Gujarat High Court
Employees State Insurance Corporation vs Ankur M Kulkarni(Minor) Through ... on 11 December, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2001 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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EMPLOYEES STATE INSURANCE CORPORATION
Versus
ANKUR M KULKARNI(MINOR) THROUGH SANGETABEN M KULKARNI
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Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/12/2023
CAV JUDGMENT
1. The appeal is filed by the Employees State Insurance Corporation under Section 82 of the Employees State Insurance Act, 1948 (for short Page 1 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined 'ESI Act') being aggrieved by the judgment dated 29.1.2008 passed by the Employees State Insurance Court, Ahmedabad (ESI Court) in ESI Application no.52 of 2004.
2. The appellant is an establishment of Central Government and has raised the ground that the impugned judgment and order is illegal, arbitrary, oppressive, unreasonable, unjustified and also discriminatory, along with the ground that the judgment and order is contrary and in total disregard to the vital oral and documentary evidence, to justify the diverse findings which is perverse, and deserves to be set aside.
3. Facts of the case reflects that deceased Mahesh Kulkarni was working as a Helper in Arvind Mills Ltd. On 9.2.2004, after the working hours of the employment, while going towards his home, at the gate of premises of Arvind Mills, he fell down with the scooter and received injury on the head.
4. Advocate Mr. Sachin Vasavada for the appellant submitted that the deceased was not in actual work Page 2 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined of his service, at the time when he met with an accident, which had occurred outside the gate of the Company and at that time, he was heading towards his home. Mr. Vasavada submitted that when the accident occurred, he was not driving the two wheeler, subsequently, when he was brought to the hospital, he was declared dead, and thus, Advocate Mr. Vasavada submitted that the death cannot be considered as arising out of and in the course of his employment. Advocate Mr. Vasavada submitted that the death has no casual connection with the employment, and for the first time, the opponent, in ESI Court, by way of filing ESI Application no.552 of 2004, had contended about death owing to the combine cause of accident and occupational disease. Mr. Vasavada stated that ESI Court without appreciating the merits of the case and without considering the provision of law had delivered the judgment ordering ESIC to pay benefits to the dependants.
5. Advocate Mr. Vasavada has submitted that there are diverse observation and finding of ESI Court in Page 3 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined the impugned judgment which is wholly unjustified and is without application of mind which itself is contrary to the evidence and material on record and is based on mere assumption and presumption. Mr. Vasavada has submitted that ESI Court ought to have observed and followed the provisions of law, its rules and regulations and should have directed the opponent to make the representation according to ESI (General) Regulation, 1950 under Regulations no.77 to 80 and thus, ought to have rejected the application. Mr. Vasavada submitted that the evidence on record clearly suggests that the deceased died because of his own medical reasons and the death has not occurred because of any kind of employment injury. Mr. Vasavada thus submitted that ESI Court ought to have held that the opponent's application had not pleaded of any reason of any strain in work or accident arising during the course of the employment and how the service strain has caused heart attack. Mr. Vasavada thus stated that ESI Court ought to have held that the death of the deceased was because of his callousness and not in the course of his Page 4 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined employment as the deceased was suffering from heart disease. Further, Mr. Vasavada contended that the ESI Court ought to have considered the opinion of the medical experts of ESIC which was made on the basis of the death certificate and ought to have rejected the application on the ground that the death took place only due to non- occupational disease. Mr. Vasavada thus stated that mere reliance on Section 51A of the Employees State Insurance Act, 1948 which provides for drawing the presumption, could not have been acted upon unless the opponent could have proved that the death was during the course of employment and submitted that the alleged heart disease had not arisen due to occupational hazard and thus, submitted to allow the appeal by quashing and setting aside the order of the ESI Court.
6. Advocate Mr. Hiren Modi for the opponent -
dependants has submitted that the deceased was in permanent post as a Helper, and on 9.2.2004, he was in the morning shift from 7.00 a.m. to 3.00 p.m. He had performed his job and was heading Page 5 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined towards home on the scooter and while moving from the main gate of the premises, he met with an accident and had fallen on gate and therefore, sustained injury on the head, he was taken to ESI Bapunagar General Hospital in an unconscious state. Upon preliminary examination by the Doctor, he was declared dead.
7. Advocate Mr. Modi submitted that legal heirs of the deceased had claimed benefits from the department, but by a letter dated 15.7.2004, the same came to be rejected, observing that the deceased Mahesh Kulkarni serving in caustic plant had died because of the occupational disease owing to the caustic plant, on the date of the accident he was under acute influence of caustic soda and the chemicals which has affected his health and the day to day work had influenced his breath and on 9.2.2004, as co-worker Mohanbhai was on leave and therefore, because of double extra work, he was facing difficulty in breathing and burning in the chest and that had affected the nerves of the brain and after removing his vehicle from the Page 6 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined parking area of the compound and was heading towards main door of the premises, he had a sudden pain in his chest and because of imbalance of mind, he lost control on his vehicle and had fallen down and since he had fallen down from the running scooter, had sustained injury on the head. Mr. Modi submitted that the postmortem report submits that the death is because of the injury in the head.
8. The claim prayer came to be rejected and thus, aggrieved by the order of the appellant, the dependants of the deceased were constrained to file ESI Application no.52 of 2004.
9. Mr. Modi referring to Section 2(8) of the ESI Act submitted that if any personal injury is caused to the employee by the accident or an occupational disease, arising out of or in the course of his employment being insurable employment, he would fall under the definition of 'employment injury', and, further the definition includes the accident which occurs or occupational disease contracted within or outside the territorial limits of India. Page 7 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023
NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined Thus, Mr. Modi submitted that having read Section 51A of the ESI Act, the dependants need not prove any fact, as the presumption is attached to the accident which arises, when such has occurred in the course of the employment. In the present case, Mr. Modi contended that such accident has occurred to the employee, thus submitted that only on the basis of prima facie evidence, the dependants were to be compensated, instead the appellant had rejected the claim.
10. Mr. Modi submitted that evidence on record proves that the injury had occurred in the compound of the premises, more specifically at the gate and thus, stated that since appellant had refuted the case of the dependant, the only question which would now fall for consideration would be whether the injury suffered by employee falling from the scooter outside the mill compound could be considered as an employment injury.
11. Mr. Modi submitted that the evidence was given by the applicant no.1 by way of affidavit Exh.13 and has given evidence of accident and occupational Page 8 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined disease, as the cause of death.
12. Mr. Modi submitted that the evidence of Dr. Sumanlal Srimali was with regard to physical condition of the deceased and the postmortem and pathological report shows that the death of the deceased was because of the fracture on the head and there was bleeding, and the Doctor had very categorically opined that the death was not because of any disease, and thus, urged to consider the case as of accident injury.
13. Mr. Modi submitted that evidence of the witnesses considering the applicants as dependants, the ESI Court came to the conclusion referring to the evidence of Dr. Suman Srimali at Exh.18, the death of the insured employee was because of the brain hemorrhage, corroborated by the evidence of the Doctor. Advocate Mr. Modi thus submitted that when the insured deceased was returning after completing his job and was heading towards his home, at the main gate, there was a security checking and while starting his scooter, the accident had occurred and therefore, ESI Court Page 9 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined came to the conclusion that the death of the insured deceased has occurred during the course of the employment and thus, placing reliance on the provision of Section 51A read with Section 2(8) of the ESI Act, ESI Court had believed it to be an 'employment injury' and ordered the Corporation to grant money to the dependants as per Section 52 with Schedule 1 of the Employees State Insurance Act, 1948.
14. Mr. Modi has relied upon the judgment in the case of Leela Bai & Anr. v. Seema Chouhan & Anr., (2019) 4 SCC 325 to submit that principle of notional extension of "course of employment" has to be considered in the present case, and has also further relied upon the judgment in the case of New India Assurance Co. Ltd. v. Jivram Jetha Bambhania (decd.) through his heirs Gitaben & Ors., 2006 (1) GLR 620 to submit that when the accident takes place while proceeding towards work place, then it could be considered as accident which took place in the course of employment.
15. In context of the arguments raised, certain Page 10 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined judgments would require mention, to understand the views adopted by the Courts to the facts of the cases therein. In BEST Undertaking v. Agnes, AIR 1964 SC 193, it was observed as follows:-
"9. ... '...The man's work does not consist solely in the task which he is employed to perform. It includes also matters incidental to that task. Times during which meals are taken, moments during which the man is proceeding towards his work from one portion of his employers' premises to another, and periods of rest may all be included."
"11. ... '7. ... It is now wellsettled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all time this theory of notional extension."
16. In Jivram Jetha Bambhania (supra) relied upon by learned advocate Mr. Modi, the insurance company had challenged the judgment and award passed by Page 11 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined the Workmen's Compensation Commissioner, Labour Court, wherein the substantial questions of law were raised. The first two questions are relevant, which are reproduced hereunder:-
"(A) Whether an accident that takes place on a public road while the deceased employee is on his way to his work-
place, can be said to fall under Section 3 of the Workmen's Compensation Act, 1923?
(B) Whether in light of the ruling of the Hon'ble Supreme Court of India in the case of Francis De Costa, reported in 1996 (6) SCC 1, the case of the deceased workman who died in a vehicular accident while on his way to his work- place, can be said to fall within Section 3 of the Workmen's Compensation Act, 1923?"
17. The case of Francis De Costa, 1996 (6) SCC 1, has been noted in the question raised, in that matter, the facts of the case was that, the deceased was going from his home to his place of work, he suffered injury in an accident on the way. The Hon'ble Supreme Court concluded that it cannot be said that the accident had arisen out of and in the course of his employment. However, to the facts of the case, it was observed under Section 3 Page 12 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined of the Workmen's Compensation Act that where an employer goes to the residence of an employee and takes the employee on his vehicle and proceeds towards the work-place, but on way, an accident takes place, the law would hold that the accident took place in the course of employment.
18. In the case on hand, Accident report dated 10.2.2004 was received from M/s. Arvind Mills Ltd.
The brief description of the accident in the report says that "while he was leaving the main gate by his scooter after completion of his duty hours, he fell down from his scooter and blood found in his mouth". The occupation of the insured person in the report was shown as "Caustic Plant Operator" and the duty hours were shown as 7.00 a.m. to 3.00 p.m. with the time of incident as 3.00 p.m.
19. The authority at the Branch Office Naroda Road, ESI Corporation-the appellant communicated to the Regional Director, ESI Corporation, Ahmedabad on 2nd April 2004, which is verbatim reproduced as under:-Page 13 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023
NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined "The case has been considered as 'CASE OF SICKNESS' on the basis of the preliminary information submitted by the Employer in the Accident Report and findings shown as under:-
(1) Since the Employer has stated that 'after completion of his duty hours' the incident take place means the accident not happened during the course of employment.
(2) The accident took place at the main gate of the factory it could also not established that the same happened out of employment.
(3) The incident take place at main gate i.e. outside the factory premises.
(4) The I.P. has not met with an any kind of physical accident but near the main gate he fell down from his scooter and the blood came out from his mouth. He may feel giddiness or so because of that he may fell down from his scooter.
In view of the above it was considered that the incident taken place is not happened during the course of employment and also not out of employment and the same was considered as a case of 'SICKNESS'.
Now the dependant Smt. Sangitaben-wife (her name is not shown in Declaration Form) has informed about the said accident and claimed that the accident happened during the course of employment and requested for dependant Benefit.
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NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined It is, therefore, requested to please examine the case at R.O. and the decision taken by this office may please review/re-examine, if fit, and the dependant may please be informed accordingly. If it is necessary to carry out complete investigation of the case, this office may please be advised accordingly.
Accident Report, in original, is enclosed herewith which is self explanatory, for further necessary action at your end."
20. In the present matter, the case has been urged by the dependant as both under 'occupational disease' as also of 'accident injury' through her evidence.
21. As was observed in the case of Francis De Costa (supra), the Hon'ble Supreme Court in the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja, reported in AIR 1958 SC 881 had held that when an employee is traveling to and fro from his place of work, if an accident occurs while commuting to and fro from the place of work, the accident cannot be said to have arisen out of and in the course of employment, because the accident does not happen within the premises of the employer. This Division Bench judgment of Three Page 15 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined Judges and the ratio laid down found change to certain extent by the Constitutional Bench judgment of the Hon'ble Supreme Court in the case of Best Undertaking (supra). The Hon'ble Supreme Court in the case of Best Undertaking (supra) has held that since the service rules requires the employees of the BEST Undertaking to use official transport while going to and fro from work, would be an accident arising out of and in the course of employment.
22. The judgments in the case of Francis De Costa (supra) and Saurashtra Salt Manufacturing Co. (supra) are the judgments which would be in the favour of appellant ESI, but the progress in law requires appreciation to understand the welfare legislation.
23. The ESI Act, 1948 came to be enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury and aims to make provision for certain other matters in relation thereto. The ESI Act found amendment time to time, the substitution of Section 51E was with Page 16 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined effect from 1.6.2010, while Section 52A had found place in the Act with effect from 28.1.1968.
24. Section 51E deals with accidents happening while commuting to the place of work and vice versa. The date of the incident in the present matter is 9.2.2004. The ESI Act being a social welfare legislation, the interpretation which furthers the intention of the legislation must be adopted. The object of the ESI Act itself clarifies making of provision in relation to the Act. The interpretation of the provision should be progressive and purposive. Definition provision Section 2(8) of the ESI Act gives the meaning of 'employment injury' which is reproduced hereinbelow to get a better understanding of law.
"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;]"Page 17 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023
NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined
25. This definition Section 2(8) was brought in force with effect from 28.1.1968 giving meaning to 'employment injury', as personal injury to an employee caused in accident or an occupational disease. The Section thus makes it clear that injury caused in accident or occupational disease are employment injury, expanding the meaning in the definition clause as arising out of and in course of employee's insurable employment, immaterial of such employment injury contracted within or outside the territorial limits of India.
26. Section 2(8) substitutional insertion in the ESI Act, at the same time had the provision of presumption, as rule of law, through Section 51A, which provides for presumption as to accident which is arising in course of employment, which had been incorporated in the ESI Act in following terms:-
"51A. Presumption as to accident arising in course of employment.- 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 Page 18 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined employment."
By the employment of expression 'shall be presumed' in the section, as directed, the Court shall record such fact as proved, unless and until it is disproved.
27. Section 51E was instituted into the statute book with the effect to have force on and from 1.6.2010 with the following provision:-
"51E. 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."
28. Section 51E is to be read in context with Section 2(8) of the ESI Act as well as to note, that while introducing Section 51E in the ESI Act, there has been no change in the definition of 'employment injury'. It can be clearly said that the provision Page 19 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined of Section 51E is declaratory and clarificatory in nature. This can well be understood and acknowledged, as since, with effect from 28.1.1968, Sections 51B, 51C and 51D, too were put in statute, where Section 51B refers to accidents happening while acting in breach of regulations etc., while Section 51C explains in context with accidents happening while traveling in employer's transport, and Section 51D deals with accidents happening while meeting emergency. Section 51B to 51E are deeming provision to consider such accidents, as provided for, to have arisen out of and course of the employee's employment.
29. Thus, Section 51E as can be read, is declaratory and clarificatory of the expression 'accident injury' as defined under Section 2(8) of the ESI Act. The provision of Section 51E would have to be invoked as and when the facts associated to the condition described therein arises. Section 51E of the ESI Act is declaratory and clarificatory section having retrospective effect, such view gets support from the observation made in the case Page 20 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined of Delhi High Court, where in Employees State Insurance Corporation & Anr. v. Smt. Poonam Sharma & Ors. in FAO no.177/2012 & CM no.7366/2012, it was observed as under:-
"8. The issue therefore to be decided is as to whether the provision of Section 51(E) is prospective or it is only declaratory and clarificatory so far as definition of employment injury as found in Section 2(8) of the Act is concerned i.e the clarification in Section 51(E) of the definition of employment injury does or does not apply to accidents before Section 51(E) was enacted.
9. ...the provision of Section 51(E) must be held to be prospective i.e it does not apply to accidents which happen before bringing in of this amendment w.e.f 1.6.2010 i.e. if accidents are caused to the employee while commuting to and fro from the place of work if they occur before 1.6.2010, then, such accidents should not be included in the expression 'employment injury' as per Section 2(8) of the Act.
12. I am unable to agree with the arguments urged on behalf of the appellant because para 21 of the judgment in the case of C.Gupta (supra) before making observations with respect to date of coming into effect of an amended provision, has specifically observed that the position would be different when the amending provision is merely Page 21 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined declaratory and clarificatory.
Clarifying this further, the Supreme Court said that in the facts of C.Gupta's case (supra) the definition of 'workman' was specifically amended by adding expression 'operational' for the first time in the definition and the expression 'skilled' and 'unskilled' were made independant categories unlinked to the word 'manual'ie the amendment hence touched substantive right which changed because of the amendment. When we see the provision of Section 2(8) of the Act, which defines the 'employment injury', we find that there is no amendment carried out to this provision in that any words have been taken away from the said provision which would have taken away vested rights. The amendment is declaratory or clarificatory and not stated by its language to be prospective. For example, let us take a case where statutorily the definition provided that a person who commutes to and fro from place of work when he suffers an accident is excluded, and then such an accident does not arise out of and in the course of employment. If these words are sought to be removed by amendment by bringing in Section 51(E) by simultaneously deleting these expressions if were found in Section 2(8), then, of course, it could have been argued that originally by the definition itself of employment injury, accident taking place while commuting to and fro from the place of employment though was earlier excluded specifically, and which is sought to be included by amendment, and consequently by its very nature amendment will be prospective because the amendment is not clarificatory or Page 22 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined declaratory but there is a substantive amendment of the definition of employment injury by removing specific words and adding specific words hence affecting substantive rights. This however is not so. Therefore, in my opinion, Section 51(E) is merely declaratory and clarificatory of the expression 'employment injury' and by virtue of the Section 51(E) it is only clarified that an injury which takes place on account of an accident outside the premises of the employment but when the employee is commuting to and fro from the place of work, the accident will be included in the expression 'accident arising out of and in the course of employment'. In my opinion, the fact that the provision of Section 51(E) uses the expression 'deemed' also shows that the provision of Section 51(E) is clarificatory and declaratory so far as definition of 'employment injury' as found in Section 2(8) of the Act is concerned. Merely because the Section is brought into effect on a particular date will not take away the effect of the Section being declaratory or clarificatory, and once the Section is only clarificatory and declaratory with respect to the accident arising out of and in the course of employment, then in such a case the date of bringing into operation of the Section cannot in any manner change the aspect that the amendment is only declaratory and clarificatory and is not a substantive amendment affecting substantive rights."
30. The Insurance Inspector, while filing the reply to the E.S.I. Application no.52 of 2004, has denied Page 23 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined of any ill-effect of the employee's occupation. Such plea of the applicant-dependant was pleaded to be not true and tenable at law. It was stated, before the ESI Court, through the reply that the death of the husband of the dependant-widow was due to accidental injury on head owing to fall from scooter and further it was urged that the cause of death is shock and hemorrhage due to head injury, which is evident from the postmortem report. It is further pleaded that after completion of the regular duty hours and while the employee had already left the mill compound after the security check, he fell from the scooter, therefore, it has been proved beyond doubt that the accident had not occurred during the course of employment and out of employment and thus, it was urged that the ESI Corporation has rightly rejected the case. It was also stated that there is no relation of accidental death with the course of employment as had occurred after completion of his regular duty hours and after having left the mill premises. Death was due to head injury after working hours outside the mill premises. The cause Page 24 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined of death is brain hemorrhage due to accidental injury to head and the plea taken by the widow that her husband working in the caustic plant was inflicted with occupational disease, was pleaded to be false, fabricated and far from truth and afterthought with some motivated intention to extract undue advantage from the present appellant. That the deceased had never complained of any ailments as such, throughout his regular duty hours and passed well the whole time and left for home and expired due to accidental injury to head due to fall from scooter outside the mill gate and therefore, pleaded that it cannot be treated as employment injury due to accidental or occupational disease during the course of employment and that the appellant had rightly rejected the case.
31. Dr. Sumanlal Srimali was examined at Exh.18 who was CAMO of Civil Hospital, Ahmedabad and had performed the postmortem of the deceased on 10.2.2004. The report shows hemorrhage as the cause of death because of the head injury. For Page 25 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined histopathology report, the heart was sent at the pathological department, as per the report, weight of the heart was found 250 gms., and veins providing blood to the heart found ethokerisis giving meaning to it as wall of the veins had thicken because of cholesterol. The Doctor deposed that because of cholesterol, if veins get thicken, and such a person falls on the ground, then owing to the injury on head, the death as noted can occur. The Doctor specifically opined that because of fracture in the skull, there was hemorrhage in front part of the brain, parietal and temporal area and because of Spontaneous Tansillar Hemorrhage (STH) on the cerebellum (small brain) death has occurred. The Doctor has denied of any effect because of caustic soda, except weaking of lungs, so the Doctor has ruled out the cause of occupational disease.
32. The case urged by the dependants was also of occupational disease. Section 52A deals with occupational disease, which is extracted hereinbelow:-
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NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined "52A. Occupational disease.-- (1) If an employee employed in any employment specified in Part A of the Third Schedule contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee employed in the employment specified in Part B of that Schedule for a continuous period of not less than six months contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in any employment specified in Part C of that Schedule for such continuous period as the Corporation may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall, unless the contrary is proved, be deemed to be an "employment injury" arising out of and in the course of employment.
(2) (i) Where the Central Government or a State Government, as the case may be, adds any description of employment to the employments specified in Schedule III to the Workmen's Compensation Act, 1923 (8 of 1923), by virtue of the powers vested in it under sub-section (3) of section 3 of the said Act, the said description of employment and the occupational diseases specified under that sub-section as peculiar to that description of employment shall be deemed to form part of the Third Schedule.
(ii) Without prejudice to the
provisions of clause (i), the
Corporation after giving, by
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NEUTRAL CITATION
C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023
undefined
notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in the Third Schedule and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of this Act shall apply, as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.
(3) Save as provided by sub-sections (1) and (2), no benefit shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(4) The provisions of section 51A shall not apply to the cases to which this section applies.]"
33. The provision under Section 52A deals with the disease contracted during the course of employment. The deceased herein was working in the mill as Caustic Plant Operator. The list of occupational disease under Section 52A is in Third Schedule bifurcated as Part-A, B and C. The occupational disease peculiar to that employment shall be termed as "employment injury" arising out Page 28 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined of and in course of employment as provided under Section 52A of the Act, which further clarifies that provision of Section 51A shall not apply to the cases to which Section 52A would apply. Nothing has been brought on record to prove of any occupational disease. Doctor conducting the postmortem has denied of any such cause.
34. The dependant had urged compensation under both the grounds i.e. personal injury caused by accident and "occupational disease" arising out of and in the course of his employment. Section 2(8) as was prior to 28.1.1968 would require a reference as the right of the dependant for claiming compensation on the death of the insured employee would fall as 'employment injury' with reference to Section 51E and 52A. Section 2(8) prior to 28.1.1968 reads 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 in a factory or establishment to which this Act applies, which injury or occupational disease would entitle such employee to compensation under the Workmen's Page 29 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined Compensation Act, 1923 (VIII of 1923), if he were a workman within the meaning of the said Act;"
35. Earlier Section 2(8), refer to the personal injury caused by accident or occupational disease arising out of or in the course of employment in factory or establishment to which the ESI Act applies. Thus, earlier the accident occurring in the factory or the connected establishment as covered under the ESI Act was considered as employment injury. Section 2(8) presently in force has broadened its aspect by considering the employment injury within or outside the territorial limits of India. The specification of such injury in factory or in establishment to which the Act applies has been done away with. Hence, the issue as to whether the employee suffered injury falling from the scooter outside the mill compound or within would now be of no significance, as any injury arising out of or in the course of his employment would be considered as an employment injury, reading with the clarificatory and declaratory provision under Section 51E, which would be Page 30 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined applicable in the present case as the accident had occurred while going from the place of employment. Any accident 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 been arisen out of and in the course of employment. In the present case, by the evidence of the Doctor as well as the report and the reply of the appellant with the evidence of the dependant clearly establish the nexus of the time and place when the accident occurred establishing the employment injury. The cholesterol of the heart is not the direct cause of death. Accident would mean an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury. Such event happens by chance, without any apparent or deliberate cause. The case on record clearly proves that after performing the duty, the deceased was leaving the mill premises, where at the gate of the premises, the employee after undergoing security check suffered accident by a fall. The cause of death has been shown as Page 31 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined hemorrhage because of the injury to the head. The case therefore has been proved by the dependant under Section 51E.
36. In view of the above observation of facts and provision of law, it would be right to hold that provision of Section 51E is only declaratory and clarificatory to the definition of employment injury contained in Section 2(8) of the Act and the benefit of the provision shall have to be given to the employee even if the accident had occurred prior to 1.6.2010. considering the accident injury arising out of and in the course of his employment.
37. In view of the above, appeal fails merits. No substantial question of law is involved, the findings of facts on appreciation of material and evidence by the ESI court cannot be said to be erroneous or perverse, it therefore does not call for any exercise of discretion under section 82 of the ESI Act. The appeal, therefore, stands dismissed with no order as to costs. The amount Page 32 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023 NEUTRAL CITATION C/FA/2001/2008 CAV JUDGMENT DATED: 11/12/2023 undefined deposited by the appellant be paid to widow, as dependent, on verification of identity.
(GITA GOPI,J) Maulik Page 33 of 33 Downloaded on : Mon Dec 11 20:50:30 IST 2023