State Consumer Disputes Redressal Commission
Employee State Insurance Corporation vs Mohinder Poddar on 9 June, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.858 of 2015
Date of institution : 03.08.2015
Date of decision : 09.06.2016
1. The Manager, Employees State Insurance Corporation, Focal
Point, Ludhiana.
2. ESI Corporation, ESIC Head Quarters near Inderprastha Post
Office, Kotla Road, New Delhi, through S.S.O.
3. The ESI Corporation, Sector 19-A, Madhya Marg,
Chandigarh, through its S.S.O.
....Appellants/Opposite Parties No.1, 2 & 4
Versus
1. Mohinder Poddar S/o Sh. Bharat Poddar, R/o H.No.114,
Street No.10, Ram Nagar, Mudian Kalan, Ludhiana.
....Respondent/Complainant
2. Director, Health Services Social Insurance Punjab, Sector 34-
D, Chandigarh.
3. The Incharge ESI Dispensary, Dhandari Kalan, Ludhiana.
4. M/s Bajaj Sons Limited, C-92-93-94, Focal Point, Phase-V,
Ludhiana, through its Director.
Respondents/Opposite Parties No.3, 5 & 6
First Appeal against the order dated
24.04.2015 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellants : Shri B.S. Bhatia, Advocate
For respondent No.1 : Shri M.K. Dhot, Advocate
For respondents No.2 & 3 : Ms. Inderjit Kaur, Auth. Rep.
For respondent No.4 : Shri S.M. Gulati, Advocate.
First Appeal No.858 of 2015 2
JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/opposite parties No.1, 2 & 4 have preferred this appeal against the order dated 24.04.2015 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short, "District Forum"), vide which the complaint filed by Mohinder Poddar, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed and these opposite parties and respondent No.4/opposite party No.6 were directed to calculate the actual claim filed by him and to pay the difference, which is in excess of Rs.68,505/-, and also to consider his case for pension, in view of his disability, as per the Policy.
2. The complainant, in his complaint, alleged that he was working as Sweeper with opposite party No.6 and the ESI was being deducted from his salary, vide Insurance No.2609459034. On 04.08.2011, while coming out of the factory for going to his house, he suffered an accident in the course of his employment and suffered injuries on his left leg and left shoulder. He was not in his senses and was taken to the hospital by the passersby and was admitted in Civil Hospital, Ludhiana, and thereafter was admitted in ESI Hospital, Ludhiana, on 05.08.2011. On 13.08.2011, he was referred to Mediciti, which refused to treat him and he got himself admitted in Military Hospital, Jalandhar, and thereafter was shifted to Delhi. There was no treatment available at that place and, as such, he was got admitted in Amandeep Hospital, Amritsar. During his treatment, his left leg was operated and bone of that leg was First Appeal No.858 of 2015 3 cut. He spent huge amount on that treatment and after that operation, he is not in a position to work properly. No treatment was given regarding the injury on the shoulder and as a result thereof his left arm is not working and he has become disabled for life. On account of this disablement, he is entitled to receive the pension from opposite party No.1-Corporation and is also entitled to the reimbursement of the amount spent by him on his treatment. It has been informed that on account of the non-submission of the mandatory Accident Report by opposite party No.6, the pension has not been granted to him. As he has no control over that opposite party, so it was the duty of the Officer of opposite party No.1-Corporation to get the Accident Report from him, if he was reluctant to submit the same. On account of the non-acceptance of his legal claim, he sent legal notice dated 04.09.2013 to the opposite parties, through his counsel, and was told to submit the bills in original. When he went, along with the bills, he was told that he should come after submission of the Accident Report by opposite party No.6. Neither the amount spent by him on his treatment was reimbursed, nor Disability Pension was given; which amounts to deficiency in service on the part of the opposite parties. He is entitled to the payment of the bills, amounting to Rs.1,50,000/-, and also to the monthly pension, in addition to Rs.1,00,000/-, as compensation for the harassment and mental agony suffered by him on account of the said deficiency in service.
3. The complaint was contested by the opposite parties. Opposite parties No.1, 2 & 4 filed joint written reply before the First Appeal No.858 of 2015 4 District Forum; in which they admitted that the complainant was working as Sweeper with opposite party No.6 and ESI was being deducted from his salary. While disputing the other allegations made in the complaint, they averred that no notice of accident, as required under Regulation 68 of ESI (General) Regulations, 1950 (in short, "the Regulations"), was received from opposite party No.6 and no documentary evidence was submitted by the complainant regarding his treatment. For reimbursement of the medical treatment, he was required to submit his claim to the concerned ESI Dispensary, so allotted to him. He did not furnish any FIR or Medico-legal Report and the inquiry revealed that as per the employee's record, "employment injury" had not occurred to him. The legal notice sent by him was duly replied. He has already been paid the Sickness Benefit/Extended Sickness Benefit of Rs.7,917.00 + Rs.60,588.00 = Rs.68,505.00, as per his entitlement under the provisions of the Employees State Insurance Act, 1948 (in short, "the Act"). Therefore, it cannot be said that there was any deficiency in service on their part. He is not entitled to the monthly pension/compensation, on account of the above benefits already paid to him. They also averred that the District Forum has no jurisdiction to adjudicate upon the matter, in dispute, in view of Section 74 of the Act and all the claims by the employees are to be adjudicated upon by the Insurance Court, constituted under that Section.
4. Opposite parties No.3 & 5 filed joint written reply before the District Forum, in which they replied only the allegations made First Appeal No.858 of 2015 5 against them in the complaint. They averred that specific procedure is laid down by the Government of Punjab regarding the reimbursement of the medical expenses by an employee covered under the Act. The reimbursement can be made, only after the procedure is being adopted by the insured person. That fact was duly brought to the notice of the complainant, while giving reply to his legal notice. He was asked to submit the original bills and the Accident Report by opposite party No.6, but he failed to complete all those formalities and, as such, it was not possible for them to reimburse his claim. Opposite party No.5 was only to verify the bills to be submitted by the insured person and it was with the consent of opposite party No.3 that the actual amount, as per CHGS/Government Rates for the treatment, so taken by the insured person from the private hospital, was to be sanctioned. Unless that procedure had been adopted, they were not in any way liable. Opposite party No.3 is still ready to entertain that claim, provided the original bills are submitted and formalities are complied with. They were not deficient in service in any manner. There is no direct relationship of the complainant with them. He has concealed the material facts from the District Forum and on that ground is not entitled to any relief sought by him. There is no relationship of "consumer" and "service provider" between them and the complainant and the complaint filed against them is not maintainable. They prayed for the dismissal thereof, with costs; being false and frivolous.
First Appeal No.858 of 2015 6
5. Opposite party No.6, in his written reply, admitted that complainant was in his employment and was insured with opposite party No.4. He also admitted the receipt of the legal notice dated 04.09.2013 from the side of the complainant. He denied the other allegations made in the complaint and averred that the complainant was an operator on Auto Adda with him. No accident ever took place during the course of or arising out of his employment. In fact, he had been taking inconsistent stand regarding the alleged accident. In his first affidavit dated 12.07.2013, sworn in by him before the Notary Public, Ludhiana, he alleged that the injuries were received by him in the accident arising out of his employment on 03.08.2011. On the basis of that affidavit, opposite party No.4, before whom the same was submitted, called for his explanation; which was duly submitted and it was explained that the complainant had worked with him on 04.08.2011 and thereafter abstained from his duties from 05.08.2011 to 11.10.2011. The first Medical Certificate was submitted by the complainant on 12.10.2011. Opposite party No.4 was specifically informed that no such injury, as a result of accident arising out of employment, was received by the complainant. After that, the complainant changed his stand and submitted a fresh affidavit dated 20.08.2013, duly sworn in before the Notary Public, Ludhiana; in which he alleged that the injuries were received by him out of his employment; which occurred on 04.08.2011. No information was ever furnished to him and, as such, he was unable to send any such report regarding the receipt of the injuries by the complainant in the accident. In fact, no First Appeal No.858 of 2015 7 such accident ever took place in the course of his employment. Opposite party No.1-Corporation cannot dictate its terms for procuring Accident Report, at the behest of the insured person, unless proper investigation is made by it about the occurrence of the accident during the course of and arising out of the employment of the complainant. The legal notice, so received by him, was duly replied; wherein the factual position was explained. No cause of action has accrued to the complainant to file this complaint and the same is bad for mis-joinder of parties. The complaint is an abuse of the provisions of the Consumer Protection Act, 1986 and the District Forum has no jurisdiction to entertain the same in its summary jurisdiction; as it involves complicated questions of law and fact, which require elaborate evidence. He also averred that the provisions of the Act apply to the complainant and that Act is a complete Code in itself, providing adequate remedy in the event of any dispute between the insured and opposite party No.1- Corporation regarding the sanctioning and non-sanctioning of the pension for accidental benefits. Therefore, the complainant is not entitled to invoke the jurisdiction of the District Forum; which is specifically barred under Section 75 of the Act. He prayed for the dismissal of the complaint, with exemplary costs; being false, frivolous and vexatious to the knowledge of the complainant and having been filed with the intention to harass him.
6. The parties produced evidence in support of their respective averments before the District Forum, which after going First Appeal No.858 of 2015 8 through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
7. We have heard learned counsel for the appellants/ opposite parties No.1, 2 & 4, respondent No.1/complainant, counsel for respondent No.4/opposite party No.6 and the Authorized Representative of respondents No.2 & 3/opposite parties No.3 & 5. We have also carefully gone through the records of the District Forum.
8. It was submitted by the learned counsel for the appellants/opposite parties No.1, 2 & 4 that for invoking the provisions of the Act, it was obligatory on the part of the complainant to prove that he had suffered injuries in the accident in the course of his employment. He did not elaborate in his complaint, as to whether that accident took place in the course of his employment, nor he made that clear in his affidavit; which was proved on the record by way of evidence. In the absence of such evidence, it cannot be concluded that he suffered "employment injury" and, as such, the complaint was liable to be dismissed on that ground alone. He further submitted that these opposite parties could have proceeded with the case of the complainant for the grant of the pension, only if his employer, opposite party No.6, had submitted the Accident Report, as required by Regulation 68 of the Regulations. No such report was received and, as such, they did not proceed with the case of the complainant. In these circumstances, it cannot he held that there was any deficiency in First Appeal No.858 of 2015 9 service on the part of these opposite parties and the District Forum committed an illegality, while issuing directions against them.
9. It was submitted by the learned counsel for opposite party No.6 that no such accident ever took place in the premises of opposite party No.6, nor in the vicinity thereof and there is no evidence on the record produced by the complainant for proving that he received the injury caused in the accident in the course of his employment. From the evidence, it stands proved that he had been submitting contradictory affidavits at different points of time; in which he had been giving different dates of the accident. He is not even sure about the date, on which the accident took place. In these circumstances, there was no occasion for this opposite party to send the Accident Report under Regulation 68. Therefore, he cannot be said to be deficient in service.
10. On the other hand, it was submitted by the learned counsel for the complainant that correct findings were recorded by the District Forum, after minutely going through the evidence produced by the parties before it. From the affidavit of the complainant, proved on the record as Ex.C-A, it stands proved that he suffered the injuries in the accident in the course of his employment, while coming out from factory for going to his house on 04.08.2011. In such an eventuality, it was for his employer, opposite party No.6, to submit the Accident Report under Regulation 68 and by not doing so, he committed deficiency in service. After the legal notice was so served by the complainant, if such a report had not been submitted by opposite party No.6, he First Appeal No.858 of 2015 10 was bound to submit such a report and opposite parties No.1, 2 & 4 were bound to call for such a report. By not doing so and by not allowing the pension, to which the complainant was entitled, by virtue of the provisions of the Act, the opposite parties committed deficiency in service. Therefore, the findings recorded by the District Forum cannot be set aside and the appeal is liable to be dismissed.
11. For claiming the benefits, including the pension and expenses of treatment for the injuries, the complainant was required to prove that he received the "employment injury"; which is defined in Section 2 (8) of the Act and is reproduced below:
"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.
The complainant alleged in Para No.2 of his complaint that he suffered accident in the course of employment, while coming out from the factory for going to his house on 04.08.2011 and that accident occurred during the course of his employment. To the same effect is the deposition of the complainant made by him in his affidavit, Ex.C-A. To rebut that deposition of the complainant, opposite party No.6 proved on record the affidavit of Kanwaljit First Appeal No.858 of 2015 11 Singh Rahena, Manager Personnel, Ex.OP-6/X. In that affidavit, he deposed that the complainant did not suffer any accident in the course of his employment with opposite party No.6 on 04.08.2011, while coming out of the factory for going to his house and even no accident took place in the locality of that opposite party. In order to create doubt in the deposition made by the complainant, in the affidavit, this opposite party proved on record the affidavits; which were so submitted by the complainant to opposite party No.1- Corporation. The first affidavit is annexed with the letter dated 25.07.2013, Ex.OP-6/B, which was written by opposite party No.1- Corporation to opposite party No.6. In that affidavit, the complainant deposed that on 03.08.2011 at about 6.00 P.M., he was coming back to his house after finishing his duty in the factory and he met with an accident on the way and was removed to Civil Hospital, in unconscious condition and was admitted at that place. The second affidavit is annexed with the letter dated 05.09.2013, Ex.OP-6/D, which was also written by opposite party No.1- Corporation to opposite party No.6. In that affidavit, the complainant deposed that the accident had taken place on 04.08.2011 at 6.00 P.M. and that on account of his mental tension and illiteracy, he mentioned that date in the previous affidavit as 03.08.2011. The stating of wrong date may be on account of that mental tension or illiteracy, but it was specifically deposed by him in those affidavits that the accident had taken place, while he was on his way to his house, after having finished his duty, from the factory. In view of this contradictory deposition made by the First Appeal No.858 of 2015 12 complainant, it becomes very much doubtful, as to at which place the accident took place and he received the injuries. At the time of arguments, he was present in the Court and he was asked, as to at what place that accident had taken place. He disclosed that the accident had taken place at half kilometer away from the premises of the factory of opposite party No.6. This totally contradicts the allegations made by him in his complaint that he received the injury in the accident, while coming out of the factory for going to his house.
12. From our above discussion, we conclude that this accident had taken place, when he had already left the premises of opposite party No.6 and was on his way to his house. In these circumstances, the injury, so received by him, cannot be termed as "employment injury", within the meaning of Section 2 (8) of the Act. It cannot be held that the said accident took place in the course of his employment. In Regional Director, ESI Corporation & Anr. Vs. Francis De Costa & Anr. (AIR 1997 Supreme Court 432), the employee was on his way to the factory, place of employment, and met with an accident, when he was one kilometer away from that place and received the injuries. It was held by the Hon'ble Supreme Court that it cannot be said that those injuries were caused to him by accident arising out of or in the course of his employment. The ratio of that judgment fully applies to the facts of the present case. In such an eventuality, the complainant does not become entitled to pension under the Act. Without going into that aspect of the case, the District Forum wrongly directed opposite parties No.1, 2, 4 and First Appeal No.858 of 2015 13 6 to consider his case for pension, in view of the disability, as per the Policy. It also could not have issued the other direction; as that also relates to the benefit under the Act.
13. In the result, the appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed, without prejudice to his rights to apply for the reimbursement of expenses incurred by him regarding his medical treatment, by submitting the original bills to opposite party No.3 and by complying with other formalities required to be complied with, as per the rules of the Punjab Government, and that opposite party shall decide that case of reimbursement, within two months of the submission of the bills etc.
14. The arguments in this case were heard on 31.05.2016 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (MRS. SURINDER PAL KAUR) MEMBER June 09, 2016.
(Gurmeet S)