1. Employee injured by employer's vehicle on public road while commuting to work — Claim for employment injury under Section 2(8), Employees' State Insurance Act. (Para 1 , 47 , 48 , 49 , 55 )
Back
Next 
1992 Supreme(SC) 385
SUPREME COURT OF INDIA
B.P.Jeevan Reddy : K.Ramaswamy
Regional Director, Employees State Insurance Corporation
Versus
Francis De Costa
Case No. : 1174 of 1979
Date of Decision : 5/5/92
Advocates Appeared: Katiyar Anil : Rao C.V.Subba : Sharma T.C. : Sudhakaran N. : Tulsi K.T.S.
Advocates:
ANIL KATIYAR, C.V.SUBBA RAO, K.T.S.Tulsi, N.SUDHAKARAN, T.C.SHARMA
ANIL KATIYAR, C.V.SUBBA RAO, K.T.S.Tulsi, N.SUDHAKARAN, T.C.SHARMA
The judgment addresses whether commuting accidents on public roads constitute 'employment injuries,' weighing the 'notional extension' theory of employer premises against the 'going and coming' rule within the framework of social security legislation.
Headnote:(A) Employees' State Insurance Act, 1948 - Sections 2(8), 51-A, and 51-C - Definition of "employment injury" - Interpretation of "arising out of" and "in the course of" employment - Social security legislation requires a broad interpretation to promote socio-economic justice and protect the health and disablement benefits of workers (Paras 5, 56). The phrase "arising out of employment" requires a causal connection between the employment and the accident, which may be direct, physical, approximate, indirect, or incidental (Para 7).
(B) Theory of Notional Extension - The general rule that employment does not commence until the workman reaches the place of employment and ends when he leaves is subject to the theory of notional extension. This allows the employer's premises to include an area which the workman passes and repasses in going to and leaving the actual place of work, providing reasonable extension in both time and place (Paras 12, 57).
(C) Going and Coming Rule - Generally, an employee travelling from their residence to a regular place of work is not acting in the course of employment. However, exceptions exist where the employee is obliged by contract to use employer-provided transport, is travelling between workplaces, or is attending an emergency (Paras 30, 70).
Facts of the case:
An insured employee was riding a bicycle on the accustomed route to report for duty. Approximately one kilometer from the factory and fifteen minutes before the reporting time, he was struck by a vehicle owned by the employer. The accident resulted in severe injuries, leading to a certification of total and permanent incapacitation for work in the factory.
Findings of Court:
There was a divergence of opinion between the judges. One judge found that the accident occurred during the course of employment, citing the proximity of time and place, the use of the accustomed route, and the fact that the employer's vehicle caused the injury. The other judge found that since the accident occurred on a public road and the employee was not using employer-provided transport or acting under the employer's control, it did not constitute an employment injury.
Issues: Whether an accident occurring on a public road, shortly before the reporting time and at a short distance from the workplace, constitutes an "employment injury" arising out of and in the course of employment under the Act.
Ratio Decidendi: The court was split on the application of the "notional extension" theory versus the "going and coming" rule. One reasoning emphasized the welfare nature of the legislation and the incidental nature of the commute to the duty. The opposing reasoning held that the risk encountered on a public road is a common risk shared by the general public and does not establish a sufficient causal link to employment unless specific statutory or contractual conditions are met.
Result: In view of difference of opinion Registry is directed to post the appeal before the bench of three Judges for deciding the matter.
Legal Category Hierarchy
Table of Contents
2. Whether an accident on a public road during commute constitutes an employment injury arising out of and in the course of employment under the ESI Act. (Para 3 , 48 , 55 )
3. Analysis of notional extension theory, social security objectives, and the distinction between public risks and employment-related risks during commuting. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 )
4. Determination of employment injury depends on whether the accident occurred within the notional extension of employment or during a specific duty. (Para 42 , 70 )
5. Appeal referred to a bench of three judges due to a difference of opinion between the two judges. (Para 73 )
6. What constitutes an employment injury under the Employees' State Insurance Act?
An employment injury is a personal injury to an employee caused by an accident or an occupational disease arising out of and in the course of his insurable employment, regardless of whether the accident occurs within or outside the territorial limits of India. (Para 2 , 51 , 52 )
7. What is the theory of notional extension in the context of employment injuries?
The theory of notional extension expands the employer's premises to include areas a workman passes and repasses while going to and leaving the actual place of work, allowing for reasonable extension in both time and place. (Para 8 , 12 , 33 , 36 , 57 , 58 )
8. Does an accident on a public road during a commute generally qualify as an employment injury?
Generally, employment does not commence until the employee reaches the workplace. However, it may be covered if the employee is using transport provided by the employer, is under a contractual duty to use a specific route, or the accident occurs within a reasonable notional extension. (Para 18 , 19 , 42 , 58 , 59 , 70 )
9. How should the ESI Act be interpreted given its nature as social security legislation?
As a piece of welfare legislation, the Act should be interpreted broadly to promote social and economic justice and protect the health and disability benefits of workers, even if it requires a departure from literal construction. (Para 5 , 6 , 56 )
JUDGMENT
K. RAMASWAMY
(1) THIS appeal, by special leave, arises against the judgment of the Kerala High court in A.S. No. 638 of 1974 dated 25/11/1977. 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 26/06/1971 while he was going on his bicycle to join duty, on the road leading to the factory at a distance of I kilometre the companys 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 Section 75 of the Employees 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.
(2) 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 employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India."
(3) 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 I Kilometre from the factory premises, arises out of and in the course of his employment?
(4) 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 somewhat concrete happening at a definite point of time and an injury or incapacity results from such happening.
(5) 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 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. The State is enjoined under Article 39(c) to protect the health of the workers, under Article 41 to secure sickness and disablement benefits and Article 43 accords decent standard of life. Right to medical and disability benefits are fundamental human rights under Article 25(2 of Universal Declaration of Human Rights and Article 7(b) of International Convention on Economic, Social and Cultural Rights . Right to health, a fundamental human right stands
