Rajesh Kumar vs General Director Esic ...
2013 Latest Caselaw 802 Del

*                 HIGH COURT OF DELHI AT NEW DELHI
+                 FAO NO.383 OF 2011 & CM 16433/2011

                                      Decided on : 18th February, 2013

RAJESH KUMAR                                 ...... Appellant
                     Through:   Appellant in person.

                       Versus

GENERAL DIRECTOR ESIC HEADQUARTER & ANR.
                                       ...... Respondents
             Through: Mr. Bhupesh Narula, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed against the order dated 24.1.2011 by virtue

of which the application of the appellant, which in essence was a

suit for recovery was dismissed holding that the same was barred

by limitation.

2. Briefly stated the facts of the case are that the appellant was

purportedly employed with some private organization and was

covered by ESIC Scheme and is purported to have incurred certain

medical expenses to which he was entitled for reimbursement as

per Government rules.

3. The case of the appellant was that he had written letters to the

respondents and sent notices for reimbursement of the amount of

`48,000/- or so on account of expenses incurred by him.

However, despite this, the said amount was not reimbursed,

accordingly, he filed an application under Section 75 of the ESI

Act before the ESI Court.

4. In the application, it has not been mentioned that under what sub-

clause, the application was filed but a perusal of Section 75 of

Employees' State Insurance Act, 1948 would show the application

filed by the appellant was perhaps under sub clause (e) which deals

with a right of any person to any benefit and as to the amount and

duration thereof. This application was filed in the year 2003 in

respect of the medical reimbursement for the period 1998. The

matter was contested by the respondents who raised the question of

limitation as well as the right of the appellant not to get

reimbursement even on merits.

5. So far as the question of delay raised by the appellant is concerned,

it was stated by the counsel for the respondents that the delay was

attributable to the appellant himself. On the pleadings of the

parties, the following issues were framed:-

(i) Whether the application is within time?

(ii) Whether the petitioner is entitled to the amount claimed in the application?

(iii)Relief.

6. The appellant in support of his case had examined himself and the

respondent also examined one witness. After adducing evidence

by the parties, the learned ESI Court which happened to be the

Court of Sr. Civil Judge/Central Delhi in the instant case, decided

the issue no.1 which pertains to the limitation against the appellant.

7. In this regard, it has been observed by the trial court as under:-

"The injuries were suffered in the year 1997 and as per statement PW-1, he had stated that he has submitted the documents in ESIC and he filed the petition thereafter. In this case the dues as per the petitioner were denied by respondent and he should have come before this Court at the most within three years of arising cause of action. In the petition date of injuries is not mentioned. No document have been exhibited. Oral testimony has been given putting all the blame on the ESIC. In the cross examination, the petitioner has admitted that bills were submitted in 1988 and were returned in August 2001. Mere writing of the letter to the ESI will not extend the period of limitation. Time spent in compliance of statutory obligation can be taken into consideration only. There is no application on record for giving the benefit of the

time consumed before the Consumer court s per section 15 of the Limitation Act. Hence the petitioner has failed to prove that petition was within limitation and this issue is decided against petitioner and in favour of the respondent and it is held petition is time barred."

8. I have heard the appellant who is present in Court and gone

through the relevant record.

9. Section 77(1)(A) of the Employees' State Insurance Act, 1948

prescribes that the proceedings before an Employees' State

Insurance Court shall be commenced by an application and every

such application has to be filed within a period of 3 years from the

date on which the cause of action arose. A perusal of the

application filed by the appellant does not show that he specifically

makes a mention with regard to the accrual of cause of action. In

the absence of specific averment with regard to the accrual of cause

of action, it cannot be assumed that the cause of action accrued to

the appellant to file the appeal in the year 2001 or 2002 so as to

construe that the application for reimbursement of his medical

expenses which was filed in the year 2003, was within time. On the

contrary, the admitted fact of the case is that the bills in respect of

which reimbursement has been sought by the appellant pertains to

the year 1998. Merely by delaying the submission of the bills on

the flimsy ground that the respondent had not been responding to

the written request of the appellant to refund the amount, would not

extend the period of limitation. Therefore, I feel that there is

nothing illegal or improper in the order of the learned ESI Court to

the effect that the application of the appellant itself was barred by

time and therefore, the same could not be entertained.

10. So far as the plea of the appellant that before filing the application

u/S 75, he had gone to the consumer court under a bona fide

impression that the Consumer Court would be able to give him the

relief, was returned to him. It is stated that the time deserves to be

excluded and there has to be an application in this regard. While as

in the instant case, it seems that no application having been filed

for exclusion of time spend by the appellant in a wrong forum

which was not competent to give the requisite relief to him under

Section 14 of the Limitation Act would not result in automatic

exclusion of time. Therefore, I feel that there is no merit in the

appeal of the appellant. However, keeping in view the fact that as

the respondent had, on the very first date, offered an amount of

`43,900/- out of the total amount of `48,000/- as claimed by the

appellant, this Court had already passed an order in favour of the

appellant and against the respondent directing the respondents to

pay the aforesaid amount of `43,900/- to the appellant.

11. I have been informed by the appellant that the appellant already has

received the said amount. Though, technically speaking, the

aforesaid amount could not have been paid to the appellant as his

application u/S 75 has already been held as barred by time but

nevertheless, keeping in view the peculiar facts and circumstances

of the case as well as the statement made by the learned counsel for

the respondent that the amount has already been paid to the

appellant, no direction is required to be passed by this Court for

refund of the amount.

12. In view of the aforesaid facts and circumstances of the case, I do

not find any merit in the said appeal, accordingly, the same is

dismissed.

V.K. SHALI, J.

FEBRUARY 18, 2013/RN