E S I C Vs. FRANCIS DE COSTA

JUDGEMENT

(1.) THE application of the doctrine of notional extension of employment arises for consideration in this case. this is an appeal against the decision of the Industrial Tribunal, Calicut in an application under Section 75 of the Employees State Insurance Act. The applicant before the Employees' Insurance Court, Calicut, which is the first respondent in this appeal, was employed with M/s. J. and P. Coats (P) Limited, Koratty, the second respondent in the appeal and he is an insured employee. While proceeding to the factory from his house for reporting for duty on 26-6-1971, he met with an accident at about 4-15 p. m. The accident took place at about 1 kilometre to the north of the factory. The applicant was riding a bicycle at that time and he was hit by a lorry belonging to the employer. As a result of the accident his collar bone was fractured and he sustained other injuries. He was under treatment till 6-7-1971. The worker was totally and permanently incapacitated for work in the factory using his left upper limb and it was so certified by the Insurance Medical Officer after treatment. This, according to the applicant, is an employment injury and he brought this to the notice of the Regional Director, Employees' State Insurance Corporation, the appellant here. The case that it was an employment injury was disputed and thereupon the petition was moved by the worker for a declaration that he had suffered a permanent disablement Injury which was an employment injury and consequently for grant of such benefits as are due to him under law. Since the accident took place outside the factory premises and that before the working hours commenced and further since it was at a place 1 kilometre away from the factory it was contended by the Employees State Insurance Corporation that the injury cannot be characterised as an employment injury and the applicant was entitled only to the sickness benefit for the whole period, which he got from the Corporation. The Management M/s. J. and P. Coats also appeared and contended that the injury was not one suffered as a result of employment. The Employees' Insurance Court found that the applicant met with the accident in the course of employment and so he is entitled to get the benefits contemplated under the provisions of the Act. The Employees' State Insurance Corporation was called upon to decide the amount payable under law in the circumstances of the case. It is this decision of the Court that is challenged in this appeal by the Regional Director, Employees' State Insurance Corporation, Trichur.

(2.) THE circumstances under which the employee met with the injury are not disputed. These are stated in the order under appeal thus : It is not disputed that on the particular day he was due to report for duty at 4. 30 P. M. The accident was caused at about 4. 15 P. M. He was on his way from his house to the factory. Nobody has a case that this is not a usual route through which he has to go and report for work at the factory. It has also come out in evidence that the management has paid necessary amount as advance to purchase a cycle to facilitate the speedy transport to the factory. . . . In this case the worker was to report for duty at 4. 30 P. M. The company has given the necessary amount to purchase a cycle to facilitate his prompt arrival and speedy departure from the factory premises. No case that the injury was sustained while he was taking a different route. The worker's case is that he was using the usual route to reach the factory from his house. Nobody disputed this. Nobody accuses of him of negligence while riding the cycle. It has to be stated that he was going to the factory at 4. 15 P. M. and he was to report at 4. 30 P. M. for duty and there is nothing contrary to prove that he was on leave or was likely to be absent in the factory. These circumstances would show that he met with an accident while in the course of employment and so, he is. entitled to get the benefits contemplated under the provisions of the Employees' State Insurance Act.

(3.) THE question, therefore, is whether in these circumstances it could be said that the employee sustained injury in the course of his employment and that if arose out of his employment. Whatever might have been the view once held as to the scope of the term " arising out of" and " in the course of employment", it is settled law that even when the employee is outside the premises of the place where he is to work and an injury is caused to him such injury could be an employment injury. A Division Bench of this Court in the decision reported in Regional Director, E. S. I. Corporation, Trichur v. K. Krishnan (1975) K. L. T. 712, had occasion to consider this question. The Division Bench was considering a case of a worker who sustained an accident while returning from the factory to his residence after having completed his work in the shift between 5 P. M. and 2 A. M. While the worker was walking along the trunk road on his way to his residence from the factory he was knocked down by a motor car as a result of which he sustained a fracture in his right arm. The accident took place at a place far away from the factory premises. Under such circumstances the worker claimed disablement benefit from the Employees' State Insurance Corporation. This was disputed. The Employees' Insurance Court took the view that since the workman had to be on the trunk road at that particular time, 2. 35 A. M. , because of the fact that his working hours in the factory had to come to an end at 2 A. M. there was a relationship between the accident and the employment. The Employees' State Insurance Corporation challenged the legality and the correctness of this decision. It is in this context that reference was made by the Division Bench to the earlier decision of the Division Bench of this Court in A. S. No. 65 of 1973. In that case one of us speaking for the Bench had observed thus : While it may be said that in the case of an employee who meets with an accident while travelling in a transport provided by the employer as a facility to and from the work spot the employer is liable under the Workmen's Compensation Act it cannot be said that a person who is merely walking to the place of occupation meeting with an accident is suffering such accident in the course of his employment. That is because every member of the public walks along the road and in the case of an employee also he walks only as a member of the public. The theory of notional extension of employment does not extend to coverage in regard to such a situation. We need not examine the question any further for the case is covered by the decision in Saurashtra Salt Manufacturing Co, v. Bat Valu Raja and Ors. A. I. R. 1953 S. C. 881. On the facts of that case the Court found that the worker sustained the injury as a result of the accident met with by him while be was walking along the public road at a place far away from the factory premises and the accident was, for that reason, not an employment injury. It is this decision that is sought to be relied on by appellant's counsel that here too it must be found that the worker having sustained the injury about 1 kilometre away from the factory while riding on his bicycle to the factory he was only exercising his right as any member of the public and it cannot, therefore, be said that the injury is an employment injury.