1976 PLP 218 (PLC)

2. Wali Muhammad, deceased was in the employment of the appellant working at Manora. On 2-1-1973 at lunch break the deceased proceeded to Keamari in the launch of the appellant to take lunch. When the launch reached the shore the deceased got down from the launch and while climbing the stair case provided at the boat-basin he fell down in the sea and subsequently died. The respondent, widow of the deceased, claimed the compensation and filed an application before the Commissioner. The claim was resisted on the ground that the accident did not arise out of and in the course of employment. Issues were framed and evidence was recorded. A few authorities were quoted by both the parties. On considera tion of the authorities the Commissioner held that the accident arose in the course of and out of employment and, therefore, the appellant was liable to pay compensation. Aggrieved by this, the present appeal had been filed.

3. It is an admitted position that the deceased was in the employment of the appellant and worked till lunch break. There is no dispute that he left Manora for Keamari in order to take lunch. There is also no dispute that he covered the journey between Manora and Keamari in the launch of the appellant and while climbing the stair case he fell down in the sea and died. The only question that now arises for consideration is whether this accident should be treated to have occurred in the course of or arising out of the employment.

4. It is clear that the accident did not occur at the place where the deceased was working but far away at a different premises. There is no dispute that the place where the accident took place, was under the control of the appellant but it was not a restricted area and the public was not debarred from visiting that place. There is also no dispute that although the launch was owned by the appellant but the deceased was not com pelled to use that launch. There were private launches also which could be used. The launch was not specially intended for the employees of the appellant but even the public could travel by the same launch while going to and from Manora and Keamari. The evidence also shows that there was a canteen at Manora and it was not compulsory for the deceased to have gone to Keamari to take lunch. So it was not the case that the employees were necessarily required to go to Keamari for lunch. It was left to the choice of the employees to take lunch either at Manora or at Keamari, as may have suited them.

5. In the circumstances it cannot be said that the accident arose out of and in the course of the employment. It had happened at the public place where the deceased himself went of his own choice without any compulsion or direction from the appellant.

6. Indeed, the theory of notional extension is invoked in certain] cases but the present case is not covered by that theory. In this connection~ I would like to reproduce the pertinent observation made by Supreme Court of India in the case of Saurashira Salt Manufacturing Co. v. Bai Valu Raja and others (A I R 1958 S C 881). It reads as under 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 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. When a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there." A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him."

7. The aforesaid authority was relied upon by the High Court of Sind & Baluchistan in the case of Karachi Ship Yard and Engineering Works Ltd. v. Mst. Samundara Begum and others (P L D 1967 Kar. 700). In that case the deceased who was residing in a house in P. E, C. H. Society, Karachi took a bus to reach on duty at 7 a.m. at West Wharf Dock Yard, Karachi. He got down from the bus opposite to the gate of Karachi Shipping and Engineering Works at about 6-45 a.m. and when he was crossing the main road he was hit by another bus coming from neighbour dockyard site, hardly at a distance of 3 or 4 yards from the gate of the Ship Yard. He was dragged to some distance with the result that he died instantaneously. Com pensation was claimed but it was dismissed on the ground that the accident had not arisen out of and in the course of the employment. In the same authority a few English cases were also quoted laying down the same principle.

8. Yet there is another case of Karachi Bench Re: Mst. Maqsoodan Nisa and others v. Indo-Pakistan Corporation Ltd. (P L D 1961 Kar. 219). In that case also the deceased was going to take afternoon meal when on the way a truck collided against the side gate of a bungalow and its pillar fell down on his chest causing instantaneous death.

9. Another case on this point is the case of Becharam Mallik v. Khas Jyrumpur Colliery (A I R 1940 Pat. 599). It was held that where a workman was under no obligation to use the lorry provided by the employer for taking the workmen from their homes to the mind and back but could use it or not as they felt inclined, it could not be said that in such a situation the accident arose in the course of employment. In this case also various English authorities were cited.

10. On behalf of the appellant, the case of Bell v. Brunton Whiteworth & Co. ((1919) 88 L J K B 844) was quoted before the Learned Commissioner but it was not followed by him. In that case also the worker during the interval allowed by the employer for rest and refreshment left the actual working premises of the employer in order to go to the 'canteen provided by employer and on the way he was run down by a lorry and killed. It was held that the accident had not occurred in the course of and arising out of the employment. The learned Commissioner did not give any reason for not following this-decision. ''

11. Now I refer to the three cases which were mainly relied upon by the learned Commissioner. The first case is of Armstrong Whiteworth & Co. v. Redfort,( 1920 A C 757). In that case a girl who was an employee, after taking dinner in the canteen provided by the employer was hurring down a flight of stone stairs leading from the canteen into the. street to return to her work, slipped and broke her ankle. It was held that the accident arose in the course of and arising out of the employment and compensation was awarded. In my view this authority can be safely excluded from consideration in view of 'the recent authorities of the English Courts, referred to in the authorities which have already been quoted. Moreover, the canteen and the premises belonged to the employer.

12. The second case is of K. A. Rana Brocham v. Traffic Manager, Vizagapattam Port (A I R 1943 Mad. 353). In that case the workers employed in the port left their place of work at 7 p.m. for taking coffee and while returning to their work, two of them were crushed by a rail engine while crossing the railway line to reach to their employment through a short cut. It was held that it was in the course of and arising out of the employment and compensation was awarded. This authority cannot be considered to be effective in view of the authority of the Supreme Court of India as already referred to.

13. The third authority is in the case of A. A. Thaver Bros. v. Muthu (A I R 1933 Rang. 208). It was a case of a coolie employed on unloading coal from a steamer lying anchored in a river and returning to shore after finishing work with other coolies in a Sampon which capsized before it reached the shore. All were thrown into the river and the deceased died. It was held that the accident took place in the course and arising out of employment. This case is clearly distinguishable as the deceased was on the way back to the wharf where his day's employment would end, in a recognised way for the coolies to travel without any added risk.

14. On review of the various authorities I have no doubt in my mind that the accident did not arise out of and in the course of employment. Indeed the place of accident was situated within the port of Karachi under the control of the appellant as port authority but all the same it was a public place and public was not excluded from visiting that place. The deceased was not performing any duty at the time of accident nor his presence there was connected with any such duty for which he was employed. The premises where the accident took place was unquestionably different from the place of actual work. The mere fact that both the places were under the control of the appellant does not make any difference.

15. In the result the appeal is allowed and order of the Commissioner is set aside. The compensation be refund to the appellant.