Judgment : M. Y. EQBAL, J. ( 1 ) THIS appeal filed under section 30 of the Workmens Compensation act is directed against the order dated 25. 9. 97 passed by the Presiding Officer, Labour Court, dhanbad in Case No. WC 3/95, whereby he has awarded a sum of Rs. 1,08,100/- to the claimant respondents for injury sustained by him in a Motor Vehicle Accident. ( 2 ) THE claimant is permanent employee of M/s. Bharat Coking Coal Ltd. and he was working as Timber Mistry at Nudkhurkee Colliery. On 2/2/1990, while he was going to his duties in the night shift starting from 12. 00 mid night at about 11. 30 p. m. , a dumper bearing registration No. BHW 9439 belonging to m/s. Bharat Coking Coal Limited knocked him down near Matigarha Colliery resulting in loss of vision because of head injuries. The claimants further case is that as he was not provided with companys accommodation, he used to come to attend his duties from the near by village and on the fateful day while he was going to duty along with his brother the aforesaid dumper belonging to M/s. Bharat Coking Coal limited knocked him down. It was contended by the claimant that since he was going to perform his duties and the accident took place, hence the same would be an accident arising out of and in course of the employment. ( 3 ) THE case of the appellants was that the claim application was filed after four years and it was barred by limitation. It was stated that the claimant was not on duty on 2. 2. 90 and he did not meet with the accident arising out of and during the course of his employment, inasmuch as the accident did not take place in the colliery premises. It was further stated that the applicant was sick from 3. 2. 90 and he received treatment from the Company hospital and he was paid sick leave wage for 74 days with effect from 3. 2. 90. Further, the applicant made an application for declaring him medically unfit. The Medical Board examined him on 30. 11. 90 and he was declared medically unfit and consequently thereupon his dependent got employment under Para 9. 4. 2 of the National Coal Wage Agreement. 2. 90. Further, the applicant made an application for declaring him medically unfit. The Medical Board examined him on 30. 11. 90 and he was declared medically unfit and consequently thereupon his dependent got employment under Para 9. 4. 2 of the National Coal Wage Agreement. It was further stated that the applicant never made any representation that he met with an accident on 2. 2. 90 while coming from duty and he never demanded compensation under Workmens compensation Act. It was only after receiving all the benefits namely, payment of sick leave wages, employment of dependant, an application was filed for payment of compensation under the Workmens Compensation Act. It appears that notices were issued to the parties and thereafter Commissioner. Workmens compensation transferred the case to the court of Presiding Officer, Labour Court, dhanbad for adjudication. The parties, thereafter, lead their evidence before the Labour court and after hearing the parties, the Labour court awarded compensation which is under challenge. ( 4 ) THE Labour Court after discussing oral and documentary evidence adduced by the parties has recorded a finding that the petitioner met with an accident while he was going to join his duty and the accident took place 15-20 minutes before the duty hour. The Labour Court further held that the accident took place in course of the employment so petitioner is entitled to compensation. ( 5 ) MR. A. K. Mehta, learned counsel appearing for the Management assailed the impugned award as being illegal and wholly without jurisdiction. Learned counsel submitted that the Court below has committed serious illegality in holding that the accident took place 30 minutes before the commencement of night shift of the employee ignoring the deposition of two doctors who have categorically stated that they treated the employee at 9. 30 p. m. Learned counsel further submitted that the accident did not took place in course of employment or arising out of the employment. Learned counsel put heavy reliance on the decision of the Supreme Court in the case of regional Director, E. S. I. Corporation and anr. v. Francis De Costa and Anr. ( 6 ) ON the other hand, Mr. S. Das, learned counsel for the employee submitted that the court below has discussed the entire evidence and recorded a finding of fact that the accident took place while the employee was on the way to join his duty. v. Francis De Costa and Anr. ( 6 ) ON the other hand, Mr. S. Das, learned counsel for the employee submitted that the court below has discussed the entire evidence and recorded a finding of fact that the accident took place while the employee was on the way to join his duty. Learned counsel relied upon the decision of the Supreme Court in the case of General Manager, B. E. S. T. Undertakings, Bombay v. Mrs. Agnes. ( 7 ) IT is well settled that in order to succeed in the case for the grant of compensation an employee has to prove that there was an accident, the accident had a causal connection with the employment and the accident must have been occurred in course of employment. It is, therefore, necessary to find out whether the employee has been able to prove that the accident had any causal connection with the work he was doing at the factory and in any event, it was occurred in course of employment. ( 8 ) ADMITTEDLY, respondents duty was in the night shift starting from 12 mid night to 8 a. m. of 3. 2. 90. Respondents case was that he was coming from his village which is 10kms. away from the factory, for his duty and on the way he was knocked down by a dumper of BCCLat 11. 30p. m. Respondents case was that since he was on colliery road going for duty and as such accident occurred arising out of and in course of employment. The case of the Management was that the claim application was not at all maintainable for the reason that it was filed after four years and that too after receiving all the benefits. The Management denied that the accident occurred and the employee received injury in course of an employment. The Managements case was that the respondent was not on duty on 2. 2. 90 or 3. 2. 90. When the Management was informed on 3. 2. 90, he was sick from 3. 2. 90 and he was in the treatment of Companys Hospital. The employee was therefore paid compensation after he was declared unfit and his dependant got employment under para 9. 4. 2 of the National Coal Wage Agreement. 2. 90 or 3. 2. 90. When the Management was informed on 3. 2. 90, he was sick from 3. 2. 90 and he was in the treatment of Companys Hospital. The employee was therefore paid compensation after he was declared unfit and his dependant got employment under para 9. 4. 2 of the National Coal Wage Agreement. Respondent applicant was examined as AW 1, who deposed about the manner of accident but he admitted that he did not inform the Management in writing that he lost his vision. The management examined Dr. A. K. Roy Medical officer, who deposed that on 2. 2. 90 at 9. 30 p. m. the employee was brought to the Central hospital, Baghmara by 2-3 persons and they have told that at 8. 30 p. m. the accident took place near Magazine house by a dumper and the employee was unconscious in the hospital. This witness further deposed that the employee was sent to the Central Hospital, dhanbad on 3. 2. 90. Similarly, another witness dr. S. Ghosal, Senior Medical Officer of B. C. C. Ltd. deposed that he treated the injured Amrit mahto on 2. 2. 90 at 9. 30 p. m. This witness proved the report Exbt. M-6 and M-6/1. The labour Court, however, relying upon the evidence of the employee held that accident took place at about 11. 30 pm. ( 9 ) THE employee has suffered personal injury is not in dispute. The only dispute is whether the injury will amount to employment injury. In other words, whether the employee sustained injury in course of the employment or arising out of the employment. Admittedly the injury suffered by the employee did not arise in any way out of his employment. The injury was sustained, while the employee was allegedly on his way to the factory where he was employed. It is also clear that the accident took place far away from the place of employment. ( 10 ) IN the case of Regional Director, e. S. I, Corporation and another v. Francis De costa and Anr. 3, the Apex Court had the occasion to consider the similar case where the allegation was that the employee met with an accident while he was on his way to his place of employment. The accident occurred at a place which was about 1 km. away to the north of the factory. 3, the Apex Court had the occasion to consider the similar case where the allegation was that the employee met with an accident while he was on his way to his place of employment. The accident occurred at a place which was about 1 km. away to the north of the factory. The time of occurrence was 4. 15p. m. and the duty shift of the employee would have commenced at 4. 30 p. m. The Apex Court after considering the meaning of the employment injury held -"that the first respondent hac suffered a personal injury is not in dispute. The only dispute is whether the injury will amount to employment injury within the meaning of Section 2 (8), so as to enable the respondent to claim benefit under the Act. The definition given to employment injury in sub-section (8) of section 2 envisages a personal injury to an employee caused by an accident or an occupational disease arising out of and in the course of his employment. Therefore, the employee, in order to succeed in this case, will have to prove that the injury that he had suffered arose out of and was in course of his employment. Both the conditions will have to fulfilled before he could claim any benefit under the Act. It does not appear the injury suffered by the employee in the instant case arose in any way out of his employment. The injury was sustained while the employee was on his way to the factory where he was employed. The accident took place one kilometer away from the place of employment. Unless it can be said that his employment began as soon as he sets out for the factory from his home, it cannot be said that the injury was caused by an accident arising out of. . . . his employment. A road accident may happen anywhere at any time. But such accident cannot be said to have arisen out of employment unless it can be shown that the employee was doing something incidental to his employment. " their Lordships further observed :-"strong reliance was placed by Shri chako on a decision of this Court in general Manager, B. E. S. T. Undertaking, Bombay v. Mrs. Agnes. (1964) 3 scr 930 : AIR 1964 SC 193 . " their Lordships further observed :-"strong reliance was placed by Shri chako on a decision of this Court in general Manager, B. E. S. T. Undertaking, Bombay v. Mrs. Agnes. (1964) 3 scr 930 : AIR 1964 SC 193 . In this case, one bus driver of the appellant-corporation after finishing the days work left for home in a bus belonging to employers undertaking which met with an accident as a result of which he died. His widow claimed compensation under the Workmens Compensation act and the question was whether the accident had arisen out of and in course of employment. It was held by Subba rao and Mudholkar, JJ. (Raghubar dayal, J. dissenting) that the bus driver was given facility by the management to travel in any bus belonging to the undertaking. It was given because efficiency of the service demanded it. Therefore, the right of the bus driver to travel in the bus was to discharge his duty punctually and efficiently. This was a condition of service and there was an obligation to travel in the said buses as a part of his duty. It was held that in the case of a factory, the premises on an employer was a limited one but in the case of a City Transport Service, the entire fleet of buses forming the service would be "premises" This decision in our view, does not come to the assistance of the employees case An employee of a transport undertaking was travelling in a vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked. " ( 11 ) TAKING into consideration the facts of the case and the evidence adduced by the parties and also in the light of the ratio decided by the Supreme Court in Francis De Costa case. I am of the definite view that the Labour Court has committed serious error law in deciding the issue in favour of the employee. I am of the definite view that the Labour Court has committed serious error law in deciding the issue in favour of the employee. ( 12 ) BESIDES the above, the very interesting fact is that after the accident took place the employee informed the management about the accident rather he remain on sick leave and thereafter he filed representation that he is medically unfit. The Medical Board examined the employee on 30. 11. 90 and declared him unfit and consequently the dependant of the employee got employment under para 9. 4. 2 of the National Coal Wage Agreement. ( 13 ) THE employee was also given benefits after he was declared medically unfit to resume his duty. After receiving all these benefits and after getting employment of his dependant, the claim application was filed by the employee after four years without a limitation petition. Surprinsingly the Labour Court condoned the delay in filing the application without taking into consideration all these facts. In my opinion, therefore, the claim application itself was not maintainable after getting compensation under Workmens Compensation Act. ( 14 ) FOR the reasons aforesaid, this appeal is allowed and the impugned judgment and award passed by the Labour Court is set aside. However, in the facts of the case, there will be no order as to costs. Appeal allowed. --- *** --- .