Accident after performing duty &returning back to home
Querist :
Anonymous
(Querist) 19 January 2012
This query is : Resolved
Sir
A was returning from place of duty to his home .An unknown vehicle dashed behind and was killed on spot.
Qn is:
Can employer be liable & be sued ,since, employer paid him transport charges for not providing him transport means? If yes. any Supreme Court ruling?
His heir does not want to sue unknown vehicle owner.
M/s. Y-not legal services
(Expert) 19 January 2012
by humanity they may paid any thing..
even you cant file a mcop also., just you can lodge a poice compliant under hit and ran case.. but who will be as accused?
due to this reason you cant file mcop.
-tom-
Raj Kumar Makkad
(Expert) 19 January 2012
If an company employee while reporting duty or leaving from the duty he met with an Road accident (out side) and injured seriously or death in case weather company is liable to pay any compensation?
Its sole answer is yes. The relevant citation follows.
Raj Kumar Makkad
(Expert) 19 January 2012
Equivalent Citation: 1996ACJ1281, AIR1997SC432, [1996(74)FLR2326], (1997)2GLR1336, JT1996(8)SC118,
1996(2)KLT799(SC), 1996LablC2720, (1997)ILLJ34SC, (1997)2MLJ70(SC), 1996(0)MPLJ1093, 1996(6)SCALE473,
(1996)6SCC1, [1996]Supp5SCR797, 1997(1)SLJ1(SC)
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1174 of 1979
Decided On: 11.09.1996
Appellants:Regional Director, E.S.I. Corporation and another
Vs.
Respondent: Francis De Costa and another
Hon'ble Judges: A.M. Ahmadi, C.J.I., S.C. Sen and Mrs. Sujata V. Manohar, JJ.
Counsels:
For Appellants: V.V. Vaze, Sr. Adv., Ms. Suvira Lal (Chava Badri Nath Babu) Adv., for
C.V.S. Rao
For Respondents: Romy Chacko and N. Sudhakaran, Advs.
Subject: Labour and Industrial
Acts/Rules/Orders:
Employees' State Insurance Act, 1948 - Sections 2(8) and 51; Workmen's
Compensation Act, 1923 - Section 3(1); Employees' Life Insurance (Amendment) Act,
1966
Cases Referred:
Regina v. National Insurance Commissioner, Ex Parte, Michael, (1977) 1 WLR 109,
(1977) 2 All ER 420; O'Keeffe Deputy Commissioner v. Smith, Minchman & Grylls
Associates Inc. et. al., (1965) 13 Law Ed 2d 895, 380 US 359; J.J. O'Leary, Deputy
Commissioner Fourteenth Compensation District v. Brown-Pacific-Maxon, Inc. et. al.,
(1950) 95 Law Ed 483, 340 US 504; Dover Navigation Co. Ltd. v. Isabella Craig, 1940
AC 190, (1939) 4 All ER 558, 162 LT 223; South Maitland Railways Pty. Ltd. v. James,
67 CLR 496; Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, AIR 1958 SC 881;
General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes, (1964) 3 SCR 930,
(AIR 1964 SC 193); Sadgunaben Amrutlal v. Employees' State Insurance Corporation,
Ahmedabad, 1981 Lab IC 1653; Bhagubai v. Central Railway, Bombay, (1954) 2 Lab LJ
403, (AIR 1955 Bombay 105)
Cases Overruled / Reversed:
Sadunaben Amrutal v ESI Corp 1981 Lab IC
Case Note:
Labour and Industrial – disablement benefit - Sections 2 (8) and 51 of Employees'
State Insurance Act, 1948, Section 3 (1) of Workmen's Compensation Act, 1923
and Employee's Life Insurance (Amendment) Act, 1966 – whether injury suffered
by 1st respondent amount to 'employment injury' under Section 2 (8) so as to get
1
disablement benefit – in order to succeed employee has to prove following viz. –
there was accident – accident had causal connection with employment – and
accident suffered in course of employment - in facts of case employee was unable
to prove that accident had any causal connection with work he was doing at
factory and not suffered in course of employment – held, employee not suffered
from 'employment injury' and therefore bot entitled to disablement benefit.
HELD See paras 21, 25, 26, 27 and 29.
ORDER
Sen, J.
1. Francis DC Cosla, the first respondent herein, met with an accident on June 26,1971
while he was on his way to his place of employ-men!, a factory at Koralty. The accident
occurred at a place which was about one kilometer away to the north of the factory. The
time of occurrence was 4- 15p.m. It has been stated that the duty-shift of the respondent
would have commenced at 4-30 p.m. The respondent was going to his place of work on
bicycle. He was hit by a lorry belonging to his employers, M/s. J and P Coals (P) Ltd.
2. The respondent's collar-bone was fractured as a result of the accident and he had (o
remain in hospital for 12 days. His claim for disablement benefit was allowed by the
Employees' State Insurance Court. The appeal filed against that order was dismissed by
the Kerala High Court which also dismissed an application for a certificate of fitness
toappea! to the Supreme Court. The petitioner filed an application for Special Leave to
appeal to this Court on 16-4-1979. Special leave was given by this Court, but the
Employees' State insurance Corporation was directed to pay the first respondent the
compensation due to him in terms of the order of the Employees' State Insurance Court
and also the costs of this appeal in any event. It has been stated that the compensation
money has already been paid to the first respondent.
3. Since there was difference of opinion between the two Judges who heard the appeal,
the matter was directed to be placed before a larger Bench for deciding the controversy.
4. In order to appreciate the scope of the controversy, it will be necessary to set out the
relevant provisions of the Employees' State Insurance Act, 1948 :---
"2(8). "employment injury" means a personal injury to an employee
caused by accident or an occupational disease arising out of and in the
course of his employment, being an insurable employment, whether the
accident occurs or the occupational disease is contracted within or
outside the territorial limits of India;
............................................................................
51. Disablement benefit.'-- Subject to the provisions of this Act -
(a) a person who sustains temporary disablement for not
less than three days (excluding the day of accident), shall
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be entitled to periodical payment at such rates and for
such period and subject to such conditions as may be
prescribed by the Central Government;
(b) a person who sustains permanent disablement,
whether total or partial, shall be entitled to periodical
payment at such rates and for such period and subject to
such conditions as may be prescribed by the Central
Government.
................................................................................
51-C. Accidents happening while travelling in employer's transport. -- (1)
An accident happening while an insured person is, wiih 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 arrangement
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."
5. That the first respondent has suffered a personal injury is not in dispute. The only
dispute is whether the injury will amount to "employment injury" within the meaning of S.
2(8), so as to enable the respondent to claim benefit under the Act. The definition given
to "employment injury" in sub-section (8) of S. 2 envisages a personal injury to an
employee caused by an accident or an occupational disease "arising out of and in the
course of his employment". Therefore, the employ v. in order to succeed in this case, will
have to prove that the injury that he had suffered arose out of and was in the course of
his employment. Both the conditions will have to be fulfilled before he could claim any
benefit under the Act. It does not appear that the injury suffered by the employee in the
instant case arose in any way out of his employment. The injury was sustained while the
employee was on his way to the factory where he was employed. The accident took
place one kilometer away from the place of employment. Unless it can be said that his
employment-began as soon as he sets out for the factory from his home, it cannot be
said that the injury was caused by an accident "arising out of ............ his employment". A
road accident may happen anywhere at any time. But such accident cannot be said to
have arisen out of employment, unless it can be shown that the employee was doing
something incidental to his employment.
6. In our judgment, by using the words "arising out of........... his employment", the
Legislature gave a restrictive meaning to "employment injury". The injury must be of
such an extent as can be attributed to an accident or an occupational disease arising out
of his employment. "Out of", in this context, must mean caused by employment. Of
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course, the phrase "out of" has an exclusive meaning also. If a man is described to be
out of his employment, it means he is without a job. The other meaning of the phrase
"out of" is "influenced, inspired, or caused by; out of pity; out of respect for him".
(Webster Comprehensive Dictionary-International Edition-1984). In the context of S.
2(8), the words "out of indicate that the injury must be caused by an accident which had
its origin in the employment. A mere road accident, while an employee is on his way to
his place of employment cannot be said to have its origin in his employment in the
factory. The phrase "out of the employment" was construed in the case of South
Maitland Railways Ply. Ltd.v. James, 67 CLR 496, where construing the phrase "out of
the employment", Starke, J., held "the words'out of require that the injury had its origin in
the employment".
7. Unless an employee can establish that the injury was caused or had its origin in the
employment, he cannot succeed in a claim based on S. 2(8) of the Act. The words
"accident............ arising out of.......... his employment" indicate that any accident which
occurred while going to the place of employment or for the purpose of employment,
cannot be said to have arisen out of his employment. There is no causal connection
between the accident and the employment.
8. The other words of limitation in sub-section (8) of S. 2 is "in the course of his
employment". The dictionary meaning of "in the course of" is "during (in the course of
time, as time goes by), while doing" (The Concise Oxford Dictionary, New Scvcnlh
Hdition). 'the dictionary meaning indicates that the accident must take place within or
during the period of employment. If the employee's work shift begins at 4-30 p.m., any
ace i dent before that lime w i II not be "in the cou rsc of his employment". The journey to
the factory may have been undertaken for working at the factory at 4-30 p.m. But this
journey was certainly not in course of employment. II "employment" begins from the
moment the employee sets out from his house for the factory, then even if me employee
stumbles and falls down at the door-step of his house, the accident will have to be
treated as to have taken place in the course of his employment. This interpretation leads
to absurdity and has to be avoided.
9. We were referred to a number of cases on this point. In the ease of Kegina v. National
Insurance Commissioner, Ex Parte, Michael, (1977) 1 Weekly Law Reports 109, the
Court of Appeal in England had to construe a phrase "caused by accident arising out of
and in the course of his employment" in S.5(I) of the National Insurance (Industrial
Injuries) Act, 1965. Lord Denning M.K. started his judgment with the observation:--
"So we come back, once again, to those all too familiar words 'arising out
of and in the course of h is employ men t'. They ha vc been worth - -to law
-yers-- a King's ransom. The reason is because, although so simple, they
have to be applied to facts which vary infinitely. Quite often the primary
facts are not in dispute; or they are proved beyond question. But the
inference from them is matter of law. And matters of law can be taken
higher. In the old days they went up to the House of Lords. Nowadays
they have to be determined, not by the Courts, but by the the rarehy of
tribu nal s set up under the National Insurance Acts."
10. Under the Employees' State Insurance Act, 1948, a tribunal has been set up to
decide, mfff alia, any claim for recovery of a benefit admissible in this Act. A reference
lies to the High Court on a question of law. In other words, the decision of the Insurance
Court set up under the statute is final and binding, so far as the findings of fact arc
concerned. But if any error of law has been committed, the Courts arc expected to
correct it and to give guidance to the lnsurance Court.
11. Construing the meaning of the phrase "in the course of his employment", it was
noted by Lord Denning that the meaning of the phrase had gradually been widened over
the last 30 years to include doing something which was reasonably incidental to the
4
employee's employment. The test of "reasonably incidental" was applied in a large
number of English decisions. But, Lord Denning pointed out that in all those cases the
workman was at the premises where he or she worked and was injured while on a visit
to the canteen or other place for a break. Lord Denning, however, cautioned that the
words "reasonably incidental" should be read in that context and should be limited to me
cases of that kind. Lord Denning observed : --
"Take a case where a man is going to or from His place of work on his
own bicycle, or in his own car. He might be said to be doing something
"rcasonably incidental" to his employ ment. But if he has an accident on
the way, it is wel1 settled that it does not "arise out of and in the course of
his employment". Even if his employer provides the transport, .so that he
is going to work as a passenger in his employer's vehicle (which is surely
"reasonably incidental" to his employment), nevertheless, if he is injured
in an accident, it docs not arise out of and in the course of his
employment. It needed a special "deeming" provision in a statute to make
it "deemed" to arise out of and in the course of his employment."
12. This is precisely the case before us. Here also, we have a case of a person going
from his home to his place of work. But he suffers injury in an accident on the way. It
cannot be said that the accident arose out of and in the course of his employment. It was
faintly suggested by Mr. Chacko appearing on behalf of the respondent, that the bicycle
was bought by taking a loan from the employer. That, however, is of no relevance. He
might have borrored money from his company or from somewhere else for purchasing
the bicycle. But the fact remains that the bicycle belonged to him and not the employer.
If he meets with an accident while riding his own bicycle on the way to his place of work,
it cannot be said that the accident was reasonably incidental to the employment and was
in the course of his employment. The deeming provision of S. 51 C, which came into
force by way of an amendment effected by Employees' Life Insurance (Amendment) Act
of 1966 (Act No. 44 of 1966), enlarged the scope of the phrase "in llic course of
employment" to include travelling as a passenger by the employer's vehicle to or from
the place of work. The legal fiction contained in S. 51-C, however, does not eome into
play in Ihis case because the employee was noi travelling as a passenger in any vehicle
owned or operated by or on behalf of the employer or by some olhcr person in
pursuance of an arrangement made by tine employer.
13. Tlic meaning of the words "in the course of his employment" appearing in S. 3(1) of
Workmen's Compensation Act, 1923, was examined by this Court in the case of
Saurashtra Sail Manufacturing Co. v. Bai Valu Raja, MANU/SC/0166/1958. There, the
appellant, a salt manufacturing company, employed workmen both temporary and
permanent. The sail works was silualed near a creek opposite to the town of Porbandar.
The salt works could be reached by at least two ways from the town, one an over- land
route nearly 6 lo 7 miles long and the other via a creek which had to be crossed by a
boal. In the evening of 12-6-1952, a boat carrying some of the workmen, capsized due io
bad weather and over-loading. As a result of this, some of the workmen were drowned.
One of the questions that came up for consideration was whether the accident had taken
place in the course of the employment of the workers. S.Jafer Imam, J., speaking for the
Court, held "As a rule, the employment of a workman does not commence until he has
reached the place of employment and does not continue when lie has left the place of
employment the journey to and from the place of employment being excluded." After
laying down the principle broadly, S. Jafer Imam, J., went on to observe that there might
be some reasonable extension in both time and place to this principle. A workman might
be regarded as in the course of his employment even though he had not reached or had
left his employer's premises in some special cases. The facts and circumstances of each
case would have to be examined very carefully in order to determine whether the
5
accident arose out of and in the course of the employment of a work man, keeping in
view at all times this theory of notional ex tension. But, examining the facis of the case,
in particular, after noticing the fact that the workman used a boal, which was also used
as public ferry for which they had to pay the boatman's dues, S. Jafer Imam, J.,
observed (til p. 883);--
"It is well settled that when a workman is on a public road or a public
place or on a public transport he is there as any other member of the
public and is not there in the course of his employ-men] unless the very
nature of his employmenl makes il necessary for him to be there. A
workman is not in the course of his employment from the moment he
leaves his home and is on his way to his work. He certainly is in the
course of his employmenl if he reaches the place of work or a point or an
area which comes within the theory of notional extension, outside of
which the employer is not liable to pay compensation for any accident
happening to him. In the present case, even if it be assumed that the
theory of notional extension exiends up to point D, the theory cannot be
exlcnded beyond it. The moment a workman left point B in a boat or lefl
point A but had not yel 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 iwo 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 cross-irig the creck 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."
14. The point raised before us can be answered on the basis of the principle laid down in
the aforesaid two cases. But Mr. Chacko, appearing on behalf of the respondent has
contended that proximity of time and place is a factor lobe borne in mind. The employee
was to report for duty at 4-30 p.m. The accident took place at 4-15 p.m. only one
kilometer away from the factory. In our view, this cannol be a ground for departing from
the principle laid down by the aforementioned cases that the employment of the
workman does not commence until he has reached the place of employment. What
happens before that is not in course of employmenl. It was also pointed out by Lord
Denning in the aforesaid case of Regina v. National Insurance Commissioner, Bx. Parte,
Michael (1977 (1) Wl.R 109} (supra) that the exiension of the meaning of the phrase "in
the course of his employment" has taken place in some cases but in all those eases, the
workman was at the premises where he or she worked and was injured while on a visit
to the canteen or some other place for a break. The test of what was "reasonably
incidental" to employment, may be extended even to cases while an employee is sent on
an errand by the employer outside the factory premises. But in such cases, it must be
shown that he was doing something incidental to his employment. There may also be
cases where an employee has to go out of his workplace in the usual course of his
employment. I_aiham,C.J. in South Mailland Railways Proprietary Limited v. James, 67
CLR 496, observed that when the workmen on a hot day in course of their employment
hail to go for a short time to get some cool water to drink to enable them to continue to
work without which they could not have otherwise continued, they were in such cases
doing something in the course of their employment when they went out for water. But the
ease before us does not fall within the exceptions mentioned by Lord Denning or
Latharn, C. i. The case squarely comes within the proposition of law propounded by S.
Jafer Imam, J.
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15. Strong reliance was placed by Shri Chacko on a decision of this Court in General
Manager, B.B.S.T. Undertaking, Bombay v. Mrs. Agnes, MANU/SC/0162/1963. In this
case, one bus driver of the appellant-Corporation after finishing the day's work left for
home in a bus belonging to employer's Undertaking which met with an accident as a
result of which he died. His widow claimed compensation under the Workmen's
Compensation Act and the question was whether the accident had arisen out of and in
course of employment. It was held by Subba Rao and Mudholkar, JJ. (Raghubar Dayal,
J. dissenting) that the bus driver was given facility by the management to travel in any
bus belonging to the Undertaking. It was given because efficiency of the service
demanded it. Therefore, the right of the bus driver to travel in the bus was to discharge
his duly punctually and efficiently. This was a condition of service and there was an
obligation to travel in the said buses as a pan of his duly. It was held that in the case of a
factory, the premises of an employer was a limited one but in the case of a City
Transport Service, the entire fleet of buses forming the service would be "premises".
This decision in our view, does nut come to the assistance of the employee's case. An
employee of a transport undertaking was travelling in a vehicle provided by the
employer. Having regard to the purpose for which he was travelling and also having
regard to the obligation on the part of the employee to travel in the said buses as a part
of his duty, the Court came to the conclusion that this journey was in the course of his
employment because the entire fleet of buses formed the premises within which he
worked.
16. Rut in the case before us, the facts are entirely different. The employee was not
obliged to travel in any particular way under the terms of employment nor can it be said
that he was travelling in a transport provided by the employer.
17. In the case of Sadgunaben Amrutlal v. Employees' Stale Insurance Corporation,
Ahmedabad, 1981 Lab 1C 1653, it was held by the Division Bench of the Gujaral High
Court that though as a rule, employment of a workman did not commence until he
reached the place of employment and did not continue after he has left the place of
employment, the proposition was subject to the theory o'f notional extension of the
employer's premises. The notional extension theory could not be related to the place of
employment only. It could also be taken recourse to in order to extend the time in a
reasonable manner. The Court took the view in the case, where an employee on his way
to the factory died of acute cardiac arrest, that it was caused by accident arising out of
and in the course of employment. The employee was employed as a jobber in the
Wrapping Department of the mill. He worked in the premises from 8 a.m. to 4-30 p.m.
On December 22, 1974, while he was on duly in the Mill, he felt unwell. He took medical
treatment on the next day (December 23, 1974) which was an off-day for him. On
December 24, 1974, he left his residence at about 7-20 a.m. i.e. 40 minutes before the
reporting time. He walked a short distance from his house to the nearest bus stop and
was wailing for a bus to take him to the Mill. While waiting for the bus, he felt unwell. He
complained to an ex-employee of the Mill who was also wailing to board the bus that it
was due to the excessive and strenuous nature of work which he was required to do at
the Mill that he was feeling unwell. When the bus arrived, Amrul Lal, the employee was
about to step into the bus when he collapsed and became unconscious. He was taken to
an hospital where he was pronounced dead. The post-mortem revealed that he died of
cardiac failure. Both the Employees' Insurance Court and the single Judge of the High
Court held that the employee had not died as a result of an accident in the course of
employment. On appeal, the Division Bench held that both the Employees' Insurance
Court and the single Judge were inerror in holding that the death was not in course of
employment.
18. It is doubtful whether this decision can be reconciled with the principle laid down by
S. Jafer Imam, J. in the case of Saurashtra Sail Manufacturing Co-
MANU/SC/0166/1958, li is also to be noted that the death was not caused by an
'accident'. The death was due to acute cardiac failure. The causal connection between
7
the death and employment had not been established. Moreover, walking to the bus stop
from the employee's residence and boarding the bus for going to the place of work
cannot be acts in course of employ-ment.
19. Tn the case of Bhagubai v. Central Railway, Bombay, f 1954) 2 Lab LJ 403 : (AIR
1955 Bombay 105), a Division Bench of Bombay High Court deail with a case where a
workman on his way to work was murdered. There was no evidence to show that the
murder was due to any motive against the deceased- workman. It was held that the
death took place because of an accident arising out of employment. Chagla, C.J.
emphasised that there must be a causa! connection between the accident and the death
before it could be said that the accident arose out of employment of the concerned
workman. In that case, the deceased was employed by Central Railway at Kurla Station
and he lived in the railway quarters adjoining the staiion. It was found as a fact that the
only access for the deceased from his quarters to the Kurla Railway Station was through
the compound of the railway quarters. On December 20, 1952, the deceased left his
quarters a few minutes before midnight in order to join duly. While on his way, he was
stabbed by some unknown persons. It is not disputed by the railway company that the
deceased died as a result of an accident nor was it disputed that the accident arose in
the course of his employment. The dispute was limited to the question whether the
accident arose out of the employment of the deceased.
20. It is of significance that the deceased used to live in the railway quarters adjoining
the railway station and the compound through which he had to go to the place of work
belonged to the railway company. In other words, he died on the premises belonging to
the railways. It was found as a fact that the stabbing which led to the death was not due
to any personal enmity. That means it was an occupational hazard of the employee who
went to join work at midnight from the railway quarters to the railway station through the
railway compound. The facts of the case before us are quite dissimilar to the facts on the
basis of which the case of Bhagubai (AIR 1955 Bombay 105) (supra) was decided.
21. We were also referred to two American decisions. The first case is J. J. O'Lcary,
Deputy Commissioner Fourteenth Compensation District etc. v. Brown-Pacific-Maxon,
Inc., el. al. (1950) 95 L ed 483. In this case, an employee of a Government contractor
was at a recreation center maintained by his employer near an ocean shore along which
ran a channel so dangerous for swimmers that its use was forbidden and signs to that
effect erected. On perceiving that two men standing on a reef beyond the channel were
signalling for help, he undertook, with others, to swim the channel, and was drowned.
The Administrative Tribunal found that the employee's death arose "out of and in the
course of his employment". Six members of the U.S. Supreme Court concurred with the
opinion of Frankfurter, J. that the administrative decision was supported by "substantial
evidence" and, therefore, was beyond the scope of permissible judicial review. Minton,
J., with whom Jackson and Burton, JJ. agreed was of the opinion that the administrative
finding was without any evidence.
22. This case really is an authority on the scope and extent of power of judicial review of
an administrative order. The important fact which was noted in that case was that the
deceased along with oiner employees had discovered that third persons who were in
danger were in a recreation area maintained by his employer for the benefit of the
employees. This finding was held to be based on substantial evidence. Frankfurter. J.
observed that "We do not mean that the evidence compel led this inference; we do not
suggest that when the Deputy Commissioner had decided against the claim, the Court
had been justified in disturbing his conclusions. We hold only that on this record, the
decision of the District Court that the award should not he set aside should be
sustained". In other words. Frankfurter, J. was of the view that from the evidence on
record, either of the two conclusions could have been drawn. It is well-settled that the
Court will not disturb a finding of an Administrative Tribunal merely because it could
have taken a contrary view had it heard the case on evidence, when the view taken by
the Tribunal is also a plausible view.
8
23. The other American decision is in the case of O'Keeffe, Deputy Commissioner v.
Smith, Minchman & Gry Us Associates, Inc.,et.al.( 1965) 13 L ed 2d 895. In that case, a
private engineering concern's employee hired to work in South Korea on a 365-day basis
was drowned while boating on a South Korean lake. The Deputy Workmen's
Compensation Commissioner determined that the employee's death arose out of and in
course of employment so as to entitle his widow and minor child to death benefits. The
decision being challenged by a writ, a panel of the Court of Appeals for the Fifth Circuit
reversed the award. The Supreme Court held that there was no scope for reviewing the
decision of the Deputy Commissioner. The Court of Appeals erred in summarily
reversing the judgment. It was observed that "while this Court may not have reached the
same conclusion as the Deputy Commissioner, it cannot be said that his holding that the
decedent's death, in a zone of danger, arose out of and in the course of his employment
is irrational or without substantial evidence on the record as a whole."
24. Here again, the U.S. Supreme Court declined to intervene with the decision reached
by the Deputy Commissioner on evidence and reversed the decision of the Conn of
Appeal for doing what it should not have done by adopting what appeared to the Court to
be a better view.
25. We fail to understand how these two American decisions which really dealt with the
scope and extent of judicial review of a decision based essentially on finding of fact can
come to the aid of the employee in this case.
26. It has to be borne in mind that this is not a case of judicial review. The Employees'
State Insurance Act, 1948 provides for reference to the High Court by the statutory
Courts set up under the Act, any question of law arising out of its decision (Section 81).
There is also a provision for appeal in certain cases on a substantial question of law (S.
82).
27. We are of the view that in the facts of this case, it cannot be said that the injury
suffered by the workman one kilometer away from the factory while he was on his way to
the factory was caused by an accident arising out of and in the course of his
employment.
28. In the case of Dover Navigation Company Limited v. Isabella Craig, 1940 AC 190, it
was observed by Lord Wright that -
"Nothing could be simpler than the words "arising out of and in the course
of employment." It is clear that there are two conditions to be fulfilled.
What arises "in the course of the employment is to be distinguished from
what arises "out of the employment." The former words relate to time
conditioned by reference to the man's service, the latter to causality, Not
every accident which occurs to a man during the time when he is on his
employment, that is directly or indirectly engaged on what he is employed
to do, gives a claim to compensation unless it also arises out of the
employment. Hence the section imports a distinction which it does not
define. The language is simple and unqualified."
29. Although the facts of this case are quite dissimilar, the principles laid down in this
case, are instructive and should be borne in mind. In order to succeed, it has to be
proved by the employee that (I) there was an accident, (2) the accident had a causal
connection with the employment, and (3) the accident must have been suffered in
course of employment. In the facts of this case, we arc of the view that the employee
was unable to prove that the accident had any causal connection with the work he was
doing at the factory and in any event, it was not suffered in the course of employment.
30. The appeal, therefore, succeeds. The judgment dated 25-11-1977 passed by the
High Court is set aside. However, in terms of the order passed by this Court on 16-4-
1979, the appellants will have to bear the costs of this appeal in any event. The costs
are assessed at Rs. 3,000/- and will be paid by the appellant to the first respondent
9
within a period of four weeks from date. The first respondent will also be entitled to re
tain the money paid to him by the Regional Director, Rmployces' State Insurance
Corporation pursuant to the order of this Court passed on 16-4-1979.
31. Appeal allowed.
10
V R SHROFF
(Expert) 19 January 2012
""arising out of and in the course
of employment."
If employee meet with accident, incapable to perform his duty due to accident while is travelling from his ordinary place of residence, home, to go to his job/ factory, or returning to his home, , it covers the liability of employer to pay for.
It is established law.
certain time limit [ i think 1 hr] is also incorporated,
prabhakar singh
(Expert) 22 January 2012
Going To And Coming From Work:........
This is commonly called the going and coming rule. The general rule is that cases are not compensable if the employee is going to work or coming home from work. OF COURSE THERE ARE EXCEPTIONS TO THIS GENERAL RULE.
If the employer is providing a vehicle or is paying for the transportation in some way, the case may be compensable. Moreover, if a person goes directly to a job site or is going from job site to job site, the claim may be entertained depending on circumstances.
IT IS VERY VERY DEPENDENT ON SEVERAL CIRCUMSTANCES OF A PARTICULAR CASE THAT NO DEFINITE OPINION CAN BE FROMED FROM FACTS AVAILABLE.
