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Indian Rare Earths Ltd. Vs. Subaida Beevi - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1981)IILLJ293Ker
AppellantIndian Rare Earths Ltd.
RespondentSubaida Beevi
Cases ReferredVarkeyachan v. Thomman
Excerpt:
.....connotes not only actual work but also any other engagement natural and incidential thereto including 'the course of employment' reasonably extended both as regards work-hours and work-place applying the doctrine of notional extension as regards time and pla.....for returning home therefrom. on 1-4-1977 at 2 p.m. as usual, he started from his residence to his workplace on his bicycle for the 4 p.m. shift but he never reached there. at about 2-30 p.m. he was at a place called pettamukku on the national high way on his way to his workplace. then, a car dashed against him and he sustained serious personal injuries. he was first removed to the general hospital, quilon, and then, therefrom to the medical college hospital, trivandrurn. however, his life could nut be saved. he died in the small hours of april 2, 1977.2. is the accident one which has arisen out of and in the course of his employment is the question that is mooted in this appeal.3. in e.s.i. corporation v. lakshmi 1978 klt. 817 dealing with the question of employees meeting with.....
Judgment:

George Vadakkel, J.

1. The first respondent's husband, Subair Kunju, was a fitter in the employment of the Indian Rare Earths Ltd., Chavera, Quilon-the appellant in this appeal. At the material time he was residing in Adinad South, Carunagappallay-a place 7 or 8 kilometers away from the appellant-company's office and plant. To board a bus he had to walk 3 kilometers from his place to the bus-route, further, the company's office and plant were 2 kilometers away from the nearest bus-stop on the bus route. So he was using a bicycle for going to his work-place and for returning home therefrom. On 1-4-1977 at 2 P.M. as usual, he started from his residence to his workplace on his bicycle for the 4 P.M. shift but he never reached there. At about 2-30 p.m. he was at a place called Pettamukku on the National High Way on his way to his workplace. Then, a car dashed against him and he sustained serious personal injuries. He was first removed to the General Hospital, Quilon, and then, therefrom to the Medical College Hospital, Trivandrurn. However, his life could nut be saved. He died in the small hours of April 2, 1977.

2. Is the accident one which has arisen out of and in the course of his employment is the question that is mooted in this appeal.

3. In E.S.I. Corporation v. Lakshmi 1978 KLT. 817 dealing with the question of employees meeting with accidents in public places one of us on behalf of another Division Bench of this Court said ;

Therefore, when determining the question as to when the workman's employment begins and as to when it ends in cases like the one on hand the consideration is: whether under express or implied conditions of employment governing the parties is it the duty of the employee (understanding the word, duty, in its wider and liberal meaning) to go to his place of work and return therefrom by means of transit provided or arranged for or agreed upon by the employer. This question has to be considered taking note of 'the exigencies of the service, the practice obtaining therein and the nature of the service', and if on such consideration the answer is in the affirmative, then, the workman is in the course of his employment while using the means of transit to and from the place of work.

Earlier in this decision relying on Weaer v. Tredegar Iron and Coal Co. Ltd. [1940] 3 A.E.R. 157 (H.L.) and General Manager B.E.S.T. Undertaking, Bombay v. Mrs. Agnes 1963-II L.L.J. 615, it was pointed out that giving the word 'duty' its liberal meaning the test is whether the employee was at the place where the accident happened at the time it happened 'in virtue of his status as a workman or in virtue of his status as a member of the public'

4. In Chairman, Cochin Dock Labour Board v. T.J. George and Anr. M.F.A. 8 of the 1975, one of the cases discussed and relied on therein, one of us (Poti, J. as he then was) on behalf this same Bench said:

If the obligation to travel by a particular means of transport which may no doubt be available not only to the workman but also to the members of the public may be implied in the circumstances of the case, it may be directly related to the employment. The obligation, as we have said, need not be a legal obligation, on the part of the workman but the circumstances may oblige him to adopt that course.

(emphasis supplied)

5. Did the accident arise in the course of Subair Kunju's employment The argument is that the appellant - company was providing to the employee bus-subsidy at the rate of 70% of the actual to and fro fare, and that, therefore, the accident that happened while the employee was riding a bicycle cannot be said to have occurred in the course of his employment.

6. There appears to have been a settlement arrived at between the company and its employees to the effect, inter alia, that the company will pay to such of the employees already in service and residing 8 kilometers and beyond of its office and plant bus subsidy at 70 of the actual to and fro fare. Though the said settlement is in evidence as Ext. D1, there is no material on record which will go to prove that the same was honoured so far as Subair Kunju was concerned. In view of the settlement as regards payment of bus-subsidy as aforesaid it has to be assumed that it was an implied condition of employment that the company was to provide its employees residing 8 or more kilometers away transport facilities or equivalent thereof to a substantial extent, though not fully. And in the nature of the contention as indicated above, it has to be assumed that Subair Kunju was an employee coming within the ambit of the settlement regarding bus-subsidy. Taking into consideration the fact that Subair Kunju's residence was not on any bus route wherefore he cannot travel the major portioned of his way to his work-place by bus, we are of the view, that this is a case where the exigencies of his employment and circumstances obliged him and the company allowed him to ride a bicycle to reach the workplace, or in other words, it was an implied condition of his employment that he may travel to his work-place from his residence and back home by a bicycle. Hence, at the time the car dashed against him on the public road he was there on the public road in virtue of his status as a workman working under the appellant. Therefore, he was in the course of his employment from the moment he began to ride the bicycle for reaching his work-place for the 4 P. M. Shift.

7. Did the accident arise 'out of his employment?' The test here is: Was it part of the injured person's employment to hazard, suffer or to do that which caused the injury. Lancashire and Yorkshire Railway Co, v. Highley [I917] A.C. 352, M. Mackenzie and Co. v. I.M. Issak 1970-I L.L.J. 16 Varkeyachan v. Thomman 1979-I L.L.J. 373. Therefore, was it part of Subair Kunju's employment to risk his life by being, at the time the accident happened, on the public road where the likelihood of being run over by motor-vehicles is one of the frequent hazards. The answer is: Yes; for he was there 'in the course of his employment' as already found.

8. As stated by Lord Dunedin in Charles R. Davidson and Co. v M'robb or Officer [1918] A.C. 304 (321) 'it is in one sense difficult to imagine that there could be any injury held as arising out of the employment which would not also be in the course of employment'. Whatever that may be and even if it be that one may assume that there may happen personal injury to an employee out of his employment' but which is not one arising 'in the course of his employment', it is impossible to imagine that an injury 'arising in the course of his employment' is not one 'arising' out of his employment.' Borrowing the language of the same Law Lord in the same place:-'But it may well be that the determination of the question whether at the moment of the injury the workman was in the course of his employment may go to solve the question of whether the injury arose out of the employment' (emphasis added). In other words an injury sustained by an employee by an accident arising 'in the course of his employment' is, in all cases without exception, one sustained by him also by reason of his employment and is, therefore, one 'arising out of his employment' though, perhaps, it cannot be said that all injuries caused by accidents 'arising out of employment' are injuries caused by accidents arising in the course of employment'. It is by now well-settled that the expression 'in the course of employment' connotes not only actual work but also any other engagement natural and incidential thereto including 'the course of employment' reasonably extended both as regards work-hours and work-place applying the doctrine of notional extension as regards time and place, as laid down by the several decisions. We were prompted to dilate upon this aspect because the learned Counsel for the appellant argued that even if it be that by applying the theory of notional extension the accident can be said to have arisen in the course of Subair Kunju's employment (he practically conceded that it is so), it cannot be said that it arose out of his employment. This argument proceeds as if both the requirements, 'arising out of employment and 'arising in the course of employment' are always and in all cases exclusive of one another, which is not so, as stated above. The expression 'arising in the course of employment' further limits the scope of the expression 'arising out of' wherefore, while an accident 'arising in the course of employment' is always one 'arising out of the employment', the convers need not always be so and it may be that an accident arising out of one's employment is not an accident arising in the course of his employment.

9. We dismiss this appeal with costs.


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