-Right  to  health  and  medical treatment.

HEADNOTE:      The  first-respondent was employed with J.P. Coats  (P) Ltd.,  Koratty.  On June 26, 1971 while he was going on  his bicycle to join duty, on the road leading to the factory  at a  distance  of 1 K.M. the Company’s lorry hit him  on  left side  of  his body and knocked him down on the road.   As  a result  of  the accident, he suffered  severe  injuries  and ultimately  the Insurance Medical Officer certified that  he was  totally  and permanently incapacitated to work  in  the factory.  He  laid  a  claim for  the  benefits  before  the Regional  Director, Employees’ State  Insurance  Corporation which was                                                        24 rejected.  Thereupon he filed a claim before the  Employees’ Insurance  Court  under Section 75 of the  Employees’  State Insurance  Act,  1948 contending that since the  injury  was suffered  by  him  while on the way to his duty,  it  is  an ‘employment  injury’.  The respondent Corporation  contended that it is not so, inasmuch as the accident took place on  a

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public  road.  The Employees’ State Insurance Court held  in favour   of  the  first  respondent  by  holding  that   the respondent  was  going  on the usual route  along  which  he passes and repasses every day to and from the factory on the cycle  purchased  by  him  from the  advance  given  by  the employer  and  was  not  negligent  in  riding  the   cycle. Therefore,  the injuries were caused to him in  an  accident while  in the course of his employment and  consequently  he was  entitled to the benefits under the Act.  On appeal  the High  Court confirmed the findings of the  Employees’  State Insurance Court.  Against the decision of the High Court, an appeal was preferred in this Court.      Referring the matter to a larger Bench, this Court,      HELD  :  Per  K. RAMASWAMY, J. 1.  The  respondent  was trekking  the road to attend to duty which found to  be  the accustomed  route to reach the factory and just few  minutes before  reporting  to  duty  he was  struck   by  the  truck resulting in the employment injury.  It, therefore, occurred during  the  course  of his employment  and  thereby  he  is entitled  to the amount as compensation under the  Act.  [56 GH, 57-A]      2. In determining whether a given accident occurred  in the course of employee’s employment, the factual picture  as a  whole  must  be  looked at, and  any  approach  based  on fallacious concept that any one factor is conclusive must be rejected.  The  facts  are of crucial  importance,  and  the addition  to  or  subtraction  of  one  factor  in  a  given situation may tilt the balance, whereas in another situation the  addition or subtraction of the same factor may make  no difference.  This, however, does not indicate that there are no  principles  in  the light of which a  court  can  decide whether an employee was acting in the course or arising  out of his employment at the material time when the accident had occurred. [36D-E]      3.  Literal construction of the phrase ’arising out  of his  employment’  conveys the idea that there must  be  some sort  of  connection between the employment and  the  injury caused  to  a workman due to the accident.  But it  is  wide enough to cover the case where there may not necessarily  be a                                                        25 direct   connection   of   the  workman.    There   may   be circumstances  tending  to show that  the  workman  received personal  injury due to the accident that  arose during  the course of or out of his employment.  It would not mean  that personal injury only must have resulted from the mere nature of  the  employment, nor it be limited to  cases  where  the personal injury is referable to duties to which the employee has   to  discharge.   The  phrase  ’arising  out   of   the employment’  applies to employment as such, to  its  nature, its  condition,  its workman is brought within the  zone  of danger  and  resultant  injury disease  or  death.   In  the context of the claims of the labour for social justice under welfare legislation, the principle is that the employer  and the  employees  are  so  inter-related and  depend  on  each other,  than  it is in the interest of each that  the  other should  survive, and it is in the interest of  society  that both should be kept functioniong in harmony with each other. The  expression  ’arising out of’, therefore,  requires  the assistance  of causal connection between the employment  and the accident.  The employment is the cause and the  accident is  the effect.  The causal relationship between  employment and  the accident does not logically necessitate  direct  or physical  connection.  It may be of various  steps,  namely, direct, physical, approximate, indirect or incidental.

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                                           [33 GH, 34-A-D]      4.  As  a general rule the employment  does  not  begin until the employee has reached the place of work. The ambit, scope  or scene of his duty does not continue after  he  has left  the  place and the period of going and  returning  are excluded.    But  duty  is  not  confined  to   the   actual performance  of work, it also applies when it is  reasonably connected  or  incidental  to the work.   When  the  workman proceeds on a public road to his workplace or factory  which is the accustomed road or route, the proximity of the  place of  accident, time and the obligation to report to duty  are relevant and material facts to be kept in mind. [38-F]      5.  The doctrine of coming in and going from  workplace is subject to reasonable extension.  It is common  knowledge that  the home is the employee’s base from which it  is  his duty to start for work.  When an employee travels by  direct route from his home to the place of work but for that he has no  occasion to traverse the way though private/public  road way is the normal or agreed or accustomed route to reach the workplace, he must be treated to be travelling in the course of his employment as incidental to join the duty or  leaving the work place. [54 D-E]                                                        26      6.  The  motive to use public or private  transport  or route  to reach the place of accident is not relevant.   The employee  may  use  the  place,  public  road  or  transport services  as usual course of means of attending to or  going from  the  place of work, office or factory.   The  test  is whether  the  employee has exposed to a particular  risk  by reason of his employment or whether he took the same risk as is  incurred  by  any  other public  using  the  public  way otherwise then his employment. [54 F-G]      7.  When a workman walks, rides the bicycle etc.  along the public road/street to get to his work, his right to walk does  not spring, undoubtedly, from employment, and he  also may exercise it as a member of the public. Nevertheless  the workman  too  uses  the  public/permitted  private  way   as access/means to attend to duty.  The question whether he had encountered the danger or the accident exercising his  right and to be at the place of incident as a member of the public or as his integral course of employment must always be  born in mind. While as a member of the public he may have a right to walk or ride a cycle, drive a car etc.  but while walking or  crossing the road/driving to reach the place of work  or duty  he  encounters the danger or the  accident,  which  he would not have encountered but for that employment, then  it must  be  incidental to his employment.   The  motive  which induces  the  employee to do a thing is not  material.   His motive  to  go  by a particular route  is  also  immaterial, whether it was to save time or to save himself from trouble. Whether the place at which the injury/death occurred was  on the only route or at least the normal/accustomed route which the  employee must traverse to reach the place of  work  and became  the hazard of the employment is also relevant  fact. The  fact  that the risk is common to all mankind  does  not prove  that the accident had not arisen out  of  employment. [54H, 55A-E]      8.  Sections  51A  and 51C of the  Act  give  statutory presumptions/grounds  as  to when an accident  happen  while traveling in an employer’s transport, etc.  The Act  intends to  reiterate  the  law declared by this  Court, apart  from creating   some  statutory  presumptions.   But  it  is   no corollary to conclude that an accident arising out of and in the  course  of employment, in any other way,  by  necessary implication,  should stand excluded.  To the extent  covered

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under  Section  51A  to 51D by  statutory  amendment  stands incorporated in the Act but in other respects the court  has to  consider whether the accident had arisen out of  and  in the course of employment, dehors the statutory  presumptions etc. provided in Sections                                                        27 51A to 51D. [55 F-H, 56 A-B]      Gian Devi Anand v. Jeevan Kumar & Ors., [1985] Suppl. 1 S.C.R. 1, referred to.      9. The contention that the Motor Vehicles Act  provides the remedy for damages for an accident resulting in death of an injured person and that, therefore, the remedy under  the Act  cannot  be availed of lacks force  or  substance.   The general law of tort or special law in Motor Vehicles Act  or Workman  Compensation Act may provide a remedy for  damages. The  coverage  of  insurance under the  Act  in  an  insured employment is in addition to but not in substitution of  the above  remedies and cannot on that account be denied to  the employee. [56 C-E]      K.  Bharati  Devi  v. G.I.C.I., A.I.R  1988  A.P.  361, referred to.      10.  The Employees’ State Insurance Act fastens  in  an insured employment statutory obligation on the employer  and the employee to contribute in the prescribed proportion  and the  manner towards the welfare fund constituted  under  the Act - Section 38 to 51 of the Act - to provide sustenance to the  workmen in their hours of need, particularly when  they become economically inactive because of a cause attributable to their employment or disability or death occurred while in employment.   The fact that the employee contributed to  the fund  out of his hardearned  wages cannot but have  a  vital bearing  in adjudicating whether the injury or  occupational disease  suffered  by an employee is an  employment  injury. The liability is based neither on any contract nor upon  any act  or omission by the employer but upon the  existence  of the  relationship  which employer bears  to  the  employment during  the course of which the employee had  been  injured. [33 D-F]      11.  It falls foul from the mouth of the  appellant,  a trustee  de  son  tort who collected the  premium  from  the employee  and  employer  with a promise  to  expand  it  for disability, to attempt to wriggle out from the promise or to deprive  the  employee the medical  benefit  for  employment injury  covered by the insurance on the technicalities.   It is  estopped to deny medical benefit to the insured employee. Though the plea of estoppel was not raised by the respondent yet it springs from the conduct of the appellant. [56-F]                                                        28      12.  The  Employees’ State Insurance Act  is  a  social security legislation.  To promote justice and to  effectuate the  object  and purpose of the welfare  legislation,  broad interpretation  should  be  given, even  if  it  requires  a departure  from literal construction.  The Court  must  seek light from loadstar Articles 38 and 39 and the economic  and social justice envisaged in the Preamble of the Constitution which  would enliven meaningful right to life of the  worker under Article 21. [32-F]      13.  Right to health, a fundamental human right  stands enshrined in socio-economic justice of our Constitution  and the  Universal Declaration of Human  Rights.   Concomitantly right  to  medical benefit to a workman is  his  fundamental right.   Right  to medical benefit is, thus,  a  fundamental right to the workman. [32-H, 33-A]      14.  De hors the human Right and  Constitutional  goal, the  march of jurisprudence emphasises that the law did  not

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remain static but kept pace with the changing social demands to secure socio-economic justice to workman. [54-B]      Saurashtra  Salt Manufacturing Co. v. Bai Valu  Raja  & Ors.,  A.I.R. 1958 S.C. 881; Mackinnon Mackenzie &  Co.  (P) Ltd.  v.  Ibrahim  Mahommed  Issak,  [1970]  1  S.C.R.  869; B.E.S.T. Undertaking, Bombay v. Agnes, [1964] 3 S.C.R.  930, referred to.      The Regional Director of the E.S.I.C. v. L. Ranga Rao & Anr.,  (1981)  2 Karnataka Law  Journal  197;  Sadugunojaban Amrutlal & Ors. v. E.S.I. Corporation, 22 (1981) Gujarat Law Reporter, 773; Bhagubai v. Central Railway, (1954) 2  L.L.J. 403;  Regional  Director,  E.S.I.  Corpn.,  Trichur  v.   K. Krishnan,  1975  K.L.T. 712; Commissioner for  the  Port  of Calcutta v. Mst. Kaniz Fathema, A.I.R.  1961  Calcutta  310, referred to.      Upton  v.  Great Central Railway Co.,  1924  A.C.  302; Fitzgerald v. W.J. Clarke & Son, 1908 (2) King’s Bench  796; Mcdonald v. Steamship Co., 1902 (2) King’s Bench 926; Titley JUDGMENT: Querous (Owners), 1933 Appeal Cases, 494; Simpson v. L.M.  & S.  Railway Co., 1931 A.C. 351; Nelens Colliery Co. Ltd.  v. Hewistson,  1924 Appeal Cases 59; Weaver v. Tredeger Iron  & Coal   Co.  Ltd.,  1940  Appeal  Cases  955;   McCullum   v. Northmbrian  Shipping Co. Ltd., 1932 (147) Law Times  Report 361;  Canadian Pacific Railway Co. V. Lockhart, 1942  Appeal Cases 591; Blee v. London & North Eastern Railway Co.,  1937 (4) All                                                        29 England  Reports  270; Noble v. Southern Railway  Co.,  1940 A.C.  583; Scott v. Seymour, (1941) 2 ALL E.R.  717  (C.A.); Dover  Navigation  Co. Ltd. v. Graig, 1939 (4)  All  England Reports 558; Dennis v. White (A.J.) & Co., 1917 A.C. 479; In R. v. Industrial Injuries Commissioner, 1966 (1) All England Reports  97;  Moncollas  v. Insurance Officer  and  Ball  v. Insurance  Officer. (1985) 1 All England Reports 833;  Smith v.  Stages & Anr., (1989) 1 All England Reports 833;  united States  Fidelity  & Guaranty Co. v. Elizabeth W. Giles,  276 U.S.  154;  Cudahy  Packing  Co  of  Nebraska  v.  Mary  Ann Parramore,  263 U.S. 154; Cudahy Packing Co. of Nebraska  V. Mary  Ann  Parramore,  263  U.S.  418;  Freire  v.    Matson Navigation  Co., 19 Cal 2d 8, 188 p.2d 809 (1941),  referred to.      Halsbury’s  Laws of England, Fourth Edition,  Vol.  33, para 490 at p.369, referred to.      Larson’s   Workmen’s Compensation  Law,   Vol.1   s.15, referred to.      Per B.P. Jeevan Reddy, J.      1. The respondent-employee cannot claim any disablement benefit  under  the Employees’ State Insurance Act  for  the injuries suffered by him.                                                       [69-D]      2.  A reading of the definition of ’employment  injury’ under  Section  2(8) of the Employees’ State  Insurance  Act shows that for constituting an employment injury it must not only be caused by an accident arising out of his  employment but  must  be one arising in the course of  his  employment. The  words ’arising out of and in the course of  employment’ are  not  defined in the Act or the  Rules  and  Regulations thereunder.  While both the expressions ’arising out of’ and ’in the course of employment’ are not defined in the Act  or the  Rules  and  Regulation  thereunder.   While  both   the expressions  ’arising out of’ and ’in the course of’ do  not mean the same thing, both of them do denote and  contemplate a  causal  connection between the accident (which  leads  to injury)  and the employment.  The accident, in order  words,

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must not be unconnected with the employment.                                              [58-C, 60 C-D]      3.  Any  injury suffered by an insured  employee  as  a result of an accident occurring on a public road or a public place,  even while going to or returning from the  place  of employment cannot be treated as an employment injury.   Once it  is found that the accident took place on a public  road, it becomes immaterial whether that place is one mile or  one furlong  away  from  the  workplace.    Of  course,  if  the employee   suffers  an  injury  while   travelling,  whether voluntarily  or  as a condition of service, by  a  transport provided  or  arranged  by  the  employer  it  will  be   an employment                                                        30 injury.   Similarly,  if  the accident takes  place  on  the premises of the employer, it will be treated as one  arising out  of  and in the course of employment.  It  is,  however, necessary  to clarify that if an employee suffers an  injury while  travelling by a public transport or while  proceeding along  a  public road in the course of  performance  of  his duties  e.g., medical representatives, linesmen employed  by Electricity   and   Telephone   undertakings,  repair    and maintenance personnel employed to go to the residential  and other  places, (where the units/gadgets are  installed),  to attend them and so on. (68 H, 69 A-C]      4.  In  respect of injuries suffered in  accidents  not arising out of and in the course of employment, i.e., in the case  of injuries other than employment  injuries,  remedies and forums are different e.g., Motor Vehicles Act, (Sections 110-A) Railways Act (Sections 82-A and 82-J) and so on.   If an employee covered by the Act suffers an injury on  account of  an accident not arising out of and not in the course  of his  employment, he is not without a remedy in  law.   Forum may  be  different;  procedure  may  be  different;  but  he certainly  has  a remedy; just as an other citizen  of  this country; neither less nor more.   [60 F-G]      Saurashtra Salt Manufacturing Company v. Bai Valu  Raju and  Ors., A.I.R. 1958 S.C. 881; General  Manager,  B.E.S.T. Undertaking,  Bombay  v. Mrs. Agnes, [1964]  3  S.C.R.  930; Mackinnon  Machenzie  &  Co. Pvt Ltd.  v.  Ibrahim  Mahommed Issak, [1970] 1 S.C.R. 869, referred to.      Bhagubai  v. Central Railway, Bombay, 1954  (2)  Labour Law  Journal 403; Regional Director ESIC v. L. Ranga  Rao  & Anr.,  1981  (2)  Karnataka  Law  Journal  197;   Sadgunaben Amrutlal   &   Ors.  v.  The  Employees’   State   Insurance Corporation,  (1981)  22 Gujarat Law  Report  773;  Regional Director  E.S.I.  Corporation, Trichur v. K.  Krishnan  1975 Kerala Law Times 712; Commissioners for the Port of Calcutta v.  Mst.  Kaniz Fatema, A.I.R. 1961 Vol.  48  Calcutta  310, referred to.      Cremins  v. Guest, Keen & Nettlefolds, Ltd.,  1908  (1) K.B.  469;  Gane v. Norton Hll Colliery Co., (1909)  2  K.B. 539; John Stewart and Son (1912) v. Longhurst, (1917) Appeal Cases 249; Howells v. Great Western Railway, (1928) 97  L.J. K.B. 183; Weaver v. Tredegar Iron & Coal Co. Ltd., (1940)  3 All England Reports 157;Hill v. Butterley Co Ltd., (1948)  1 All  England  Law  Reports 233; Alderman  v.  Great  Western Railway  Company,  (1937)  Appeal Cases  454;  Netherton  v. Coles, (1945) 1 All England Law Reports                                                        31 227;  Jenkins  v. Elder Demspter Lines Ltd.,  (1953)  2  All England  Law reports 1133; Blee v. London and North  Eastern Railway Co., (1938) Appeal Cases 126, referred to

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&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1174 of 1979.      From  the  Judgment and Order dated 25.11.1977  of  the Kerala High Court in A.S. No.638 of 1974.      K.T.S Tulsi, Addl. Solicitor General, Ms. Anil  Katyar, T.C. Sharma and C.V.S. Rao for the Appellants.      N.Sudhakaran for the Respondents.      The Judgments of the Court were delivered by      K. RAMASWAMY, J. This appeal, by special leave,  arises against  the judgment of the Kerala High Court in  A.S.  No. 638 of 1974 dated November 25, 1977.  The respondent was  an employee in M/s. J & P Coats (P) Ltd. at Koratty.  He had to attend  the duty in the second shift at 4.30 p.m.   On  June 26, 1971 while he was going on his bicycle to join duty,  on the road leading to the factory at a distance of 1 k.m.  the company’s  lorry  hit him at 4.15 p.m. on left side  of  his body and knocked him down on the road.  As a result his left collar bone and left shoulder were fractured and  ultimately the Insurance Medical Officer certified that the  respondent was  totally  and permanently incapacitated to work  in  the factory.   He, therefore, laid the claim before  the  E.S.I. Court under S.75 of the Employee’s State Insurance Act,  Act No.  34  of 1948 for short ’the Act’ which  found  that  the respondent  was  going  on the usual route  along  which  he passes and repasses every day to and from the factory.   The cycle  was  purchased by him from the advance given  by  the employer.  He  was not negligent in riding the  cycle.   The injuries  were  caused to him in an accident  while  in  the course of his employment and that, therefore, he is entitled to  the  benefits under the Act.  On Appeal the  High  Court confirmed these findings.      Section  2(8)  of  the Act  defines  employment  injury thus:-          "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                                                        32          employment,  whether  the accident  occurs  or  the          occupational   disease  is  contracted  within   or          outside the territorial limits of India."      A  reading  thereof would show that a  personal  injury caused to an employee by an accident or occupational disease arising out of and in the course of his insurable employment whether   the  accident  occurred  within  or  outside   the territorial  limits of India is an employment  injury.   The crucial but ticklish question of considerable importance  is whether  the injury caused by an accident on a public  road, while  on  his way to join the duty just 15  minutes  before reporting  to duty at a distance of 1 k.m. from the  factory premises, arises out of and in the course of his employment?      Accident  has  not  been defined under  the  Act.   The popular  and ordinary   sense of the word  ’accident’  means the  mishap  or  an  untoward  happening  not  expected  and designed  to have an occurrence is an accident.  It must  be regarded  as  an  accident, from the point of  view  of  the workman  who  suffers  from  it,  that  its  occurrence   is unexpected  and without design on his part, although  either intentionally caused by the author of the act or  otherwise. It  may  also  arise in diverse forms  and  not  capable  of precise definition. The common factor is some that  concrete happening  at  a  definite point of time and  an  injury  or incapacity result from such happening.

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    The Act seeks to cover sickness, maternity,  employment injury,  occupational  disease, etc.  The Act  is  a  social security  legislation.   It is settled law that  to  prevent injustice or to promote justice and to effectuate the object and    purpose   of   the   welfare    legislation,    broad interpretation  should  be  given, even  if  it  requires  a departure  from literal construction.  The Court  must  seek light  from  loadstar Arts. 38 and 39 and the  economic  and social   justice   envisaged   in  the   Preamble   of   the Constitution which would enliven meaningful right to life of the worker under Art. 21. Article 39(e) enjoins the State to protect  the  health of the workers under Art.41  to  secure sickness and disablement benefits and Art.43 accords  decent standard  of life. Right to medical and disability  benefits are  fundamental human rights under Art. 25(2) of  Universal Declaration  of Human Rights and Art.7(b)  of  International Convention  of Economic, Social and Cultural Rights.   Right to  health,  a fundamental human right stands  enshrined  in socio-economic justice of our constitution and the Universal Declaration                                                        33 of Human Rights. Concomitantly right to medical benefit to a workman  is  his/her fundamental right.  The  Act  seeks  to succour  the  maintenance of health of an  ensured  workman. The  interpretative  endeavour should be to  effectuate  the above.   Right  to medical benefit  is,thus,  a  fundamental right to the workman.      Moreover,  even  in  the  realm  of  interpretation  of statutes  Rule of Law is a dynamic concept of expansion  and fulfillment  for which the interpretation would be so  given as to subserve the social and economic justice envisioned in the  Constitution. Legislation is a conscious attempt, as  a social  direction,  in the process of  change.   The  fusion between  the  law and social change would be  effected  only when  law is introspected in the context of ordinary  social life.   Life of the law has not been logic but has  been  of experience.  It is a means  to serve social purpose and felt necessities  of the people.  In times of stress, disability, injury,  etc.  the workman needs  statutory  protection  and assistance.   The  Act  fastens  in  an  ensured  employment statutory  obligation  on the employer and the  employee  to contribute  in  the  prescribed proportion  and  the  manner towards  the  welfare fund constituted under the Act  (Ss.38 to   51 of the Act) to provide sustenance to the workmen  in their    hours  of  need,  particularly  when  they   become economically  inactive because of a cause   attributable  to their  employment or disability or death occurred  while  in employment.  The fact that the  employee contributed to  the fund out of his/her hardearned wages cannot but have a vital bearing  in adjudicating whether the injury or  occupational disease suffered/contracted by and employee is an employment injury.  The liability is based neither on any contract  nor upon  any  act  or omission by the  employer  but  upon  the existence  of  the relationship which employer bears to  the employment during the course of which the employee had  been injured.  The Act supplant the action at law, based upon not on  the  fault  but  as an  aspect  of  social  welfare,  to rehabilitate  a  physically  and  economically   handicapped workman  who  is adversely effected by sickness,  injury  or livelihood of dependents by death of a workman.      Literal construction of the phrase "arising out of  his employment" conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman due to the accident.  But it is vide enough to cover the  case  where  there  may not  necessarily  be  a  direct

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connection  of  the  workman.  There  may  be  circumstances tending  to show that the workman received  personal  injury due to the accident that                                                          34 arose  during the course of or out of his  employment.   It would not mean that personal injury only must have  resulted from  the mere nature of the  employment, nor it be  limited to  cases where the  personal injury is referable to  duties to which the employee has to discharge.  The phrase "arising out of the employment" applies to employment as such, to its nature,  its  condition, its workman is brought  within  the zone of  danger and resultant injury, disease or death.   In the context  of the claims of the labour for social  justice under  welfare  legislation,  the  principle  is  that   the employer  and the employees are so inter-related and  depend on  each other that it is in the interest of each  that  the other  should survive, and it is in the interest of  society that  both should be kept functioning in harmony  with  each other. The expression "arising out of", therefore, requires the  assistance of casual connection between the  employment and  the   accident.  The employment is the  cause  and  the accident  is  the effect.  The casual  relationship  between employment  and the accident does not logically  necessitate direct or physical connection.  It may be of various  steps, namely,   direct,   physical,   approximate,   indirect   or incidental.      In  Upton v. Great Central Railway Co., 1924  A.C.  302 it  was held that the right to compensation given under  the Workman Compensation Act is no remedy for negligence on  the part  of  the employer but is rather  in the  nature  of  an insurance  of the workman against certain sort of  accident. The  peril  of injury which the workman faces  must  not  be something  personal  to him; "it must be incidental  to  his employment".   In Saurashtra Salt Manufacturing Co.  v.  Bai Valu  Raja & Ors., AIR 1958 SC 881, relied on by Sri  Tulsi, learned  Additional Solicitor General, construing the  words "in  the  course of employment" under Section  3(1)  of  the Workman  Compensation Act, 1923, this Court held that  as  a rule  the employment of the 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, the journey to and  from  the place  of  employment being excluded.  However,  that  stict rule  was  held  to be subject to  the  theory  of  notional extension.      In  Fitzgerald  v. W.J. Clarke &  Son,  1908(2)  King’s Bench  796 Buckley, L.J. explaining the phrase ‘ out of  and ‘in the course of employment’ observed thus:          "The words ‘out of point, I think, to the origin or          cause of the accident; the words ‘in the course of’          to the time, place and                                                        35          "circumstances  under  which  the  accident   takes          place.   The  former words are descriptive  of  the          character  or  quality of the accident.  The  later          words  relate to the circumstances under which  and          accident of the character or quality takes place.      In Mcdonald v. Steamship Co., 1902(2) King’s Bench  926 laying emphasis on the role of place in determination of the course of employment of a workman, it was pointed out thus:-          "If path of his duty both to go and to proceed from          the working  where he is engaged and so long as  he          is in a place which his person other than those was          engaged  would have no right to be, and indeed,  he          himself would have no right to but for the work  of

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        his  employment, he was, I think normally still  be          in the cause of employment.      Lord  Halsbury  in Titley & Co.  v.  Cattrall,  1926(1) King’s  Bench 488 at 490 observed that actual  ownership  or control  by  the  employer of the  spot  where  an  accident occurred   is not essential. The workman goes there  on  his way to and from his working and he may be regarded as in the course  of his employment  while crossing the dock or  other open  space  to and from the spot where  his  work  actually lies.  Such passage is within the contemplation of both  the parties to the contract as necessarily incidental to it.      In  Bai Valu Raja’s case, AIR 1958 SC 881 it  was  held that "the strict rule is subject to  the notional  extension of  the employer’s premises so as to include and area  which the  workman  and prepasses in going to and in  leaving  the actual  place  of  work.   There  may  be  some   reasonable extension  in  both  time and place and  a  workman  may  be regarded as in the course of  his employment, even though he had not reached or had left his employer’s premises".      Therefore,  facts and circumstances of each  case  will 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  not only  the theory of notional extension as  a link  but  also social justice envisaged under the Constitution and the Act, to alleviate the hardship suffered by the employee.      The  Court  in  Mackinnon Mackenzie &  Co.(P)  Ltd.  v. Ibrahim                                                        36 Mahommed   Issak,[1970]  1  SCR  869  at  878  noticed   the development  of the law from the decisions of the  House  of Lords that the place of  accident need not necessarily be in the  factory premises but outside thereto as well. In  Rosen v.  S.S.  Querous   (Owners), 1933 Appeal  Cases,  494  Lord Buckmaster  explained  the  phrase  of  Lord  Thankerton  in Simpson  v.  L.M. & S. Railway Co., 1931 A.C. 351  that  the place  referred to therein was not the exact spot  at  which the  accident may have occurred, but meant in that case  the train  on which the workman was travelling and in the  later case  the  ship on which the workman was  employed.  Thus,it could be seen that the accident may occur while the  workman was on his way to attend the duty or during his return  from duty.  The place need not necessarily be in the premises  of the factory etc.      In determining whether a given accident occurred in the course  of employee’s employment, the factual picture  as  a whole  must  be  looked  at,  and  any  approach  based   on fallacious concept that any one factor is conclusive must be rejected.   The  facts are of crucial  importance,  and  the addition  to  or  subtraction  of  one  factor  in  a  given situation may tilt the balance, whereas in another situation the addition or subtraction of the  same factor may make  no difference.  This, however, does not indicate that there are no  principles  in  the light of which a  court  can  decide whether an employee was acting in the course or arising  out of his employment at the material time when the accident had occurred.      The course of employment has been used in tort law as a test  to determine the vicarious liability of  the  employer to the world at large. The Latin phrase " eundo morando,  et redeundo" to mean that while at his place of employment  and while   entering and leaving it the doctrine  of  employer’s liability was extended to matters arising while the  workman was  coming to the place of work, or leaving it, workman  is on  the employer’s premises.  But duty is not  confined   to

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the actual performance of work, but also applies when it  is reasonably connected or incidental to the work.      The  question  in  this  case  is  whether  the  casual connection between the accident and the employment would  be extended  beyond the factory premises to a distance  of  one Km.,  while the injured workman was on his way on  a  public road  to  attend  to the duties.  Before  adverting  to  the concepts of duty, time and place of accident, in the context of an accident to an employee, it may be necessary to notice the development of law in                                                        37      various  countries in relation to compensation  to  the workman under the respective workman compensation  statutes. New  Zealand Workmen’s compensation system, pursuant to  the recommendation  in  1966 by  the Royal Commission  appointed in  that behalf, recommended that the  Workman  Compensation Act based on contract should be replaced by a unified system of  accident rehabilitation and was accepted by the House of Representatives’;  abolished  the  common  law  action   for damages for personal injuries and adopted in all embracing " national  accident  insurance  system".  In  Australia   the Committee  of  inquiry,  appointed in this  behalf,  in  its report stated that:      (1)  The  systems have failed to grapple, in  any  way, with the rehabilitation of the injured worker.      (2) There is no uniformity between compensation systems throughout Australia.      (3)  It provides no protection for the 15 per  cent  of the workforce who are self-employed.      (4) Though in name the system aims to protect   injured workmen,  it  limits coverage to injuries  sustained  during working  hours  leaving  the  workers  to  fend   themselves thereafter.   It  recommended full  coverage.   Accordingly, necessary  amendments  were  brought  about.   The  American National  Commission on States Workman’s  Compensation  Laws also  had  gone into the question to  provide  an  adequate, prompt and equitable system of compensation.  The Commission laid  emphasis to settle the dispute out of court and  other methods.   Now  the fact is that though general  public  are exposed to risks on streets and on public paths, some  state Supreme Courts held that it does not change the character of the risk to workman.  Accordingly, compensation was awarded. Industralised  nations  like  France,  Federal  Republic  of Germany, Poland, Sweden, Britain and Yugoslavia adopted  the most  advantageous  alternatives to  workman’s  compensation system  i.e.  social security system.   In  United  Kingdom, Workman’s  Compensation Act was replaced by Social  Security Schemes.      In  Halsbury’s Laws of England, Fourth Edition,  Volume 33, Para 490 at p.369 it is stated thus:-                                                          38          "Accident travelling to and from work.          The  course of employment normally begins when  the          employee  reaches his place of work.  To extend  it          to  the journey to and from work it must  be  shown          that,  in travelling by the particular  method  and          route and at the particular time, the employee  was          fulfilling  an  express  or  implied  term  of  his          contract  of service.  One way of doing this is  to          establish that the home is the employee’s base from          which  it  is  his duty to work and  that  he   was          travelling by direct route from his home to a place          where he was required to work, but that is only one          way of showing this; the real question at issue  is          whether on the particular journey he was travelling

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        in the performance of duty, or whether the  journey          was incidental to the performance of that duty  and          not  merely preparatory to the performance  of  it.          If the place where the accident occurs is a private          road or on the employer’s property, the accident is          in the course of the employment because he is  then          at the scene of the accident by reason only of  his          employment  and  he has reached the sphere  of  his          employment.   The test 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 highway.      Thus  as a general rule the employment does  not  begin until  he has reached the place of work.  The  ambit,  scope or  scene of  his duty does not continue after he  has  left the  place  and  the  period of   going  and  returning  are excluded.  When the workman was proceeding on a public  road to his workplace or factory which is the accustomed road  or route, the proximity of the place of accident, time and  the obligation  to  report to duty are   relevant  and  material facts to be kept in mind.      Lord Atkinson in Helens Colliery Co. Ltd. v.  Hewitson, 1924  Appeal Cases 59 while reiterating this principle where there is an agreement between  the colliery company and  the railway company to provide special train for the  conveyance of  the colliery company’s workmen to and from the  colliery and  the  place of the residence of  the  workmen,  observed thus:          "If  each  collier  was bound by  his  contract  to          travel to his employer’s colliery by this  provided          train, then ‘cadit questio’                                                        39          The   collier  would  be  in  the  course  of   his          employment  when he was doing a thing he was  bound          by  his  contract  of  service  to  do.   But   the          conferring  upon a collier of a privilege which  he          is  free to avail himself of or not, would,  ‘prima          facie’ impose no duty whatever upon him to use it".      In  special circumstances, however, such an  obligation might be implied:-          "It  must,  however, be borne in mind that  if  the          physical features of the locality be such that  the          means  of transit offered by the employer  are  the          only  means of transit available to  transport  his          workman  to his work, there may, in  the  workman’s          contract of service, be implied  a term that  there          was an obligation on the employer to provide  such,          means and a reciprocal obligation on the workman to          avail himself of them".      In Weaver v. Tredeger Iron & Coal Co. Ltd., 1940 Appeal Cases 955 (f) the facts were that a collier was injured when trying to board a train.  The train was owned by  a  railway company,  but  the platform was situated by the  side  of  a railway  line which ran through the colliery  premises,  and was  accessible  from  the  colliery  premises  only.    The employees  of  the  Colliery used it  under  an  arrangement between  their employers and the company  whereby  specified trains  were stopped at the platform to take the men to  and from  their homes at a reduced fare, which was  deducted  by the  employers from the workmen’s wages.  The  workmen  were free to go home by means of the main road which ran past the colliery,  but  in practice nearly every employee  used  the railway.  On those facts it was held by the House  of  Lords that  as  a  rule, employment does not  commence  until  the

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workman has reached his place of employment, and it does not continue after he has left that place, the periods of  going to  and returning from the place being  generally  excluded. This however, is not and invariable rule, and the employment does  not  necessarily end when the ‘down tools’  signal  is given, or when the workman leaves the actual workshop  where he is working.  There may be some reasonable extension  both in  time  and  space, as for  instance,  where  the  workman travels  to  and from his work by  some  form  of  transport provided  by  his  employers,  and  which  he  is  under   a contractual  duty to  use or where he is using the means  of access  to and egress from his place of employment.  As  the workman was making use of                                                        40 facilities  provided by his employers for leaving the  place of  employment,  which he had not left at the  time  of  the accident,  and  as  the duty of leave the  employment  in  a permitted manner had not been completed, the accident  arose in  the  course  of and out of the employment,  and  he  was entitled to compensation.      Lord Wright held thus:-          "He  was  on his way home on a  public  conveyance.          He   had  no  greater  right  to  claim  that   his          employment  was  continuing  than if  he  had  been          bicycling  home  on  the  public  street  when  the          accident happened.  The fact that the colliery  had          arranged  with  the railway company  to  provide  a          special train for the men did not extent the course          of the employment, as it would have done if the men          were  found by their contract of employment to  use          the  train, or, it may be, if there was  no   other          possible  way for the men to get to and from  their          home, or from or to the colliery".      House of Lords upheld the claim for compensation.      In  McCullum  v. Northmbrian Shipping  Co.  Ltd.,  1932 (147) Law Times Report 361 the House of Lords were concerned with  a  situation that the workman after discharge  of  his duties  as bosum in the ship, he was offered a job of  night watchman for Saturday night, and he agreed to undertake that duty  which commenced from  6 p.m. to 6 a.m.  Therefore,  on the  next day he was due to report at 6 p.m. to take up  his duty  as a night watchman, and "shortly before that hour  he left  his home, where he had spent  the day, in order to  go to  the harbour.  He called in a public house  just  outside the  entrance to the dock premises and had a glass  of  bear and then proceeded on his way.  He was never seen thereafter alive  and his body was recovered on the 18th  October  from the  King’s  Dock, about  1000 yards  from  the  Newbrough’s berth,  at a place to  which it might have been  carried  by the tide from the proximity of the ship’s berth".  The death was  not due to drowning, but due to fracture of the  skull, haemorrhage and shock.  The nature of the injuries found  on the  body being consistent with the deceased  having  fallen and  struck his head against something and then fallen  into the  water.  It was a stormy night of heavy rain and  strong wind.   On those fact considering whether the  accident  had occurred   during  the   course  of  his  employment,   Lord Macmillam speaking for the unanimous                                                    41 House held that:          "But  it is manifestly impossible to exhaust  their          content  by definition, for the  circumstances  and          incidents  of  employment are  of  almost  infinite          variety.  This at least, however, can be said, that          the accident in order to give rise   to a claim for

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        compensation  must  have  some  relations  to   the          workman’s  employment  and must be due  to  a  risk          incidental  to  that employment  as   distinguished          from a risk to which all members of the public  are          alike  exposed. Beyond this, the decision  in  each          case must turn upon its own circumstances.  In each          case   the   character  of  the   employment   must          necessarily  be  a  vital  element  in  determining          whether a particular accident has arisen out of and          in the course of it....."      It was further held that:          "Till he has reached the ship or her  appurtenances          a  seaman who has been on shore on leave is  deemed          not   to   have  re-entered  the  sphere   of   his          employment.   Unless and until he has reached  what          has  been  described as a provided  access  to  his          ship,  i.e., an access provided by  his  employers,          the  seaman  returning from leave  is  regarded  as          still  in  a public place outside the area  of  his          work. The rigidity of his doctrine has been so  far          relaxed  But, so far as I am aware, there has  been          no  case in which this House has decided in   terms          that  a  seaman who on his way to rejoin  his  ship          meets  with  an accident while  traversing  private          dock premises is disentitle to compensation.          It  has  been recognised time and  again  that  the          sphere of a workman’s employment is not necessarily          limited to the actual place where he does his work.          If  in going to or coming from his work he  has  to          use  an  access which  is part  of  his  employer’s          premises  or which he is only entitled to  traverse          because he is going to or coming from his work,  he          is held to be on his master’s business while he  is          using that access.  Take the analogy of a  domestic          servant,  which  is  peculiarly  in  point,  for  a          domestic  servant, like a seaman, "lives  in,"  and          the  scene of a domestic servant employment is  the          master’s house just as the ship is the scene of the          seaman’s employment.  I imagine  no one would                                                      42          doubt  that a maid servant returning home from  her          night  out  and meeting with any  accident  in  the          private  avenue of her master’s house, though at  a          point a quarter of a mile from the house, would  be          entitled  to compensation.  And equally so  if  she          suffered  an  accident on a private access  to  the          house  which,  although  not the  property  of  her          master, she had permission to the traverse only  as          one of the household servants". (emphasis supplied)      In  Canadian  Pacific  Railway Co.  v.  Lockhart,  1942 Appeal Cases 591 while dealing with the use of private motor car in disregard of company’s instructions while  travelling to execute the master’s work the workman sustained  injuries due  to negligent driving of the company  employee.  Dealing with  vicarious  liability of the master the  privy  council pointed out at p.601 thus:          "The  means  of  transport used  by  him  on  these          occasions  was clearly incidental to the  execution          of  that which he was employed to do.  He  was  not          employed to drive a motor car, but it is clear that          he  was entitled to use that means of transport  as          incidental  to the execution of that which  he  was          employed  to do provided the motor car was  insured          against  third party risks".      In Blee v. London & North Eastern Railway Co.,  1937(4)

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All  Eng.   Reports  270  on January  21,  1935,  a  workman finished  his ordinary day’s work at 5.15 p.m. and again  he would  have  to join at 7.20 a.m. on the following  day,  at 10.30  p.m.,  on  that  same  evening,  he  was  called  for emergency  duty  as  per terms of the contract  and  he  was going  to attend the duty, and was knocked down by  a  motor car while crossing the street on his way to work.  Later, he died   from  the  injuries  sustained.  In   the  claim  for compensation under Workman’s Compensation Act reversing  the award   of  the  arbitrator,  court  of  appeal  held   that employment commenced from the time the workman left his home and that the accident arose in the course of the employment.      In  Noble  v. Surthern Railway Co.,1940  A.C.  583  the employee met with an accident on his way to Railway  Station to  report  to  duty.   The House of  Lords  held  that  his proceeding  from  the hotel to the railway  station  was  to report  duty  and was during the course of  his  employment. His motive which induced the workman to do a thing was  held not material. In Scott                                                    43 v. Seymour, (1941) 2 All E.R. 717 at 722 (C.A.). The Duty of the injured (girl) was to get the milk. While  proceeding to the  farm she mounted on the  horse back and she  fell  down and  was injured.  Lord Justice luxmoore held that  she  was within  the sphere of employment,  The fact that she was  to encounter  danger  of  riding  on a horse  was  held  to  be immaterial  from  the  point  of  view  of  employee.    The contention  that she was not to ride the horseback to go  to form   was   negated  and  was  held  to  be   entitled   to compensation.      In  Dover  Navigation Co. Ltd. v. Graig, 1939  (4)  All E.R.  558  the deceased had been employed as a Sailor  of  a Ship which was sent to mosquito-infected river.  In the way of  journey, it was found that the death was out  of  Yellow Fever/or   Malaria  caused  by  mosquitoes’  bite.  It   was contended  by  the  employer   and  was  found  favour  with arbitrator  that the death was caused by the  natural  cause and  this  was a risk shared by everybody in  the  locality. The  court  of appeal, reversed it and held that  the  words ‘arising  out of and ‘in course of connote a certain  degree of casual relation between the accident and the  employment. It  is impossible to  exactly define in positive  terms  the degree  of  that  casual connection,  but  certain  negative propositions  may be laid down.  For example, the fact  that the  risk is common to all mankind does not prove  that  the accident  does not arise out of the employment.  Nor can  it be  held that the death or injury from the forces of  nature e.g.  earthquake and lightning, is not, merely  because  the accident is due to the force of nature, and accident arising out of the employment.  It has to be shown that the  workman was  specially  exposed by reason of his employment  to  the incident  of  such  a force. If it can  be  shown  that  the workman was exposed by reason of his employment to the  risk of  infection  by  decease-bearing  bacteria,   it  is   not difficult  in  coming  to the  conclusion  that  illness  or decease so caused is due to and accident arising out of  his employment.  In my opinion, there is no distinction  between the extent and the nature of the casual relation in the  one case  or  the other. Lord Finlay,  L.C. in Dennis  v.  White (A.J.)  &  Co., 1917 A.C. 479 held that the  fact  that  the risk  may   be common to all mankind does not  disentitle  a workman to compensation if in the particular case it  arises out  of  the employment.  It seems as irrelevant   that  all other residents in the locality are subject to the same risk of  accident as it is that all persons using the street  are

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subject to the same risk as the servant employed to work  in the street........ I myself am inclined to think that common risk  of  natural  forces must mean  the  operation  of  the natural forces must mean the degree                                                        44 and  to  the extent that they would operate in the  area  in which  the  workman  could be said to  the  exposed  to  the unemployed.   A  seaman may be directed to serve  in  places abroad  where  the forces of nature,  heat,cold,  flood  and tempest, cause much greater risk of injury than they do   at home.   In such cases, I personally doubt whether  the  fact that  persons  ordinarily to be found in  the  locality  are exposed to such risks is of any importance. They are exposed to the risk as residents in the area.  He is  exposed to the risk  because he is required by his employment so to  expose himself...... The judge should have  considered whether  the seaman  was  exposed  to that risk by  reason  only  of  his employment.  Lord Wright held that, "it is not legitimate to seek  to write into the section definitions and  limitations which  the  legislature have not thought fit to insert.   An incidental injury arose out of the man’s employment must  be such that the accident has some sort of causal relation with them,   although   not  necessarily   an   active   physical connection.   The phrase ‘arising out’ of the employment  is not  due to the nature of employment.   The Dennis case  was explained  by  Lord Wright holding that a  boy’s  employment required him to proceed by bicycle through the streets.   He was  knocked down and injured.  It was nothing to point  out that  everyone who bicycles in the street incurs  a  similar risk,  or  that  the  risk is  general  and  ordinary.   The observation  of Lord Finlay,  L.C., that ‘the  accident  was necessarily incidental to the performance of  the  servant’s work,  all inquiry as to the frequency or magnitude  of  the risk  is  irrelevant’ was adhered to and followed.   It  was further  held that indeed, in cases of  this type  once  the actual  facts are ascertained, it is  for the court  to  ask itself whether, on those facts, the accidental injury  arose out  of the employment.  In the present case, the answer  to the  question  seems  clear  and  inevitable,   The   seaman sustained the fatal injury because his employment took   him to a river or a roadstead or a sandbank on which his  vessel grounded   on  the  West  Coast  of  Africa.   Though    the Circumstances are  different, he was as much exposed by  the exigencies of his employment to the risk being bitten by the mosquitoes  as  Mrs.  Thom was exposed to the  risk  of  the falling building, or the boy Dennis to the risk of being run over  in  the street.   The infliction of the bites  was  an accident.                                      (emphasis supplied)      In   Nobel   v.  Southern  Railway  Co.   (supra)   the appellant’s  husband was passed fireman.  He was  instructed to go to East Croydon to carry out his duties there.  He had to walk from the locomotive depot to Norwood                                                      45 Junction and then proceed by train  to East Croydon.  On his way he took a shorter rout along the line and was  killed by an  electric  train.   On a claim for  compensation  by  the appellant,  the House of Lords by separate  but   concurrent opinions held that "the deceased has   not deviated from the safe  route  in order to fulfill any  propose of  his  own". Since  he was going about his  allotted job,  the  necessary inference  was  that he was walking along the line  for  the purpose  of and in connection with his employer’s  trade  or business.     Therefore,  the  appellant  was  held  to   be entitled to recover compensation.

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                                        (emphasis supplied)      In R.V. Industrial Injuries Commissioner, (1966) 1  All Eng.  Reports  97, the facts were that  Mr.  Culverwell  was employed  as  a semi-skilled fitter by  British  Cellophane, Ltd.  During lunch break due to over crowd in  the   smoking booth  he was squatting on the floor, a fork-lift truck  was driven  past going from one part of the factory  to  another and ran into Mr. Culverwell and he was severally injured and his  leg pelvis was broken and his hip was dislocated. On  a claim for compensation for industrial injuries under Section 7 of the National Insurance (Industrial Injuries) Act, 1946, the  management  contented  that it was  not  an  industrial injury  and the accident did not occur in the course of  his employment  nor arose out of employment.  Repelling it  Lord Denning,  M.R. observed at p.101 that in the early days  the Workman’s  Compensation  Act was interpreted  too  narrowly. The  House   of  Lords also did not  appreciate  the  social significance   of that legislation.  They debarred men  from compensation when Parliament thought that they ought to have it.   I  felt  that  we are going back  to  the  old  narrow interpretations of this provision.  I think it plain that  a man  can  be acting in the  course of his  employment,  even though  he is doing something which was not his duty to  do. Thus, when Mr. Culverwell  went down for the break, when  he was  there waiting to go into the smoking booth, it  was  in the  course  of his employment, although he did  not  go  in pursuance of any duty owed to his employer.      In Noncollas v. Insurance Officer and Ball v. Insurance Officer, (1985) 1 AII E.R. 833 two appeals were disposed  of by  a common judgment. Nancollas  was a Senior   Disablement Resettlement   Officer   employed  by  the   Department   of Employment.   He  lived at West  Worthing.   His  employment involved,  in  addition to his work at his  main  office  at Worthing,  he had to attend to other  job  centres  visiting disabled persons in his area. On                                                       46 October 30, 1980 he went to Guildford to attend a Conference about a particular disabled person.  He returned to his home that  evening.  On the following day he was returning  by  a Car.  On the way he met with an accident.  He laid his claim for  insurance  under S.50 (1) of the Social  Security  Act, 1975.  Mr. Ball was a Sub-inspector Police Officer and  also a Finger Print Expert.  He was also a Sailing Instructor  to the  Cadets,  at  Embassy, 40  miles  from   Wakefield.   He telephoned  to  the  Police Station and  thereafter  he  was proceeding  to  Embassy on his Motor Cycle.   His  means  of transport  was  approved  by  superior   officer.   He   was entitled  to  mileage  allowance.   When  he  was  going  to Embassy,  he  met with an accident.  He too laid  his  claim under Social Security Act.  The claims of both were rejected by  the Tribunal. On appeal, Johan Donaldson L.,J.  speaking for  the court  of appeal, held that the precedents  provide guidance  as  to  the approach to be  adopted,  rather  than providing  any  answer in a  particular  case.  Furthermore, "since  many  of the authorities are of some  antiquity  and date from a period when the employment  relationship was not inaccurately  described as that of master and  servant,  the importance  attached  to the orders or instructions  of  the employer and the search for contractual duties may no longer be  so  appropriate".  "The concept is unchanged, but  in  a changed  social  matrix, the foundation  of  the  employment relationship  is  no  longer so much  based  on  orders  and instructions as on requests and information" and contractual rights  and duties are "supplemented by mutual  expectations of  cooperation".  Both the instant appeals  were  concerned

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with  whether the claimant was at the relevant time  engaged on an activity which was in the course of his employment  or whether he was going from his home to another place in order to  resume  the course of his employment.   While  at  home, neither  was acting in the course of his employment.  "  Had each   completed  the  journey  successfully,   they   would thereafter  without doubt have been acting in the course  of their  employment".  It was further laid down that "none  of the authorities purports to lay down any conclusive test and none propounds any proposition of law which, as such,  binds other  courts".  They do indeed approve an  approach  "which requires  the  court to have regard to and to weigh  in  the balance  every factor which can be said in any way to  point towards or away from a finding that the claimant was in  the course of  his employment".                            (matter emphasised not indicated)      In  the  end  the decision must stand or  fall  on  the correctness  of his appreciation of the particular  fact  of their interrelation and, having                                                          47 weighed those facts, the correctness of his conclusion which is very largely one of the factors, that the claimant was or was  not  in the course of his employment.  It  was  further laid down that the statute calls for ‘yes’ or ‘no’ answer to a broad question.  The approach should be that of a jury and all the relevant evidence is it ‘yes’ or ‘no’.  Accordingly, it was held that both the appellants  were performing  their duties  during  the  course of  their  employment  and  were entitled to insurance claims.      In  Smith v. Stages & Anr., (1989) 1 AII E.R.  833  M/s Machin   and Stages were employed as Paripatetic Laggers  to install insultation at Power stations.  They were  stationed in  Midlands  and  they were asked to  attend  the  work  at Pembroke.  On finishing their duty at Pembroke on their  way back to Midlands, they were travelling in the car driven  by Machin.    It  crashed through a brick  wall,  resulting  in serious   injuries  to  them.   For  damages  for   master’s vicarious   liability  they  sued  the   defendant   company contending  that  they  had been acting  in  the  course  of employment  while driving the car back to Midlands  and  the first  defendant  was  negligent in driving  the  car.   The contract  provides  payment of wages for travel  time  also. The Trial Judge held that the accident was not in the course of  employment  and  that  therefore, the  company  was  not liable.  The Court of Appeal reversed the decision and  held that  the  employers were vicariously  liable  for  Driver’s negligence.   On further appeal, Lord Goff of  Chieveley  in House of Lords held thus:          "I  propose first to consider  the  problem not  in          relation  to his journey back from  Pembroke   when          the  accident in fact happened, but in relation  to          his journey out to Pembroke.  I shall do so because          I   find  it  easier   to  consider   the   problem          uncomplicated by the fact that Monday, 29th August,          was  a bank holiday or by the fact that Mr.  Stages          was  being paid eight hours’ sleeping time  because          he  had worked through the night or   Sunday,  28th          August, although, as well  appear, I consider  both          facts to be irrelevant .......           The fact that he was not required by his  employer          to  make the journey by  any particular means,  nor          even required to make it on the particular  working          day  made available to him, does not  detract  from          the  proposition that he was employed to  make  the          journey.  Had  Mr.  Stages wished,  he  could  have

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        driven  down  on  the  afternoon  of  Sunday,  28th          August, and have devoted the                                                       48          Monday  to  (for  example)  visiting  friends  near          Pembroke.   In  such circumstances,  it  could,   I          suppose,  be said that Stages  was  not  travelling          ‘in his employers’time. But this would not  matter;          for  the  fact remains that the  Monday,  a  normal          working  day, was made available for  the  journey,          with full pay for that day to perform a task  which          he was required by the employers to perform.      Lord  Brandon of Aakbrook agreed with Lord  Goff.  Lord Lowery  with  whom Lord Keith of Kinkel and  Lord  Griffiths agreed posed the question "Whether Mr. Machin was acting  in the course of employment when driving the car at the time of the  accident  is  a  sole question  for  your  Lordship  to decide".   On  considering  the question it  was  laid  down that:-          "The paramount rule is that an employee  travelling          on the highway will be acting in the course of  his          employment  if, and only if, he is at the  material          time going about his employer’s business.  One must          not confuse the duty to turn up for one’s work with          the  concept  of  already  being  ‘on  duty’  while          travelling to it.            It  is impossible to prove for every  eventuality          and  foolish  without the benefit of  argument,  to          make the attempt, but some prima facie propositions          may  be stated with reasonable confidence.  (1)  An          employee travelling from his ordinary residence  to          his  regular place of work, whatever the  means  of          transport  and  even  if  it  is  provided  by  the          employer, is not on duty and  is not acting in  the          course of his employment, but, if he is obliged  by          his  contract  of service to  use   the  employer’s          transport,  he will normally, in the absence of  an          express  condition to the contrary, be regarded  as          acting in the course of  his employment while doing          so.  (2) Travelling in the employer’s time  between          workplace   (one  of  which  may  be  the   regular          workplace)  or  in  the  course  of  a  peripatetic          occupation, whether accompanied  by goods or  tools          or  simply  in  order  to  reach  a  succession  of          workplaces  (as  an inspector of gas  meters  might          do),  will be in the course of the employment.  (3)          Receipt  of  wages  (  though  not  receipt   of  a          travelling   allowance)  will  indicate  that   the          employee is travelling in the employer’s time                                                        49          and for his benefit and is acting in the course  of          him  employment, and in such a case the  fact  that          the employee may have discretion as to the mode and          time of travelling will not take the journey out of          the  course  of  his employment.  (4)  An  employee          travelling in the employer’s time from his ordinary          residence  to a workplace other than  this  regular          workplace  or  in  the  course  of  a   peripatetic          occupation or to the scene of an emergency (such as          a  fire, an accident or a mechanical  breakdown  of          plant)  will  be  acting  in  the  course  of   his          employment.   (5) A deviation from or  interruption          of a journey undertaken in the course of employment          (unless  the  deviation or interruption  is  merely          incidental to the journey) will for the time  being          (which may include an overnight interruption)  take

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        the  employee out of the course of him  employment.          (6)  Return journeys are to be treated on the  same          footing as outward journeys.          All  the foregoing propositions are subject to  any          express  arrangements between the employer and  the          employee or those representing his interests.  They          are  not,  I  would add,  intended  to  define  the          position of salaried employees, with regard to whom          the  touchstone of payment made in  the  employer’s          time is not generally significant."      Accordingly,   it  was  held  that  the  employee   was travelling on duty and employer was vicariously  responsible for negligence driving of the Driver.      The English Workman’s Compensation Act being founded on contract between the employer and employee, received  strict construction  though  yet times some of the  learned,  noble Lords   and   Judges  gave   extended   connotation.    This distinction  must  be kept at the back of our mind  when  we apply  that law to our conditions steeped with socioeconomic justice of our Constitutional creed.      In  United States Fidelity & Guaranty Co. v.  Elizabeth W.  Giles, 276 U.S./p.154 Nephi Gilers, an employee  of  the appellant company, while crossing the railway track, on  his way  to work, was struck by the train and was  killed.   The widow  laid the claim.  The State Supreme Court  denied  the relief  and on appeal, the U.S. Supreme Court held that  the accident  arose  in  the course of the  employment  and  the master is not unconstitutionally                                                        50 deprived  of  his  property without due process  of  law  by making  him  liable for injury.  The place of  accident  was access  to the plant and is most convenient to the  employee and has been used for long period of time without  objection by  the  employer.  The same view was reiterated  in  Cudohy Packing  Co.  of Nebraska v. Mary Ann  Parramore,  263  U.S. p.418.      In  Saurashtra Salt Manufacturing Co. v. Bai Valu  Raja and  Ors., AIR 1958 SC 881 it is true that in that case  the way  through  which  the deceased has to  pass  through  was public  way.   In paragraph 8, this Court pointed  out  that both  before and after remand, that the boat ferried  across the  creek were used by the public, everyone of whom had  to pay  the charge for being ferried across the creek with  the exception of a person of the Kharva caste.  To reach point A on the map a workman had to proceed in the town of Porbander via  public  road.  A workman then used at point A  a  boat, which  was also used by the public, for which he had to  pay the  boatman’s dues, to go to point B. From point B  to  the salt works there is an open sandy area of a specified length and  width,  which was also open to the  public.   On  those facts it was held that the workman was on a public road  and that,  therefore,  it was not in the course  of  employment, unless  the very nature of employment makes it necessary  in employment  to be there.  He was certainly in the course  of employment if he reached the place of work or a point or  an area  which  came within the theory of  notional  extension, outside  of  which  the  employer  was  not  liable  to  pay compensation for any accident happening to him.  This Court, therefore, while upholding the theory of notional  extension disallowed  the  claim  of compensation  on  those  peculiar facts.      In B.E.S.T. Undertaking, Bombay v. Agnes, [1964] 3  SCR 930  P.N. Raman, the bus Driver, left the bus in the  depot, boarded  another bus to go to his residence.  The  bus   met with  an accident resulting in injuries to Raman,  who  died

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later.   It  was held per majority that since  the  employer provided the means of transport, the accident had arisen out of  and  in the course of employment.  It was  further  held that though the doctrine of reasonable or notional extension of employment developed in the context of specific workshops, factories or harbours, equally applies to bus services.  The doctrine  necessarily  will have to be adopted to  meet  its peculiar  requirements.   Accordingly, it was held that  the accident arose out of employment.                                                        51      In  The Regional Director of the E.S.I.C. v.  L.  Ranga Rao & Anr., (1981) 2 Karnataka Law Journal 197 on  Sudhendra Kumar was an employee of M/s Mysore Breaveries Ltd.  On  his way  to the factory he had to pass on National Highway  No.4 between  Bangalore and Tumkur.  When he reached in front  of Suryodhaya  Mills about 2 Km. away from his factory, he  was struck  by a truck on August 10, 1978 at about 9.45 p.m.  He had  to  report for duty at 10.00 p.m.  On those  facts  the Division Bench speaking through K. Jagannath Shetty, J.  (as he  then  was)  held  that it  was  immaterial  whether  the employee was travelling in a public transport vehicle or was going  on  a public road or private land, when  he  suffered injury.  He must have the choice of going through any  route which  was  convenient for him and to come by  any  mode  of conveyance  which  was  economical of  him.   These  matters cannot  be  considered  with any  set  pattern  and  greater latitude  must be given to the employees in  growing  cities and  towns.   The  Act enlarges the  concept  of  employment injuries  and  not narrows it down.  It was  held  that  the accident  had occurred during the course of  employment  and the corporation was held to be liable to pay compensation.      In Sadugunjaban Amrutlal & Ors. v. E.S.I.  Corporation, 22 (1981) Gujarat Law Reporter, 773 the appellant’s  husband was employed as a jobber in the Aruna Mills Co. Ltd. and  he was  an insured person under the Act.  His duty  hours  were from  8.00 a.m to 4.30 p.m.  On December 22, 1974,  he  felt giddy  while on duty.  He was given medical  treatment.   On the next day he was to report to duty at 8.00 a.m.  He  left his  residence  at about 7.20 a.m. to attend his  duty.   He walked  for a short distance to the bus stop whereat he  had to  board the bus to carry him to the mill.   While  waiting for  the bus, he complained of discomfort to one of his  co- workers who was also waiting at the bus stop.  After the bus arrived at the spot while getting into the bus, he collapsed and became unconscious.  When he was taken to the  hospital, he was declared dead.  Insurance claim was negatived on that ground  that it was not an employment injury under the  Act. While negativing the claim of the Corporation, the  Division Bench  speaking  through Thakkar, J. (as he then  was)  held that  there  may be reasonable extension in  both  time  and place  and the workman may be regarded as in the  course  of his   employment,  even  though  he  has  not  reached   his employer’s  premises.  The facts and circumstances  in  each case should be examined very carefully to determine  whether the  accident arose out of and in the course of  employment, keeping  in  view  at  all  time  the  theory  of   notional extension.   The employer’s premises includes an area  which the workman                                                        52 passes  and re-passes in going to the actual place of  work. The theory of notional extension can be made recourse in any reasonable  manner  to  ascertain whether an accident  to  a workman  may  be regarded as in the  course  of  employment, though he had not actually reached his employment  premises. Accordingly, it was held that the widow of the employee  was

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entitled to the compensation.      In Bhagubai v. Central Railway, (1954) 2 L.L.J. 403 the Bombay  High Court, held that if the employee in the  course of  his  employment has to be in a particular place  and  by reason of his being in that particular place he has to  face a  peril and the accident is caused by reason of that  peril which he has to face than a casual connection is established between the accident and the employment.  In that case while the  deceased was going to attend the factory, he  was  shot dead by unknown man and it was held that he died during  the course of employment.      Regional   Director,  E.S.I.  Corpn.,  Trichur  v.   K. Krishnan,  1975 K.L.T 712  and Commissioner for the Port  of Calcutta  v.  Mst. Kaniz Fathema AIR 1961  Cal.  310  merely followed  the ratio in Saurashtra Salt Manufacturing Co.  v. Bai  Valu  Raja  and  Ors., AIR 1958   SC  881  and  no  new principle   was   laid.   Therefore,  they   render   little assistance to the appellant.      In  Kentucky Law Journal, Vol. 59 p.55 on  the  caption the  ’Going and Coming’ Rule, it was stated at p.56 that  it was  unfair  to an employee who was subject to call  at  all hours,  or  who  was required to be en route to  work  at  a distant  site, or at an unusual or dangerous hour,  etc,  to deny  the  right  of  compensation.  It  is  his  work  that requires to make the dangerous journey. Richard D. Cooper in his  ’The  Operating  Premises Exception To  the  Going  and Coming Rule’ in the same Journal commenting on the right  of the  employee to receive compensation for an injury  arising out of and in the course of his employment stated that  many exceptions have been applied to the going and  coming  rule, and   one  of  the  principal  exceptions   widely   applied throughout  the employment is that injuries sustained by  an employee  while going to or from his place of work  or  upon premises  owned or controlled by his employer are  generally deemed  to  have  occurred  in  the  course  of  employment. Dealing with the exception he stated at p.154 disposition of any  case at law requires flexibility in the principles  for use  in  the  decision and the  suggestions  and  guidelines should  not  be  construed as  an  attempt  to  straitjacket formula of the court.  Rather, what is needed                                                        53 is  a  statement of factors which are to  be  considered  in determining  whether the employee’s injurious  activity  was well connected.......      In  Larson’s  Workmen’s  compensation  Law,  Vol.1   in s.15.11  it was stated that the course of employment is  not confined  to  the actual manipulation of the  tools  of  the work,  nor  to the exact hours of work...In s.15.12  it  was stated  that  one influential writer says that there  is  no reason is principle why states should not protect  employees for  a reasonable distance before reaching or after  leaving the  employer’s  premises.  Some courts  have  extended  the premises  idea  to  areas  which  are  not  owned  or   even controlled  by  the  employer,  but  which  are  so  closely associated  with  it  that they are in effect  part  of  the premises.   Such  a  test has been helpful in  a  number  of cases,  but again it cannot qualify as a statement of  legal principle.....In  s.15.15  it  was stated  that  a  workable explanation of the exception to the premises rule, it is not nearness, or reasonable distance, or even the identifying of surrounding areas with the premises; it is simply that  when a  court  has  satisfied itself that  there  is  a  distinct ’arising out of’ or casual connection between the conditions under  which claimant must approach and leave  the  premises and  the  occurrence  of the injury, it may  hold  that  the

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course  of  employment extends as far  as  those  conditions extend.  In s.15.21 it was stated that the difficulty  would dissolve  instantly  if  the  courts  confronted  with  this question would simply face squarely the question whether the extension  of course of employment to off-premises  injuries is  based  on  any principle to  which  the  public  private distinction  is  relevant.  Plainly it  is  not....For  that matter,  every travelling salesman uses the highway  in  his right  as  a  member  of the public and  not  by  any  right conferred  by  his  contract  of  employment,  yet  no   one questions  that  he is in the course of  employment  on  the highway....If the only means of access to the place is  over a  piece of public road which includes a dangerous  railroad crossing,  the  technical status of the road  as  public  or private is surely immaterial.  In s.15.31 the case Freire v. Matson Navigation Co., 19 Cal. 2d 8, 118 P.2d 809 (1941) has been  referred  to, wherein the claimant, while still  on  a public thoroughfare was injured due to a traffic  congestion caused  by  the arrival of all sorts of  trucks,  cars,  and pedestrians,  that  workman came there on  business  of  the claimant’s  employer.   The  injury was held to  be  in  the course  of  employment  on  the  theory  that  the  zone  of employment  danger has been extended beyond the gate by  the employment created dangers in the street.  It was held  that it  is  rather  a  matter of reaching  out  and  covering  a particular hazard which has a sufficiently close                                                        54 work  connection to impel the courts to find temporary  room for it within the course  of employment concept.      De  hors the Human Right and constitutional  goal,  the march  of  Jurisprudence  emphasises that the  law  did  not remain static but kept pace with the changing social demands to secure socio-economic justice to workman.      It would thus be held that the employment of a  workman does  not  commence  until  he  has  reached  the  place  of employment and does not continue after he has left the place of  work,  the journey to and from the place  of  employment being  excluded.  An employee travelling from his  residence to  his place of work ordinarily is not on duty and  is  not acting in the course of his employment.  But travelling as a part  of duty between place of work and residence is in  the course  of his employment when the employee is  entitled  to payment of travelling allowances/wages is part of duty.  The employee then is travelling on the employer’s time.  He will be acting in the course of his employment.  The doctrine  of coming  in and go from workplace  is subject  to  reasonable extention.   It  is common knowledge that the  home  is  the employee’s base from which it is his duty to start for work. When an employee was travelling by direct route from his/her home  to  the  place  of work but for  that  he/she  has  no occasion to traverse the way though private/public road  way is  the  normal or agreed or accustomed route to  reach  the workplace, he/she must be treated to be travelling in  the course of his/her employment as incidental to join the  duty or leaving the work place.  The accident is in the course of his  employment because he/she is then at the scene  of  the accident by reason only of his/her employment and he/she has reached  the sphere of employment.  The test is whether  the employee  has  exposed  to a particular risk  by  reason  of his/her  employment or whether he/she took the same risk  as is  incurred  by  any  other public  using  the  public  way otherwise  then his/her employment.  The  accident  occurred while using transport provided by the employer is during the course  of employment.  The motive to use public or  private transport  or  route to reach the place of accident  is  not

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relevant.   The employee may use the place, public  road  or transport services as usual course of means of attending  to or  going from the place of work,  office or  factory.   The proximity  of  time  and place of accident to  the  time  of reporting to the duty or after duty time are relevant  facts to be reckoned.  No hard and fast rule can be laid.  When  a workman walks/rides the bicycle                                                        55 etc.  along  the public road/street to go to  his/her  work, his/her  right  to walk does not spring,  undoubtedly,  from employment,  and he/she also may exercise it as a member  of the   public.   Nevertheless  the  workman  too   uses   the public/permitted  private way as access/means to  attend  to duty.   The  question  whether he/she  had  encountered  the danger or the accident exercising his/her right and to be at the  place  of  incident as a member of  the  public  or  as his/her integral course of employment must always be born in mind  and  is a question of fact to be  considered  in  each case.   While  as a member of the public he/she may  have  a right  to walk or ride a cycle, drive a car etc.  but  while walking  or crossing the road/driving to reach the place  of work  or duty he/she encounters the danger or the  accident, which  he/she  would  not  have  encountered  but  for  that employment,   then   it  must  be  incidental   to   his/her employment.   The motive which induces the employee to do  a thing is not material.  His/her motive to go by a particular route is also immaterial, whether it was to save time or  to save  himself/herself  from trouble.  Whether the  place  at which the injury/death occurred was on the only route or  at least  the normal/accustomed route which the  employee  must traverse to reach the place of work and became the hazard of the  employment is also relevant fact.  It is impossible  to exactly  define  in  positive terms  the  degree  of  casual connection.  The fact that the risk is common to all mankind does  not  prove  that the accident has not  arisen  out  of employment.  It must be shown that the employee was  exposed to the risk by reason of employment, though  the risk may be common to all.  The residents may be exposed to the risk  as residents  but the employee is exposed to the  risk  because he/she  is  required  by his/her  employment  so  to  expose himself/herself.  On the facts in a given case, if the court would     come    to    a    positive    conclusion,     the incident/injury/death arose out of and during the course  of employment.      It is true, as contended by Shri Tulsi, that Ss.51A and 51C  of  the Act give statutory presumptions/grounds  as  to when  an accident happen while travelling in  an  employer’s transport,  etc.  The  Act  intends  to  reiterate  the  law declared  by this court, apart from creating same  statutory presumptions.   But it is no corollary to conclude  that  an accident arising out of and in the course of employment,  in any  other  way,  by  necessary  implication,  should  stand excluded.  In Gian Devi Anand v. Jeevan Kumar & Ors., [1985] Suppl. 1 SCR 1 a Constitution Bench of this Court was called upon to consider under Delhi Rent Act by expressly  defining heirs  of  tenant of residential accommodation  are  tenants whether to exclude heirs of the                                                        56 tenant  for  commercial tenancy.  It was contended  that  by necessary   implication  it  stood  excluded.   This   Court negatived  that  contention  and held that  the  statute  by necessary  implication  did  not exclude the  heirs  of  the tenant in occupation of commercial accommodation and applied the general law relating to succession and the contract  and upheld  that  they are tenants for  commercial  premises  as

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well.   To  the  extent  covered  under  Ss.51A  to  51D  by statutory  amendment stands incorporated in the Act  but  in other  respects  the  court  has  to  consider  whether  the accident has arisen out of and in the course of  employment, de hors the statutory presumptions etc. provided in Ss.  51A to 51D.      The  next  contention  that  the  Motor  Vehicles   Act provides the remedy for damages for an accident resulting in death  of an injured person and that, therefore, the  remedy under  the  Act  cannot be made availed of  lacks  force  or substance.  The general law of tort or special law in  Motor Vehicles  Act  or Workman  Compensation Act  may  provide  a remedy for damages.  The coverage of insurance under the Act in  an  insured  employment is in addition  to  but  not  in substitution  of  the  above remedies  and  cannot  on  that account  be denied to the employee.  In K. Bharati  Devi  v. G.I.C.I., AIR 1988 A.P. 361 the contention that the deceases contracted  life insurance and due to death in air  accident the  appellant received compensation and the same  would  be set off and no double advantage of damages under carriage by Air Act be given was negatived.      It  falls  foul  from the mouth  of  the  appellant,  a trustee  de  son  tort who collected the  premium  from  the employee  and  employer  with a promise  to  expend  it  for disability,  to attempt to wringgle out from the promise  or to  deprive the employee the medical benefit for  employment injury  covered by the insurance on the technicalities.   It is estopped to deny medical benefit to the insured employee. We  are conscious of the fact that the plea of estopple  was not raised by the respondent but it springs from the conduct of the appellant.      Applying  the  above law to the  facts,  the  necessary conclusion is that the respondent was trekking the  road  to attend  to  duty which found to be the accustomed  route  to reach  the  factory  and just few  minutes  before  i.e.  15 minutes before reporting to duty he was struck by the  truck resulting in the employment injury.  It, therefore, occurred during  the  course  of his employment  and  thereby  he  is entitled to the amount as compensation                                                        57 under the Act.  The appeal is dismissed but without costs.      B.P.  JEEVAN  REDDY, J. This appeal raises  a  question with respect to the meaning and ambit of the expressions "in the  course of employment" and "arising out the  employment" expressions  occurring  in  the  definition  of  "employment injury"  in clause (8) of Section 2 of the Employees’  State Insurance Act, 1948.  The appeal is preferred by the  E.S.I. Corporation  against  the judgment and order of  a  Division Bench of the Kerala High Court dismissing its appeal.      The  first respondent, Francis De Costa,  was  employed with  J  & P Coats (P) Ltd., Koratty, second  respondent  in this  appeal.  He was an insured employee.  On 26.6.1971  he was going on a cycle, owned by him, to report to duty at the factory.   While he was at a distance of one kilometer  from the  factory,  he  was  hit by  a  lorry  belonging  to  the employer.   As a result of the accident, he suffered  severe injuries   and   was  declared   totally   and   permanently incapacitated for work in the factory.  It was so  certified by  the  Insurance  Medical  Officer.   The   employee-first respondent  laid  a  claim for the benefits  under  the  Act before  the  Regional  Director,  E.S.I.  Corporation   (the appellant herein) which was rejected.  The first  respondent thereupon  moved the Employees’ Insurance Court  for  relief under  Sections  75 and 76 of the Act.  His  case  was  that since the injury was suffered by him while on the way to his

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duty,  it  is  an  ’employment  injury’.   The  Corporation, however,  contended  that  it is not  so,  inasmuch  as  the accident took place on a public road.  The E.S.I Court  held in  favour  of  the  first  respondent,  against  which  the Corporation   preferred   an  appeal  to  the   High   Court unsuccessfully.      The facts found by the E.S.I. Court and accepted by the High  Court  are to the following effect: On that  day,  the first  respondent  had to report for duty at 4.30  P.M.  The first respondent was proceeding to the factory on his cycle, following the usual route along which he passed every day to and from the factory.  The cycle on which he was riding  was purchased  by  him  from the advance given  to  him  by  the employer  with  a view to facilitate speedy arrival  at  the factory.  The first respondent was not guilty of  negligence while riding the cycle.      It  is  on the above facts that  the  question  arising herein has to be answered.                                                        58      The  Act was enacted by Parliament since it  thought it expedient  to provide for certain benefits to  employees  in the case of sickness, maternity and employment injury and to make  provision  for  certain  other  matters  in   relation thereto.  Section 2 is the interpretation clause, Clause (8) whereof defines ’employment injury’ in the following terms:          "(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;)"      A   reading   of  the  ’definition’  shows   that   for constituting an employment injury it must not only be caused by an accident arising out of his employment but must be one arising  in the course of his employment.  Both  ingredients must  be  satisfied.  Chapter IV (Section 38 to  45B)  deals with the contributions to be made both by the employers  and the  employees while Chapter V specifies the benefits  which can  be extended to the insured persons.  (Section 46  inter alia provides for periodical payment to an employee disabled as  a  result  of an employment injury as  well  as  to  the dependents  of  an insured person who dies as  a  result  of employment injury).  Section 51 read with the First Schedule prescribes  the  amounts  payable in  case  of  disablement. Section  51-A to 51-D were added by the Amendment Act 44  of 1966.  Section 51-A creates a rebuttable presumption to  the effect that the accident arising in the course of employment shall  be  presumed,  in  the absence  of  evidence  to  the contrary,  to  have arisen out of that employment  as  well. The Section reads as follows:          "51A.  Presumption as to accident arising in course          of  employment  for  the purpose of  this  Act,  an          accident  arising  in  the  course  of  an  insured          person’s  employment  shall  be  presumed,  in  the          absence  of evidence to the contrary, also to  have          arisen out of that employment."      Section 51-B provides that an accident shall be  deemed to   arise   out  of  and  in  the  course   of   employment notwithstanding  that  at  the time  of  the  accident,  the employee was acting in contravention of the provision of any law  applicable  to  him  or of  any  orders  given  by  his employer.  It is not necessary to quote the section for  the purpose of this case.  Section 51-C,                                                        59

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though  not directly relevant is still of some  significance herein and may, therefore, be set out in full:          "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  and  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.)"      According  to  Section  51-C,  where  an  employee   is travelling  in  a vehicle provided by or on  behalf  of  the employer,  and where the travel is to or from the  place  of work,  if  any accident occurs resulting in  injury  to  the employee, it shall be deemed that he has suffered the injury arising  out of and in the course of employment even  if  he was  under no obligation to travel by that vehicle, so  long as the vehicle is not being operated in the ordinary  course of  public  transport service.  Section 51-D  provides  that where an accident occurs while meeting an emergency it shall be  deemed to arise out of and in the course of  employment. It is not necessary to notice the section for the purpose of this   case.   Section  74  in  Chapter  VI   provides   for constitution of the Employee’s Insurance Court while Section 75  specifies  the questions/disputes which are  within  the jurisdiction of such Court.      In this case the first respondent-employee had not  yet reached  the  factory.   At  the time  of  accident  he  was travelling along a public road, to                                                        60 go to the factory. He was following the usual route which he was following every day for going to and for returning  from the  factory.  He was riding a cycle owned by him which  was purchased  by  him  from out of the  advance  given  by  the employer for his convenience.  The cycle was not provided by the  employer, nor was it owned by the employer.  The  place of  accident was one kilometer away from the  factory.   The accident occurred 15 minutes before the hour when he had  to report to duty.  While travelling on the public road he  was hit by a lorry owned by the employer.  Can it be said in the circumstances  that  he suffered the injury in  an  accident "arising out of and in the course of his employment"?      The  words  "arising  out  of  and  in  the  course  of employment"  are  not defined in the Act or  the  Rules  and Regulations  made thereunder.  They have no doubt  been  the subject  matter of several decision not only under this  Act but also under the Workmen’s Compensation Act where to these expressions  occur  in Section 3.   These  seemingly  simple words  have  led to a good deal of  divergence  of  judicial opinion.   While both the expressions "arising out  of"  and "in the course of" do not mean the same thing, both of  them do  denote and contemplate a causal connection  between  the accident  (which leads to injury) and the  employment.   The

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accident, in other  words, must not be unconnected with  the employment.   This in turn raises the question when does  an employment  begin  and  end.   For  this  purpose,  one  has necessarily to turn to decided cases.  But before doing  so, it is well to keep in mind two relevant factors: (i) the Act is  a piece of social legislation-a beneficial  legislation. It creates a fund, contributed both by the employees and the employer (Section 26)  to  meet  and  provide  for sickness, maternity  and  employment  injuries  to  insured  employees (Section  28).   Any interpretation placed  upon  the  above words should be such as to advance the object underlying the Act  and (ii) in respect of injuries suffered in   accidents not arising out of and in the course of employment, i.e., in the  case  of  injuries  other  than  employment   injuries, remedies and forums are different e.g., Motor Vehicles  Act, (Section  110A) Railways Act (Sections 82-A to 82-J) and  so on.   In  other  words, if an employee covered  by  the  Act suffers an injury on account of an accident not arising  out of  and  not  in the course of his  employment,  he  is  not without a remedy in law.  Forum may be different;  procedure may be different; but he certainly has  remedy; just as  any other citizen of this country; Neither less no more.      Coming to decided cases, I may start with the decisions of this Court.                                                        61 In  Saurashtra Salt Manufacturing Company v. Bai  Valu  Raja and  Ors.  (A.I.R.  1958  S.C.  881)  the  meaning  of   the expression  "in the course of his employment"  occurring  in Section  3(1)  of the Workmen’s Compensation  Act  fell  for consideration.   The workman concerned therein was  employed in  a salt work.  He was returning home after finishing  his work.   He  had first to traverse a public path,  then  pass through a sandy area in the open and finally across a  creek by a ferry boat.  While crossing the creek in the ferry boat it  capsized  due to bad weather and drowned.  A  claim  for compensation was laid which dispute ultimately reached  this Court.   It was found in that case as well that the  workman was following the usual and ordinary way to go to and return from the salt works.  Imam, J. speaking for himself and N.H. Bhagwati  and  Gejendragadkar,  JJ. stated the  law  in  the following words:          "7 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.  It is  now          well-settled, however, that 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 in leaving  the          actual place of work.  There may be some reasonable          extention in both time and place and a workman  may          be regarded as in the course of his employment even          though   he  had  not  reached  or  had  left   his          employer’s  premises.  The facts and  circumstances          of  each  case  will  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 extention."      After  noting the fact that the ferry was not  provided by the employer, the learned Judge held as follows:          "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

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        public  and  is  not there in  the  course  of  his          employment unless the very nature of his employment          makes in necessary for him to be there.  A  workman          is not in the course                                                        62          of  his  employment from the moment he  leaves  his          homes 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 extention, 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 notional extention extends upto 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  Salt  works  was  situated  across  a   creek          opposite  Porbandar.   Point A is the  place  where          employee  going from Porbandar got into the  ferry.          They  alighted at point B. From point to one  could          go  Salt works passing through the sandy area.   On          the sandy area near point B there was also a public          foot-path leading to Salt-works at point D.)      According  to  this decision an  employee  who  travels along  a public road in a public vehicle that is or may  not be  provided  or  arranged by his employer  and  suffers  an injury from an accident, cannot be said to have suffered the injury,  in the course of his employment, even though he  is proceeding  to  his place of work  or  returning  therefrom- unless,  of  course, he is at such public place or  on  such public  transport  in  the course  of  his  employment,  For example,  an employee may be required to  travel  throughout the city or a particular area in the course of discharge  of his duties as in the case of a Medical Representative.    It may  also  be  a case where an employee may be  sent  on  an errand or on some work or duty assigned by the employer  and in that connection he travels by a public                                                        63 vehicle along a public road.      The  next  decision  is in  General  Manager,  B.E.S.T. Undertaking, Bombay v. Mrs. Agnes, [1964] 3 S.C.R. 930.   In this  case the deceased employee was the bus driver  of  the appellant  corporation.   After finishing the work  for  the day,  he left the bus in the depot, and boarded another  bus to  go  to  his residence.  That bus met  with  an  accident resulting in injuries to him leading to his death. His widow laid  a  claim under the Workmen’s  Compensation  Act.   The question was, whether the death of the employee occurred  in an  accident  arising  "out  of and in  the  course  of  his employment"  within  the  meaning of  Section  3(1)  of  the Workmen’s  Compensation Act.  Subba Rao and  Mudholkar,  JJ.

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answered  the  question  in favour  of  the  employee  while Raghubar  Dayal,  J. ruled to the  contrary.   The  majority noticed  that  a  bus  driver  employed  by  the  appellant- corporation  is  given  the facility to travel  in  any  bus belonging to the Corporation to reach the place of his  duty and also while returning therefrom.  This facility was found to  have  been provided not as a matter of grace  but  as  a matter  of right of the employees, with a view  to  increase the efficiency of the service.  In other words, it was found that travelling by bus to reach or return from the place  of duty  was a condition of his service and that there  was  an implied obligation on the part of the employee to travel  in the  buses  of the Corporation as a part of  his  duty.   In these circumstances, it was held, the accident had  occurred during the course of employment.  The majority approved  and applied the principle of the decision of Court of Appeals in Cremins  v. Guest, Keen & Nettlefolds, Ltd., (1908)  1  K.B. 469  the  facts of which case were somewhat similar  to  the case before them.      The  above  principles  were  reiterated  in  Mackinnon Machenzie & Co. Pvt. Ltd. v. Ibrahim Mahommed Issak,  [1970] 1 S.C.R. 869 though the decision therein actually turned  on the facts of that case.      We may next notice certain decisions of the High Courts in  this country relied upon by the first  respondent.   The first case is in Bhagubai v. Central Railway, Bombay, (1954) 2  Labour Law Journal 403 a decision of a Division Bench  of the  Bombay High Court comprising Chagla, CJ. and Dixit,   J. The  deceased was a Mukadam employed in the Central  Railway at  Kurla  station.   He  lived  in  the  railway   quarters adjoining  the  railway station.  The only  access  for  the deceased  from  his  quarters to  the  railway  station  was through the compound of the railway quarters.  On 20th Dec.,                                                        64 1952  the  deceased left his quarters a few  minutes  before midnight  in  order to join duty.  Soon  thereafter  he  was stabbed fatally by some unknown person.  It was not disputed before the Court that "that the accident arose in the course of  his  employment".   The only  contention  urged  by  the employer-railway was that the accident did not arise out  of the  employment  of the deceased.  Chagla, CJ.  referred  to certain English decisions and a few earlier decisions of the Bombay High Court and held thus:          "In our opinion, once the applicant has established          that the deceased was at a particular place and  he          was  there because he had to be there by reason  of          his  employment  and he  further  establishes  that          because  he was there he met  with an accident,  he          had discharged the burden which the law placed upon          him.   The law does not place an additional  burden          upon  the applicant to prove that the  peril  which          the  employee  faced and the accident  which  arose          because  of that peril was not personal to him  but          was  shared by all the employees or the members  of          the public."      The principle applicable in these matters, according to the learned Judge, is this:          "Now,  it  is  clear that there must  be  a  causal          connexion  between the accident and the  employment          in  order that the Court can say that the  accident          arose out of the employment of the deceased.  It is          equally  clear that the cause contemplated  is  the          proximate  cause  and not any  remote  cause.   The          authorities  have  clearly laid down  that  if  the          employee in the course of his employment has to  be

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        in a particular place and by reason of his being in          that  particular place he had to face a  peril  and          the  accident  is caused by reason  of  that  peril          which  he has to face, then a causal  connexion  is          established   between   the   accident   and    the          employment.  It is now well settled that  the  fact          that  the  employee shares that  peril  with  other          members   of   the   public   is   an    irrelevant          consideration.  It is true that the peril which  he          faces  must not be something personal to  him,  the          peril must be incidental to his employment.  It  is          also  clear that he must not by his own act add  to          the  peril or extend the peril.  But if  the  peril          which  he  faces  had nothing to do  with  his  own          action or                                                        65          his own conduct, but it is a peril which would have          been  faced  by  any other employee  or  any  other          member  of the public, then if the accident  arises          out   of   such  peril,  a  causal   connexion   is          established   between   the  employment   and   the          accident."      This is evidently a case where the accident took  place on the premises of the employer.  The deceased was a railway employee.   His  place of work was the railway  station.  He lived in the railway quarters adjoining the station. He  was proceeding from his quarter to the station.  Thus he was  on the employers’ premises when he was fatally attacked.   This case, therefore, does not help the respondent.  It may  also be  seen that this case was decided before the decisions  of this Court referred to above.      The  next decision is in Regional Director ESIC  v.  L. Ranga Rao & Anr., (1981) 2 Karnataka Law Journal 197.   This is  a case arising under the Employees State Insurance  Act. The deceased-employee was run over by an unidentified  motor vehicle at 9.45 p.m. while he was on his way to join duty at the  factory  at 10.00 p.m.  The accident took  place  on  a national  highway at a distance of two kilometers  from  the factory.  A  Division  Bench of the  Karnataka  High  Court, speaking  through  Jagannatha Shetty, J. (as  he  then  was) referred to the definition of "employment injury" in section 2(8) of the Act and observed:          "It  may  be sufficient if it is  proved  that  the          employee having regard to his employment has to  be          at a particular place and by reason of his being in          that particular place he has to suffer an injury by          accident.   If that much is proved, then  a  causal          connection is established between the accident  and          his  employment  and  he  shall  be  held  to  have          suffered an employment injury.          We  may also point out that it is  also  immaterial          whether  an  employee was travelling  in  a  public          transport  vehicle or an omnibus at the time of  an          accident.  It is equally immaterial whether he  was          going  on a public road or a private lane  when  he          suffered  an  injury.  He must have the  choice  of          going  in any route which is convenient for him  to          go  and any mode of conveyance which is  economical          to  him.  These matters cannot be  considered  with          any set pattern and greater latitude must be  given          to the employees in growing cities and towns."                                                        66   In  Sadgunaben  Amrutlal & Ors., v. The  Employees’  State Insurance Corporation, Vol.22 (1981) Gujarat Law Report  773 the employee was standing at the bus stop for boarding a bus

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which  would  take  him  to the  place  of  his  work.   The transport  was not provided by the employer. He had not been feeling  well  allegedly on account of strain of  his  work. While  waiting  at  the bus stop, he  collapsed  and  became unconscious.  He was taken to the hospital but he died  even before reaching the hospital.  Medical Examination  revealed that he died of acute cardiac failure.  Thakkar, J. speaking for the Bench opined that a liberal test must be adopted  in these  matters  designed  to  achieve  the  social   objects underlying the enactment.  He upheld the claim.      On  the  other hand, the learned  Additional  Solicitor General  appearing  for  the  corporation  relied  upon  the decisions  in Regional Director E.S.I. Corporation,  Trichur v. K. Krishnan, (1975) Kerala Law Times 712 rendered by  the Division  Bench  comprising  Balakrishna  Eradi  and  George Vadakkel, JJ. and Commissioners for the Port of Calcutta  v. Mst.  Kaniz  Fatema,  A.I.R. 1961  Vol.48  Calcutta  310,  a decision  of  the  Division Bench  of  Calcutta  High  Court Comprising  S.. Lahiri, CJ. and R.S. Bachawat, J.   In  both these cases the accident occurred on a public road while the employee  was  going to or returning from the place  of  his work.  It was held that it cannot be said that the  accident has arisen out of and in the course of employment.      At  this  stage,  a  brief reference  to  some  of  the decisions  rendered  in U.K. may be in order.  Most  of  the reported  decisions are those where the accident took  place either  on the premises of the employer or while  travelling by  or on a vehicle provided/arranged by the  employer.   In Gane  v.  Norton  Hill Colliery Co., (1909) 2  K.B.  539  an employee  working  in  a  Colliery left  his  work  and  was proceeding  by a route which crossed certain  railway  lines belonging  to and under the control of his employer.   While trying  to cross a railway line he met with an accident  and was  seriously  injured.   The workman could  have  gone  by another  safer route but since that was longer,  he  adopted the shorter one which was indeed used by all the workmen who lived in the same direction as the injured employee.  It was found  that  the  said  shorter  route  was  used  with  the knowledge  and consent of the employer.  On these facts  the Court  of  Appeal found that the accident must  be  said  to arise  out  of and in the course of  employment  within  the meaning   of   the   Workmen’s   Compensation   Act,   1906. Practically                                                        67 same  are  the  facts  in John Steward  and  Son  (1912)  v. Longhurst, (1917) Appeal Cases  249.  A carpenter,  employed in repairing  a barge lying in dock, was returning after the work was over.  It was a dark night.  While proceeding along the  quay, he fell into the sea and drowned.  The  employees had leave to pass through the dock on their way to and  from the barge.  It was held by the House of Lords that  inasmuch as the man was on the dock premises solely by virtue of  his contract  of  service the accident arose out of and  in  the course  of  employment. Again in Howells  v.  Great  Western Railway, (1928) 97 L.J.K.B. 183, a dock labourer employed to load  cargo into a steamer took a shorter route  instead  of taking  the  specified  route.  The specified  route  was  a longer  one.   All the workers used to  follow  the  shorter route  to  the knowledge of the  Company  officials.   While going  by the shorter route, the employee was  knocked  down and  killed.   The  Court  of Appeal  held  that  since  the accident took place on the premises of the employer and also because  he  was going by the accustomed route,  though  not permitted, the accident must be said to arise out and in the course   of  employment.   In  Cremins  v.  Guest,  Keen   &

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Nettlefolds  Limited,  (1908) 1K.B. 469  the  accident  took place on a platform under the exclusive use of the employer. A  train was provided by the employer for  transporting  the workers  free of charge.  In the circumstances, it was  held by  the Court of Appeals that it was an implied term of  the contract of service that the colliers should have the  right to  travel  by train, to and fro, without  charge.   In  the circumstances, it was held that the employer was liable.  In Weaver  v.  Tredegar  Iron & Coal Co.  Ltd.,  (1940)  3  All England  Law  Reports 157, the House of Lords  reviewed  the entire case law and held that where the accident took  place on  a platform owned by the Railway Company with  which  the employer  had an arrangement for transporting the  employees and  the accident took place on such platform, the  accident must  be said to have arisen out of and in the course of his employment.   Lord  Porter observed that the  exigencies  of service,  the practice obtaining therein and the  nature  of service  must all be looked into to ascertain the  scope  of duty and employment.  In Hill v. Buterley Co. Ltd., (1948) 1 All England Law Reports 233, the accident took place on  the property  of  the employer.  The Court of  Appeal  held  the employer liable.      We may now refer to cases where the accident took place on  a  public  road  while the  employee  was  going  to  or returning from the place of work.  In other words, in  these cases,  the accident did not take place on the  premises  of the employer or while travelling by a vehicle/carriage owned                                                        68 or  provided by the employer.  In Alderman v. Great  Western Railway  Company, (1937) Appeal Cases 454, the employee  was living  at  Oxford.  The place of his duty  was  at  another place  called  Swansea.  He had a lodging at  Swansea  also. While going to duty from his Swansea lodging, he met with an accident.   It  was  held by the House  of  Lords  that  the employer is not responsible.  The test evolved in this  case was - was the employee subject to control of the employer at the time of accident ? If not, it was held, he was like  any other member of public.  In Netherton v. Coles, (1945) 1 All England  Law  Reports  227 the workman  was  employed  by  a building  contractor. He had to work at the place  specified by  the employer.  He was provided a  travelling  allowance. Travelling  allowance was a condition of his  service.   The employee was returning from the workplace  on a  motorcycle. The  accident took place on the road.  The Court  of  Appeal said that the employer was not responsible.  The reason  for this  holding  is that the journeys of the workman  did  not form  part of his service since he was at  liberty,  outside the  working  hours, to choose his own time  and  method  of transport  to  and  from his actual work  and  the  accident happened after completion of his work.  In Jenkins v.  Elder Dempster Lines Ltd., (1953) 2 All England Law Reports  1133, the  deceased was employed on a ship.  The ship  was  moored against a mole.  The deceased had gone out and was returning to  the ship.  It was a dark night.  While on the  mole,  he slipped and fell into the sea.  He drowned.  It was held  by the  Court  of Appeals that the accident cannot be  said  to have arisen out of and in the course of his employment.  The test applied by the Court of Appeals is "was the workman  at the relevant time acting within the scope of his  employment ?"      A situation which is now covered by Section 51-D of the E.S.I Act, arose in Blee v. London and North Eastern Railway Company,  (1938)  Appeal  Cases   126.   By   the  terms  of employment,  the employee was bound to attend  to  emergency calls  outside his duty hours.  For this extra work  he  was

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paid  from the moment he left his house and till he  reached back.   He  was called on such an emergency duty  and  while going  there he was knocked down by a vehicle and died.   It was  held that the accident must be said to have arisen  out of and in the course of his employment.      From  the above decisions, it emerges clearly that  any injury  suffered  by an insured employee as a result  of  an accident  occurring  on a public road (or a  public  place), even  while  going  to  or  returning  from  the  place   of employment cannot be treated as an employment injury.   Once it is found                                                        69 that  the accident took place on a public road,  it  becomes immaterial  whether  that place is one mile or  one  furlong away  from  the  workplace.  Of   course,  if  the  employee suffers  an injury while travelling, whether voluntarily  or as  a  condition  of service, by  a  transport  provided  or arranged  by the employer it will be an  employment  injury. Similarly,  if the accident takes place on the  premises  of the  employer, if will be treated as one arising out of  and in  the course of employment.  It is, however, necessary  to clarify  that  if  an  employee  suffers  an  injury   while travelling by a public transport or while proceeding along a public road in the course of performance of his duties e.g., medical  representatives, linesmen employed  by  Electricity and Telephone undertakings, repair and maintenance personnel employed  to go to the residential and other places,  (where the  units/gadgets are installed), to attend to them and  so on.      I  do  not propose to set out the  relevant  principles exhaustively.   It is neither possible nor desirable.  I  am only stating certain principles keeping in mind the facts of the  case before us.  In view of these principles, I  am  of the opinion that the respondent employee herein cannot claim any disablement benefit under the E.S.I. Act of the injuries suffered by him.      The appeal has to succeed and is hereby allowed.                            ORDER      In  view of difference of opinion Registry is  directed to  post  the appeal before the Bench of  three  Judges  for deciding the matter. T.N.A.                      Matter referred to Larger Bench.                                                        70