1. This appeal against the judgment of Basheer Ahmed Sayeed J. arises under the Workmen's Compensation Act.
The respondent filed an application before the Commissioner for Workmen's Compensation claiming a compensation of Rs. 2106 on the following allegations, namely, that he was a workman employed by one V. Ramaswami Naidu, a contractor, in the month of November 1946, and that he received a personal Injury by accident, arising out of, and in the course of, his employment.
The cause of the injury was the capsizing of the lorry belonging to the contractor and driven by his driver when the said lorry was conveying the respondent and his fellow workmen to the workspot. The injury sustained by the respondent was the breaking of his left arm, which resulted eventually in the loss of his left arm.
The said Ramaswami Naidu, the employer, died soon after the filing of the application, and the reply statement was filed by his three sons as his legal representatives. They denied that the respondent was a workman within the meaning of that term as defined in the Act, and further denied that the injury was sustained in the course of his employment under their father.
The Additional Commissioner for Workmen's Compensation made an enquiry and passed an order directing the legal representatives of the employer to pay the respondent compensation in a sum of Rs. 2016. Against this order they filed an appeal to this Court under Section 30 of the Act. That appeal was dismissed by Basheer Ahmed Sayeed J. and this appeal under the Letters Patent is against his judgment.
2. Learned counsel for the appellants, the legal representatives of the employer, pressed before us the two main pleas mentioned above. His first contention was that the respondent was not a workman.
In so far as it is material for this appeal, the definition of 'workman' in Section 2(1)(n) of the Act is as follows:
' 'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is..... employed on monthly wages not exceeding rupees four hundred, in any such capacity as is specified in schedule II.'
Schedule II contains a list of persons who are included in the definition of workmen. Among them are persons who are 'employed in the construction, repair, or demolition of any road, bridge or tunnel' (Clause viii (c)).
3. The following facts appear to be beyond dispute. The appellant's father was a contractor for the formation of a road. The respondent was employed as a cooly maistri under him on Rs. 2-8-0 per day. The respondent brought four coolies with him, and along with them was engaged in breaking stones. The respondent was being paid a lump sum of money every fortnight. He was a regular and continuous worker and not a casual labourer. On these facts, the Commissioner was right in holding that the respondent was a workman within the meaning of the Act. Basheer Ahmed Sayeed J. was also of the same view.
4. The next contention certainly requires greater consideration. The facts relevant for this are those set out by Basheer Ahmed Sayeed J.:
'The appellants have been contractors for the formation of roads under the Government in the District of Coimbatore. The workspot is somewhere near the village called Siruvani, but the workmen were being transported from another village which was nearly seven miles away from the workspot. Every day a lorry of the appellants used to go to the village, where the workmen were coming from, take them in the lorry and drop them at the work-spot, and in the evening after the work was over, the lorry would carry the workmen back to the village.'
It was on one such trip from the village to the workspot that the lorry capsized and the respondent suffered the injury.
The following statements of the respondent inhis deposition may be taken as beyond dispute:
'The workspot was 7 miles from Semmattu. Weused to go by the contractor's lorry from myresidence. It used to come at 7 or 8 a.m. toEruttupallam a spot near my village and fromthere the lorry will take us to the workspot.This was done every morning. Every evening,the lorry used to take us back to our housesat Eruttupallam. The driver was paid by thecontractor. About 60 or 70 workmen of thecontractor used to get in the lorry and go tothe workspot. If the lorry does not come onany day, we cannot go to the workspot. Wealso paid for petrol charges, anna one per head.There was no other transport available then.To foot the distance will cause undue delay.'
On these facts, the Commissioner held that theaccident did arise out of, and in the course of,his employment. He reached this conclusion onfollowing reading: It was clear from the evidencethat there was no other conveyance by which allthe workers could reach their workspot except bylorry. The lorry was provided and used as theonly conveyance to the wokspot for all the workersworking under the contractor. The lorry belongedto the contractor.
The legal principle which was applied was that when a workman was using the means of transport in the discharge of his contractual duty owed to his employer either by reason of express or implied directions given by the employer or by reason of proved necessity to use the provided means of transport as being the only means for passing to and from his place of work, he will have to be treated as on duty. As in this case the evidence was clear that there was no means of conveyance to and from the workspot other than the lorry provided by the employer, the Commissioner held that the accident must be deemed to have occurred out of, and in the course of, the employment.
5. Before the learned Judge, Basheer Ahmed Sayeed J., the legal principle was more fully discussed with reference to authorities, but he also came to the same conclusion as that arrived at by the Commissioner. The contention on behalf of the appellants is that the learned Judge had not properly applied the correct test as laid down by leading decisions of the House of Lords in England.
6. It may be taken as well established that for the purposes of Workmen's compensation, a man's employment does not in general begin until he has reached the place where he is to work and does not continue after he has left it. As Finlay L. J. said in -- 'Netherton v. Coles', 1945 1 All ER 227 (A):
'Travelling to and from work is 'prima facie' not within the course of the employment.'
Willis states the rule thus in his Workmen's Compensation, 36th Edition, page 24:
'As a general rule a man's employment does not begin until he has reached the place where he has to work, or the ambit, scope or scene of his duty, and it does not continue after he has left it, and the periods of going and returning are generally excluded.'
The question how far this rule does not apply when a workman uses a means of transport belonging to or provided by the employer to and from the work has been the subject of controversy, on which there was a difference of judicial opinion In England. But it has been generally assumed that the decision of the House of Lords in -- 'St. Helens Colliery Co. Ltd. v. Hewitson', 1924 AC 59 (B) has finally decided the test to be applied in cases where the workman sustains an accident in coming to or leaving the place of his employment.
In that case, a workman employed at a colliery was injured in a railway accident while travelling in a special colliers' train from his work to his home. By an agreement between the colliery company and the railway company, the latter agreed to provide special trains for the conveyance of the colliery workmen to and from the colliery and the place of the residence of the workmen. The colliery company provided each workman with a pass and charged him with a sum representing less than the full amount of the agreed fare, and this sum was deducted from the weekly wages.
It was held by the House of Lords that the injury did not arise in the course of employment within the meaning of the Workmen's Compensation Act, 1906. The County Court Judge found as a fact that it was an implied term of the contract of service that the trains should be provided by the employers and that the miners should have the right, if not the obligation, to travel to and fro. He also thought that it was obligatory on a workman who lives six miles away and who had to be at his work at 5-45 a.m. to use the train if he wished to continue in the employer's service. He, therefore, thought that in law the employment began when the man entered the train and ceased when he left it.
The House of Lords, by a majority, decided that there being no obligation on the workman to use the train, the injury did not arise in the course of employment. Lord Buckmaster understood the finding of the County Court Judge to imply that while the workman had undoubtedly the right to travel by the train he was not directed to travel by such a train and had he found it convenient or desirable he could have travelled by other means. The noble Lord found himself unable to construe the words 'in the course of the employment' as to include in their operation the right of travelling by train which the workman was under no obligation and no proved necessity to use.
Lord Atkinson observed thus:
'If each collier was bound by his contract to travel to his employer's colliery by this provided train, then 'cadit quaestio'. The collier would be In the course of his employment when he was doing a thing he was bound by his contract of service to do. But the conferring upon a collier of a privilege which he is free to avail himself of or not, would, 'prima facie', impose no duty whatever upon him to use it.'
In special circumstances, however, such an obligation might be implied.
'It must, however, be borne in mind that if the physical features of the locality be such that the means of transit offered by the employer are the only means of transit available to transport the workman to his work, there may, in the workman's contract of service, be implied a term that there was an obligation on the employer to provide such means and a reciprocal obligation on the workman to avail himself of them.'
The case of -- 'Richards v. Morris', 1915 1 KB 221 (C) was an illustration of this principle. In that, case, a workman was employed on an island at yearly wages & board and lodging, and it was part of his contract of service that he should be allowed at reasonable times to cross to the mainland to visit his wife and be taken across in his employer's boat for that purpose. He met with an accident whilst in the boat on his way home from the effect of which he died.
It was held by the Court of Appeal that the accident arose out of, and as well as in the course of his employment. It appeared from the evidence that the employer's boat was the only one on the Island, and the boat was taken out simply for the purpose of taking him across. It was in these circumstances that it was so held.
6a. Lord Atkinson formulated the test thus in the Hewison case:
'A workman is acting in the course of his employment when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service.'
The noble Lord reviewed the evidence in the case and summed up the result of the evidence thus: 'In my view the evidence in this case does not establish that the colliery company was bound to provide these trains for their workmen to carry them to their work in the colliery. Nor that the workmen were on their side bound to travel to their work by those trains; nor yet that there were no other means reasonably available by which they could travel to their work.'
The conclusion drawn by him from the evidence was that the workmen in travelling to or from the colliery in the trains were not discharging any duty to their employers which their contracts of service bound them to discharge.
7. The decision of the House of Lords has been taken to have laid down the law on the point. In -- 'Taylor v. McAlpine and Sons & Southern Rly. Co.', (1924) 130 LT 793 (D), Sir Ernest Pollock M. R. says, referring to the case,
'In that case it has been clearly explained and laid down that where it is no part of the duty of the workman as a part of his contract with the employer to use the facilities provided for his transport, where there is no obligation or duty on the part of the workman, it cannot be charged as against the employer that what happened at the time when the workman was making use of facilities afforded to him that the employer is responsible for an injury incurred by the workman during the use of those facilities but before the actual employment) began.'
Warrington L. J. developed the test of obligation on the part of the workman to use the facility afforded by the employer in the following telling manner:
'More than that, supposing the workman had not made use of the train but gone to workin some other way the employer could not evenhave recovered nominal damages as for breachof contract..... Supposing he picked up amotor car, the chauffeur of which was a friendof his, and he said 'Let me run you downthere', would he have broken an obligation withthe employers? Clearly not.'
In -- 'Newton v. Guest, Keen & Nettlefolds Ltd.',(1926) 135 LT 386 (E), the question was againdiscussed by the House of Lords. The appellantthere was employed by the respondents as acolliery labourer. The colliery was 31 miles fromhis home on a mountain 1240 feet high, and theroad to it was an exposed mountain road. Thefirst shift at the colliery was at 7 a.m. and therespondents, to enable them to form so early ashift, provided trains by which the miners couldtravel to the colliery. The appellant joined thetrain about 5-80 a.m. at the platform, and to doso had to cross the line, and whilst doing so,was knocked down by a light engine and receivedInjuries resulting in the amputation of his leftleg.
The County Court Judge found that the only practicable and reasonable means for the miners to get to and from their work was by the trains so provided, and therefore the accident arose out of and in the course of the employment. But the House of Lords, affirming the Court of Appeal, held that there was no evidence upon which it could be found that it was part of the workman's contract that he should use the train whenever he went or from the mine or that it was his duty to use the means of access so provided for him.
Lord Cave L. C. remarked that if on any occasion the workman had declined to travel by the train, it was impossible to say that he would have been committing a breach of his contract. Lord Sumner pointed out that if on a brilliant moonlight morning in winter some young fellows chose to walk or bicycle to their work, they would not have been held to be guilty of breach of contract. Lord Phillimore put it thus:
'It may be that the colliery owners are bound by the terms of that agreement to provide this train, that they have contracted to provide this train, but it does not follow that, if they have, the miners have contracted to avail themselves of It, and I do not think they ever did. I do not think it was the duty of any single miner to use this train unless it suited his purpose.'
In -- 'Weaver v. Tredeger Iron & Coal Co., Ltd.', 1940 AC 955 (F), a full discussion is found of all the authorities on the point.
In that case, a collier was injured when trying to board a train. The train was owned by a railway company, but the platform was situated by the side of a railway line which ran through the colliery premises, and was accessible from the colliery premises only. The employees of the colliery used it under an arrangement between their employers and the company whereby specified trains were stopped at the platform to take the men to and from their homes at a reduced fare, which was deducted by the employers from the men's wages. The men were free to go home, by means of the main road which ran past the colliery, but in practice nearly every employee used the railway.
It was held by the House of Lords that as the workman was making use of facilities provided by his employers for leaving the place of employment, which he had not left at the time of the accident, and as the duty to leave the employment in a permitted manner had not been completed, the accident arose in the course of and out of the employment, and he was entitled to compensation.
The test as laid down in -- '1924 AC 59 (B)' was again reiterated, and on the facts of the case it was held that the workman had not actually left the employment when the accident occurred. It is sufficient for the purpose of this case to refer to the following commentary of Lord Wright on -- '1924 AC 59 (B)'. Referring to the argument in that case, the noble Lord said:
'He was on his way home on a public conveyance. He had no greater right to claim that his employment was continuing than if he had been bicycling home on the public street when the accident happened. The fact that the colliery had arranged with the railway company to provide a special train for the men did not extend the course of the employment, as it would have done if the men were bound by their contract of employment to use the train, or, it may be, if there was no other possible way for the men to get to and from their home, or from or to the colliery, as was the case in -- '1915 1 KB 221 (C).'
Though Viscount Maugham dissented from the majority in the application of the rule in -- '1924 AC 59 (B)' to the facts before them, he was in general agreement with the principle laid down therein.
Referring to the latter case in -- '(1926) 135 LT 386 (E)' he summed up the position therein in the following words:
'.....the Court of Appeal and this House decided on the authority of 1924 AC 59 (B) that there was no duty or proved necessity for the applicant to travel to his work by the train provided, -and that the accident, therefore, did not arise out of and in the course of his employment.'
Learned counsel for the appellants referred us to the decision of the Patna High Court in --'Becharam Mallik v. Khas Joyrampur Colliery', : AIR1940Pat599 (G). In that case, a workman employed at a colliery was injured in an accident while travelling in a motor omnibus provided by his employers. It was found that though there was an implied agreement that the colliery should provide omnibuses for the miners to take them to and from their homes, there was no obligation on the part of the miners to travel by the omnibus provided and they were free to go to the colliery to work by whatever means they chose. It appeared, however, that the motor omnibus provided by the colliery was the only reasonable and feasible means of transport available to the worker.
It was held that the workman was not injured as a result of an accident arising in the course of his employment and was therefore not entitled to compensation. The learned Judges followed the rule laid down in -- '1924 AC 59 (B)' and -- (1926) 135 LT 386 (E)':
'If the workman was under no obligation to use the lorry but could use it or not as he felt inclined, then he was under no obligation to his employer to use the conveyance and, therefore, he could not be said to be acting in the course of his employment when he was injured.'
There can be no doubt that the correct rule is that laid down by the House of Lords in --'1924 AC 59 (B)', a rule which has been affirmed in subsequent decisions of the House of Lords.
8. The question still remains whether and as to what extent the rule applies to the facts of the present case.
On this point, we cannot lightly set aside the findings of the Commissioner and the learned Judge of this Court who heard the appeal, based as they are on the evidence on record. The Commissioner found that not only was the lorry provided by the employer the most reasonable and feasible means of transport, but also that there was no other means of conveyance to and from the workspot being a hilly tract. P. W. 1 stated: 'If the lorry does not come on any day, we cannot go to the workspot.' Basheer Ahmed Sayeed J, was of the same view.
On this concurrent finding, we are of opinion that the present case falls within the scope of the- exception to the general rule laid down in -- '1924 AC 59 (B)', namely, that in the circumstances it may be implied that there was an obligation on the part of the employer to provide the transport, and there was equally an obligation on the part of the workman to make use of the transport which was not merely the only reasonable means but also the only means of going to the workspot. The case will be more or less analogous to the case of -- '1915 1 KB 221 (C)'.
9. In this view, we agree with the learned Judge and the Commissioner for workmen's Compensation and dismiss the appeal with costs.