State Consumer Disputes Redressal Commission
Employees State Insurance Corporation vs Gaitari Devi And Others on 25 February, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.203 of 2021
Date of institution : 08.06.2021
Reserved On : 14.02.2022
Date of decision : 25.02.2022
Employees State Insurance Corporation, Madhya Marg, Sector 19-A,
Chandigarh, through its Deputy/Regional Director (through its Social
Security Officer Asha Satija, aged 59 years).
....Appellant/Opposite Party No.2
Versus
1. Gaitari Devi widow of Sh. Devki Nandan son of Sh. Sita Ram,
Resident of Mohalla Mori Wala, Malerkotla, District Sangrur.
2. Yogesh Pareek son of Sh. Devki Nandan son of Sh. Sita Ram,
Resident of Jhadiyon Ka Mohalla, Ward No.8, Pilani (Rural),
Jhunjunun (Rajasthan)-333031.
....Respondents/Complainants
3. M/s Surindra Steel Rolling & General Mills, Industrial Estate,
Malerkotla, through its Proprietor/Partner.
....Respondent/Opposite Party No.3
4. Employees State Insurance Corporation, through its Manager,
Karbala Road, near Dr. Zakir Hussain Stadium, Malerkotla,
District Sangrur.
....Performa Respondent/Opposite Party No.1
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 12.04.2021 passed by the
District Consumer Disputes Redressal
Commission, Sangrur.
First Appeal No.203 of 2021 2
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:-
For the appellant : Sh. Anil Shukla, Advocate
For the respondents : None.
JUSTICE DAYA CHAUDHARY, PRESIDENT
The appellant/opposite party No.2 i.e. Employees State Insurance Corporation (ESIC) through its Deputy/Regional Director has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 to challenge the impugned order dated 12.04.2021 passed by the District Consumer Disputes Redressal Commission, Sangrur (in short, "the District Commission"), whereby the complaint filed by respondents No.1 & 2/complainants-Gaitari Devi and Yogesh Pareek was allowed with the directions to the appellant/opposite party No.2 and performa respondent No.4/opposite party No.1 to give benefits i.e. pension etc. to the complainants and the arrears along with interest at the rate of 9% per annum. Opposite parties No.1 & 2 were also directed to pay an amount of ₹10,000/- in lieu of compensation for causing mental tension and harassment and also ₹10,000/- as litigation expenses. The compliance of the order was to be made within a period of 60 days of its communication. First Appeal No.203 of 2021 3
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out in the complaint are that Sh. Devki Nandan, the husband of respondent No.1/complainant (Gaitari Devi) and father of respondent No.2/complainant No.2 (Yogesh Pareek) was an employee of respondent No.3/opposite party No.3. He was insured and was having ESI No.1207222987. During course of employment/working on 09.01.2017, he felt severe chest pain and fell down on the ground. He was taken to Subhan Hospital, Malerkotla, where he was declared dead by the Doctors. A certificate to this effect was also issued by the Doctors, mentioning the cause of death as 'massive heart attack'. Respondent No.3 submitted the accident report with the appellant and performa respondent No.4 along with all documents. Thereafter, they were informed vide letter dated 10.10.2017 that the case of the deceased did not fall under the definition of 'Employment Injury'. It was also stated that as per ESI Medical Manual, heart attack at the place of employment comes within the meaning of 'Employment Injury'.
4. Notice was issued in the complaint filed by the complainants and thereafter, written replies were also filed by the opposite parties.
5. On perusal/appraisal of documents available on the file and on appreciation of evidence, the complaint filed by the First Appeal No.203 of 2021 4 complainants was allowed by the District Commission, vide order dated 12.04.2021, by holding that the case of Sh. Devki Nandan was covered under ESIC Scheme and opposite parties No.1 & 2 could not run away from their liability.
6. Said order dated 12.04.2021 passed by the District Commission is subject matter of challenge in the present appeal.
7. There was a delay of 04 days in filing of the appeal. A separate application for condonation of delay of 04 days in filing the appeal was filed along with the appeal. Said application was allowed vide order dated 11.06.2021 and the delay of 04 days in filing the appeal was condoned.
8. Mr. Anil Shukla, learned counsel for the appellant/opposite party No.2 submits that the postmortem of deceased Devki Nandan was not conducted and no opinion whatsoever was sought regarding the cause of death. It has also been submitted by learned counsel for the appellant that the doctor, who issued the death certificate, did not treat Devki Nandan and the death certificate was issued by mentioning the cause of death only on the basis of symptoms stated by the relatives. Learned counsel also submits that no such opinion was given by the doctors and simply by relying upon the opinion on the basis of symptoms, the death certificate was issued. It is also the argument of learned counsel for the appellant that the accident had occurred in the factory premises situated at Malerkotla but the place of First Appeal No.203 of 2021 5 death in the death certificate was reflected as Pilani, which is situated in the State of Rajasthan. There was no evidence available on record to prove the cause of death and, as such, the respondents/complainants have miserably failed to prove the cause of death and the complaint was liable to be dismissed but still it was allowed by the District Commission.
9. None has appeared on behalf of respondents No.1 & 2/complainants at the time of arguments. However, the stand of the complainants in the complaint and evidence led before the District Commission is that the complainants party had produced affidavit Ex.C-1 and also letter dated 10.10.2017 Ex.C-2 written to opposite party No.3. Ex.C-3 is an important document, which was issued by Subhan Hospital, Malerkotla itself, wherein it has been specifically mentioned that Devki Nandan was brought to the hospital at 4.30 p.m. on 09.01.2017 and he died because of massive heart attack. Ex.C-4 is the document of police, wherein also it was mentioned that Devki Nandan died on 09.01.2017 due to heart attack and the relatives/LRs of the deceased took his dead body to Pilani (Rajasthan) for performing the last rites. Ex.C-7 is the letter written by the complainants and Ex.C-8 is the e-mail. It is also the stand of the complainants that on the basis of documents available on the file, it is clear that Devki Nandan died due to heart attack while working and his dead body was brought to his native land i.e. Pilani (Rajasthan). First Appeal No.203 of 2021 6 Thereafter his last rites were performed there. The appellant-ESIC is a statutory body and the case of the deceased is fully covered under ESIC Scheme and, as such, it cannot run away from its responsibilities.
10. Heard arguments of learned counsel for the appellant as well as stand of the respondents/complainants taken in the complaint/evidence has been perused. We have also perused the impugned order and all other documents available on the file.
11. Facts relating to filing of complaint and the impugned order dated 12.04.2021 passed by the District Commission, whereby the complaint filed by the complainants was allowed are not disputed. It is also not disputed that deceased Devki Nandan was working with respondent No.3/opposite party No.3-M/s Surindra Steel Rolling & General Mills, Malerkotla and was insured with the appellant/opposite party No.2 and performa respondent No.4/opposite party No.1 under ESI No.1207222987. It is also not disputed that Devki Nandan while doing his work in the premises of the said Company felt severe chest pain on 09.01.2017 and was taken to Subhan Hospital, Malerkotla. He was declared dead by the doctors of Subhan Hospital and the cause of death was stated to be 'massive heart attack', which is clear from the certificate dated 09.01.2017 issued by the said hospital. It is also not disputed that intimation regarding the case of death was immediately sent to opposite parties No.1 & 2. As per case of the complainants, the First Appeal No.203 of 2021 7 case of deceased along with requisite documents was sent to opposite parties No.1 & 2 but it was informed, vide letter dated 10.10.2017, that the case of the deceased was not covered under the definition of 'Employment Injury'.
12. Being aggrieved by the action of the opposite parties, the complaint was filed, which was allowed vide impugned order dated 12.04.2021. A direction was issued to opposite parties No.1 & 2 to give benefits of pension etc. to the complainants being LRs of the deceased and also to pay arrears along with interest at the rate of 9% per annum. Further a direction was also issued to pay compensation for causing mental tension and harassment plus litigation expenses. The relevant portion of the impugned order dated 12.04.2021 as mentioned in Paras 9 and 10 is reproduced as under:
"9. There are numerous documents on the file which shows that Shri Devki Nandan was working in Surindra Steel Rolling and General Mills Malerkotla and he was insured with the Ops number 1 and 2 under ESI. There are also medical documents on the file in the shop of slip of Subhan Hospital Malerktola wherein it is mentioned that Devki Nandan died due to massive heart attack. Ex.C-4 is letter of police wherein it is mentioned that Devki Nandan died due to heart attack and its relatives and LRs wants to take him Pilani Distt. Jhunjhunu Rajasthan for his last rights. So, it is clear that Shri Devki Nandan died at Malerkotla. However, his last rights were performed at Pilani Rajasthan and death certificate was also issued at Pilani. The ESIC is a government company and the deceased is duly covered under the ESIC scheme and the ESIC cannot run away from its liability.
10. In view of our above discussion, we allow the complaint and direct Ops number 1 and 2 to give benefits i.e. pension etc. to the complainants. We further direct them to pay to the complainants the arrears along with interest @ 9% per annum. We further direct the Ops number 1 and 2 to pay to the First Appeal No.203 of 2021 8 complainants Rs.10,000/- in lieu of compensation for mental tension and harassment and further to pay Rs.10,000/- as litigation expenses."
13. The question for determination by this Commission in this appeal is as to whether the death of insured Sh. Devki Nandan had occurred during course of employment due to heart attack and it can be treatment as 'Employment Injury' or not and a presumption under Section 51-A of the Employees' State Insurance Act, 1948 (hereinafter to be referred as "ESI Act") is to be attracted or not?
14. Section 2(8) of the ESI Act relates to 'Employment Injury', which is reproduced as under:
"2(8) "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."
15. On perusal of said definition of 'Employment Injury', it is apparent that since the injury had occurred to the deceased while he was working in the premises of the employer at Malerkotla, so it was during the course of employment and falls under the definition of 'Employment Injury'.
16. Section 51-A of the ESI Act deals with presumption as to accident arising in the course of employment, which is reproduced as under:
"51-A. Presumption as to accident arising in course of employment. --First Appeal No.203 of 2021 9
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."
17. Same issue was there before the Hon'ble Punjab and Haryana High Court in case reported as 1995 (3) LLJ Supp. 593 titled as Harjinder Kaur & amp & Ors. v. Employees' State Insurance Corporation, Amritsar and in Paragraphs 4 to 6, it was held as under:
"4. I have heard the learned counsel for the parties. I find that this appeal deserves to be allowed. Section 2(8) of the Act defines employment injury thus:
`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.
5. Section 51A which was added by Amendment Act No.44 of 1966 provides thus: 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.
6. Thus, the moment it is proved that the accident arose in the course of an insured person's employment, it is to be presumed, in the absence of evidence to the contrary, that the accident has arisen out of that employment. The learned trial Judge was, therefore, wrong in requiring proof from the appellants that in spite of the fact that the death of Gian Singh took place in the course of his employment, it had arisen out of that employment. No doubt, this presumption is rebuttable but there is no evidence worth the name on the record which may be styled as evidence to the contrary."
18. Further, the Hon'ble Madras High Court in the case of C. Indira v. M/s Senthil & Amp. W.P. No.12985 of 2004 (W.P.M.P. First Appeal No.203 of 2021 10 No.15114 of 2004) decided on 06.11.2008 also proceeded to observe in Paragraphs No.12 & 13 as under:
"12 The object of the Employees' State Insurance Act, 1948 (Act 34 of 1948) is to provide certain benefits to the employees or dependants in case of sickness, maternity and employment injury, etc., to give effect to Article 1 of the Universal Declaration of Human Right, 1948, which assures human sensitivity of moral responsibility of every state that all human beings are born free and equal in dignity and rights. In recognition of the said rights only Act 34 of 1948 was enacted and the same is to be liberally construed as it is a social legislation."
13 The Supreme Court in the decision reported in AIR 1986 SC 1686 (Regional director, Employees' State Insurance Corporation, Madras v. South India Flour Mills (P) Ltd.,) in paragraph 13 held as follows :
The Act is a piece of social security legislation enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury. To hold that the workers employed for the work of construction of buildings for the expansion of the factory are not employees within the meaning of section 2(9) of the Act on the ground that such construction is not incidental or preliminary to or connected with the work of the factory will be against the object of the Act. In an enactment of this nature, the endeavour of the Court should be to interpret the provisions liberally in favour of the persons for whose benefit the enactment has been made.
(Emphasis Supplied)."
19. By relying upon aforesaid judgments of the Hon'ble Punjab and Haryana High Court and Madras High Court, Hon'ble Bombay High Court passed/delivered the judgment dated 05.09.2015 in Writ Petition No.9340 of 2012 (Bhagyashree Bharguram Mahadik v. The Employees State Insurance Corporation & Anr.). In the said case, the death of petitioner's husband occurred due to heart attack and the claim was not accepted on the ground that it was not an 'Employment First Appeal No.203 of 2021 11 Injury'. It was held that since the death had happened during the course of employment, it fell under the definition of "Employment Injury" and the respondents in that case were directed to settle the eligible dependents benefits in favour of the petitioner in accordance with law.
20. After passing the judgment dated 05.09.2015 by the Hon'ble Bombay High Court in the case of Bhagyashree Bharguram Mahadik (supra), the ESIC issued Circular No.31/02/Death Case/2014-Bft.I dated 27.08.2014 under the subject "Natural death case (Heart Attack) at work place". The said Circular is reproduced as under:
"No.31/02/Death Case/2014-Bft.I Dated 27.08.2014 To All Regional Director/Joint Director I/c, All SSMCs/SMCs/MRs, ESI Corporation Regional Office/Regional Office.
_______________________ Sub: Natural death case (Heart Attack) at work place. Sir, I am directed to refer to enclosed judgment of Bombay High Court, in the case of Smt. Bhagyashree V/s ESI Corporation Mumbai Writ Petition No. 9340 of 2012, on the subject cited above and to state that the Hon'ble Court has observed as follow:-
1. Under Section 51-A of ESI Act 1948, the moment it is proved that the accident arise in the course of employment, it is to be presumed, in the absence of evidence to the contrary, that the accident has arisen out of employment. No doubt, the presumption is rebuttable but there has to be evidence.First Appeal No.203 of 2021 12
2. The defence that the IP died due to heart attack and it is not employment injury in absence of evidence contrary is not sufficient. Sr. State Medical Commissioner opinion stating merely lilt is a natural death, there is no involvement of stress and strain of work" has been found to be cryptic opinion.
All RDs/JDs/SSMCs/SMCs/MRs are requested to keep the observation of High Court in mind while taking decision on Accident Reports/cases.
This issues with the approval of Insurance Commissioner (Benefit)."
21. In the present case also, death of husband of complainant No.1 has occurred due to heart attack while working in the factory premises of opposite party No.3-Surindra Steel Rolling & General Mills, Malerkotla during the course of employment. It is also not disputed that the insured was covered under ESI Scheme. It is also not disputed that after death, the complainants obtained clearance from the police, vide certificate dated 09.01.2017 (Ex.C-4), to take dead body of the deceased to his native place at Pilani (Rajasthan) for performing his last rites. It is not the case of the appellant/opposite party No.2 that husband of complainant No.1 was previously suffering from any heart related disease. The entire defence of appellant is that the deceased died due to heart attack and it was not an 'Employment Injury'. However, the death had occurred due to heart attack, which might be due to stress and strain of work and heart attack does not give rise to automatic presumption and there could not be any medical evidence that the cause of death was on account of any other reason. First Appeal No.203 of 2021 13
22. Moreover, no evidence has been produced by the appellant to rebut the presumption that death has occurred during course of employment. The insured was taken to Subhan Hospital, Malerkotla, who issued certificate dated 09.01.2017 (Ex.C-3), stating that there was no sign of life in him and the attempt was made to revive but failed. It is further mentioned in the said certificate that the death has occurred due to 'massive heart attack'.
23. So far as the plea of the appellant that the certificate issued by Subhan Hospital is not based on any diagnostic record or postmortem report, is concerned, it is pertinent to mention that the complainants have specifically pleaded in Para-3 (b) of the complaint that information about death of Sh. Devki Nandan was immediately given to opposite parties No.1 & 2-ESIC. After receipt of intimation of death, it was for opposite parties No.1 & 2 to have insisted for postmortem of the deceased, if they were having any suspicion about the cause of death. However, this exercise was not done by them despite having opportunity. Moreover, the dead body of the deceased was taken from Malerkotla to Pilani (Rajasthan) for performing his last rites and only after completing the due formalities, the police issued receipt for transportation of the dead body on 09.01.2017 itself, as is evident from Ex.C-4. Hence, the opposite parties are estopped from raising the defence of non-conducting of postmortem report. Accordingly, it can be said in so many words that there is no First Appeal No.203 of 2021 14 controversy with regard to cause of death of husband of complainant No.1.
24. As far as the plea of the appellant that in the death certificate (Ex.OP1&2/3), the place of death is mentioned as Pilani is concerned, it is relevant to mention that certificate issued by doctor of Subhan Hospital, Malerkotla clearly proves that death of the insured occurred at Malerkotla on 09.01.2017. Ex.C-4 is the document issued by the police, wherein it has been mentioned that Devki Nandan died on 09.01.2017 due to heart attack at Malerkotla and his relatives and LRs wanted to take his dead body to Pilani (Rajasthan) for performing his last rites. Ex.C-7 is the letter dated 17.10.2017 and Ex.C-8 is the e- mail, which prove that the dead body was taken from Malerkotla to Pilani (Rajasthan) at the request of the family members/LRs of the deceased. The affidavit of Sh. Parveen Mangal, S.S.O. of ESIC, Malerkotla (Ex.OP1&2/1) is nothing but the verbatim reproduction of the written version of opposite parties No.1 & 2. Ex.OP1&2/2 is the Accident Report of Employer, wherein again it has been mentioned that the accident/incident of heart attack had occurred in the factory premises at Melerkotla and date of death is mentioned as 09.01.2017. Therefore, merely by mentioning the place of death as Pilani in the death certificate does not disprove that the death of deceased had occurred while working in the factory premises of his employer at First Appeal No.203 of 2021 15 Malerkotla on 09.01.2017, which is abundantly proved from above said documents.
25. The presumption under Section 51-A of the ESI Act squarely applies to the facts and circumstances of the present case and it has to be held that the death of the husband of complainant No.1 had occurred only during the course of employment and in the factory premises itself. Accordingly, the respondents No.1 & 2/complainants are entitled to get the necessary benefits under ESI Scheme, as has been held by the District Commission.
26. In view of the facts as mentioned above and the ratio of law laid down in the aforesaid judgments, we are of the considered view that the order passed by the District Commission is based on proper appreciation of evidence and the arguments raised in the appeal have no merit for consideration.
27. Accordingly, the appeal being devoid of any merit is hereby dismissed and the impugned order dated 12.04.2021 passed by the District Commission is upheld.
28. The appellant has deposited a sum of ₹10,000/- at the time of filing of the appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. Respondents No.1 & 2/complainants may approach the District Commission for the release of the same and the First Appeal No.203 of 2021 16 District Commission may pass appropriate order in this regard in accordance with law.
29. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER February 25, 2022.
(Gurmeet S)