Delhi District Court
Sh. Sandeep Kumar vs M/S. The I-Services on 27 April, 2009
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IN THE COURT OF SH. AJAY GOEL:SCJ CUM RC(CENTRAL):DELHI
ESIC 86/06
Sh. Sandeep Kumar
s/o Sh. Sita Ram Singh
r/o House no. 3237/E-II-72,
Molarband Extension,
Badarpur, New Delhi-110044
........... Plaintiff
VERSUS
1. M/s. The I-Services,
Through its Managing Director
B.O.:B-149, Sector-10,
Noida-201301, UP
2. The Director General
M/s I-Services
H.O. 1120, Anenue of America's
New York, N.Y., USA
Tel No. 212-626-6684,
Fax 212-626-6685,
Through American Ambassy
Shanti Path, New Delhi-110001
3. Employee State Insurance Corporation
Through its Director General
Kotla Road
ITO
New Delhi-110001
.................. Defendants
Date of institution:- 4.10.06
Date of assignment to this court:- 12.1.09
Date of arguments:- 9.4.09
Date of decision:-27.4.09
JUDGMENT
1. This is a suit for compensation and damages u/s 51 of A of ESI Act filed by the 2 plaintiff against the defendants. It was stated in the plaint that plaintiff was employee of defendant no. 1 and 2 having employee code no. 21-33997-90 and was insured with defendant no. 3. On 7.11.03 plaintiff suffered an accident at about 12 p.m. when he was sent out of his office by the then Manager Sh. Brijendra Sharma. Plaintiff was employed as Data Processor on the said date of accident and was working for the works assigned on table for salary of Rs.6,000/-. It was stated that the plaintiff was not supposed nor was entitled to work outside the premises of the company or work beyond the assignment fixed for the job, however plaintiff was compelled to go out for the assigned work of Manager Sh. Brijendra Sharma as mentioned on the gate pass. Plaintiff as stated was on duty from 9.30 p.m. to 5.30 a.m on the said date of accident and he was on duty at the time of the accident and was sent out from the premises of the defendant no. 1 by the order of the then Manager Sh. Brijendra Shamra. As stated younger brother of plaintiff namely Sh. Dilip Kumar who was also working with the defendant no. 1and 2 was also forced to resign from the office after the said accident of plaintiff without any rhyme or reason. After the accident plaintiff was rushed to the Prakash Hospital, D-12, Sector-33 Noida by a police vehicle at 1.20 a.m. on 8.11.03 where he was treated for 3-4 days and thereafter he was shifted to ESI hospital Sector- 24 Noida but for further and proper treatment on the same date he was referred to LNJP hospital on the recommendation of the ESI hospital for the purpose of neuron surgical treatment as the same was not available there. It was further stated due to the said accident all the four limbs, spinal cord and other visceral organs of the plaintiff were so badly damaged that no hope of cure was opined by the doctors but because of 3 hope and live state of the plaintiff family members of plaintiff never though for expenses and consequences of all the treatment and they went on complying all the suggestion given by the doctors treating him or the doctors known to him other way. On 11.11.03 on refusal/reference of the doctors from LNJP hospital, New Delhi because of non availability of proper surgical treatment, the plaintiff was shifted to Vimhans Hospital 1, Institutional Area, Nehru Nagar where plaintiff was surgically treated with one of the best doctors i.e. Prof. A.K. Banerjee and Prof. V.P. Singh for about one month and still is being treated by the same doctors. Due to the said accident the plaintiff gone through complete nervous breakdown and is still bed ridden and is declared as 100% handicapped by the doctors and is undergoing treatment which cost atleast Rs.3-4,000/- per month on medicines other than other costs of nutrition and other occasional test and visits. During these period of treatment so many complications have arisen in the life and body of the plaintiff for which he was also advised to take treatment from various other hospitals in which more than Rs.10 lacs have been spent and still the same is going on. Plaintiff as stated require one person for his regular care and help in daily life and he cannot even use any of the limbs even for the work of visceral organs and medicine is required. The said accident as stated have shattered the complete dreams of plaintiff when he was about to marry. It was further stated that inspite of many representations in oral and writing all the three defendants have not bothered even to single penny either towards his salary or towards the treatment for which the defendant no. 1i s liable under the various provisions of labour laws, Industrial Laws besides the constitutional provisions also the defendant 4 no. 3 is liable as the defendant no. 1 and 2 are registered under him and plaintiff was a insured employee under ESI Act. It was stated that in the gate pass given to plaintiff he was permitted to go only for the ten minutes but when he did not turn up even on the next day, the defendant no. 1 and 2 never bothered to lodge any FIR for the missing and even otherwise when defendant no. 1 and 2 came to know about the accident from hospital sources on very next day then also they did not bother to lodge an FIR either for the accident or other legal formalities in the interest of plaintiff and due to all that the legal interest of the plaintiff hampered for that the defendant no. 1 and 2 are liable for the same. As stated many representations were made and attempts were made to meet the General Manager of defendant no. 1 and 2 but they replied only once in which they accepted all the claim of the plaintiff but they passed the buck on defendant no. 3, on that plaintiff had passed all the records of the medical treatment alongwith the bill of expenses till date to the defendant no. 3 through the office of defendant no. 1 but even after that defendant no 3 have given so many pretentions to not to provide any assistance allegedly on the name of delay or it was the duty of the defendant no. 1 and 2 etc. All these periods, besides running for the requirements of all the medical treatments, the father and family of the plaintiff also ran from pillar to post to get assistance in the treatment and help of the plaintiff. As stated all the possible efforts of the family of plaintiff gone in vain and he was left with no remedy but to file the instant suit and accordingly it was prayed that instant suit be decreed in favour of the plaintiff and against the defendants directing the defendants to grant the medical costs of the plaintiff occurred till date and also for the whole period of 5 service, if the plaintiff would be hell and hurty in the service of the defendant no. 1 and 2. It was also prayed that defendant no. 1 and 2 be also directed to pay full salary @ Rs.6,000/- till the full tenure of the service period of the plaintiff from the date of accident i.e. 7.11.03. Defendants be also directed to grant pension as per rules, after the would be period of retirement of the plaintiff as per rules. Defendant no. 1 and 2 be also directed to grant the damages in the form of mental, agony, loss of future prospect in life, loss of prospect of marriage and all other would be prosperity in life keeping in mind the promising career and age of the plaintiff in terms of money.
2. WS was filed on behalf of defendant no.1&2 and separate WS was filed on behalf of defendant 3. In the WS filed on behalf of defendant no. 1 and 2 preliminary objections were raised stating that instant suit is not maintainable as the subject matter does not fall within the jurisdiction of this court as well as no claim of any nature lie against the defendant no. 1as the plaintiff was covered under ESI Act. Defendant no. 1 as stated paid Rs.26140/- to the plaintiff to meet immediate medical expenses and the wages were also paid to the plaintiff till his last working day. On merits employment of plaintiff with defendant no. 1 was admitted and it was also admitted that the plaintiff was on the shift on 7.11.03 on the night of the accident, however it was denied that the plaintiff was compelled to go out or that his brother was forced to resign from the services. It was denied that the accident or the consequences thereof may be attributable to the illegal assignment given by the defendant no. 1 as is alleged by the plaintiff and it was stated that the plaintiff went out in the normal course of events. It was stated that the defendant got the information from the police the same 6 night after the plaintiff was taken to the hospital by them and the HRD people from defendant no. 1 went to the hospital and also pursued the matter with ESI hospital for reference to a specialised hospital and accordingly on reference of ESI department the plaintiff was shifted from Prakash Hospital in a couple of days to LNJP hospital . It was stated that the defendant no. 1 paid the wages till last day of work of plaintiff besides ex-gratia payment of Rs. 26140/- and the liability of defendant no. 1 as an employer is limited to the coverage of an employee under the ESI Act which defendant no. 1 and any liability related to the accident does not remain that of the defendant no. 1, moreover any claim related to Industrial Law may not form a subject matter of the present suit. It was stated that the defendant no. 1 clearly stated in various correspondences that it was the liability of ESIC to compensate or take care of the treatment of plaintiff. It was also stated that defendant no. 2 was not the employer of the plaintiff hence he has no relevance at all. Rest of the contents of the plaint were also denied. It was stated that plaintiff has no cause of action against defendant no. 1 and 2 and accordingly the suit of the plaintiff is liable to be dismissed against defendant no. 1 and 2. In the WS of defendant no. 3 it was prayed that suit of the plaintiff be dismissed as no cause of action arisen against the defendant no. 3 as well as suit of the plaintiff is time barred. It was stated that plaintiff did not file Form-16 with the defendant no. 3 to claim any amount either in time or as per the ESI Act.
3. Replications to the respective WS were also filed in which contents of the plaint were reiterated and those of WS were denied.
4. Vide order dated 10.9.08 from the pleadings of the parties following issues were 7 framed:-
1) Whether this court does not have the territorial jurisdiction to try this suit? OPD
2) Whether the suit of the plaintiff as regards defendant no. 3 is barred by limitation? OPP
3) Whether the plaintiff is entitled to the medical costs as prayed? OPP
4) Whether the plaintiff is entitled to the salary as claimed from date of accident i.e. 7.11.03? OPP
5) Whether the plaintiff is entitled any pension as claimed?OPP
6) Whether the plaintiff is entitled to damages under Section 51 of the ESI Act?
OPP
7) Relief.
1. Plaintiff in support of his case examined himself as PW-1, PW-2 Sita Ram. In the statement of PW-1 terms of appoint and document relating to appointment were Ex. PW-1/1 and PW-1/2, Gate pass slip was Ex. Pw-1/3, medical facility as well as recommendations of doctors vide Ex. PW-1/4 to Pw-1/7, plaintiff was declared handicapped vide Ex. PW-1/8, record of expenses was collectively Ex. PW-1/9, legal notice to defendant no. 1 was served vide Ex. PW-1/10 and Pw-1/11 and correspondence to defendant no. 1 and 2 collectively Ex. PW-1/12.
2. Defendant no. 3 examined Sh. G.R. Dahia in support of its case whereas it was stated on behalf of defendant no. 1 and 2 that liability of D1 and D-2 was limited to the extent of coverage of plaintiff under ESI Act. Defendant No. 1 & 2 did not produce any witness.
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3. I have heard Ld. Cl. for all the parties as well as perused the record. My issuewise findings are as follows:-
4. Issue no. 1:-Whether this court does not have the territorial jurisdiction to try this suit? OPD :- The plaintiff in plaint in para no. 3 has stated that defendant no. 1 and 2 are insured with defendant no. 3 and defendant no. 3 has admitted the same. The defendant no. 1 and 2 have also not denied the same. The defendant no. 3 is having the office in Delhi and it is settled law that when the suit can be instituted before the 2-3 courts having the competent jurisdiction then it is the wish of the plaintiff to choose the appropriate forum. The onus of proving this issue was on the defendant but the defendants have failed to counter the evidence produced by the plaintiff. Hence in these circumstances this issue is decided in favour of the plaintiff and against the defendants.
5. Issue no. 2:- Whether the suit of the plaintiff as regards defendant no. 3 is barred by limitation? OPP :- The accident is stated to have happened on 1.11.03 and the present petition has been moved on 4.10.06 within three years of the incident and defendant has failed to substantiate the allegation as to how the suit is barred by limitation. Hence in these circumstances this issue is decided in favour of the plaintiff and against the defendants.
6. Issue no. 3 to 6:- Whether the plaintiff is entitled to the medical costs as prayed? OPP &Whether the plaintiff is entitled to the salary as claimed from date of 9 accident i.e. 7.11.03? OPP &Whether the plaintiff is entitled any pension as claimed?OPP &Whether the plaintiff is entitled to damages under Section 51 of the ESI Act? OPP :-All these issues are taken up together as can be decided simultaneously. First of all the plaintiff was duty bound to prove that the incident had occurred while the plaintiff was discharging his duty during the course of his employment. The employment is not disputed. The nature of work is also not disputed. The defendant no. 1 has admitted that on 7.11.03 the plaintiff was on the shift in the night of the accident. The defendant no. 3 could not say regarding the same. The plaintiff has clearly mentioned the nature and the time of the duty. The only defence taken by the defendant was that he was not compelled to go out. This averment is of no help because if a person is working in some establishment he is duty bound to obey the directions of his employer. It is also not disputed that plaintiff has met the accident. Gate pass is Ex. Pw-1/2 and time mentioned is 12.40 p.m. This court is not concerned regarding the reason of incident or cause of accident. The nature of injury suffered by the plaintiff is also not disputed. The treatment received by the plaintiff is also not disputed. As per Ex. Pw-1/8 the petitioner has become handicapped 100%. It is also brought on the record that the plaintiff had to incur the expenses and even despite the legal notice the defendants have failed to give any assistance to the plaintiff. The defendant no. 3 has simply stated that form-16 has not been filled by the plaintiff and they are unable to process the claim. It has come on the record that he was initially shifted to ESI Hospital Noida and thereafter referred to LNJP hospital 10 only on recommendation of ESI Hospital. The defendant no. 1&2 had not denied the same and defendant no. 3 has given evasive reply to the same. Ex. PW-1/5 is the document of treatment of the plaintiff vide which he was referred to LNJP. Nothing has come in the cross examination of this witness. The witness in cross examination has stated that he had submitted the originals papers of medical treatment to the department but to no effect. It seems that defendant no. 3 is more interested in paper work rather than to give substantive justice and even though almost 2 ½ years have passed in this litigation but still they have not even bothered to offer even a single penny to the petitioner though it is there in their knowledge that the petitioner is entitled to the same and this shows the lethargic attitude of the defendant no. 3. Defendant no. 3 produced Inspector G.R. Dhaiya as their witness who has admitted that form-16 was filed by the plaintiff in Delhi office. Just merely the branch office is situated at Noida so nothing was done at the end of defendant no. 3. These are really pity state of affairs. The ESI department is meant for the welfare of the employees but this case shows that the plaintiff was not given his due share. Thus, from the evidence available on record the plaintiff has proved his case and he is entitled to the relief permissible as per law. Issues are duly proved, injuries have also been proved and basic salary of Rs.2943 is also proved vide Ex. Pw-1/2 thus the plaintiff is entitled for the medical cost as per the actual bills. The plaintiff is also entitled to disablement benefit as Section 51 of ESI Act. The plaintiff is also entitled to the periodical payments as per Section 46 of ESI Act and as the defendant no. 3 has failed to constitute Medical Board for determining the disability of the plaintiff Ex. PW-1/8 11 stands good. Issues are decided accordingly and all the benefits accrued out of ESI Act are accordingly awarded in favour of the plaintiff and against the defendant. Though now defendant No. 3 has to take care of benefits. Defendant No. 3 is directed to release the benefit within two months from today.
7. Relief:-In view of the above observations petition of the plaintiff is allowed. File be consigned to record room.
Announced in open court (Ajay Goel) on 27.4.09 SCJ cum RC(Central)/Delhi