Arising out of and in the course of employment, and notional extension

1. “Accident” and “personal injury”

The Code does not define accident. The courts take the meaning from Fenton v. Thorley (House of Lords, 1903): an unlooked-for mishap or untoward event which is not expected or designed by the employee. An internal event, such as a heart attack or a rupture brought on by strain, can be an accident. Personal injury includes physical and mental injury, and death.

2. “In the course of employment”

The employee must be doing something he was employed to do, or something reasonably incidental to it, at a time and place where he could reasonably be. Taking food, drinking water, using the latrine or resting during the shift are within the course of employment. So is a reasonable period before and after the shift while entering or leaving the premises. Going off on a frolic of his own, or doing something wholly unconnected with the job, takes him out of it.

3. “Arising out of employment”

The injury must have its origin in a risk incidental to the employment. In Lancashire and Yorkshire Railway v. Highley (House of Lords, 1917) the test was put as: was it part of the injured person's employment to hazard, suffer or do that which caused the injury? A risk common to all members of the public, which the employment did not increase, does not arise out of the employment; a risk that the employment exposed the worker to, more than the public, does.

The burden is on the claimant. In Mackinnon Mackenzie & Co. v. Ibrahim Mahommed Issak, 1969 INSC 181, AIR 1970 SC 1906, a seaman disappeared from his ship at sea. The Court held that the claimant must prove that the accident arose out of employment; the burden may be discharged by reasonable inference from proved facts, but not by surmise or conjecture. On the evidence it was not discharged.

4. Notional extension

Employment does not begin and end exactly at the factory gate. The doctrine of notional extension extends the course of employment to a reasonable area and time around the workplace where the employee is exposed to a risk because of his employment.

• Saurashtra Salt Manufacturing Co. v. Bai Valu Raja (Supreme Court, AIR 1958 SC 881). Salt workers crossing a creek by public ferry on their way to the salt works were drowned when the boat capsized. The Court held that the journey was not in the course of employment. As a rule employment does not commence until the employee reaches the place of work and does not continue after he leaves it; the doctrine of notional extension covers access to and egress from the premises, but a public route used by everyone, on which the employee has no duty to travel, is outside it.
• General Manager, B.E.S.T. Undertaking v. Agnes, 1963 INSC 152, AIR 1964 SC 193. A bus driver of the Bombay undertaking, going home after duty on another of its buses (drivers were entitled to free travel), was killed in an accident. The Court held the accident arose in the course of employment. The right to free travel was given so that drivers could reach their depots and routes quickly; travelling in the undertaking's buses was a necessary incident of the service, and the employment notionally extended to it.
• Regional Director, E.S.I. Corporation v. Francis De Costa, 1992 INSC 148, 1993 Supp (4) SCC 100. An employee was injured on a public road about a kilometre from the factory while cycling to work. Under the ESI Act as it then stood, the injury was held not to arise out of employment: the journey to work, on a public road, had no causal connection with the employment.

5. The new commuting rule

The Code now overrides the result in Saurashtra Salt and Francis De Costa by statute. Section 74(4) (for compensation) and section 34(3) (for ESI) provide that an accident to an employee while commuting from his residence to the place of employment for duty, or from the place of employment to his residence after performing duty, is deemed to arise out of and in the course of employment if nexus between the circumstances, time and place in which the accident occurred and his employment is established. The ESI Act had a similar provision from 2010 (s.51E); the EC Act had none.

The condition of nexus keeps the old reasoning alive in part. A worker knocked down on his usual route home just after his shift will succeed. A worker who leaves work, spends the evening at a cinema and is hurt on his way home at midnight will not, because the time and circumstances have lost their link with the employment.

For ESI, section 34 contains further deeming rules [ESI Act ss.51A to 51D]: an accident in the course of employment is presumed to arise out of it unless the contrary is shown (s.34(1)); an accident while rescuing persons or protecting property in an emergency on the premises is deemed to arise out of employment (s.34(2)); and travel as a passenger in a vehicle provided by the employer, not a public transport service, is covered even if the employee had no obligation to use it (s.34(4)). Section 35 covers acts in breach of law or orders done for the employer's business, in the same terms as section 74(2).

6. Heart attacks and strain

A heart attack at the workplace is not by itself an injury arising out of employment. The claimant must show that the work contributed to it, by unusual strain, stress or exertion.

• Jyothi Ademma v. Plant Engineer, Nellore, 2006 INSC 413, (2006) 5 SCC 513 — an employee died of a heart attack while at work. With no evidence that his work involved strain that caused or hastened the death, the claim failed. Being at work at the time is not enough; there must be a causal connection.
• Mallikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co., 2009 INSC 168, (2009) 13 SCC 405 — the same principle; the onus to prove causal connection with the employment lies on the claimant.
• Param Pal Singh v. National Insurance Co., 2012 INSC 621, (2013) 3 SCC 409 — a truck driver on a long-distance run fell ill and died. The Court held there was a causal connection: continuous long-distance driving necessarily involves strain and stress, and the death was linked to the employment.

7. Other recurring situations

• Assault or murder at work. If the assault arose from the work (a watchman attacked by thieves, a cashier robbed) it arises out of employment. If it arose from a private quarrel that followed the employee to work, it does not.
• Natural forces. Lightning, heat-stroke or snakebite arise out of employment only if the work exposed the employee to the risk more than the general public (a worker on an open hill-top or in a cane field).
• Prohibited acts. Doing the employer's work in a forbidden way remains within the employment (s.74(2)); doing something outside the sphere of employment does not.

8. Problem

X works the day shift in a textile mill that ends at 6 p.m. At 6.20 p.m., cycling home by his usual road, he is knocked down by a lorry and loses a leg. The mill denies liability, relying on Francis De Costa.

Issue. Whether an accident on the way home after duty arises out of and in the course of employment.

Law. Under the old law, Saurashtra Salt and Francis De Costa held a journey on a public road outside notional extension. Section 74(4) (and section 34(3) for an ESI-covered mill) now deems an accident while commuting from the place of employment to the residence after duty to arise out of and in the course of employment, if nexus of circumstances, time and place with the employment is established.

Application. X was on his usual route, twenty minutes after his shift, going straight home. Time, place and circumstance all connect the journey to his employment. The mill's reliance on Francis De Costa fails because that case was decided under a provision that did not contain the deeming rule.

Conclusion. X's injury is deemed an employment injury. If the mill is covered by ESI he claims disablement benefit from the Corporation; if not, compensation from the mill under section 76 (the loss of a leg is assessed under the Fourth Schedule, and following K. Janardhan it may amount to total loss of earning capacity for a manual worker who can no longer do his job).

How this is examined

This is the most problem-friendly topic in Unit I. Expect “Explain ‘arising out of’ and ‘in the course of’ employment with the help of decided cases” and “Write a note on the doctrine of notional extension”, and problems on the journey home, heart attacks and assaults. Always separate the two tests, cite Saurashtra Salt and Agnes for notional extension, and finish with section 74(4) so that the examiner sees you know the law changed in 2025.