Delhi District Court
Smt. Ambika Rani vs Employees' State Insurance ... on 26 May, 2015
IN THE COURT OF NAVEEN GUPTA, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
Suit No. 161/11
Smt. Ambika Rani,
W/o Lt. Sh. Kewal Kumar,
R/o Village: Chatter Khurd,
P.O.: Luddar Mahadev, Tehsil: Bhoranja,
District: Hameedpur, Himachal Pradesh. ....Petitioner
Versus
1. Employees' State Insurance Corporation,
Rajendra Bhawan, Rajendra Place,
New Delhi110008.
(Through its Regional Director)
2. M/s Pankaj Metals,
(Through its Proprietor),
Krishna Gali, Biswas Nagar,
Shahdara, Delhi110032.
Also at: 901909, ITL, Twin Tower,
Netaji Subhash Place,
Pitampura (Near Wazirpur Depot),
Delhi. ....Respondents
Date of Institution: 18.04.2011
Date on which judgment was reserved: 14.05.2015
Date of pronouncing judgment: 26.05.2015
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JUDGMENT
1. This is petition under Section 75 of Employees' State Insurance Act, 1948 (for short 'ESI Act'). Through this petition, the petitioner has prayed for direction to the respondents to release the legitimate and legally recoverable dues/service benefits of her late husband.
2. Brief facts of the present petition are that the petitioner was the widow of Late Sh. Kewal Kumar (hereinafter referred as 'deceased'). The deceased was employee of respondent no. 2 (for short 'R2'), which was a proprietorship concern, since 08.09.1990. Incidentally, the deceased was brutally killed by some uncivilized persons on 28.07.2009, while he was going back to his residence from the place of employment of R2. An FIR no. 314/09 was registered with Police Station: Seema Puri (NorthEast District), Delhi. R2 used to take services of the deceased for 12 to 14 hours and he was paid wages/legal dues as provided in law. The deceased had rendered service in the establishment of R2 for more than 20 years. Hence, he was entitled for all legal dues besides gratuity, provident fund etc. as applicable under law. Being in the employment of R2, the deceased was covered under the provisions of Employees' State Insurance with respondent no. 1 (for short 'R1'). The petitioner being legally wedded wife of the deceased was entitled for 'dependants benefits' from the respondents as per provisions of Section 52 of the ESI Act. She approached the respondents for Suit No. 161/11 Ambika Rani v. Employees' State Insurance Corporation and Ors. 2 of 10 payment of legal dues of her husband, but they did not act in accordance with law. Hence, the present petition has been filed.
3. In the written statement filed on behalf of respondent no. 1, it has been stated that in the declaration form of the deceased, the name of nominee was Smt. Laboo Rani. Further, the deceased was murdered on 28.07.2009; hence, his death was not due to any employment related injury nor it had occurred during the course of employment. Accordingly, R1 had no liability under the ESI Act. However, it admitted that the deceased was covered under the ESI scheme w.e.f. 08.09.1990. Further, the respondent no. 1 denied all other allegations/claims made by the petitioner in her petition.
4. In the written statement filed on behalf of respondent no. 2, it has been stated that the deceased was in service since 01.04.2005 as per his application for employment filed by him with R2. Further, the petitioner moved a complaint with office of Labour Commissioner, Delhi and subsequently, the petitioner finally settled the matter with R2 and received a sum of Rs. 16,628/ as full and final settlement amount. Further, the respondent no. 2 denied all other allegations/claims made by the petitioner in her petition.
5. Initially, issues were framed on 21.03.2012. But, on the basis of pleadings of the parties, the Court reframed following issues, vide order dated 18.09.2012:
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1. Whether the petitioner is entitled to relief of insurance/service benefits?
(OPP)
2. Relief.
6. To prove her claim, the petitioner examined three witnesses. PW1 is the petitioner herself. She submitted almost on the similar lines as stated by her in her petition. She tendered the copy of FIR no. 314/09 registered with PS:
Seema Puri as Ex. PW1/1, death certificate of deceased as Ex. PW1/2, copy of ESIC card as Mark A, legal notice issued to R1 and R2 as Ex. PW1/7 and Ex. PW1/4 respectively, postal receipts and UPCs as Ex. PW1/5, Ex. PW1/6, Ex. PW1/8 and Ex. PW1/9. PW2 is Sh. Kishan Chand. He was brother of the deceased. PW3 is Sh. Roshan Lal. He was brother inlaw of the deceased/brother of petitioner. PW2 and PW3 submitted almost on the similar lines as stated by petitioner/PW1. Thereafter, petitioner closed her evidence.
7. To prove its defence, the respondent no. 1 examined one witness. D1W1 is Sh. Hari Ram. He submitted almost on the similar lines as stated in the written statement filed on behalf of R1. He tendered declaration form filed by the deceased as D1W1/A. Thereafter, R1 closed its evidence. No evidence was led by respondent no. 2.
8. I have heard final arguments from the respective counsels for petitioner and respondents. I have perused the record.
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9. Issuewise findings are as follows:
Issue no. 1 The petitioner has claimed that her husband was under employment of R2. He was insured under ESI scheme. Further, he was killed on 28.07.2009 while he was coming back to his residence from the place of his employment with R2. Hence, she is entitled to dependants benefits under Section 52 of the ESI Act.
10.Firstly, R1 raised objection against the locusstandi of the petitioner in filing the present petition as in the declaration form submitted by the deceased, he made Smt. Laboo Rani as his nominee. It has come on record that Smt. Laboo Rani was mother of deceased and she had expired 11 years ago from the date of crossexamination of PW1 conducted on 05.12.2012. Further, during crossexamination of PW1 and petitioner's other witnesses, any of the respondents did not challenge the claim of the petitioner that she was wife of the deceased. As per Section 2 (6A) of the ESI Act "dependant" means any of the following relatives of a deceased insured person, namely:
(i) A widow,...
Considering the above said legal position, even if the nomination in the declaration form of the deceased was not in favour of the petitioner; but, being a dependant in terms of above said provision of the ESI Act, the petitioner has locusstandi to file the present petition. Suit No. 161/11 Ambika Rani v. Employees' State Insurance Corporation and Ors. 5 of 10
11. Now, to get relief under ESI Act, the petitioner was to prove that the case of deceased was covered under the category of 'employment injury' as defined under Section 2 (8) of the ESI Act, which provides that: "employment injury" means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.
12.Counsel for petitioner has argued that since the deceased had been killed while he was coming back to his residence from the place of his employment; hence, the same shall be considered as an accident arising out of and in the course of employment. Accordingly, presumption provided under Section 51A of the said Act shall be drawn in favour of the petitioner. On the contrary, counsel for R1 has argued that firstly, the petitioner has failed to prove that the murder of deceased was committed while he was going back to his residence from the place of his employment. Further, in view of Section 51E of the ESI Act, the petitioner has failed to show nexus between the circumstances, time and place in which the accident occurred (murder of deceased) and the employment.
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13.Section 51A of the ESI Act provides for presumption as to accident arising in course of employment that: For the purposes of this Act, an accident arising in the course of an employee's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment.
14. Further, Section 51E of the said Act provides that:
Accidents happening while commuting to the place of work and vice versa. An accident occurring to an employee while commuting from his residence to the place of employment for duty or from the place of employment to his residence after performing duty, shall be deemed to have arisen out of and in the course of employment if nexus between the circumstances, time and place in which the accident occurred and the employment is established.
15.Considering the above said provisions, the Court is of the view that the case of the petitioner so far as death of the deceased having occurred while commuting from the place of employment to his residence would be covered under Section 51E of the said Act. However, it is yet to be deliberated upon as to whether the petitioner has been able to prove that she is entitled to the benefits under the said act by virtue of provisions of Section 51E.
16.It is pertinent to note that as per FIR no. 314/09, PS: Seema Puri, the deceased was murdered on 28.07.2009, while Section 51E of the ESI Act had been inserted in the year 2010. This shows that the deceased had already expired prior to the insertion of Section 51E of the Act. To rule out any Suit No. 161/11 Ambika Rani v. Employees' State Insurance Corporation and Ors. 7 of 10 controversy in respect of applicability of Section 51E of ESI Act, reliance is placed upon the precedent laid down by the Hon'ble Delhi High Court in Employees State Insurance Corporation v. Poonam Sharma, in FAO no. 177/2012 & CM No. 7366/2012 decided on 16.04.2014, wherein the Court has held that:
14. In view of the above, I hold that the provision of Section 51(E) of the Act is only declaratory and clarificatory to the definition of employment injury contained in Section 2(8) of the Act and benefit will be given of the provision of Section 51(E) to an employee even if accident happens before 1.6.2010 when the provision of Section 51(E) of the Act was brought in.
17. Firstly, the petitioner was to prove that the deceased was killed while he was commuting from the place of employment to his residence after performing duty. Secondly, she was to establish the nexus between the circumstances, time and place in which the accident occurred and employment. It is pertinent to note that PW1, during her crossexamination, stated that she was residing in the village at the time of murder of her husband. Further, PW2 deposed that his brother (deceased) was residing alone and separately from him. Further, PW3 deposed that he did not have any personal knowledge about the death of his brother inlaw. From the above said versions of petitioner's witnesses, it is clear that they were not having any personal knowledge about the claim as to whether the deceased was, in fact, commuting from place of employment to his residence after performing duty, when he was killed by someone.
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18.In the First Information Report Ex. PW1, it has been interalia recorded that Sh. Arun Dass and Sh. Goverdhan stated in their statements that at around 9/9:15 PM, all three Sh. Goverdhan, Sh. Arun Dass and Sh. Kewal Kumar (deceased) were going to their house through backside of Railway Line, Friends Colony Industrial Area. At railway line, some people caught hold them and started snatching their money. The deceased entered into a scuffle with them, while Goverdhan and Arun Dass ran away from the spot. They told their employer Sh. Sumit about the same. Firstly, from the above said version, it does not stand proved that the deceased was coming back from place of his employment to his residence after performing duty. Surprisingly, Sh. Goverdhan and Sh. Arun Dass who could have been the best witnesses to depose on this aspect were not examined by the petitioner for the reasons best known to her. Furthermore, the petitioner did not examine any other coemployee of the deceased so as to show that the deceased had left the place of his employment at around 9/9:15 PM on 28.07.2009, when he was killed. Furthermore, the petitioner did not ask for summoning of record of R2 to show that deceased had left the place of his employment around 9/9:15 PM on 28.07.2009. Further, the petitioner did not bring on record as to what was the result of investigation carried out in FIR no. 314/09, PS: Seema Puri. In the said investigation report, postmortem report might have been available showing the probable time of death of deceased. It is pertinent to note that as per PW1, the distance between M/s Pankaj Metals and his residence was of 5 minutes. Further, M. S. Park Suit No. 161/11 Ambika Rani v. Employees' State Insurance Corporation and Ors. 9 of 10 [where the body of deceased was found] was away from her house and factory where her husband used to work. She admitted that M. S. Park was not routine way of coming and going from her house to the factory. Accordingly, the petitioner has failed to show that the deceased was coming back to his residence from the place of employment after performing his duty. Furthermore, the circumstances mentioned in FIR Ex. PW1/1 in which the deceased was killed does not establish any nexus between the cause of his death and his employment. In these circumstances, it can not be said that the murder of the deceased (accident occurring to the employee) had arisen out of and in the course of employment so as to call it 'an employment injury'. Hence issue no. 1 is decided against the petitioner.
19.Relief:
The suit of the petitioner is dismissed. Decree sheet shall be prepared accordingly. Parties shall bear their own costs. File be consigned to Record Room.
Announced in the open Court (Naveen Gupta)
th
on day of 26 May, 2015 Additional Senior Civil Judge cum Judge,
Small Causes Court cum Guardian Judge,
NorthWest District, Rohini, Delhi.
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