SUBBA RAO, J.: - (1.) JUDGMENT of K.SUBBA RAO and J. R. Muddholkar JJ. was delivered by
(2.) THIS appeal by special leave raises a short but difficult question of the true construction of s. 3 (1) of the Workmen's Compensation Act (8 of 1923), hereinafter called the Act, and its application to the facts of this case. The Bombay Municipal Corporation, hereinafter called the Corporation, runs a public utility transport service in Greater Bombay and the said transport service is managed by a Committee known as the Bombay Electricity Supply and Transport Committee. The said Committee conducts the transport service in the name of Bombay Electric Supply and Transport Undertaking. The Undertaking owns a number of buses and the Corporation employs a staff, including bus drivers, for conducting the said service. One P. Nanu Raman was one of such bus drivers employed by the corporation. There, are various depots in different parts of the City wherein buses feeding that part are garaged and maintained. A bus driver has to drive a bus allotted to him from morning till evening with necessary intervals, and for that purpose he has to reach the depot concerned early in the morning and go back to his home after his work is finished and the bus is lodged in the depot. The efficiency of the service depends, inter alia, on the facility given to a driver for his journey to and from his house and the depot. Presumably for that reason Rule 19 of the Standing Rules of the Bombay Municipality B.E.S.T. Undertaking permits a specified number of the traffic outdoor staff in uniform to travel standing in a bus without payment of fares. Having regard to the long distances to be covered in a city like Bombay, the statutory right conferred under the rule is conducive to the efficiency of the service. On 20/07/1957, the said Nanu Karnan finished his work for the day at about 7.45 p.m. at jogeshwari bus depot. After leaving the bus in the depot, he boarded another bus in order to go to his residence at Santa Cruz. The said bus collided with a stationary lorry parked at an awkward angle on Ghodbunder Road near Erla Bridge, Andheri. As a result of the said collision, Nanu Raman was thrown out on the road and injured. He was removed to hospital for treatment where he expired on 26/07/1957. The respondent, his widow, filed an application in the court of the Commissioner for Workmen's compensation, Bombay, claiming a sum of Rs. 3,500.00 as compensation by reason of the death of her husband in an accident alleged to have arisen ''out of and in the course of his employment'. To that application the General Manager of the B.E..S.T. Undertaking, Bombay, was made the respondent, and he contended, inter alia, that the accident did not arise 'out of and in the course of the employment' of the deceased. Tile Commissioner dismissed the application accepting the contention of the General Manager of the B.E.S.T. Undertaking. On appeal, the High court of Bombay held that the said accident arose 'out of and in the course of the employment' of the said deceased and, on that finding, passed a decree in favour of the widow for a sum of Rs. 3,500.00 with costs. The General Manager of the B. E. S. T. Undertaking has preferred the present appeal against the order of the High court. Section 3 (1) of the Act reads 'If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.' Mr. Pathak, learned counsel for the appellant, contends that the words 'arising out of and in the course of his employment' are pari materia with those found in the corresponding section of the English statute, that the said words have been authoritatively construed by the House of Lords in more than one decision, that an accident happening to an employee in the course of his transit to his house after he left the precincts of his work would be outside the scope of the said words unless he has an obligation under the terms of the contract of service or otherwise to travel in the vehicle meeting with an accident and that in the present case Nanu Raman finished his work and had no obligation to go in the bus which met with the accident and his position was no better than any other member of the public who travelled by the same bus. On the other hand, Mr. Ganapati lyer, who was appointed amicus curiae, argued that the interpretation sought to be put on the said words by the appellant was too narrow and that the true interpretation is that there should be an intimate relationship between employment and the accident and that in the present case whether there was a contractual obligation on the part of the deceased to travel by that particular bus or not he had a right to do so under the contract and in the circumstances it was also his duty in a wider sense to do as ail incident of his service. As the same words occur in the corresponding English statute, it would be useful to consider a few of the leading decisions relevant to the question raised.
(3.) IN Cremins v. Guest, Keen and Nettlefolds, Ltd. (1), the court of Appeal had to deal with a similar problem. Cremins was a collier in the employment of the company. He, along with other employees, lived at Dowlais, six miles from the colliery. A train composed of carriages belonging to the appellants, but driven by the Great Western Railway Company's men, daily conveyed Cremins and many other colliers from Dowlais to a platform at Bedlinog erected by the appellants on land belonging to the said Railway Company. The platform was repaired and lighted by the appellants, and was under their control. The colliers were the only persons allowed to use the platform, but there was a station open to the public at a short distance. The colliers walked from the platform by a high road to the colliery, which was about a quarter of a mile from the platform. A similar train conveyed the colliers from the platform to Dowlais. The colliers were conveyed fret of charge. Cremins was waiting on the platform to get into the return train, when he was knocked down and was killed by the train. His widow applied for compensation under the workmen's Compensation Act, 1906. Under s. 1 of the Act of 1906 she would be entitled to compensation if the accident arose 'out of and in the course of his employment'. The court of Appeal held that the widow was entitled for compensation. Cozens-Hardy M. R. gave his reason for so holding thus : I base my judgment on the implied term of the contract of service ............'. Elaborating the principle, he said : '......... it was an implied term of the contract of service that these trains should be provided by the employers, and that the colliers should have the right, if not the obligation, to travel to and from without charge.' Fletcher Moulton L. J. in a concurrent judgment said much to the same effect thus : 'It appears to me that the workmen were expected to travel to and from the colliery by the trains and in the carriages provided for them by the employers, and that it was intended by both parties that this should be part of the contract of employment.' Though the accident took place on the platform, this decision accepted the principle. that it was an implied term of the contract of service that the colliers had to travel to and from. the colliery by the trains provided by the employers. IN that case, there was certainly a right in the colliers to use the train, but it is doubtful whether there was a legal duty on them to do so. But the court was prepared to give a popular meaning to the word 'duty' to take in the 'expectation' of user in the particular circumstances of the case. The house of Lords in St. Helens Colliery Company Ltd. v. Hewitson (1), had taken a stricter and legalistic view of the concept of 'duty'. There, a workman employed at the colliery was injured in a railway accident while travelling in a special colliers' train from his work to his home at Maryport. By an agreement between the colliery company and the railway company the latter agreed to provide special trains for the conveyance of the colliery company's workmen to and from the colliery and Maryport, and the colliery company agreed to indemnify the railway company against claims by the workmen in respect of accident, injury or loss while using the trains. Any workmen who desired t, travel by these trains signed an agreement with the railway company releasing them from all claims in case of' accident, and the colliery company then provided him with a pass and charged him a sum representing less than the full amount of the agreed fare, and this sum was deducted week by week from his wages. The House of Lords by a majority held that there being no obligation on the workmen to use the train, the injury did not arise in the course of the employment within the meaning of the Workmen's Compensation Act, 1906. Lord Buckmaster, after citing the passage already extracted by us in Cremins's Case (1),stated, 'I find it difficult, to accept this test' and proceeded to observe : 'The workman was under no control in the present case, nor bound in any way either to use the train or, when he left, to obey directions; though he was where he was in consequence of his employment, I do not think it was in its course that the accident occured ' Lord Atkinson also accepted the said principle, but he made an important observation, at p. 70 . ' 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 learned Lord had conceded that 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. Lord Shaw in a dissent gave a wider meaning to the terms of the section. According to him the expression 'arising out of the employment' applied to the employment as such to its nature, its conditions, its obligations, and its incidents. He added that a man's employment was just as wide as his contract. After noticing the terms of the bargain between the parties, he concluded thus, at p. 86 : 'These arrangements continued for the whole twelve years of service. The company and the man were thus brought into intimate and continual daily relations. The workman secured his access to his work, the company provided the means of transport.' Lord Wrenbury accepted the majority view and laid down the test thus, at p. 92 : 'A useful test in many cases is whether, at the moment of the accident, the employer would have been entitled to give the workman an order, and the man would have owed the duty to obey it.' The learned Lord wag also prepared to imply a term of duty under some circumstances, for he observed : 'And there are cases which would, I suppose be within what are called above the 'incidents' of the employment, in which the journey to and from work may fall within the employment, because by implication, but not by express words, the employer has indicated that route, and the man owes the duty to obey. But the mere fact that the man is going to or coming from his work, although it is a necessary incident of his employment, is not enough.' This decision accepts the principle that there should be a duty or obligation on the part of the employee to avail himself of the means of transit offered by the employer; the said duty may be expressed or implied in the contract of service. The House of Lords again in Alderman v. Great Western Railway Co.(1), considered this question in a different context. There, the applicant, a travelling ticket collector in the employment of the respondent railway company, had, in the course of his duty, to travel from Oxford, where his home was, to Swansea, where he had to stay overnight, returning thence on the following day to Oxford. He had an unfettered right as to how he spent his time at Swansea between signing off and signing on, and he could reach the station by any route or by any method he chose. In proceeding one morning from his lodgings to Swansea station to perform his usual duty, he fell in the street and sustained an injury in respect of which he claimed compensation. The House of Lords held that the applicant was not performing any duty under his contract of service and therefore the accident did not arise in the course of his employment. The reason for the decision is found at p. 462 and it is : "........ when he (the applicant) set out from the house in which he had chosen to lodge in Swansea to go to sign on at the station he was (and had been ever since he had signed off on the previous afternoon) subject to no control and he was for all purposes in the same position as an ordinary member of the public, using the streets in transit to his employer's premises." This case, therefore, applies the principle that 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. This is a, simple case of an employee going to the station as any other member of the public would do, though his object was to sign on at the said station. ;