Chandulal is working in a textile factory.

His duty is to carry cotton bales to the

weighing machine. One day his other colleague was absent and Chandulal was asked
to carry extra load and had to work over time. After finishing his work on that day, he

left the factory for home. He had  tea and snacks in the evening and watched TV for
some time and then complained of chest pain. He was taken to the hospital where

he died of heart attack. His dependents claimed compensation/dependant's benefits

 under ESI Act  on the ground that the heart attack was caused by the strenuous

work  but the ESI Corporation rejected their claim on the ground that the employee
already had a heart condition and the heart attack was not due to any strenuous

work. This contention arose because the compensation or the relevant benefit is
admissible under the Act only if the injury is an 'employment injury'.

So what is an 'employment injury'? Sec.2 (8) of the ESI Act defines an employment

injury as a personal injury to an employee caused by an accident or occupational

disease arising out of and in the course of insurable employment whether the

accident occurs or the occupational disease is caused within or outside the territorial
limits of India.

A close reading of the definition reveals that every injury cannot become employment

injury unless it is caused by an accident or the occupational disease arising out of and
in the course of employment. While Schedule III to the ESI Act enumerates

occupational diseases, it did not define what an 'accident' is. However we are helped
by various judgments such as Chandramati V. ESIC 2003 III LLJ 202 to understand

'accident' as a mishap or untoward event not expected or designed. Similarly the Act
also did not define the scope of the expression 'arising out of and in the course of

employment'. It left it to the courts to define the scope. Consequently, this expression
became a field of confusion and conflict between the claimants and the

Corporation/employers.
At this juncture, we may note that the language of the expression 'employment injury'

under the ESI Act is pari materia with that under Sec.3(1) of the Employees'
Compensation Act, 1923 and therefore it is worthwhile to refer to cases decided under

the Employees' Compensation Act  to get an understanding of the scope of the

expression 'arising out of and in the course of employment'.

The hon'ble Bombay High Court in the case of Trustees, Port of Bombay Vs. Yamuna

Bai AIR 1952, page 382 explained the expression 'in the course of employment' as
one referring to a point of time which means the currency of employment  and that

is to say the accident causing personal injury must occur during the currency of
employment.

The  Court observed that the expression 'arising out of employment' suggests both

time and place of employment. The expression 'out of' conveys the idea that there
must be some sort of connection between the employment and injury caused by the

accident. However the Court says that this is the literal and strict interpretation but
the words' arising out of employment' are wide enough to cover a case where there

may not be necessarily a direct connection between the injury to the employee, Â the
accident and the employment. It is enough if the circumstance (the hazard) is

attending the employment to be one arising out of employment.

Thus the explosion of the bomb near the table of the employee where he was sitting

in the work shop in a dock, though placed by someone as a result of which he

received injuries, was held to be an accident arising out of employment. It means the

expression 'arising out of employment connotes a causal connection between the

accident, injury and employment.Â

Thereafter the Apex Court in the case of Suarashtra Salt Mfg.Co v. Bai Valu Raja 1958
II LLJ 249 observed that as a rule, the employment of a workman does not commence

until he has reached the place of work and does not continue after he left the place
of work. However the expression 'arising out of and in the course of employment'
extends  employers premises beyond the place of work to cover the area which the

workman passes and re-passes in going to and leaving the place of work for home.
Thus this case notionally extends the time and place of employment to cover the time

and the area of commuting by a workman to and from his place of work if he travels
through any mode not as a member of public but by the very nature of his

employment.

Accordingly in BEST undertaking, Bombay vs. Mrs. Agness 1963 II LLJ 615, the accident
which caused the death of a bus driver who was availing the free transport provided

by his employer  for travelling to his home, was held to be an accident arising out
of and in the course of employment.

 Thereafter, keeping in view the beneficial nature of the legislation and the principles

of 'causal connection' and 'notional extension' defining the scope of the expression
'arising out of and in the course of employment' and to narrow down the area of

conflict and confusion, sections 51 A to 51 D have been added to the ESI Act  by way
of amendment in 1966.Sec.51 B and 51 C explain the circumstances where in

 accidents occurring in the course of employment (during the currency  of

employment) are also deemed to be accidents arising out of employment and Sec.51

D terms accidents happening to an employee while travelling in any vehicle but with
express and implied permission of the employer as accidents happening to him while

travelling by the transport provided by the employer and thus they are deemed to be
accidents risong out of and in the course of employment.

But in Regional Director ESIC vs. Francis D'Costa, 1996 II CLR 812, the employer

subsidized the travel of the employee from home to work place by bus but the bus
stop was distant from his home and the employee had to travel by his cycle to the

bus stop during which he met with an accident on the road and died. While the High
Court termed the accident as incidental to his travel, such hazards being natural on
the roads, the Supreme court negatived the order of the High Court holding that such

accident could not be said to be an accident arising out of and in the course of
employment within the purview of Sec.51C Â as the employee was not travelling as

passenger when the accident happened.

Thereafter the Central Legislature passed an amendment in 2010 and added Sec.51 D
which terms accidents happening to an employee while commuting to and from his

home as accidents arising out of and in the course of employment, thus removing
the restriction of travel by the employee as a passenger in a purportedly employer's

transport.Â

Thus had Francis D' Costa's case been decided after the introduction of sec.51D,
probably it would have been decided in his favour. Â

Thus  so far as accidents occurring in the course of performing duties or commuting

to and fro work place are concerned, the confusion around accidents arising out of
and in the course of employment  in the context of employment injury defined

under Sec.2(8) of the ESI Act has largely been set at rest.Â

But it is worthwhile to spend a little more time to understand the twin principles of
'causal connection' between the accident, injury and employment and the 'notional

extension' as the test is applicable in other cases like  work aggravating an existing
illness  to result in the injury of the employee.

Elaborating the meaning of the expression arising out of and in the course of

employment' the three Judge Bench of the hon'ble Supreme  Court  in Mackinon
Mackenzie & Co Private Ltd. V. Ibrahim Mohammad Issak 1970 AIR (SC) 1906 said that

the words  'in the course of employment' mean 'in the course of work' which the
workman is employed to do and which is incidental to it.Â
The words 'arising out of  employment' means that during the course of
employment, injury has resulted from some risk incidental to the duties of the service

which unless engaged owing to the master, it is reasonable to believe that the
workman otherwise would not have suffered. The expression is not confined to mere

employment as such but to it's nature, it's conditions, it's obligations and it's incidents.
If by reason of any of these factors, the workman is brought within the scene of special

danger, the accident would be one that arises out of and in the course of
employment.

Thus in Chandramathi v. ESIC 2003 III LLJ 1122 (Ker.HC), the myocardial infarction

which caused the death of a milk distributor was traced to the over-exertion and was
held to be an accident arising out of and in the course of employment' rejecting the

ESIC's contention that the workman died of heart ailment which was not connected
with his employment.

In contrast, in ESIC vs. Sainaba, 2006 I LLJ 320 (Ker.DB), Â a bus conductor fell down

unconscious at the end of his day's work due to dizziness and died. While the
Insurance court allowed the claim for dependent's benefit on the ground that strain

in work might have accelerated his liver disease and caused death, the High Court
rejected on the basis of evidence that the death was natural and was not due to his

employment.

Therefore in cases of deaths/injuries caused by illness, the causal connection needs

to be established by evidence that the nature or conditions or obligations of the work

accelerated the illness resulting in employee's death.

Having said that, what boils down to the ultimate principle is that if the causal
connection between the accident, injury and employment is established, it is not
 material as to where the accident occurred and when it occurred as observed in the

case of ESIC vs. L. Rang Rao 1982 I LLJ 29(Karn.DB)

Liability under Fatal Accidents Act, 1855

As per Section 1A of the Act, whenever the death of a person shall be caused by wrongful

act, neglect or default, and the act, neglect or default is such as would (if death had not
ensued) have entitled the party injured to maintain an action and recover damages in

respect thereof, the party who would have been liable if death had not ensued, shall be
liable to an action or suit for damages, notwithstanding the death of the person injured

and although the death shall have been caused under such circumstances as amount in
law to felony or other crime.

Under the Act a suit for damages can be instituted by wife, husband, parent and child, if
any, of the deceased person. Under the Act compensation awarded for loss of

dependency is worked out by applying the principle of multiplier is a part of damages

“proportioned to the loss resulting from the death”;

Liability under Common law

If bodily harm or death of an employee is caused by another employee during the course

of his employment, employer can be held vicariously liable, under the respondeat
superior doctrine, for negligent acts or omissions by their employees in the course of
employment. For an act to be considered within the course of employment it must either
be authorised or be so connected with an authorised act that it can be considered a

mode, though an improper mode, of performing it. A tort can be instituted against the
employer by the legal heirs of the deceased for seeking adequate damages on the

ground of loss of livelihood.