Gujarat High Court
Regional Director vs Bhikhabhai Bhurabhai Rana on 12 April, 2024
NEUTRAL CITATION
C/FA/243/2005 JUDGMENT DATED: 12/04/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 243 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
================================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
REGIONAL DIRECTOR
Versus
BHIKHABHAI BHURABHAI RANA & ORS.
================================================================
Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
GOVERNMENT PLEADER for the Defendant(s) No. 2
HCLS COMMITTEE(4998) for the Defendant(s) No. 1.1
MR LALJI R MOKARIA(3085) for the Defendant(s) No. 1.1
NOTICE SERVED BY DS for the Defendant(s) No. 3
NOTICE UNSERVED for the Defendant(s) No. 4
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 12/04/2024
ORAL JUDGMENT
1. Leave to amend as sought for, is granted.
2. Permission, as sought for, to bring the heirs on record is Page 1 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined granted. Necessary amendment to be carried out forthwith.
3. The present First Appeal is filed under Section 82(2) of the Employees' State Insurance Act, 1948 (for short hereinafter referred to as 'the ESI Act') challenging the judgment and order dated 25.10.2001 passed by the Employees State Insurance Court, Vadodara in Application No.4 of 1988.
4. Heard learned advocate Ms. Dimple Thakkar for the appellant.
5. The brief facts of the case are that the employee- Bhikhabhai Bhurabhai Rana filed an application under Section 76 of the Employees' State Insurance Compensation Act claiming Rs.1,23,640/- as compensation with 12% interest from the date of 13th August 1954 from the original opponents. The employee was insured with the appellant with Insurance No.37/3022690. The employee underwent a cataract surgery on right eye at the SSG Hospital in Vadodara on 13 th August 1984. It is the case of the original claimant that the employee lost his Page 2 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined right eye vision and also lost job because of the negligent and careless surgery performed by the Dr. N.H. Patel-Respondent No.3. The original opponent No.1 filed Written Statement at Exhibit-23 and denied the claim of the employee. It is contended inter alia that there was no negligence on the part of the original opponent No.2, Dr. N.H. Patel in performing the cataract surgery. It was also denied that the employee was removed from the Mill. ESI-Corporation was subsequently joined in the proceedings. Issues were framed. During the pendency of the proceedings, deceased-Bhikhabhai Bhurabhai Rana passed away on 08.07.1992. Heirs of deceased- Bhikhabhai Bhurabhai Rana were brought on record. The widow of deceased- Bhikhabhai Bhurabhai Rana deposed at Exhibit-26. Vide Exhibits-39 and Exh.40, original opponent No.1 and ESI-Corporation respectively filed their examination-in-chief. After considering the evidence and the submissions, learned Employees' State Insurance Court, Vadodara allowed the Claim Application on 25.10.2001 directing opponent No.1 to give all benefits to Page 3 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined claimants from August 1984 till death of employee.
6. Being aggrieved and dissatisfied with the impugned judgment and order, the appellant is before this Court.
7. Learned advocate for the appellant has submitted that the judgment and order passed by the learned Employees' State Insurance Court is against the settled principles of law and also against the provisions of the ESI Act. It is further submitted that the case does not fall within the definition of "employment injury" as defined under Sub-section 8 of Section 2 of the Employees State Insurance Act, 1948. It is further submitted that cataract problem is not falling within the definition of "employment injury" and learned ESI Court has committed an error by ignoring the basic principle of law. It is further submitted that there was no negligence on the part of Dr. N.H. Patel i.e. respondent No.3 herein, who performed the cataract surgery. It is found from the Hospital record that on 25.09.1984, the condition of right eye of employee was found proper and Page 4 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined after examining the employee, spectacles were also provided. This fact clearly demonstrates that there was no negligence on the part of Dr. N.H. Patel in performing the cataract surgery of the employee. It is further submitted that there is no expert evidence on record to establish the negligence on the part of Dr. N.H. Patel.
7.1. Learned advocate for the appellant has further submitted that since the case of the employee does not fall within the purview of "employment injury", the ESI Court had no jurisdiction to try and decide the claim application. The employee ought to have approached the Consumer Court under the Consumer Protection Act for redressal of the dispute. 7.2. Learned advocate for the appellant has placed reliance upon the decision in the of Kishore Lal Versus Chairman, Employees State Insurance Corporation paragraph reported in 2007 (0) AIJEL-SC 39179.
Page 5 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024
NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined 7.3. It is further submitted that the Hon'ble Apex Court has held that for the injuries outside the scope of employment injury and in the cases of medical services rendered by ESI hospital / dispensary, the dispute falls within the purview of Consumer Protection Act and the proper forum would be the Consumer Court. It is further submitted that since the ESI Court lacks jurisdiction, the application ought to have been rejected.
8. I have considered submissions and the material available on record. Undisputed facts are that the employee was in the employment of original opponent No.3 and was insured with the appellant under Insurance No.37/3022690. On 13 August 1984, cataract surgery was performed on the right eye of the employee, upon losing the vision in the right eye, the employee alleged negligence on the part of the original opponent Nos.1 and 2 i.e. the ESI Hospital and the doctor who performed the surgery. The employee was suffering from a cataract issue and was operated for the same in the SSG Hospital Vadodara and Page 6 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined due to the said surgery, the employee lost his vision in the right eye.
9. It would be apposite to refer Sub-section 8 of Section 2 of the ESI Act, which is hereby reproduced as under;
(8) "employment injury" means a personal injury to an employee caused by accident or an occupational disease arising out of an 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"
10. Said provision contemplates that to fall within the scope of employment injury, the injury must be coming out of an accident arising out of and in the course of employment. The cataract surgery is not an injury that arose out of an accident in the course of employment. It is not even the case of employee that cataract issue was a result of an accident arising out of the employment.
11. As discussed above, the injury does not fall within the definition of employment injury. The learned ESI Court has committed an error by allowing the application and by not Page 7 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined considering the provisions contained in the ESI Act.
12. In the case of Kishore Lal (supra), the Hon'ble Supreme Court has observed in the paragraph Nos.18, 19 and 20 regarding the scope invoking the jurisdiction of Consumer Courts where an issue of medical negligence is cropped up.
"18. The submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees' Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees' Insurance Court. Clause (e) of Section 75(1) gives power to the Employees' Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees' State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents' benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees' Insurance Court. The appellant's claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees' Insurance Court. The appellant's claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein.Page 8 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024
NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined
19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence.
20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-442) :
"Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property #. the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage.
Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care;
(b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees' Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the Page 9 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees' Insurance Court. An Employees' Insurance Court has jurisdiction to decide certain claims which fall under sub-section (2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees' Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees' Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees' Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumer's dispute falling under the CP Act."
13. The Hon'ble Supreme Court has set out the guidelines for claiming damages in the cases of medical negligence, the claimant has to establish the existence of duty to take care, failure to attain that standard of care and the damages suffered on account of breach of duty. For such issues a bar is imposed upon employees' Insurance Courts. Section 75(2) of ESI Act does not empower E.I. Court to deal with the claim for damages of negligence. In absence of a bar on consumer forum to adjudicate any claim arising out E.I. Court, a consumer forum can certainly entertain and decide such issues and exercise its Page 10 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024 NEUTRAL CITATION C/FA/243/2005 JUDGMENT DATED: 12/04/2024 undefined jurisdiction.
In the present case, there is no material on record which indicate any negligence on the part of doctor. Mere allegation in the application does not dispense with the proof of failure on the part of Doctor in performing his duty.
14. Thus, in the totally of the facts, the learned ESI Court has committed an error in allowing the application for compensation. Hence, order dated 25.10.2001 passed by the Employees State Insurance Court, Vadodara in Application No.4 of 1988 is hereby quashed and set aside. ESI Application No.4 of 1988 is dismissed. Accordingly, the present First Appeal is allowed.
(D. M. DESAI,J) RINKU MALI Page 11 of 11 Downloaded on : Fri May 03 20:53:16 IST 2024