Karnataka High Court
Esi Corporation vs Sri Hanumanthappa on 21 February, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
MISCELLANEOUS FIRST APPEAL No. 8845/2015 (ESI)
BETWEEN:
ESI CORPORATION,
REGIONAL OFFICE,
PANCHDEP BHAVAN,
NO.10, BINNY FIELDS,
BINNY PETE, BANGALORE-560023.
REP. BY ITS REGIONAL DIRECTOR,
... APPELLANT
(BY SRI K. KRISHNAPPA, ADVOCATE)
AND:
1. SRI HANUMANTHAPPA,
S/O BHIMAPPA,
AGED ABOUT 53 YEARS,
OCCUPATION: NIL
R/AT HINDASAGHATTA,
HARIHAR TALUK,
DAVANAGERE DISTRICT-577601.
2. MYSORE CONSTRUCTION CO.,
PROP. MYCON CONSTRUCTION PVT. LTD.
SANGAM MOTEL COMPLEX,
KUMARPATTANAM, RANEBENNUR TALUK,
HAVERI DISTRICT-581115.
... RESPONDENTS
(BY SRI MADHUKAR.S., ADVOCATE FOR
SRI Z. N. HANSI, ADVOCATE FOR C/R1, CP NO.1343/15;
SRI P.M. SIDDAMALLAPPA, ADVOCATE FOR
MYLARAIAH ASSOCIATES, ADVOCATE FOR R2)
......
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 82(2) OF THE EMPLOYEES STATE INSURANCE ACT
1948, AGAINST THE ORDER DATED:30.09.2015 PASSED IN ESI
APPLICATION NO.1/13 ON THE FILE OF THE EMPLOYEES
STATE INSURANCE COURT, BENGALURU, ENTITLING THE
APPLICANT TO RECEIVE THE DEPENDANT'S BENEFITS OF HIS
SON, AS PER THE PROVISIONS OF ESI ACT AND DIRECTING
THE RESPONDENT NO.2 THEREIN TO PAY DEPENDANT'S
DEATH BENEFITS IMMEDIATELY EITHER IN ONE LUMPSUM OR
IN THREE INSTALMENTS WITHOUT ANY DELAY.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The ESI Corporation filed the present appeal against the order dated 30th September 2015, made in ESI Application No.1/2013 on the file of the Employees State Insurance Court at Bengaluru, allowing the application filed under Section 75 of the Employees State Insurance Act, 1948, ('ESI Act' for short) holding that the applicant is entitled to receive the dependant's benefits of his son Manjunath as per the provisions of ESI Act and the ESI Corporation was directed to pay dependant's death benefits immediate either in one lumpsum or in three installments without any delay. 3
2. An unfortunate father filed an application under Section 75 of the ESI Act before the Employees State Insurance Court at Bengaluru, on account of death of his son Manjunatha @ Manju, aged 32 years, was an employee of a sub contractor under respondent No.2 company. He was working as a painter for the sub contractor who in turn was engaged by respondent No.2 company and he had worked for about four months continuously prior to the date of accident. He was paid salary of Rs.150/- per day and other allowances including overtime as prescribed under the Labour Welfare Legislation and was earning 5,000/- per month and was the only care taker of his old aged father/ applicant. Deceased Manjunath was working continuously, since the date of his appointment till the date of accident. He had no problem to work on the project under respondent No.2 Company since company had taken very good care of its workers even those who were working under sub-contractors in the role of 4 principle employer. The respondent No.2 company had enrolled all its workers under ESI for those who were not employed directly by the company, since few sub- contractors are not following the mandatory ESI enrolment for their workers.
3. It is the further case of the first respondent/ applicant before the ESI Court that late Manjunatha, was doing his painting job as usual in the construction premises of HAL. On 21.12.2007, at about 4.40 pm while he was working at a height of about 15 feet, unfortunately, he lost his control and fell down on the ground and suffered severe injuries to his nervous and cerebral system on his back and head and was unconscious. Immediately he was shifted to Chinmaya Mission Hospital, Bengaluru, without any delay. After few hours the hospital authorities advised that the patient be shifted to Manipal Hospital, as he was in need of more specialized treatment. After administering 5 treatment at Manipal Hospital, he was shifted to Mallige Hospital on the same day, where he was under
treatment until his discharge on 27.12.2007. The Officers of the second respondent company were there and took good care of the patient. He was treated as indoor patient from 21.12.2007 to 27.12.2007. Thereafter he was brought to Sukshema Hospital at Davanagere for further treatment on 27.12.2007. Unfortunately, due to the nature of severe head and cerebral injuries and fracture of cerebral bone, he could not survive and died at about 10.20 pm on 27.12.2007 in Sukshema Hospital. The death of the deceased was intimated to the respondent No.2 Company by the father of the deceased. The second respondent completed all the formalities towards claim and communicated to the ESI Corporation about the said accident and death of the employee. It is further contended that late Manjunath was duly enrolled under the provisions of ESI Act with ESI Corporation at the 6 time of accident and the deceased was a member of ESI effective from the date of his appointment till the date of accident. Therefore, the father of the deceased is entitled to receive the benefits which are payable under the provisions of ESI Act from the ESI Corporation.
4. It is further contended by the applicant/ Hanumanthappa that he is the genetic father of late Manjunatha and he was dependent on his deceased son Manjunatha for his survival. He was ignorant and illiterate and had wrongly approached WCA Court instead of filing petition under the provisions of ESI Act. Thereafter he came to know that the company had taken a WCA policy and had filed claim before WCA Court. The applicant was unaware and came to know only when the ESI Corporation filed objections. The applicant withdrew the said petition filed before WCA Court and filed the same under ESI Act before the jurisdiction Court at Hubballi. The said case was 7 registered and numbered as ESI application No.3/2011. The applicant had approached the ESI Corporation with the help of Mysore Construction Company to make a claim of compensation, monetary benefits and periodical benefits as per ESI Act. Unfortunately ESI Corporation did not respond nor cared to address the claim of the petitioner. The applicant is an old man, unable to earn his livelihood, well into his retirement age. He was dependent on his deceased son. If the application is not allowed, he will be put to great hardship and suffering etc. Therefore, he filed separate application for condonation of delay. Therefore, sought to allow the application as prayed for.
5. In response to the notice issued, the Mysore construction company filed objection contending that the appellants deceased son Manjunatha was an employee of a sub contractor, under Mysore construction company. He was working as a painter for 8 the sub contractor who inturn was engaged by second respondent and he had worked for about four months continuously prior to the date of accident. He was paid salary of Rs.175/- per day and other allowances including overtime, etc. It was also not disputed that deceased Manjunath was earning `5,000/- per month and was the only caretaker of his father. It was also admitted that late Manjunath was doing painting job in the construction premises of HAL. On 21.12.2007, at about 4.40 pm, while he was working at a height of about 15 feet, lost control and fell down to the ground. Immediately, he was shifted to hospital without delay, and accordingly admitted the claim made by the applicant.
6. The second respondent also admitted that the accident occurred during the course of and arising out of the employment of late Manjunath with the sub- contractor of the respondent company and the deceased 9 was duly enrolled under the provisions of ESI Act with the ESI Corporation at the time of accident and the deceased was a member of ESI, effective from the date of his appointment till the date of accident. The applicant/ father of the deceased is entitled to receive the benefits which are payable under the provisions of ESI Act. It was further admitted that initially claim under WCA was filed and later as it was rejected on the ground that deceased was covered under ESI Act, therefore, approached the ESI Court. The ESI Corporation denied all the allegations made by the applicant and contended that the application is not maintainable either in law or on facts and therefore, liable to be dismissed.
7. It was further contended by the 1st respondent / ESI Corporation that the 2nd respondent had taken contract work from HAL Building at Bengaluru. The deceased Manjunath during the course of employment 10 and while painting on the HAL building on 21.12.2007, at about 4.40 pm fell down on the hard surface of the floor and lost consciousness and he was taken to hospital and then he was shifted to Sukshema Hospital at Davangere where he died on 27.12.2007. It was not denied that the applicant was the father of the deceased who was employed by the 2nd respondent-company. It is not within the knowledge of the respondent that the deceased was working as a painter in the 2nd respondent company and he was getting salary of `150/- per day and other allowances and over time pay. Further it is contended that the declaration form submitted to the respondent branch was without the signature of the deceased Manjunath. The declaration form submitted after lapse of 30 months which was in gross violation of Sections 38 to 40 (contribution of wages) of the ESI Act, 1948. The accident report submitted to the branch office after lapse of 30 months cannot be accepted by the respondent as per Regulation 11 11, 12 and 14 of the ESI Regulation, 1950. The said declaration was required to be submitted within ten days from the date of appointment of the employee. The declaration as above has not been signed by the deceased, but signed by the applicant-father of the deceased who has no locus standi to submit the declaration and such declaration cannot be accepted as the coverage of ESI by giving the retrospective coverage when the declaration itself is in utter violation of the regulations. Therefore, sought for dismissal of the application.
8. Based on the aforesaid pleadings, the ESI Court, Bengaluru, framed the following issues:
(i) Whether the applicant prove that the deceased Manjunath fel1 down from the building on hard surface, while painting the HAL building on 21.12.2007 at about 4.40 pm during the course of his employment?
(ii) Whether applicant proves that he is entitled for benefit under ESI Act from 2nd respondent, 12 due to accidental death of deceased under any insurance coverage?
(iii) Whether 2nd respondent proves that the claim is time barred as per para 4 of the objections?
(iv) Whether applicant proves that he is entitled for the relief as sought against the respondents?
(v) If so, under what order?
9. In order to substantiate his case, the applicant examined himself as AW-1 and got marked the documents as Exs.A.1 to A.15. The Mysore Corporation Co. examined one witness as RW-1 and got marked Exs.R.1 to R.5 and the ESI Corporation examined one social security Officer as RW-2 and no documents were marked.
10. Considering the entire material on record, the ESI Court recorded a finding that the applicant proved that deceased Manjunath fell on the ground on hard surface while he was painting on HAL premises on 21.12.2007 13 at about 4.40 pm during the course of his employment and got injured on his cerebral and back portion. It was also recorded that the applicant proved that through oral and documentary evidence that he is entitled for the benefits due to the accidental death as he was under the insurance coverage as on the date of death. The ESI Court further held that the ESI Corporation failed to prove that claim is time barred as contended in para 4 of the objections. Further it was held that applicant is entitled to the relief sought for. Accordingly, by the impugned award dated 30th September 2015, allowed the application and directed the ESI Corporation to pay dependant's death benefits immediately either in one lumpsum or in three installments without any delay. Hence the present appeal is filed.
11. I have heard the learned counsel for the parties to the lis.
14
12. Sri K.Krishnappa, learned counsel for the appellant /ESI Corporation vehemently contended that the impugned award/order passed by the ESI Court is erroneous, contrary to the material on record. There is no provision for periodical payment under Section 46(1)(d) and Section 52 of ESI Act, 1948 and the ESI Court failed to observe that the deceased has not submitted declaration form under Regulations 11, 12 and 14 of ESI Regulations. It is further contended that the very application filed before the ESI Court was time barred and same is liable to be dismissed. Therefore, sought to allow the appeal by setting aside the impugned order.
13. Per contra, Sri Madhukar.S. learned counsel for respondent No.1/applicant and Sri P.M.Siddamallappa, learned counsel for respondent No.2/ Mysore Construction Company sought to justify the impugned award and contended that the deceased Manjunath was 15 working with the second respondent-company under a sub contractor and the same was insured with ESI Corporation and therefore, ESI Court was justified in passing the impugned award.
14. In view of the aforesaid rival contentions advanced by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the impugned award passed by the ESI Court awarding compensation to the applicant who is father of the deceased is justified in the facts and circumstances of the case?"
15. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record carefully.
16. It is undisputed fact that deceased Manjunath, son of the applicant was working as an employee of a sub contractor under 2nd respondent-company and he 16 was getting salary of Rs.150/- per day and other allowances. He was the only care taker of the applicant. The petitioner has admitted the fact that deceased was an employee working under the second respondent company and also admitted that during the course of employment, he died. The 1st respondent has categorically stated in the objections that the first respondent had enrolled all the workers under ESI including the deceased. Though a contention was taken that the claim made by the applicant was barred by limitation, it is not in dispute that the applicant who is illiterate, has approached the WCA Court. Thereafter, on the objection raised that the deceased was covered under ESI Act, he filed an application before the ESI Court. Taking into consideration the entire material on record, the ESI Court held that there is no delay in approaching the Court and ESI Act being a beneficiary legislature cannot deprive a person of his benefits under the ESI Act on technical grounds. It is well settled 17 principle of law that ESI Act is a Social welfare beneficial legislation to the employees and the legal heirs of employees to get monetary benefits in case of death, accident and injuries. It is not in dispute that the original applicant filed WC case before the WCA Court. Thereafter, approached ESI Court. Merely because the applicant approached a wrong Court, it cannot be a ground to dismiss the claim petition on the ground of delay and laches.
17. While considering the provisions of Section 52 and 77(1) of ESI Act, 1948, this Court in the case of Smt. Puttathayamma and others vs. Regional Director, Employee's State Insurance Corporation reported in 1998 LLR 1159 held that ESI Act is a beneficial and social legislation, application on the ground of delay cannot be rejected and ultimately, the claim has to be decided on merits and further held that the Court should keep in mind that social justice is our 18 constitutional scheme and as such duty is cast on it to act fairly, justly and further liberally so that Court's action is always in hold to impact social justice to the parties before it. It is further observed that the sacred word 'social justice' is mentioned in the preamble of the Constitution of India, which is mother of all laws. Therefore, in the light of the said decision, the contention of learned counsel for the ESI Corporation that the application is not maintainable cannot be accepted.
18. Insofar as the contention of the learned counsel for the petitioner that the application was not filed within time by the applicant cannot be accepted for the simple reason that as per Exs.A1 to A15, medical receipts, bills, Mallige Hospital report, death report, inquest report, register of wages, attendance register, show that the deceased was an employee having coverage of insurance and he died in an accident while 19 working as a painter on 15 feet height in HAL premises which was occurred during the course of employment. The medical records clearly depict that applicant's son suffered grievous injuries and died during the course of his employment. Ex.A.3 is the document strongly contested by the second respondent/ESI Corporation that the declaration form was not filled up by the applicant stating that Ex.A.3 was given before the ESI authorities after the death of their son, as he cannot read and write, he is an illiterate person and therefore he cannot say about the declaration form. In the medical claims, the law mandates that if there is an insurance coverage, then the applicant is entitled for the benefits, since it is welfare legislation to the employees who work under risk of their life. The first and foremost is that whether deceased died during the course of employment. The material documents produced in the case depicts that the deceased died while he was 20 painting in HAL premises and during the course of his employment.
19. Though the learned counsel for the petitioner strongly contended that the deceased had not filed application, the ESI Court on appreciation of material on record, has recorded a finding that the deceased had insurance coverage and therefore, entitled to the benefits under the provisions of the ESI Act. It is undisputed fact that it is the specific case of the applicant that the deceased was working under a sub contractor and the company also admitted that the deceased was an employee and all its employees including the deceased was covered under the insurance with the ESI Corporation. The present appellant has not produced any contra material or evidence contrary to the evidence produced by both the petitioner and the 1st respondent company to show that deceased was also covered with insurance. 21
20. The material on record clearly depicts that it is undisputed fact that the deceased Manjunath was working as a painter under a sub contractor and died during the course of employment. The 1st respondent filed objections and admitted that the deceased was its employee earning Rs.150/- per day and Rs.5,000/- per month. The first respondent specifically stated that deceased Manjunath was sub contractor and was duly enrolled under the provisions of ESI Act with the 2nd respondent at the time of accident and was member of it till the date of accident. When there is no dispute that the deceased died during the course of employment and was a member of ESI enrolled under the provisions of ESI Act, he is entitled to the benefits as contemplated under the ESI Act.
21. The ESI Court, considering the entire material on record, held that the applicant proved that he is entitled to the benefits under the ESI Act from the 2nd 22 respondent due to death of his son. The second respondent ESI Corporation failed to prove that the claim is time barred as contended in para 4 of the objections.
22. For the reasons stated above, the point raised in this appeal has to be answered in the affirmative holding that the ESI Court is justified in passing the impugned award. No substantial question of law is involved in this appeal.
23. The ESI Court considering the entire material on record, recorded a specific finding that the applicant is entitled to the benefits of his son as per the provisions of ESI Act and respondent was directed to pay dependant's death benefits immediately either in one lumpsum or in three installments without any delay. The same is in accordance with law. The appellant ESI Corporation has not made out any case for interference 23 with the impugned award. Accordingly, appeal is dismissed.
24. The appellant is further directed to pay the benefits in terms of the award as contemplated under the provisions of ESI Act, 1948 and the ESI General Regulations, 1950 and Rules thereon, in accordance with law.
Sd/-
JUDGE Kcm