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2001 DIGILAW 119 (KAR)

DURGABAI v. EMPLOYEES STATE INSURANCE CORPORATION

2001-02-07

MANJULA CHELLUR

body2001
CHELLUR, J. ( 1 ) THIS appeal arises out of an order under section 75 (1) (g) of the employees' State Insurance Act in E. S. I. Application No. 26 of 1995 on the file of e. I. Court, Bangalore dated 18. 8. 1998. ( 2 ) THE brief facts that led to the filing of this appeal are as under: one P. Madhavan was working as Traffic incharge at the main office of the respondent no. 3 herein, i. e. , Prakash Road lines Ltd. Admittedly, the respondent No. 3 is dealing with transport business. ( 3 ) ACCORDING to applicants/appellants on 8. 7. 1994 Madhavan left the house for duty and when he was near Chikkabidarakallu bus stop, he sustained heart attack. He was shifted to the house and the Medical officer of the company declared him as dead due to heart attack. It was also the case of the appellants that the death has occurred when the deceased left for his duty and on the en route which was the usual route. Therefore, they approached the ESI corporation for compensation which was refused by the Corporation as the death was not in the course and out of employment. Aggrieved by the rejection of the corporation, the appellants approach the e. I. Court claiming ESI benefits. ( 4 ) THE Corporation filed the objection statement contending that Madhavan died on his way to work due to cardiac arrest. Therefore, it was not at all due to any employment injury. With these averments they absolved of their liability to pay the ESI benefits to the dependants. The respondent no. 3, the employer of the deceased has not filed any objection statement. ( 5 ) BASED On the above pleadings the following issues were raised by the E. I. Court: (1) Whether the applicant No. 1 proves that she is the wife of P. Madhavan? (2) Whether the applicants prove that p. Madhavan died on 8. 7. 1994 during the course of employment? (3) Whether the applicants are entitled for the relief prayed for? (4) What order? ( 6 ) SO far as first issue, i. e. , whether the applicant No. 1 is the wife of the deceased, the E. I. Court has held in the affirmative. So far as second issue, i. e. , P. Madhavan died on 8. 7. (3) Whether the applicants are entitled for the relief prayed for? (4) What order? ( 6 ) SO far as first issue, i. e. , whether the applicant No. 1 is the wife of the deceased, the E. I. Court has held in the affirmative. So far as second issue, i. e. , P. Madhavan died on 8. 7. 1994 during the course of his employment was held in the negative. Accordingly, issue Nos. 3 and 4 were answered rejecting the claim of the applicant. Aggrieved by the said order, the present appeal is filed. ( 7 ) THE point that would arise for court's consideration is:"whether the death of P. Madhavan on 8. 7. 1994 due to cardiac arrest was in the course of and out of employment?" ( 8 ) THE learned counsel for the appellants contended that the evidence of AW 1 and AW 2 would reveal that the very nature of the duty of the deceased as Traffic manager involved long working hours and sometimes he used to work till 1. 30 a. m. in the night and due to tension of the work he developed hypertension, as a result he died due to cardiac arrest on 8. 7. 1994 during the course of employment, i. e. , on his way to duty. They also relied upon the following decisions: (1) General Manager, B. E. S. T. Undertaking, bombay v. Agnes, 1958-65 ACJ 473 (SC ). (2) Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, AIR 1958 SC 881 . (3) Kamala v. Chairman, Madras Port trust, 1966 ACJ 213 (Madras ). (4) Usman Rojan v. Employees' State insurance Corporation, 1984 ACJ 640 (Gujarat ). (5) 1990 Lab 1c 1686. (6) Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak, 1969 acj 422 (SC ). (7) Employees' State Insurance Corporation v. Francis De Costa, 1996 ACJ 1281 (SC ). ( 9 ) THE learned counsel for the respondent corporation contends that what the court has to see is whether the employment injury was while the employee was on duty and out of the nature of employment. According to the respondent till he reaches his place of work and commences his work, it cannot be held as in the course of employment. According to the respondent till he reaches his place of work and commences his work, it cannot be held as in the course of employment. It was further argued that it was not the case of the wife of the deceased, i. e. , the appellant herein and the employer, as could be ascertained from the records relied on by the applicants that the nature of work used to. cause lot of mental tension apart from physical exertion and as a result, deceased sustained cardiac arrest and died. They have sought for dismissal of the appeal contending that the death is neither in the course of employment nor out of employment. ( 10 ) IT is the case of the appellants from paras 2 and 3 of the application before the e. I. Court that Madhavan left home on the fateful day of the incident for duty at about 8. 45 a. m. He was on the way to the place of employment, i. e. , respondent No. 3's office, but unfortunately he died due to cardiac arrest near Chikkabidarakallu bus stop in Bangalore. As the death occurred on the way to reporting for duty, it amounted to death due to and in the course of employment. Of course, this contention of the applicant was denied by the Corporation in their objection statement. To substantiate this contention of the applicants, AW 1 the applicant No. 1 wife of the deceased was examined. On oath she has stated that on 8. 7. 1994 he had duty from 8. 45 a. m. to 6 p. m. at Prakash Road Lines. He went to the duty on the said day at about 8. 45 a. m. On his way to the office he had fallen opposite to bus stop at Chikkabidarakallu which was the normal road for him to reach his office. One Shivanna and Patrick Joseph, area Manager brought him home and the examination of Madhavan by doctor revealed he was no more and he passed away 5 minutes prior to his examination. AW 2 has said that on 8. 7. 1994 he visited the house of Madhavan and declared him as dead due to cardiac arrest after examining him. One Shivanna and Patrick Joseph, area Manager brought him home and the examination of Madhavan by doctor revealed he was no more and he passed away 5 minutes prior to his examination. AW 2 has said that on 8. 7. 1994 he visited the house of Madhavan and declared him as dead due to cardiac arrest after examining him. According to AW 3, Area Manager patrick Joseph who was examined on behalf of the employer says Madhavan was traffic Incharge for the last 16 years prior to that date under him and on 8. 7. 1994 he died at about 9 a. m. His deposition reveals that Madhavan attended the duty on the previous day and he did not come to Tumkur road Office on 8. 7. 1994. But however, he received information that Madhavan suffered heart attack and died and saw the body in the house of Madhavan. He admits that Madhavan collapsed at the bus stop at chikkabidarakallu. For the first time in the evidence of AW 3, the employer has taken the contention that on the previous evenp ing he instructed the employee to go to madanayakanahalli Branch next morning and bring information as to the number of vehicles that arrived to that office. He also says that the duty hours of Madhavan began at 8 a. m. for the first time. ( 11 ) ACCORDING to the wife of the employee, the working hours of the deceased were 9 a. m. to 5 p. m. and on that day employee left his house at about 8. 45 a. m. Surprisingly AW 3 says the working hours of the deceased commences from 8 a. m. onwards. If really the working hours of the deceased employee was from 8 a. m. onwards, there was no need for the employer to mention that the employee was on the way to his duty and died at about 8. 45 or 9 a. m. , near Chikkabidarakallu bus stop. At exh. A-3 a specific mention is made that the said employee usually leaves the house at 8. 45 a. m. to his duty. This would definitely indicate that the Area Manager for the first time introduced the time of commencement of work of employee as 8 a. m. in order to suit the case of the appellants. At exh. A-3 a specific mention is made that the said employee usually leaves the house at 8. 45 a. m. to his duty. This would definitely indicate that the Area Manager for the first time introduced the time of commencement of work of employee as 8 a. m. in order to suit the case of the appellants. Therefore, his statement does not inspire confidence in the mind of this court to come to conclusion that the normal working hours of the deceased employee would commence at 8 a. m. On the other hand, the material placed before the court by the appellants themselves would indicate that the normal commencement of working hours of the deceased was 9 a. m. and he was leaving his house for his duty at about 8. 45 a. m. ( 12 ) WITH regard to the instructions on the previous evening to go to Madanayakanahalli to check the number of vehicles that reached that office, till AW 3 spoke this fact before the E. I. Court on oath, it was nobody's case. It was not even the case of the wife of the deceased that on that day to go to Madanayakanahalli office, the deceased employee had gone to Chikkabidarakallu bus stop. On the other hand, her evidence clearly goes to show that when he was proceeding to his office on Tumkur road in front of Chikkabidarakallu bus stop, he had collapsed and was brought home dead. The next question would be whether the death of the employee could be considered as employment injury as it happened on his way to duty as contended by the appellants. ( 13 ) ON this aspect, the learned counsel for the appellants relied on several decisions as stated supra. In General Manager, b. E. S. T. Undertaking, Bombay v. Agnes, 1958-65 ACJ 473 (SC), their Lordships have discussed at length regarding notional extension of employer's premises. It is held in this very case that there is notional extension at both the entry and exit by time and space in order to understand whether it is an employment injury in an accident arising out of and in the course of employment. In this case the drivers of B. E. S. T. Undertaking were given free transport facility in buses belonging to the Undertaking from depot to his house and vice versa. In this case the drivers of B. E. S. T. Undertaking were given free transport facility in buses belonging to the Undertaking from depot to his house and vice versa. The driver met with an accident while going home from depot. Per majority, it was held that the accident occurred during the course of employment. This case was discussed under Workmen's Compensation Act and in the very same judgment, their Lordships have said that the scope of notional extension of employer's premises must necessarily depend on the circumstances of the given case. Their Lordships have held that in order to enable the drivers to maintain punctuality to discharge their obligations they were given facility to travel in any bus belonging to the Undertaking free of cost. In the interest of service having regard to the long distance to travel as the drivers to go to the depot from his house and vice versa which is a proved necessity giving raise to an implied application on his part to travel in the said bus as part of his duty. Therefore, it was held even though the accident occurred when the workman was on his way to home in the free transport provided by B. E. S. T. Undertaking 'as an employment injury'. The facts in the present case are entirely different from the facts in the above case. ( 14 ) THE next case relied on by the appellants is Saurashtra Salt Manufacturing co. v. Bai Valu Raja, AIR 1958 SC 881 at paras 7 and 8 it is held as hereunder:" (7) 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 re-passes in going to and in leaving the actual place of work. There may be some 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. There may be some 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. (8) It is unnecessary for the purposes of this appeal to refer to the various decisions in England and in India explaining the aforesaid theory because even if on such a basis a workman may be regarded as being in the course of his employment at point B either while on his way to the salt works or returning from it, the question for our decision is whether he was still in the course of his employment when he was on his journey between points A and B of the map, Exh. 35. WHILE the case was in the High Court the attention of the learned Judges was drawn to the failure of the Commissioner for Workmen's Compensation to examine witnesses to prove an alleged arrangement between the appellant and the Kharvas (ferrywalas) for the carrying of the workmen of the appellant by boat across the creek to enable them to be ferried to and from the salt works. The learned Judges of the High Court at first were inclined to order a remand for the recording of this evidence, but, having regard to the view which they took of the recent decisions of the House of lords in England, they thought it unnecessary to have such evidence recorded. In their opinion, on the material as already on record, it must be held that the accident arose out of and in the course of the employment of the deceased workmen. In this court, as already stated, we considered it necessary to have evidence taken in this connection and findings recorded thereon. The findings, on the evidence so recorded, is quite clear that there was no arrangement between the appellant and the Kharvas to ferry to and from the salt works, across the creek, any workman of the appellant. In this court, as already stated, we considered it necessary to have evidence taken in this connection and findings recorded thereon. The findings, on the evidence so recorded, is quite clear that there was no arrangement between the appellant and the Kharvas to ferry to and from the salt works, across the creek, any workman of the appellant. According to the evidence, workmen of the salt works are charged by the kharvas when they cross the creek in their boats. The only concession made by them on their own account is not to make such a charge in the case of any person who is a Kharva-a fellow caste man. It is also clear from the evidence on the record, both before and after remand, that the boats ferried across the creek are used by the public, everyone of whom has to pay the charge for being ferried across the creek with the exception of a person of the Kharva caste. To reach point A on the map a workman has to proceed in the town of Porbander via a public road. A workman then uses at point A a boat, which is also used by the public, for which he has to pay the boatman's dues, to go to point B. From point B to the salt works there is an open sandy area 450 to 500 ft. long and 200 to 250 ft. wide. This sandy area is also open to the public. From this sandy area there is a footpath going to the salt jetty, point C and a foot-track going to the salt works, point D. There is no question that the foot-track going to the salt works is a public way. The footpath from the sandy area to the salt jetty, point C, may or may not be used by the public. For the purpose of this case, it may be assumed that a workman must necessarily use that footpath if he has to go to the salt jetty and from there to the various salt pans and salt reservoirs within the area of the salt works. For the purpose of this case, it may be assumed that a workman must necessarily use that footpath if he has to go to the salt jetty and from there to the various salt pans and salt reservoirs within the area of the salt works. It is well settled that 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. In the present case, even if it be assumed that the theory of notional extension extends up to point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and in the course of his employment. Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen which was unfortunate, but for that accident the appellant cannot be made liable. "in this case also their Lordships have again said that the facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident occurred in the course of and out of employment keeping in view at all times this theory of notional. extension. "in this case also their Lordships have again said that the facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident occurred in the course of and out of employment keeping in view at all times this theory of notional. extension. ( 15 ) IN Kamala v. Chairman, Madras port Trust, ILLJ 1966 690: 1966 ACJ 213 (Madras), his Lordship of Madras High court held as hereurrder:"in this case it is fairly clear on the evidence that it had become the practice among the dredge masters to order the lascars to bring their food from their houses outside the premises of the Port trust. The lascars have recognized it as part of their duties. Indeed they have no choice save between obedience and immediate or future dismissal. As a matter of fact Port Trust authorities issued an office-order subsequent to the accident that no Port Trust employee should be employed by an officer on private work except with the sanction of Chairman. There were no such orders before. The dredge masters were under the impression that lascars could be asked to bring their food from outside to enable them to supervise without interruption. The workmen obeyed their masters. Held: that the accident arose out of and in the course of employment. " ( 16 ) IN Usman Rojan v. Employees' state Insurance Corporation, 1984 ACJ 640 (Gujarat), the principle laid down in this case is that a special machinery is created under the provisions of Employees' state Insurance Act and rules and regulations framed thereunder to provide for granting benefits to employees in case of sickness, maternity and employment injury and certain other matters. Therefore, one has to constantly remember that they are constituted for safeguarding the interest of workmen and for securing the benefit for them. Such matters cannot be decided in a technical and in different manner. In this case, the appeal of an injured employee was dismissed solely on the ground of delay. The case on hand before this court does not pertain to any technical ground. ( 17 ) IN 1990 Lab 1c 1686 (Pandh), his lordship of Punjab and Haryana High Court relying on Saurashtra Salt Manufacturing co. In this case, the appeal of an injured employee was dismissed solely on the ground of delay. The case on hand before this court does not pertain to any technical ground. ( 17 ) IN 1990 Lab 1c 1686 (Pandh), his lordship of Punjab and Haryana High Court relying on Saurashtra Salt Manufacturing co. v. Bai Valu Raja, AIR 1958 SC 881 , held that the theory of notional extension has to be properly applied to the factual situation pertaining to the particular case in order to arrive at the conclusion whether particular accident or injury had occurred out of and in the course of employment. ( 18 ) IN Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak, 1969 acj 422 (SC), it was held at para 5 as under:" (5) To come within the Act, the injury by accident must arise both out of and in the course of employment. The words 'in the course of employment' mean 'in the course of the work which the workman is employed to do and which is incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered'. In other words, there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises 'out of employment'. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and yorkshire Rly. Co. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and yorkshire Rly. Co. v. Highley, 1917 AC 352, Lord Sumner laid down the following test for determining whether an accident 'arose out of the employment': 'there is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury'. " ( 19 ) FROM the above decisions, it is very clear that facts and circumstances of each case have lot of bearing while deciding the issue whether the accident arose out of and in the course of employment. The notional extension of employer's premises also depends upon the facts given in a particular case. It also has nexus with the nature of the very employment. In other words, whether particular activity remotely connected with the employment even if it is not for the benefit or in the interest of employer, must be an integral part of the nature of work done by the employees. When ESI claims are made by the applicants, such applications cannot be disposed of or rejected on technical reasonings like delay, etc. When ESI claims are made by the applicants, such applications cannot be disposed of or rejected on technical reasonings like delay, etc. ( 20 ) LEARNED counsel for the respondents relies on Employees' State Insurance corporation v. Francis De Costa, 1996 acj 1281 (SC), at paras 6, 7 and 8 which reads as under:" (6) In our judgment, by using the words 'arising out of. . . his employment', the legislature gave a restrictive meaning to 'employment injury'. The injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment. 'out of, in this context, must mean caused by employment. Of course, the phrase 'out of has an exclusive meaning also. If a man is described to be out of his employment, it means he is without a job. The other meaning of the phrase 'out of is 'influenced, inspired, or caused by: out of pity; out of respect for him'. (Webster Comprehensive Dictionary, international Edition, 1984 ). In the context of section 2 (8), the words 'out of indicate that the injury must be caused by an accident which had its origin in the employment. A mere road accident, while an employee is on his way to his place of employment, cannot be said to have its origin in his employment in the factory. The phrase 'out of the employment' was construed in the case of South maitland Railways Pty Ltd. v. James, 67 clr 496, where construing the phrase 'out of employment', Starke, J. , held the words 'out of require that the injury had its origin in the employment. (7) Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on section 2 (8) of the Act. The words 'accident. . . arising out of. . . his employment' indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment. (8) The other words of limitation in sub-section (8) of section 2 is 'in the course of his employment'. There is no causal connection between the accident and the employment. (8) The other words of limitation in sub-section (8) of section 2 is 'in the course of his employment'. The dictionary meaning of 'in the course of is 'during (in the course of time, as time goes by), while doing' (Concise Oxford Dictionary, new 7th Edn. ). The dictionary meaning indicates that the accident must take place within or during the period of employment. If the employee's work shift begins at 4. 30 p. m. , any accident before that time will not be 'in the course of his employment'. The journey to the factory may have been undertaken for working at the factory at 4. 30 p. m. But this journey was certainly not in course of employment. If 'employment' begins from the moment the employee sets out from his house for the factory, then even if the employee stumbles and falls down at the doorstep of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided. " ( 21 ) THEY also relied on Travancore titanium Products Ltd. v. Jerro, 2000 llr 470 (Kerala) at paras 5 and 6 which read as under:" (5) In the case at hand, the accident took place inside the factory premises. That aspect has been highlighted by the employer to contend that the accident took place while he was on duty. The injury or the accident should be clearly relatable to duty. This is evident from the expression 'while on duty'. In other words, it means that the injury or accident occurred while the employee was performing his duty. It is not the case of the employee that he was performing his duty. It is his case that he was in the factory premises in connection with duty. There is a marked distinction between a case where an employee is inside the factory premises in connection with duty and he being actually on duty. (6) In the case of Dover Navigation Co. Ltd. v. Isabella Craig, 1940 AC 190, it was observed by Lord Wright that: 'nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. (6) In the case of Dover Navigation Co. Ltd. v. Isabella Craig, 1940 AC 190, it was observed by Lord Wright that: 'nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, i. e. , directly or indirectly engaged on what he is employed to do, gives claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified'. The principles laid in Dover's case (supra) are instructive. In order to succeed it has to be proved by the employee (1) that there was an accident and (2) that the accident occurred while he was on duty. Even if it is stated that there was any causal connection with his employment in the factory, it cannot be said to have been sustained while on duty. 'on duty' would mean occupied in performance of duty, apparently on the basis of contract of service. Duty is an assigned task. According to Webster's encyclopedic Unabridged Dictionary, 'on duty' means 'at one's post or work occupied, engaged'. In contrast 'off duty' means not at one's post or work, at liberty'. Factual position as highlighted above show that the accident cannot be said to have taken place while employee was on duty learned single judge was not justified in his conclusions and his order is set aside. The writ appeal is allowed as above. " ( 22 ) LEARNED counsel for the appellants relies on section 51-A of the Employees' state Insurance Act which reads as under:"51-A. Presumption as to accident arising in course of employment. For the purposes of this Act, an accident arising in the course of an insured person's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment. For the purposes of this Act, an accident arising in the course of an insured person's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment. " ( 23 ) FROM the reading of section 51-A of the Employees' State Insurance Act, it emanates that when once the occurrence of accident arising in the course of the insured persons employment, it necessarily has to be presumed as arising out of employment. The reading of the section makes it very clear that it is a rebuttable presumption. But however, whenever a claimant files an application seeking the benefits under Employees' State Insurance Act, he has to in the first place establish that accident occurred in the course of employment in order to get the benefit of presumption that it arises out of employment, but it is not vice versa. ( 24 ) ADMITTEDLY, in the present case before reaching the place of work, i. e. , on the way to his office, the employee Madhavan sustained heart attack and died. Till he reaches the premises of employer, his work as a Traffic Incharge will not arise. Even if we presume for a moment that he was directed by the Area Manager on the previous evening to visit Madanayakanahalli office to ascertain the number of buses arrived there, till he reaches the said Madanayakanahalli office, his employment does not commence. If he had gone to his workplace, i. e. , registered office at Tumkur road then he was instructed to go to Madanayakanahalli office for ascertaining the number of buses which had arrived there, then the situation would have been different. When his normal working hours would commence from 9 o'clock even if he sustained injury, i. e. , death due to cardiac arrest, it cannot be held as in the course of employment at any stretch of imagination. There is a distinction between on the way to employment and on employment. When once the applicants are able to establish that the accident or the death in this case occurred while the deceased was on duty, then only the question of presumption under section 51-A would arise. Of course, this presumption is rebuttable one. There is a distinction between on the way to employment and on employment. When once the applicants are able to establish that the accident or the death in this case occurred while the deceased was on duty, then only the question of presumption under section 51-A would arise. Of course, this presumption is rebuttable one. ( 25 ) IN order to establish that the death occurred out of employment, the appellants have relied on the evidence of AWs 1 and 2, i. e. , the wife and the doctor who examined the deceased. As already discussed above, it was not at all the case of either the wife or the employer that deceased was suffering from hypertension and was regularly taking treatment. It was also not the case of the wife of the deceased and the employer that the very nature of work done by the deceased involved lot of tension and that tension was a stress on his nerves. For the first time the doctor before the E. I. Court has come up with the theory that deceased Madhavan was suffering from hypertension and was regularly taking treatment from him. If we look at the certificate issued by the very same doctor AW 2, it becomes very clear that doctor tried to help the appellants by issuing a certificate which is at Exh. A-8. Exh. A-8 is dated 8. 7. 1994 and this doctor says deceased was a known hypertensive patient who died due to cardiac arrest at about 9 a. m. There is another document which is issued by the very same doctor at Exh. R-3, this is also dated 8. 7. 94. Viewed from any angle, this certificate does not reveal that Madhavan deceased was a hypertensive patient. This document was produced by the respondents herein. Having regard to these two certificates issued by the very same doctor it would manifest that only in order to help the appellants, the doctor has come up with the story of deceased employee suffering from hypertension much earlier to his death due to cardiac arrest. ( 26 ) IN view of the above discussion and reasoning, one cannot come to conclusion that the death of Madhavan, the employee under the respondent No. 3 was either in the course of employment or out of employment. ( 26 ) IN view of the above discussion and reasoning, one cannot come to conclusion that the death of Madhavan, the employee under the respondent No. 3 was either in the course of employment or out of employment. Therefore, the order of the E. I. Court does not suffer from any irregularity, perversity or illegality. ( 27 ) ACCORDINGLY, the appeal stands dismissed. No order as to costs. The amount in deposit be transferred to the concerned tribunal for disbursement of the same in accordance with the guidelines of the apex Court. Appeal dismissed. --- *** --- .