Karnataka High Court
Smt. Puttathayamma And Others vs The Regional Director, Employees' ... on 23 March, 2000
Equivalent citations: [2000(86)FLR101], ILR2000KAR1481, 2000(3)KARLJ546
JUDGMENT
1. An employee died on 3-11-1981, according to the appellant due to an employment injury. Admittedly, he is covered by the benefits of the provisions of the Employees' State Insurance Act, 1948 hereinafter referred to as the E.S.I. Act. Invoking Section 52 thereof the appellants claimed the benefit due to them. This application no doubt was made on 10-1-1994 with an application to condone the delay in doing so belatedly. It was the turn of the E.S.I. Corporation to contend that the claim is belated. The E.S.I. Court accepted the defence and therefore rejected the same as belated. The appellant moved the High Court by filing M.F.A. No. 2735 of 1994 and this Court condoned the delay and directed the Court to re-entertain the claim and pass appropriate orders on merits of the case. The E.S.I. Court has now held that the death of the worker was not due to any "employment injury" and as such the legal heirs are not entitled to any benefit.
2. The alleged employment injury which is the cause of the death of the employee is described as 'Myocardial Infraction'. It was in evidence that ever since 1977 the employee is victim 'of this sickness' and admittedly had availed E.S.I. benefits. R.W. 1, the Inspector of the E.S.I. has deposed as under:
"As per the records maintained by the E.S.I. Corporation the death was due to myocardial infraction. Right from 18-1-1977 the Corporation has paid cash benefits for absence of work from the disease".
And the contention is that therefore this was not an employment injury.
Section 52 of the E.S.I. Act as amended reads as follows:
"52. Dependents' benefit: (1) If an insured person dies as a result of 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) dependents' benefit shall be payable [at such rates and for such period and subject to such conditions as may be prescribed by the Central Government] to his dependents specified in [sub-clause (i), sub-clause (i-a) and] sub-clause (ii) of clause (6-A) of Section 2".
It states that if the death be due to any employment injury sustained as an employee then the dependents are entitled to compensation. What is an employment injury is defined at Section 2(8) of the E.S.I. Act. It 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, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India".
Therefore if the personal injury sustained by the worker was due to an occupational disease arising out of and in the course of employment then it is an employment injury. Meaning of the expression "injury" in this context has been understood as physical harm caused to the body of a person. A myocardial infraction is due to an injury caused to the heart. Admittedly he did not suffer this sickness at any time before the 18-1-1977 going by the evidence of R.W. 1. It means he sustained the injury/sickness subsequent to the employment and while he was an employee. The question then would be as to whether he inflicted the sickness/injury upon himself outside the course of employment. Medical science reveal that an injury to the heart which can cause myocardial infraction cannot be sustained due to self infliction. Heart attacks occur when the blood supply to a portion of the heart muscle (myocardium) is severely reduced or stopped. This occurs when one of the arteries that supply blood to the heart muscle (coronary arteries) is blocked by an obstruction. This blockage can be due to atherosclerosis (a build-up of deposits of fat-like substances), a blood clot (coronary thrombosis), or a coronary vessel spasm coupled with a near total obstruction. If the blood supply to a portion of the heart stops, that portion will no longer receive the oxygen or nutrients necessary to carry out its function and will die. If a very small part of the heart is affected, the heart will be able to continue working without it. However, if a large enough portion is damaged, irreversible damage can result, leading to death.
3. The above in brief is what is myocardial infraction. The cause of it is attributed to be the work and there is nothing that the individual consciously contributes. Except besides work, the nature of the food he consumes is also important. Going by the emoluments one cannot assume that he is consuming very rich food. The nature of the work, the workplace and inability to take proper care at the workplace would have caused the ailment which has taken the toll. In such circumstances to say that the death is not due to employment injury may not be justified.
4. The popular concept is that an employment injury can be only a physical hurt sustained in the course of employment and can be only the result of an accident. This may not be the correct perception in these days of development of science and expanding of industrial activities. A person can sustain injury to various parts of his person even without involving in a physical accident but by mere exposure to the advanced manner of working at the workplace and employing of developed equipments or machineries. There can be a situation whereby continued exposure to chemicals, radiation etc., at the workplace, chemical change can take place in the blood cell composition of a worker and he be victim of terminal illness. This is a form of injury. Working at high altitude may generate vertigo in a worker, this can also be an injury correlated to the work. Exposure to high decibel of noise impairs the capacity of hearing. This may also be an employment injury. Illustration thus of injury suffered due to occupational hazards are infinite and to interpret the expression "employment injury" to mean confining it only to bodily harm sustained by the worker in the course of employment is shutting out the advances made by science. Therefore, the meaning of the expression 'injury' in these circumstances cannot be static and it has to take colour, depending on the advance made in the nature of work, its correlation with the worker, its impact on his health and such other relevant and material considerations. Unless more futuristic meaning is ascribed to the expression "employment injury" in the present changing scenario due to the development in science and other allied factors, the very object of the constitution of Employees' State Insurance would be rendered otiose.
5. The philosophy behind, the ESI scheme being converting an individual responsibility for employment injury into a matter of social responsibility the victim of the tort should be protected. The employer, in fact, is an industrial tortfeasor. As such it is not necessary to await a statutory legislation for enlarging the meaning of the expression 'employment injury' (See the observations in this behalf in Miliangos v George Frank (Textiles) Limited).
6. That apart in this case it is not necessary to investigate these aspects in any detail. Admittedly the worker had been recipient of benefits since 18-1-1977 which can be either sickness benefit within the meaning of Section 49 of the E.S.I. Act or benefit under Section 51(c) of the Act (vide the deposition of R.W. 1 referred to above). That is the evidence tendered by the E.S.I. Corporation to contend that the death is not result of any accident whereby the worker sustained any injury. I am of the view that the respondent is under a misunderstanding of the position in law. Such payments are obviously for sickness or for temporary disablement of the worker. Section 49 of the Act referred to above reads under:
"49. Sickness benefit: The qualification of a person to claim sickness benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government".
The condition subject to which such benefit may be given, the rules and period thereof shall be such, as to be prescribed by the Central Government. The Central Government has not prescribed any rules in this behalf. But we find from the notification issued, invoking this provision, two categories of sickness have to be categorised with respect to which leave can be granted. There are 13 items which are included in (A) category whereat a person suffering from sickness mentioned therein is eligible for sickness benefit for 309 days. There is yet another category of sickness which is described as (B) category under which a sick person can claim 154 days of sickness benefit. Of the later, item (5) category is:
"Coronary Thrombosis and Myocardial Infraction".
In other words, a person suffering from the sickness of myocardial infraction is eligible to claim 124 days leave and claim sickness benefit. As stated earlier, if a person who has been availing sickness benefit for the above said illness dies because of that particular sickness, the Corporation cannot treat it as non-employment injury. I am of the view that the said position is not legally correct.
7. Alternatively, temporary disablement is defined at Section 2(21) of the Act as follows:
"2(21) "Temporary disablement" means a condition resulting from an employment injury which requires medical treatment and renders an employee, as a result of such injury, temporarily incapable of doing the work which he was doing prior to or at the time of injury".
Again, even in such a situation the worker should suffer an employment injury which requires treatment. Any benefit to the worker, periodically can be paid only under Section 46(c). Section 46(c) reads as under:
"46(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)".
It means if in the event a periodical payment was made to the worker in question as he suffered a disability sustained by him due to an employment injury and it was certified so by the authority so to do by the regulation, which he had received in this case as stated since from 18-1-1977, then when he died of that injury subsequently on 3-11-1981 one fails to understand how, that injury ceased to be an employment injury vis-a-vis the E.S.I. Corporation. It is not possible to reconcile with such a contention. In these circumstances, it has to be held that the employee died due to an employment injury and as such the appellants are entitled to all the benefits that they are entitled to in law. The appeal has therefore to be succeeded.
8. The E.S.I. Corporation is to function to extend succor to destitute dependents of a deceased employees. This legislation promotes the Directive Principles of State Policy provided in the Constitution of India. Under Section 26 of the E.S.I. Act, all contribution paid under the Act shall be paid into Employees' State Insurance Fund. Section 28(i) indicates one of the purpose to which the fund may be utilised.
"28. Purposes for which the fund may be expended: Subject to tbe provisions of this Act and of any rules made by the Central Government in that behalf, the Employees' State Insurance Fund shall be expended only for the following purposes, namely:
(i) payment of benefits and provision of medical treatment and attendance to insured persons and, where the medical benefit is extended to their families, the provision of such medical benefit to their families, in accordance with the provisions of this Act and defraying the charges and costs in connection therewith".
Section 38 makes that all employees shall be compulsorily insurable.
Section 39, stipulates the contribution payable to the fund as under:
"39. Contributions: (1) The contribution payable under this Act in respect of an employee shall comprise contribution payable by the employer (hereinafter referred to as the employer's contribution) and contribution payable by the employee (hereinafter referred to as the employee's contribution) and shall be paid to the Corporation".
Thus for the purpose of expending for the purpose named in Section 28(i), the fund is collected in accordance with Section 39. In fact, the employees contribution is collected in advance by the E.S.I. Corporation (vide Section 40). Now, the problem crops up when once the money, thus recovered from the employer and employee reaches the hands of the E.S.I. Corporation, as illustrated in the present case. It is harsh on their part to drag the impecunious dependents of a destitute worker unnecessarily to litigation. The contentions urged in this case in view of their past conduct with respect to the case of delay, the sickness benefit, temporary disablement of the deceased etc., are unsustainable. The breadwinner of the family died nearly two decades back. Going by the age shown in the application (the family consists of four children and the widow), the eldest child was seven years of age and the youngest of three years. The E.S.I. Corporation has seen to it that the dependents are kept busy in the Court all these days. As early as in 1981, the Gujarat High Court has declared (see 1981 Lab. I.C.) that myocardial infraction during the currency of the contract of employment would be an employment injury as far as a worker is concerned. That judgment was rendered with E.S.I. Corporation as party. This is binding on the Corporation wherever it function. A binding judgment rendered by a High Court, with respect to an entity which is constituted by the Central Government and which operates throughout India is binding on the entity wherever it functions. Death in similar circumstance was interpreted by various High Courts as to be due to employment injury which construction was made to the provision of the Workmen's Compensation Act, 1923. (See Thengackal Estate v Reethammal, 1996-III-LLJ-47 and Smt. Harjinder Kaur and Others v Employees' State Insurance Corporation, Amritsar. It is strange that the Corporation which has its activity spread throughout India desires to secure separate judgment from each State. The judgment binds E.S.I. Corporation wherever it operates and interpretation of the expression in other enactments should have persuasive value. I have reason to believe that Corporation is contesting the case for the sake of contest. The statement filed in this case is a classic illustration of the conduct. At para 3 it is stated thus:
"Admittedly the deceased Sri S. Narayana died due to "Myocardial Infraction". Therefore, it is clear that the deceased Sri S. Narayan did not die due to an accident which has occurred during the course of employment. The "Myocardial Infraction" cannot be said to have occurred out of employment of the workman. It is denied that on 3-11-1981 at 7 a.m. while Sri S. Narayan was working in the factory, he was attacked with "Myocardial Infraction".
What is the Court to understand from the above pleading? Is it admitting the claim or disputing it. If this be the mode of functioning of the Corporation then, to say the least it is nightmarish for a worker. It is high time it takes appropriate steps to set right its activities. Now, under the policy of insurance it has collected premium on behalf of the worker both from him and its employer. The contract has been frustrated, due to reasons beyond the control of the worker. The contract of insurance is an 'uberrimae fidei' contract. Breach thereof was not result of any suppression of fact or overt act of one of the contracting parties, but due to unforeseen event, not in the contemplation or control of either party. If that be so, in any event in a case where the worker the other contracting party did not bring about the frustration of the contract then, the benefit received by the Corporation under the contract should be disgorged by it and restored to the worker. There is a failure in this behalf as well, on the part of the Corporation.
9. The claim for refund contemplated in the above circumstances is not because a claim for refund of the contributions erroneously made. There was no erroneous assumption while making the payment. Both the parties were bound by the terms of the policy and the worker was bound to pay. As such, the question of refund now arising is not because of any erroneous belief of the workman in the matter of payment made. In such circumstances, this is not an aspect covered by Regulation 40 of the Regulations framed under the E.S.I. Act. Likewise, the claim of the defendant is not being made after the lapse of full coverage of the term of the policy of insurance. The E.S.I. Corporation had no occasion to abide by the terms of the policy. The protection under the insurance contract for the worker did not operate during the entire period. The worker has not made the claim during the currency of the policy, opting to go out voluntarily. The claim has arisen in view of the frustration of the contract and the E.S.I. Corporation had no occasion to discharge their part of the contract. The claim for refund is a reason other than what is contemplated above.
10. Thus taking into account all circumstances, to assuage the hardship suffered by the dependents of the deceased worker for the inordinate delay for settling the dues, due to the appellant the appellants would be entitled to their cost. Advocate fee Rs. 2,500-00 as also interest at 9% on the amount due to them from the date of death of the deceased worker tilt payment. The appeal is disposed of as above.