Delhi District Court
Smt. Seema Chauhan vs Esi Corporation on 20 August, 2014
IN THE COURT OF MS. SHELLY ARORA,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM- GUARDIAN JUDGE,
DISTRICT: SOUTH, NEW DELHI.
ESIC No. 04/11
UNIQUE ID NO. 02406C0241282011
Smt. Seema Chauhan
W/o Late Sh. Ajay Pratap,
R/o H. No. 1382, Gali No. 9,
Near Taar Factory, Arthala,
Mohan Nagar,
Gaziabad, UP. ........... Plaintiff.
Vs.
1. ESI Corporation
DDA Shopping-cum-Office Complex,
Through its Regional Director,
III Floor, Rajendra Place,
New Delhi.
2. ESI Corporation
Through its Joint Director
C-149, Okhla Ind. Area,
Phase-I, N. D.-20.
3. M/s. Fena Pvt. Ltd.
A-37, Okhla Ind. Area,
Phase-I, N. D-20. .........Defendants.
DATE OF INSTITUTION : 19.09.2011
DATE OF RESERVING JUDGMENT : 12.08.2014
DATE OF PRONOUNCEMENT : 20.08.2014
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 1 of 45
JUDGMENT
Vide this judgment, I shall dispose off an application under Section 75 of ESI Act filed by Smt. Seema Chauhan (hereinafter called as Petitioner) against ESI Corporation (hereinafter called as Respondent No. 1), ESI Corporation through its Joint Director (hereinafter called as Respondent No. 2) and M/s Fena Pvt. Ltd. (hereinafter called as Respondent No. 3) seeking dependant benefits including Pension, Sickness Benefit, Medical Benefit qua Late husband Sh. Ajay Pratap Singh of petitioner.
Relevant facts necessary for disposal of the present petition are as follows:-
1. In the suit, it is stated that petitioner is wife of Late Sh.
Ajay Pratap Singh who was employed with respondent no. 3 as a Rural Sales Promoter. He was also enrolled as member of ESIC vide Insurance No. 11-13319050 by respondent no. 3.
2. It is stated that on 19.05.2010 at about 10.00 am during the course of employment while on duty, late Sh. Ajay Pratap, husband of petitioner met with an accident on HM Din Fly Over, Ring Road, Sarai Kale Khan, New Delhi and suffered serious injuries and thereafter, he was taken to Trauma Centre, AIIMS Hospital, New Delhi where after giving some treatment at 06.00 pm in the evening the AIIMS Hospital discharged him advising ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 2 of 45 that there is no place in Trauma Centre and he should be taken to some other hospital. It is stated that petitioner got admitted her late husband in Krishna Hospital, Gaziabad on 20.05.2010 and he remained under their treatment. Subsequently, he remained under treatment of ESI Doctors w.e.f. 22.05.2010 and submitted ESI Medical Certificates in the local office of ESIC at Okhla as well as to the employer. It is further stated that on 29.06.2010, condition of petitioner's husband deteriorated and petitioner took her husband to ESIC hospital Jhilmil, Delhi where doctors of ESIC without check up issued medicines which were consumed by late Sh. Ajay Pratap Singh due to which his condition again deteriorated in the night, thereafter, he was immediately admitted Mariam Hospital, Nandgram, Ghaziabad and on 01.07.2010, the doctors of Mariam Hospital, Nandgram, Ghaziabad referred him for Max Super specialilty Hospital where he died on 02.07.2010. It is stated that petitioner paid an amount of Rs.2,19,317/- vide different receipt numbers towards medical treatment of her late husband.
3. It is further stated as part of the application that petitioner met the officials of ESIC on 01.07.2010 for payment of bills but the officials of the corporation advised here to submit written application then only the corporation will pay the bills but till date no payment has been released by ESIC. It is further submitted ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 3 of 45 that ESIC sanctioned around 1.5 months leave for treatment of late husband of petitioner but now the ESIC refused to pay for the medical leave. Thereafter, registered legal notice dated 05.04.2011 was sent to the respondents no. 1 and 2 for payment of 45 days of medical treatment of leave which were duly served upon respondents. It is stated that in response to the said notice, a reply dated 21.04.2011 was received from the Branch Manager, ESIC Okhla New Delhi who refused to pay the sickness benefit on the ground that the deceased husband of the petitioner has not completed nine months service from the date of appointment.
4. Petitioner/applicant has prayed for directing the respondents no. 1 and 2 to pay all the dependent benefits including pension to applicant/petitioner from the date of death of deceased husband, payment of leave period the deceased husband remained in different hospitals till death, payment of all medical expenses incurred by applicant/petitioner in different hospitals and costs of the petition.
5. Upon receipt of summons of the suit, Written Statement was filed by the respondents no. 1 and 2 submitting therein that employee Sh. Ajay Pratap Singh had not completed 9 months insurable employment with his employer and so, he was not ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 4 of 45 entitled for cash/sickness benefit and the respondent no. 3 has not submitted any accident report in respect of Sh. Ajay Pratap Singh and in absence of any accident report, the same cannot be assumed as an accident and hence, temporary disablement benefits could not have been provided to Sh. Ajay Pratap Singh. Petitioner has not come with clean hands and have suppressed the material facts. It is averred that respondent no.3 has given funeral benefit amounting to Rs.5000/- on 21.07.2011 by respondents. Other averments of petition have been denied by respondents no. 1 and 2.
6. Replication on behalf of petitioner was filed against the written statement filed on behalf of respondents no. 1 and 2 in which the averments mentioned in the application were reiterated and the submissions made in the written statement were denied.
7. Following issues were framed from the pleadings of the parties vide Order dated 31.03.2012 passed by the Ld. Predecessor of this Court:
1. Whether the petitioner suffered injuries due to accident during the course of employment?OPP ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 5 of 45
2. Whether petitioner is entitled for relief as prayed in the prayer clause no. (a), (b) & (c) of the petition?OPP
3. Relief.
8. The matter was then listed for Petitioner's Evidence.
Evidentiary affidavit of petitioner was tendered as Ex. PW-1/A as part of Petitioner Evidence. PW-1: Smt. Seema Chauhan relied upon the documents as part of her affidavit as Ex. PW-1/1 to Ex. PW-1/22 and Mark A to Mark G which are as follows:
1. Ex. PW-1/1 and Ex. PW-1/2 are copies of OPD slips IGESI Hospital Jhilmil, Delhi,
2. Ex. PW-1/3 to Ex. PW-1/16 are copies of admission slip, OPD Slip and bills,
3. Ex. PW-1/17 and Ex. PW-1/18 are copies of bill of Max Hospital,
4. Ex. PW-1/19 to Ex. PW-1/21 are copy of notice sent to Regional Director, ESIC and speet post receipts respectively,
5. Ex. PW-1/22 is copy of reply dated 21.04.2011,
6. Mark A to Mark F are photocopies of Certificats Issued by the respondents.
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 6 of 45
7. Mark G is copy of legal notice dated 05.04.2011.
9. PW-1 was put to cross examination by counsel for respondent no. 3. She stated therein that she identified the signatures of her husband and she admitted that Ex. PW-1/D-3 was issued by defendant no. 3 to her late husband. She further stated that she did not claim file before MACT and police did not approach them for MACT claim. She further testified that she has not filed any document or any evidence that her late husband used to deliver the letter while coming to the factory in the morning or while going back to the home to the company's consultant or other persons. She further stated that she did not know the name of company's consultant and other persons to whom her late husband used to deliver the letter. She denied the suggestion that her late husband was assigned only office work and not field duty. She admitted that she had not intimated the employer of her husband about accident. She stated that her husband had worked with defendant no. 3. She had made a complaint in the Labour Department through Labour Union for non-payment of dues by respondent no. 3.
10. PW-1 was also put to cross examination by counsel for respondents no. 1 and 2. She stated therein that her husband expired at Max Hospital, Saket but she denied being aware of the cause of death, but her husband met with an accident and ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 7 of 45 consequently, he died and that she had submitted the medical documents on record. Thereafter, Petitioner's Evidence was closed vide separate statement of petitioner dated 06.02.2013.
11. Matter was then listed for for Respondent's Evidence.
Respondents no. 1 and 2 made a statement on 05.08.2013 that they do not wish to lead any defence evidence and rather would rely upon the evidence led by respondent no. 3.
12. Respondent no. 3 produced a witness Sh. Erendra Kumar as R3W1 who tendered his evidentiary affidavit as Ex. R-3 and relied upon the document Ex. RW-3/1 and Ex. RW-3/2. Ex. RW-3/1 is the original reply dated 06.10.2010 and Ex. RW-3/2 is the notice dated 14.09.2010. In cross examination by counsel for petitioner, he stated that he has been authorized by his company orally to come to the Court for evidence. He further stated that Sr. Assistant Field Force Support is supposed to maintain the record of sales persons working in the field. He further submitted that Sh. Ajay Pratap Singh worked with the company till 18.05.2010 and proceeded on ESIC Leave subsequently due to his accident which happened outside the office premises, although his services were never terminated on 18.05.2010 and he neither resigned from the services nor sanctioned any leave from the office.
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 8 of 45
13. R3W1 in his cross examination further submitted that he did not proceed to the spot where Sh. Ajay Pratap Singh met with an accident, although Sh. Vikas Puri had reached the spot. He further testified that the employee is deemed to be in employment of the company if sent by Head of Department for any outside duties although HR, Department is informed in such an eventuality by such Head of Department also submitting that sometimes only verbal instructions were issued to the employee depending upon contingency of the work. He further stated that there was no written order given to Sh. Ajay Pratap Singh not to perform any work out of the premises of the company. He clarified that course of employment means during the course of discharge of official duties of the company, be it inside or outside the official premises.
14. R3W1 further submitted in his cross examination that OD Slip is filled when an employee goes for a work outside the company which is deposited with the HR Department of the company. He further clarified as the accident had not occurred during the course of employment, thus, the accident report of Sh. Ajay Pratap Singh was not deposited with the ESIC Authority although ESIC Contribution of Ajay Pratap Singh was deposited with them for the year 2010. He further submitted that Sh. Amit ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 9 of 45 Gupta was the Head of the Department of Sh. Ajay Pratap Singh. He further stated that pension benefit to his information cannot be availed by the widow of Sh. Ajay Pratap Singh without filing of accident report. He declined the suggestion that Ajay Pratap Singh met with an accident when he was going to deliver papers of the company to the consultant of the company to which he voluntarily submitted that Ajay Pratap Singh was not assigned any work to deliver any paper to any consultant of any company. Thereafter, Respondent's Evidence was closed on 11.07.2013.
15. I have heard final arguments addressed by respective counsels and perused the record including judgments filed on behalf of both the parties.
16. It is contended by counsel for petitioner that as the employee Sh. Ajay Pratap Singh neither resigned his services nor his services were terminated and also considering object of ESIC Act which is beneficial and welfare legislation, it is illegal on the part of the respondent no. 3 not to have submitted Accident Report and or for respondents no. 1 and 2 not to have sanctioned necessary benefits.
17. Counsel for respondents no. 1 and 2, on the other hand, submitted that respondent no. 3 i.e. M/s Fena Pvt. Ltd. is ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 10 of 45 covered under this Act and plaintiff was an insured person with ESIC Act. He has further submitted that as per Appointment Letter, the deceased was not supposed to carry out any field duty and as such any official letter or even conformation of any oral direction by the company official has not been given to him. Deceased did not sustain the injuries during the course of employment thus the insured person is not liable to avail any benefit. Further, in view of Rule 4 of General Regulation of Act nine months insurability for entitlement to benefits is required. It is further argued that Sh. Ajay Pratap Singh had not been assigned any outside duty, thus, at the time of accident, he was not discharging any official duty and thus, Accident Report was not sent to ESIC.
18. Counsel for respondents no.1 & 2 further pointed out that on 19.05.2010, only 45 days of service was completed. Counsel for plaintiff re-contended that no evidence has been led by respondents no. 1 and 2 and investigation has not been carried out by SSO from Fena qua duty of Sh. Ajay Pratap Singh. He also pointed out that only funeral expenses was provided to petitioner on behalf of respondent no. 3. Respondents no. 1 and 2 has submitted that insured person who has not completed his service as prescribed, is not entitled for any benefit.
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 11 of 45
19. I have considered the rival contentions. I have perused the case record carefully.
20. My issue-wise finding is as below: -
ISSUES NO. 1 & 2:
Whether the petitioner suffered injuries due to accident during the course of employment?OPP Whether the petitioner is entitled for the relief as prayed in prayer clause no. (a), (b) & (c) of the petitioner?OPP Burden of proving these issues is upon petitioner. It is not disputed that Late Sh. Ajay Pratap Singh (hereinafter referred as Deceased) was appointed by respondent no. 3 on 25.03.2010 as Senior Assistant Field Force Support for office and documentary work. Section 2 (9) of ESI Act, 1948 defines "employee" which is re-produced as under:
"(9) " 'employee' means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and --
(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory of establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 12 of 45
(ii) who is employed by or through an immediate employer, on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or
(iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service;"
Respondent no. 3 admittedly is an establishment to which this act applies and husband of petitioner was employed with the said establishment for wages in connection with work of the said establishment. Sh. Ajay Pratap Singh, Late husband of petitioner is accordingly held to be an employee within the meaning of Section 2(9) of ESI Act, 1948.
It is also not disputed that respondent no. 3 had enrolled Late husband of petitioner as a member of Employee State Insurance, the respondent no. 1 in accordance with legal requirements. Section 38 of ESI Act, 1948 is important to be noted here:
"S. 38 of the employees' State Insurance act casts a statutory obligation on the employer to insure its employees.
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 13 of 45 That being a statutory obligation, the date of commencement has to be from the date of employment of the concerned employee."
Section 2(14) of ESI Act, 1948 defines "insured persons" which is re-produced as under:
"14. "insured person" means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is by reason thereof, entitled to any of the benefits provided by this Act;
................................................................................"
This implies that the employee has to make contribution to be entitled to the benefits provided under the Act.
Section 2 (4) of ESI Act, 1948 defines "contribution" which is re-produced as under:
"(4) "contribution" means the sum of money payable to the Corporation by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act;"
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 14 of 45 It is admitted that the petitioner was enrolled by respondent no. 3 as a member of Employees' State Insurance in terms of Section 38 of ESI Act, 1948. Plaintiff being an employee so enrolled made monthly contributions as per law to be able to be entitled to the benefits provided under the Act.
Petitioner/applicant in relief to the application has claimed "dependant benefits" and "medical benefits" as she has already been paid funeral expenses.
ESI Act, 1948, provides inter alia for certain benefits to the employee in case of sickness, maternity and employment injury and for certain there other matter in relation therein. The Scheme applicable envisages the Act is one of compulsory State Health Insurance providing certain benefits to workman employed in or in connection with the work for factory. Section 46 of Employees' State Insurance Act, 1948 in Chapter V provides for the benefits to which the insured persons are entitled under this Act:
"46. Benefits. -- (1) Subject to the provisions of this Act, the insured persons [their dependants or the persons hereinafter mentioned, as the case may be,] shall be entitled to the following benefits, namely:-
(a) periodical payments to nay insured person in case of his sickness certified by a duly appointed medical practitioner ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 15 of 45 [or by any other person possessing such qualifications and experience as the Corporation may, by regulations, specify in this behalf] (hereinafter referred to as sickness benefit);
[(b) periodical payments to an insured woman in case of confinement or miscarriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, such woman being certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as maternity benefit);]
(c) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement benefit);
(d) periodical payments to such dependants of an insured person who dies as result of an employment injury sustained as an employee under this Act, as are entitled to compensation under this Act (hereinafter referred to as dependants' benefit);
(e) medical treatment for and attendance on insured persons (hereinafter referred to as medical benefit); [and
(f) payment to the eldest surviving member of the family of an insured person who has died, towards the expenditure on the funeral of the deceased insured person, or, where the insured person did not have a family or was not living with his family at ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 16 of 45 the time of his death, to the person who actually incurs the expenditure on the funeral of the deceased insured person (to be known as [funeral expenses)]:
Provided that the amount of such payment shall not exceed [such amount as may be prescribed by the Central Government] and the claim for such payment shall be made within months of the death of the insured person or within such extended period as the Corporation or any officer or authority authorised by it in this behalf may allow.]"
21. Section 52 of ESI Act, 1948 deals with the "Dependant's Benefit" which is re-produced as under:
"52. Dependant's Benefit -(1) If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependants' benefit shall be payable [at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government] to his dependants specified in [sub- clause (i), sub-clause (i-a) and ] sub-clause (ii) of clause (6-A) of section 2.
(2) In case the insured person dies without leaving behind him the dependants as aforesaid, the dependants, benefit shall ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 17 of 45 be paid to the other dependants of the deceased [at such rates and for such period and subject to such conditions as may be prescribed by the Central Government]."
The word "Dependant" has been defined in Section 2 Sub Section 6-A of ESI Act, 1948 which is as under:
[(6-A) "dependant" means any of the following relatives of a deceased insured person, namely: -
(i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted [daughter];
[(i-a) a widowed mother];
(ii) if wholly dependant on the earnings of the insured person at the time of his death, a legitimate or adopted son or daughter who has attained the age of eighteen years and is infirm;
(iii) ........................................................................."
Applicant Smt. Seema Chauhan being the widow of Late Sh. Ajay Pratap Sing is thus, a dependent in terms of the provision of the ESI Act.
Now whole question of entitlement of the dependant's benefit boils down to the death of insured person as a result of ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 18 of 45 "Employment Injury" sustained by him under the Act.
"Employment Injury" has been defined under Section 2 (8) of ESI Act, 1948 which is re-produced as under:
"(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"
The deceased admittedly had met with a road accident on 19.05.2010 enroute to office of respondent no. 3 (his place of employment) and sustained injuries caused by that accident. The husband of the petitioner, however, died on 02.07.2010. The question remains as to whether death of husband of petitioner was on account of injuries sustained in the accident and whether the said accident and the consequent injuries can be stated to have arisen out of and in the course of his employment with respondent no. 3.
It is not disputed that Late Ajay Pratap Singh is an employee within the provisions of the Act as already discussed in preceding paragraphs. It is also not disputed that he died while in employment with the respondent no. 3 and while he was ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 19 of 45 making contributions as per the law for entitlement to the "benefits" provided under the Act.
Adverting on the question as to whether death of husband of petitioner was on account of injuries sustained by him in the road accident. The accident of deceased Sh. Ajay Pratap took place on 19.05.2010. OPD Slip of Jai Prakash Narain Apex Trauma Centre filed by the counsel for the petitioner (after advance of final arguments as asked for by Court) reflect the diagnosis of Late husband of petitioner just after accident as "RADIAS STYLOID RT WRIST". Requisition Form for the X-Ray of Right Wrist dated 19.05.2010 has also been filed alongwith OPD Form. The patient was discharged the same day. He was then taken to Krishna Hospital & Trauma Centre, Ghaziabad on 20.05.2010 where he was advised X-Ray Right Wrist and X-Ray Knee and Pop Slab. He was diagnosed with "Power end radius (R) and Abrasions and SYI (L) Knee. He was advised for bed rest for seven days. Certain tablets alongwith the knee brace were prescribed as part of treatment. On 24.05.2010, he again was taken in continuation of his treatment to the same hospital where he was advised to continue with the same treatment for three days. He was again so advised Rest for six days on 27.05.2010. He was advised to use Crape Bandage alongwith certain medicines as on 18.06.2010 in the same hospital. On 28.05.2010, he was ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 20 of 45 taken to Medical Officer, B. Chikitsalaya, Sahibabad (Ghaziabad) who referred the patient to Ortho Surgeon, ESI Hospital, Jhilmil advising rest for one week. On 01.06.2010, he was taken to IGESI Hospital, Jhilmil, Delhi-95. As per the OPD Slip Ex. PW-1/1 (OSR) of the said hospital, the basic observations and the treatment appears to be revolving around the fracture in the wrist and the knee. Similar was the range of treatment on two further dates. There is another OPD Slip dated 29.06.2010 (neither exhibited nor marked distinctly) of IGESI Hosptial,Jhilmil which shows the observations to be fever, headache/bodyache.
A clarification was sought from the counsel for respondents no. 1 and 2 about the aspect of co-relation between the diagnosis of the doctor as mentioned in the OPD Slip dated 01.06.2010 and that of 29.06.2010. A communication dated 19.07.2014 issued by Dy. Medical Superintendent addressed to Sub Regional office, ESIC, filed in the Court clarified that the treatment provided to the patient in these two OPD Slips, on the basis of comments of Specialist (Medicines) and Specialist (Ortho) was for different diseases and not co- related with each other. The death of husband of petitioner Late Sh. Ajay Pratap occurred on 02.07.2010 in Max Super Speciality Hospital, Saket.
I have perused the Discharge Summary alongwith the ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 21 of 45 laboratory investigation reports of the husband of the petitioner filed on record. The patient was admitted in the hospital on 01.07.2010 and he died on 02.07.2010. The patient was admitted with the following Medical History:
MEDICAL HISTORY "MR. AJAY PRATAP, 30 YRS OLD MALE PRESENTED TO ER WITH C/O FEVER (HIGH GRADE) 4-5 DAYS SEVERE PROGRESSIVE BREA THLESSNESS 1 DAY He was admitted with the above mentioned complaints, along with a history of abdominal pain and loose motions, in the ICU of a local hospital iin Ghaziabad from where he was shifted to MAX due to worsening of breathlessness."
Past History as mentioned in Discharge Summary is as under:
PAST HISOTRY "No H/o HTN/DM/ Hypothyroidism or any other co- morbid conditions H/o RTA 1 mnth back with # of Rt hand & It leg soft tissue injury which were managed conservatively."
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 22 of 45 Primary Diagnosis which was diagnosed by previous consultant as mentioned in Discharge Summary, is reproduced as under:
PRIMARY DIAGNOSIS "* DENGUE SHOCK SYNDROME (IMMUNOGLOBULING G & M POSITIVE) *MULTI-ORGAN FAILURE (AKI, ARDS, ALF, COAGULOPATHY, SEVERE SHOCK) * ABDOMINAL COMPARTMENT SYNDROME"
Cause of Death as mentioned in the Discharge Summary is reproduced as under:
CAUSE OF DEATH "REFRACTORY HEMORRHAGIC SHOCK SECONDARY TO DIFFUSE MASSIVE BLEEDING"
As can be seen and interpreted from the details of the Past History mentioned as part of Discharge Summary of Late husband of the petitioner, RTA one month back with fracture of right hand and left leg soft tissue injury were managed conservatively as in this fracture of right hand and injury of left leg seem to have no relation with the Medical History of the deceased as on the date of admission or the diagnosis as on that day of the said deceased. It is clearly mentioned as part of ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 23 of 45 Past History that the injuries sustained in accident were already managed conservatively and thus, had nothing to do with the present condition of the deceased. Late husband of the petitioner was observed to have fever on 01.07.2010 when he was taken to IGESI Hospital, Jhilmil and there was no mention of any accident in the said OPD Slip dated 01.07.2010.
The Primary Diagnosis as mentioned in the Discharge Summary further clarifies about the actual medical condition of the deceased and the reason as to what caused his death. The Medical History also clarifies as to in what condition was he brought to the Max Hospital. The Discharge Summary of the Late husband of the petitioner clarifies that death of Late husband of the petitioner was indeed not on account of accident which the deceased suffered on 19.05.2010. It is accordingly so held that the death of deceased/Late husband of petitioner cannot be stated to be related to/caused by the injuries in/out of the road accident suffered by him on 19.05.2010.
Now coming to discussion on the second limb as to whether the said accident can be stated to be arising out of and in the course of his employment.
It is the version of counsel for respondents no. 1 and 2 that an accident of an insured on his way to the factory or establishment and back to his home do not qualify to have caused injury to be one arising out of or in the course of ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 24 of 45 employment.
Counsel for respondents no. 1 and 2 has substantiated his version by relying upon the case titled as "Regional director, E.S.I. Corporation & Another Vs. Francis De Costa & Another, AIR 1997 Supreme Court 432". Relevant portions of the said judgment are re-produced as under:
"6. ..........In the context of S.2(8), the words "out of"
indicate that the injury must be caused by an accident which had its origin in the employment. A mere road accident, while an employee is on his way to his place of employment cannot be said to have its origin in his employment in the factory.
7. ............Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on S.2(8) of the Act. The words "accident...... arising out of..... his employment" indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment.
8..... The other words of limitation in sub-section (8) of S.2 is "in the course of his employment". The dictionary meaning of "in the course of" is "during (in the course of time, as time goes by), while doing" (The Concise Oxford Dictionary, New Seventh ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 25 of 45 Edition). The dictionary meaning indicates that the accident must take place within or during the period of employment. If the employee's work shift begins at 4.30 p.m., any accident before that time will not be "in the course of his employment". The journey to the factor may have been undertaken for working at the factory at 4.30 p.m. But this journey was certainly not in course of employment. If "employment" begins from the moment the employee sets out from his house for the factory, then even if the employees stumbles and falls down at the door- step of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided.
In the case of Saurashtra Salt Manufacturing Co. Versus Bai Valu Raja, AIR 1958 SC 881 the Hon'ble Apex Court held as under:
"As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded."
A workman might be regarded as in the course of his employment even though he had no reached or had left his employer's premises in some special cases. The facts and circumstances of each case would have to be examined very ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 26 of 45 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 times this theory of notional extension.
It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him.
In the case of Regina Versus National Insurance Commissioner, Ex. Parte. Michael (1977(1) WLR 109) (supra) the Hon'ble Apex Court held as under:
"The test of what was "reasonably incidental" to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment.
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 27 of 45 In the case of Dover Navigation Company Limited Versus Isabella Craig, 1940 AC 190,the Hon'ble Apex Court held as under:
"Nothing could be simpler than the words "arising out of and in the course of employment," It is clear that there are two conditions to be fulfilled. What arises "in the course of" the employment is to be distinguished from what arises "out of the employment." The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.
29. ................the principles laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a causal connection with the employment, and (3) the accident must have been suffered in course of employment."
Counsel for petitioner, on the other hand , relied upon the judgment titled as "Regional Director, Employees State ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 28 of 45 Insurance Corporation Vs. Derhin Bai & Anr. 2012 (135) FLR 1004" asserting the position of law under Section 2 (8) of ESI Act which defines the "employment injury", summarized as under:
"(i) To come within the Act, the injury by accident must arise both out of and in the course of employment.
(ii) The words "in the course of employment" mean in the course of the work which the workman is employed to do and which is incidental to it.
(iii) The words, "arising out of employment" are understood to mean "during the course of employment, injury has resulted from some risk incidental to the duties to the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered". In other words, there must be causal relationship between the accident and the employment.
(iv) Expressing "arising out of employment" is again not confined to the mere 'nature of the employment. The expression applies to the employment as such to its nature, its conditions, its obligations and its incidents. If by any reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment.
(v) The onus of proving that the injury by accident arose out of and in the course of employment resats upon the ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 29 of 45 applicant but these essentials may be inferred when the proved facts justify the inference."
Counsel for petitioner has contended that the facts of this case were very much similar of the facts of the case at hand and thus, the rule there can be applied in the present case as well.
The Hon'ble Supreme Court of India in its pronouncement has made explicit that commuting from the place of residence to place of employment and back cannot be termed as part of the employment and thus, an accident which occurred while commuting cannot be termed to be related to or arising out of employment itself. However, certain cases can qualify in certain circumstances which has to be tested case by case on the anvil of whether deceased was sent out for the sake of performance of his employment duties as directed or assigned and thus, was commuting for the purpose of fulfillment of his duties when the accident happened.
In the present matter, PW-1 Seema Chauhan W/o Late Ajay Pratap Singh deposed that her late husband at around 6.30 am on 19.05.2010 told her that he has to leave home latest by 8.00 am as he has to deliver certain communication/letter to parties/consultant on his way to the factory before 9.00 am certainly and to reach factory only after delivery the communication/letter. In her cross examination by counsel for ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 30 of 45 respondent no. 3, she stated that she has not filed any document or any evidence that her late husband used to deliver the letter while coming to the factory in the morning or going back home to any of the consultant of the company or any other person as averred in Paragraph No. 3 of her affidavit. She also stated that she was not aware of the name of any of the consultant of the company or any other person to whom her late husband used to deliver the letter.
The relevant portion of cross examination of R3W1 Sh. Erandra Kumar, Dy. Manager(HR) of respondent no. 3 in this respect is re-produced as under to assess the nature of duties carried out/assigned to Late Sh. Ajay Pratap Singh by respondent no. 3.
"It has not been mentioned in the appointment letter issued to Sh. Ajay Pratap Singh that he is employed for office and documentary work. (Vol. The designation of Sh. Ajay Pratap Singh shows his nature of duties.) Any employee of the company who goes out of the office for performing official work shall be treated as the employee of the company. If the Head of the Department of any employee sent the employee out of the office for official work then the said employee is also on the employment of the company. (Vol. Whenever any head of the department sent any employee of the department for outside ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 31 of 45 duties then he informed the HR department of the company before sending the said employee.) Sometimes the head of the department gave verbal instruction and sometime written instruction to the employee for performing outside duties depending upon the contingency of the work.
There is no written order issued to Sh. Ajay Pratap Singh not to perform any work out of the premises of the company.
It is wrong to suggest that Sh. Ajay Pratap Singh met with an accident when he was going to deliver papers of the company to the consultant of the company. (Vol. Sh. Ajay Pratap Singh was not assigned any work to deliver any paper to any consultant of the company.)"
R3W1 Sh. Erendra Kumar who appeared on behalf of respondent no. 3 in his evidentiary affidavit Ex. R-3 affirmed in Paragraph No. 6 thereof that Mr. Ajay Patap Singh was not on duty at the time of accident which did not occur during the course of his employment and thus, Mr. Ajay Patap Singh did not die during the course of his employment. He also further affirmed in Paragraph No. 6 of his evidentiary affidavit Ex. R-3 that the respondent no. 3 company had never assigned him with any official field work duty and that the duty assigned to Sh. Ajay Pratap Singh were limited to only office work to be performed by him in accordance with the description/distinction ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 32 of 45 given to him as per Appointment Letter dated 25.03.2010 for the work to be performed in the premises of the company.
The version of the PW-1 Smt. Seema Chauhan accordingly is that her husband Late Sh. Ajay Pratap Singh had left home to deliver some communication/letter to a consultant of the company and thus, he was on duty when he left home and met with an accident and thus, the accident ought to be treated as having arisen out of course of employment. R3W1 who is a witness produced on behalf of respondent no. 3 clearly specified, however, Late Sh. Ajay Pratap Singh was never assigned any such official duty to deliver any communication/letter to any of the consultant of the company. He also clarified that an intimation in this respect has to be given to Head of Department of HR Department in case of any such instruction having been given to any of the employee which does not seem to be the case here. Further, PW-1 has neither been able to clarify any name of the consultant or even of frequency of any such delivery or any evidence to show that her husband left the home to deliver any such communication/letter to any of the consultant and whether at the time of accident, such communication/letter was already handed over to the consultant or was still with her husband at the time of accident.
Copy of FIR No. 174/10 PS Sunlight Colony under Section 279/337 IPC has been filed on record alongwith ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 33 of 45 application by the petitioner. I have perused the same. In such FIR which was registered on the basis of statement of Sh. Ajay Pratap Singh himself on 19.05.2010 i.e. date on accident itself nowhere is specified by Late Sh. Ajay Pratap Singh in his statement that he left the home to deliver any communication/ letter to any of consultant of the company. He simply stated in his statement that he met with an accident while riding his motorcycle on way to place of employment from his residence. It appears very unlikely that a person himself having met with an accident in the course of following verbal instructions by his Senior chose not to state so in his statement to the Police.
The fact of delivery of any communication/letter has also not been specified any where by Smt. Seema Chauhan in her notice dated 05.04.2011 addressed to respondents no. 1 and 2 for release of payment of 45 days Medical Treatment Leave. This was also not mentioned even in the application under Section 75 of ESI Act. It appeared for the first time only in her evidentiary affidavit Ex. PW-1/A. Ex. PW-1/D-3 is Appointment Letter of Sh. Ajay Pratap Singh which has been admitted by PW-1 in her cross examination nowhere contain any specification that Sh. Ajay Pratap Singh was not supposed to be given any work to be performed out side the premises of the company. In fact, the nature of job specification was very loosely worded which to ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 34 of 45 extend gives an inference that there was no conditionality with Late Ajay Pratap Singh not to be given any official work outside the premises of the company leaving scope for an interpretation otherwise that he could have received the verbal instruction to carry out official work out side the premises of company but certain conditions as stated by R3W1 have to be fulfilled that an intimation in this respect had to be given by Head of Department who assigned this official work to Late Sh. Ajay Pratap Singh who had to inform the HR Department of such work. It was also incumbent on the part of Late Sh. Ajay Pratap Singh to have intimated about the official work handed over to him to be performed outside the premises of the company which was not done, as discussed earlier. Late Sh. Ajay Pratap Singh would definitely have stated in his statement to the Police about any such official work assigned to him had it been so on that particular unfortunate day. Thus version of PW-1 inasmuch as her husband had gone to deliver a communication/letter to any of the consultant of the company cannot be accepted.
The case relied upon by the counsel for the petitioner are easily distinguishable as in the principle applied in that particular case are the same in spirit as laid down by Hon'ble Supreme Court of India as in the death was considered arisen out "employment injury" as the cause of death was found to be related to the employment of the insured person. In the present ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 35 of 45 matter, the scope of consideration of circumstances "reasonable to the incidental to the employment" also stands vanished as PW-1 has not been able to prove her assertion that Late Sh. Ajay Pratap Singh left the home to deliver the communication/letter to any consultant of the company prior to his approaching the office upon verbal or written instruction by any of his Senior Officer.
Employees' State Insurance (Amendment) Act, 2010 came into force on 1st June, 2010 as per the Notification issued by "Ministry of Labour and Employment".
In this case, as per the statement of Sh. Ajay Pratap Singh in FIR, he was on his way to place of employment from his residence when the accident took place. As per the deposition of R3W1 Sh. Erendra Kumar, Late Sh. Ajay Pratap Singh neither stood terminated from the service on 19.05.2010 nor had resigned from the service on 19.05.2010. Accident of Late Sh. Ajay Pratap Singh took place on 19.05.2010 as per the reply filed by respondent no. 3 to the application of the petitioner. It is stated that intimation about accident was received only through Police Authorities. R3W1, in his cross examination by counsel for the petitioner, stated that some employees of the company went to the spot upon receiving intimation about accident of Late Sh. Ajay Pratap Singh. Thus, it can be easily inferred from the probability appearing out of proven ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 36 of 45 circumstances that Late Sh. Ajay Pratap Singh was on his way to the place of employment from the residence on his own vehicle when the accident took place. The accident took place on 19.05.2010 while the Act come into force on 01.06.2010. The accident, thus, took place prior to the applicability of the Employees' State Insurance (Amendment) Act, 2010 and thus, the deceased cannot be granted benefit of this amendment by virtue of which Section Section 51 E was inserted in the principal Act.
To conclude, the accident of Late Sh. Ajay Pratap Singh as on 19.05.2010 was neither the cause of his death on 02.07.2010 nor can the same be treated as one arising out of or in course of his employment. Thus, the injuries suffered by way of accident cannot be termed to be "employment injury" under Section 2(8) of ESI Act, 1948. Defendant benefits in terms of Section 46 and Section 52 of ESI Act, 1948, thus cannot be granted in favour of petitioner.
Petitioner has also claimed the medical expenses and the pay for the leave period of her deceased husband as other reliefs in the application under Section 75 of ESI Act, 1948. Apart from the provisions as such dealing with the grant of medical benefits and sickness benefit, as pointed out by the counsel for respondents no. 1 and 2, Regulation No. 4 of Chapter I of The Employees' State Insurance (General) ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 37 of 45 Regulations, 1958 stipulates the Contribution Period and the Corresponding Benefit Period of any insured which is reproduced as under:
"[4. Contribution and benefit periods: - Contribution periods and the corresponding benefit periods shall be as under:
Contribution Period Corresponding benefit period st th 1 April to 30 September 1st January of the year following to 30th June 1st October to 31st March of 1st July to 31st December:
the year following Provided that in the case of a person who becomes an employee within the meaning of the Act for the first time, the contribution period shall commence from the date of such employment in the contribution period current on that day and the corresponding benefit period for him shall commence on the expiry of the period of nine months from the date of such employment.]"
Thus, the contribution period of an employee commences from the date of his employment and the Corresponding Benefit Period shall commence on the expiry of period of 9 months from the date of employment.
In the present matter, the date of employment/ ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 38 of 45 appointment of Late Sh. Ajay Pratap Singh is 25.03.2010. Taking his contribution period to have commenced from 25.03.2010, even till 02.07.2010 when he died, period of 9 months did not elapse and thus, Late Sh. Ajay Pratap Singh was still running in his contribution period with the Corresponding Benefit Period not having commenced on the date of his death, thus, not entitling him to any of the benefit under Section 46 of ESI Act, 1948.
Further, Rule 55 of Employees' State Insurance (Central) Rules, 1950 provides for qualification of an insured to claim sickness benefit only if the contributions on his behalf were payable for not less than 78 days in the Corresponding Contribution Period. Rule 55 of Employees' State Insurance (Central) Rules, 1950 is hereby reproduced as under:
"55 Sickness benefit. -- (1) Subject to the provisions of the Act and the regulations, a person shall be qualified to claim sickness benefit for sickness occurring during any benefit period if the contributions in respect of him were payable for not less than [seventy-eight days in] the corresponding contribution period and shall be entitled to receive such benefit at the daily standard benefit rate for the period of his sickness:
.........................................................................................."
In this case, the contribution period even if taken from the date of employment till the date of accident cannot be stated to have completed 78 days for entitlement to the sickness benefit.
ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 39 of 45 Further, PW1 in her affidavit affirmed that Medical Certificates obtained in original were submitted with the local ESIC office and employer however, no proof has been furnished of any such copy of Medical Certificates having been received with the employer. R3W1 Sh. Erendra Kumar in his testimony clarified that any leave subsequent to 18.05.2010 was not sanctioned for Late Sh. Ajay Pratap Singh. Further, copy of Medical Certificates show abstention on some days intermittently where rest was allowed by ESI Doctors. ESI Doctors are only Recommending Authority however, leave had to be formally applied and sanctioned by/on behalf of respondent no.3 which was not done. Further Rule 55 speaks of sickness during the benefit period which in this case did not commence at all, thus, dis-entitling the Late husband of petitioner to any Sickness Benefit.
Coming to the Medical Benefits, Regulation 96A of the Employees State Insurance (General Regulations, 1950) deals with the reimbursement of expenses incurred in respect of medical treatment of insured person. Regulation 96-A is hereby reproduced as under:
"96-A. Reimbursement of expenses incurred in respect of medical treatment.- Claims for reimbursement of expenses incurred in respect of medical treatment of insured person and (where such medical benefit is extended to his ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 40 of 45 family) his family may be accepted in circumstances and subject to such conditions as the Corporation may by general or special order specify."
Regulation 103A of The Employees' State Insurance (General) Regulations, 1950 also is important to be considered dealing with the same aspect specially considering the peculiar facts of this case which is reproduced as under:
"103-A. Medical Benefit after contribution ceases to be payable. -- (1) A person on becoming an insured person for the first time shall be entitled to medical benefit for a period of [three months] provided that where such a person continues for [three months] or more to be an employee of a factory of establishment to which the Act applies, he shall be entitled to medical benefit till the beginning of the corresponding benefit period.
[(2) The person in respect of whom contributions have been paid in a contribution period for not less than seventy-eight days in the said contribution period shall be entitled to medical benefit till the end of the corresponding benefit period:
Provided that in case of a person who becomes an employee within the meaning of the Act, for the first time, and for whom a shorter contribution period of less than 156 days is available, he shall be entitled to medical benefit till the end of ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 41 of 45 the corresponding benefit period if the contributions in respect of him were payable for not less than half the number of days available for working in such contribution period:
Provided further that where a person suffering from any of the following disease, before the commencement of the spell of sickness in which any such disease was diagnosed being in continuous service for a period of two years or more or where he did not have two years continuous service but by virtue of relaxation granted by the authority competent in this benefit, the insured person qualifies to claim extended sickness benefit, he shall be entitled to medical benefit till the end of the relevant extended benefit period.
.........................................................................................."
In this case, the date of appointment of deceased is 25.03.2010 and the date of last attending the service with respondent no. 3 is 18.05.2010. Regulation 103A(1) of The Employees' State Insurance (General) Regulations, 1950 as reproduced above is about providing medical benefit of three months in case of continuation of atleast three months of service. Service from 25.03.2010 till 18.05.2010 does not constitute for service of three months. There is no evidence on record to show that any leave was applied or sanctioned for the purpose of medical treatment of the deceased after having met with an accident. Testimony of R3W1 Sh. Erendra Kumar ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 42 of 45 substantiates that there are photocopies of certain medical certificates filed/annexed with the plaint relied in evidence as Mark A to Mark E. There is however, no proof to show that any medical leave was applied for on the basis of those certificates or that those certificates were ever submitted with the respondent no. 3 for sanction of any medical leave. It is clear on record that even the formal information of the husband of petitioner having met with an accident was not given to respondent no. 3 or even to respondents no. 1 and 2 even though part of the medical treatment was undertaken in the ESI Hospitals.
Further, Regulation 64 of The Employees' State Insurance (General) Regulations, 1950 mandates filing of any medical certificate by a person intending to claim the sickness benefit within three days from date of issue of first certificate and 14 days for any subsequent certificate.
As discussed above, it appears that no medical certificate till date have ever been submitted with respondent no.3. Thus, the medical leave cannot be stated to be sanctioned in favour of husband of petitioner although admittedly he was neither terminated from services nor had he resigned from the services with respondent no. 3, still he cannot be taken to have continued rendering the services with respondent no. 3 for the period subsequent to 18.05.2010. As the basic minimum period of ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 43 of 45 three months of service is not there on the part of husband of petitioner, benefit of Regulation Section 103A(1) does not accrue in his favour.
Petitioner admittedly also did not file any application with any of the respondents asking for grant of claim in respect of her Late husband despite mandated by Regulation 65 of The Employees' State Insurance (General) Regulations, 1950 which is reproduced as under:
"65. Notice of accident -(i) Every insured person who sustains personal injury caused by accident arising out of and in the course of his employment in a factory or establishment shall give notice of such injury either in writing or orally, as soon as practicable after the happening of the accident:
Provided that any such notice required to be given by an insured person may be given by some other person acting on his behalf.
Explanation - No such notice shall be required to be given by an insured person if an employment injury is caused by any Occupational Disease specified in Schedule III to the Workmen's Compensation Act, 1923 (8 of 123).
(ii) Every such notice shall be given to the employer or to a foreman or to other official under whose supervision the insured person is employed at the time of the accident or any other person designated for the purpose by the employer and ESIC No. 04/11 Seema Chauhan Vs. ESIC Corporation & Ors. Page No. 44 of 45 shall contain the appropriate particulars.
..........................................................................................." To conclude, as the insured person, as per the discussions made above did not die as a result of employment injury sustained as an employee under this Act, he cannot be held to be entitled to any Dependant Benefits as per Section 52 of ESI Act, 1948. Further, Late husband of the petitioner is also held dis-entitled to the sickness benefit and the medical benefit for the reasons enumerated in the preceding paragraphs. Accordingly, both the issues stands decided against the petitioner and in favour of the respondents.
ISSUE NO. 3/RELIEF In view of my findings with regard to Issues no. 1 and 2 , Application under Section 75 ESI Act is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court on 20.08.2014 (Shelly Arora) JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
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