G. Balagangadharan Nair, J.
1. In this appeal under Section 82(2) of the Employees' State Insurance Act (called hereunder merely as the Act) the Employees' State Insurance Corporation (which I will call the Corporation) challenges an order of the Employees' State Insurance Court giving: the respondent, a declaration that her husband Abdul Rahiman died of injuries caused by an accident arising out of and in the course of his employment and that she is, there fore, entitled to the benefits under the Act. The brief facts are the following; Abdul Rahiman was an insured employee of the Indian Rare Earths Ltd., (for brief the company). He used to go to the company for work in public transport vehicle (bus) as authorised by the company. As the company had provided no vehicles it used to pay the employees travelling by buses for going to and from the company, a subsidy of 70% of the bus fare. On 23-3-1972 Abdul Rahiman was proceeding in a bus for reporting for work at 8 A.M. in the company and on the way at 7-45 A.M. the bus met with an accident on the public road not far away from the company. Abdul Rahiman struck his head on a telephone post and sustained injuries and although rushed to the District Hospital, Ernakulam he died the same day while under treatment. The respondent's claim for benefits were denied by the corporation and thereupon she made the application before the Court. The corporation maintained the denial contending that the injuries by which Abdul Rahiman died were not employment injuries and he was, therefore, disentitled to any benefit. This plea was, rejected by the Court which allowed the application,
2. The facts are not in dispute and the only point for determination is whether Abdul Rahiman died out of 'an employment injury' which will sustain the respondent's claim to the dependant benefits conferred by the Act. Section 51C of the Act does not come into play for the case does not satisfy the cumulative conditions enacted therein--the vehicle was not being operated by or on behalf of the Company or by some other person pursuant to any arrangement with the company. It is, however, clear and there is no dispute that Section 51C is not exhaustive of the employment injuries from accidents while travelling and that a claim for benefits is sustainable if it satisfies the requirements of Section 2(8) which defines 'employment injury.' Section 46 of which Clause (d) of Sub-section (1) is relevant to the present case also points the same way. Section 2(8), omitting immaterial words defines 'employment injury' as meaning a personal injury to an employee caused by an accident arising out of and in the course of his employment. No decision on this sub-section was placed before me, but counsel quoted two cases on Section 3(1) of the Workmen's Compensation Act, which employs similar words the appellant quoting Saurashtra Salt Manufacturing Co. v. Bai Valu Raja and Ors. : (1958)IILLJ249SC and the respondent quoting B.E.S.T Undertaking, Bombay v. Agnes : (1963)IILLJ615SC and each side distinguishing the other case as inapplicable. In the former case the Supreme Court held on the evidence that the theory of notional extension of service did not extend in time and place to the point where the deceased workman met with the fatal accident and that the injury was not, therefore, caused by the accident arising out of and in the course of their employment. In the course of the judgment, however, their Lordships observed:
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 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. 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 extension.
Although on facts, the case is distinguish able, the above principles have also to be borne in mind in the present case.
3. Passing to the other case the following relevant principles can be gathered from what is laid down and the several English cases discussed therein:
(i) A term of obligation on the part of the employee to avail himself of a particular means of transit could be implied having regard to the peculiar circumstances of a case.
(ii) If the employee at the time of the accident occupies the same position as an ordinary member of the public, it cannot be said that the accident occurred in the course of his employment, in other words such an inference is permissible only if the employee was at the place where the accident occurred in virtue of his status as an employee end not in virtue of his status as a member of the public.
(iii) Where the employer provides a means of transit it is the duty of the employee to go to the work spot and leave it by those means. The exigencies of the service, the practice obtaining therein and the nature of the service would be the guiding factors to ascertain the scope of the duty.
(iv) The question when does an employment begin and when it does cease depends upon the facts of each case. But Courts have agreed that the employment does not necessarily end when the 'down tool' signal is given or when the employee leaves the actual workshop where he is working. There is a notional extension of both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. An employment may and or may begin not only when the employee begins to work or leaves his tools but also when he uses the means of access and agrees to and from the place of employment. A contractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of the field of employment to the course of the said transport. Though at the beginning the word 'duty' has been strictly construed, the later decisions have liberalised this concept. A theoretical option to take an alternative route may not detract from such a duty, if the accepted one is of proved necessity or practical compulsion.
(v) Where having regard to the long distance which an employee has to traverse to go to his place of work from his house and vice versa, the employer provides free transport in the interest of the service, the user of the said means of transport is a proved necessity giving rise to an implied obligation on his part to travel in the said transport as part of his duty. There he is not exercising the right as a member of the public, but only as one belonging to a service.
(vi) Though the doctrine of reasonable or notional extension of employment developed in the context of specific workshops, factories or harbours, equally applies to a bus service, the doctrine necessarily will have to be adopted to meet its peculiar requirements.
4. The facts in both the above cases were different from the present one but the principles laid down in them particularly in the latter are helpful. In Saurashtra Salt Manufacturing Co. v. Bai Valu Raju and Ors. : (1958)IILLJ249SC . while recognizing the doctrine of notional extension of the service, the Supreme Court held, on the facts that the employees were outside that extension when they met with the accident. In B.E.S.T. undertaking Bombay v. Agnes : (1963)IILLJ615SC , the facts are nearer to our case although not similar. The B.E.S.T. Undertaking, Bombay had by Rule 19 permitted its drivers to travel while in uniforms, standing in its buses. The deceased in the case, was one such driver and while travelling in the appellant's bus on his way home was involved in an accident. He sustained fatal injuries in the accident and as a result of them died six days later. His widow thereupon filed an application for compensation under the Workmen's Compensation Act and the question arose whether he died 'out of and in the course of the employment.' The majority judgment of the Supreme Court held affirming the decision of the High Court of Bombay that he died in that manner. After referring to : (1958)IILLJ249SC and on a review of several English cases under the Workmen's Compensation Act and the conditions of service of the appellant's drivers and the arrangements made by the appellant for the travel of its drivers the majority judgment, from which I have glanced the principles set out earlier, held that the user of the bus was a proved necessity giving rise to an implied obligation on the part of the deceased, driver to travel in the bus as part of his duty and that he was not then exercising the right of a member of the public but of one belonging to a service.
5. On the principles laid down by the Supreme Court I am inclined to hold that the respondent is entitled to the dependant benefits. The company had not provided or arranged for the free trans port of its employees to its premises or back to their houses after work. But it had come very near to such a situation by paying the employees a, subsidy of 70% of their bus fare. The bus fare was paid solely with the object that they should travel by bus so as to be able to report for work at 8 A.M. or to return home without delay. The evidence further shows that the company had authorised the employees to come by the bus. In the evidence and circumstances I think that a term of obligation could be implied to avail himself of the means of transit and that Abdul Rahiman was in the bus not as a member of the public but in his status as an employee of the company and that the theory of notional extension could consistent with the liberal construction which the concept of 'duty' has received in recent years, as is disclosed by : (1963)IILLJ615SC , be safely extended to cover the transit by the deceased in the fatal bus. He was not expected to arrive on feet--that theory is negatived by the payment of the subsidy--and the time of the accident, 7.45 A.M. points that he was going straight to the company to be there at 8 A.M. In my view. the use of this bus is a proved necessity and gives rise to an implied obligation on his part to travel in the said bus as part of his duty. I hold that Abdul Rahiman died of injuries caused by the accident arising out and in the course of his employment.
6. I dismiss the appeal with costs.