Gujarat High Court
Employees State Insurance Corporation vs Ankur M Kulkarni(Minor) Through ... on 11 December, 2023
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2001 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
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EMPLOYEES STATE INSURANCE CORPORATION
Versus
ANKUR M KULKARNI(MINOR) THROUGH SANGETABEN M KULKARNI
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Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/12/2023
CAV JUDGMENT
1. The appeal is filed by the Employees State
Insurance Corporation under Section 82 of the
Employees State Insurance Act, 1948 (for short
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'ESI Act') being aggrieved by the judgment dated
29.1.2008 passed by the Employees State Insurance
Court, Ahmedabad (ESI Court) in ESI Application
no.52 of 2004.
2. The appellant is an establishment of Central
Government and has raised the ground that the
impugned judgment and order is illegal, arbitrary,
oppressive, unreasonable, unjustified and also
discriminatory, along with the ground that the
judgment and order is contrary and in total
disregard to the vital oral and documentary
evidence, to justify the diverse findings which is
perverse, and deserves to be set aside.
3. Facts of the case reflects that deceased Mahesh
Kulkarni was working as a Helper in Arvind Mills
Ltd. On 9.2.2004, after the working hours of the
employment, while going towards his home, at the
gate of premises of Arvind Mills, he fell down
with the scooter and received injury on the head.
4. Advocate Mr. Sachin Vasavada for the appellant
submitted that the deceased was not in actual work
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of his service, at the time when he met with an
accident, which had occurred outside the gate of
the Company and at that time, he was heading
towards his home. Mr. Vasavada submitted that when
the accident occurred, he was not driving the two
wheeler, subsequently, when he was brought to the
hospital, he was declared dead, and thus, Advocate
Mr. Vasavada submitted that the death cannot be
considered as arising out of and in the course of
his employment. Advocate Mr. Vasavada submitted
that the death has no casual connection with the
employment, and for the first time, the opponent,
in ESI Court, by way of filing ESI Application
no.552 of 2004, had contended about death owing to
the combine cause of accident and occupational
disease. Mr. Vasavada stated that ESI Court
without appreciating the merits of the case and
without considering the provision of law had
delivered the judgment ordering ESIC to pay
benefits to the dependants.
5. Advocate Mr. Vasavada has submitted that there are
diverse observation and finding of ESI Court in
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the impugned judgment which is wholly unjustified
and is without application of mind which itself is
contrary to the evidence and material on record
and is based on mere assumption and presumption.
Mr. Vasavada has submitted that ESI Court ought to
have observed and followed the provisions of law,
its rules and regulations and should have directed
the opponent to make the representation according
to ESI (General) Regulation, 1950 under
Regulations no.77 to 80 and thus, ought to have
rejected the application. Mr. Vasavada submitted
that the evidence on record clearly suggests that
the deceased died because of his own medical
reasons and the death has not occurred because of
any kind of employment injury. Mr. Vasavada thus
submitted that ESI Court ought to have held that
the opponent's application had not pleaded of any
reason of any strain in work or accident arising
during the course of the employment and how the
service strain has caused heart attack. Mr.
Vasavada thus stated that ESI Court ought to have
held that the death of the deceased was because of
his callousness and not in the course of his
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employment as the deceased was suffering from
heart disease. Further, Mr. Vasavada contended
that the ESI Court ought to have considered the
opinion of the medical experts of ESIC which was
made on the basis of the death certificate and
ought to have rejected the application on the
ground that the death took place only due to non-
occupational disease. Mr. Vasavada thus stated
that mere reliance on Section 51A of the Employees
State Insurance Act, 1948 which provides for
drawing the presumption, could not have been acted
upon unless the opponent could have proved that
the death was during the course of employment and
submitted that the alleged heart disease had not
arisen due to occupational hazard and thus,
submitted to allow the appeal by quashing and
setting aside the order of the ESI Court.
6. Advocate Mr. Hiren Modi for the opponent -
dependants has submitted that the deceased was in
permanent post as a Helper, and on 9.2.2004, he
was in the morning shift from 7.00 a.m. to 3.00
p.m. He had performed his job and was heading
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towards home on the scooter and while moving from
the main gate of the premises, he met with an
accident and had fallen on gate and therefore,
sustained injury on the head, he was taken to ESI
Bapunagar General Hospital in an unconscious
state. Upon preliminary examination by the Doctor,
he was declared dead.
7. Advocate Mr. Modi submitted that legal heirs of
the deceased had claimed benefits from the
department, but by a letter dated 15.7.2004, the
same came to be rejected, observing that the
deceased Mahesh Kulkarni serving in caustic plant
had died because of the occupational disease owing
to the caustic plant, on the date of the accident
he was under acute influence of caustic soda and
the chemicals which has affected his health and
the day to day work had influenced his breath and
on 9.2.2004, as co-worker Mohanbhai was on leave
and therefore, because of double extra work, he
was facing difficulty in breathing and burning in
the chest and that had affected the nerves of the
brain and after removing his vehicle from the
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parking area of the compound and was heading
towards main door of the premises, he had a sudden
pain in his chest and because of imbalance of
mind, he lost control on his vehicle and had
fallen down and since he had fallen down from the
running scooter, had sustained injury on the head.
Mr. Modi submitted that the postmortem report
submits that the death is because of the injury in
the head.
8. The claim prayer came to be rejected and thus,
aggrieved by the order of the appellant, the
dependants of the deceased were constrained to
file ESI Application no.52 of 2004.
9. Mr. Modi referring to Section 2(8) of the ESI Act
submitted that if any personal injury is caused to
the employee by the accident or an occupational
disease, arising out of or in the course of his
employment being insurable employment, he would
fall under the definition of 'employment injury',
and, further the definition includes the accident
which occurs or occupational disease contracted
within or outside the territorial limits of India.
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Thus, Mr. Modi submitted that having read Section
51A of the ESI Act, the dependants need not prove
any fact, as the presumption is attached to the
accident which arises, when such has occurred in
the course of the employment. In the present case,
Mr. Modi contended that such accident has occurred
to the employee, thus submitted that only on the
basis of prima facie evidence, the dependants were
to be compensated, instead the appellant had
rejected the claim.
10. Mr. Modi submitted that evidence on record proves
that the injury had occurred in the compound of
the premises, more specifically at the gate and
thus, stated that since appellant had refuted the
case of the dependant, the only question which
would now fall for consideration would be whether
the injury suffered by employee falling from the
scooter outside the mill compound could be
considered as an employment injury.
11. Mr. Modi submitted that the evidence was given by
the applicant no.1 by way of affidavit Exh.13 and
has given evidence of accident and occupational
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disease, as the cause of death.
12. Mr. Modi submitted that the evidence of Dr.
Sumanlal Srimali was with regard to physical
condition of the deceased and the postmortem and
pathological report shows that the death of the
deceased was because of the fracture on the head
and there was bleeding, and the Doctor had very
categorically opined that the death was not
because of any disease, and thus, urged to
consider the case as of accident injury.
13. Mr. Modi submitted that evidence of the witnesses
considering the applicants as dependants, the ESI
Court came to the conclusion referring to the
evidence of Dr. Suman Srimali at Exh.18, the death
of the insured employee was because of the brain
hemorrhage, corroborated by the evidence of the
Doctor. Advocate Mr. Modi thus submitted that when
the insured deceased was returning after
completing his job and was heading towards his
home, at the main gate, there was a security
checking and while starting his scooter, the
accident had occurred and therefore, ESI Court
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came to the conclusion that the death of the
insured deceased has occurred during the course of
the employment and thus, placing reliance on the
provision of Section 51A read with Section 2(8) of
the ESI Act, ESI Court had believed it to be an
'employment injury' and ordered the Corporation to
grant money to the dependants as per Section 52
with Schedule 1 of the Employees State Insurance
Act, 1948.
14. Mr. Modi has relied upon the judgment in the case
of Leela Bai & Anr. v. Seema Chouhan & Anr.,
(2019) 4 SCC 325 to submit that principle of
notional extension of "course of employment" has
to be considered in the present case, and has also
further relied upon the judgment in the case of
New India Assurance Co. Ltd. v. Jivram Jetha
Bambhania (decd.) through his heirs Gitaben &
Ors., 2006 (1) GLR 620 to submit that when the
accident takes place while proceeding towards work
place, then it could be considered as accident
which took place in the course of employment.
15. In context of the arguments raised, certain
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judgments would require mention, to understand the
views adopted by the Courts to the facts of the
cases therein. In BEST Undertaking v. Agnes, AIR
1964 SC 193, it was observed as follows:-
"9. ... '...The man's work does not
consist solely in the task which he is
employed to perform. It includes also
matters incidental to that task. Times
during which meals are taken, moments
during which the man is proceeding
towards his work from one portion of his
employers' premises to another, and
periods of rest may all be included."
"11. ... '7. ... It is now wellsettled,
however, that this is subject to the
theory of notional extension of the
employer's premises so as to include an
area which the workman passes and
repasses in going to and in leaving the
actual place of work. There may be some
reasonable extension in both time and
place and a workman may be regarded as
in the course of his employment even
though he had not reached or had left
his employer's premises. The facts and
circumstances of each case will have to
be examined very 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
time this theory of notional extension."
16. In Jivram Jetha Bambhania (supra) relied upon by
learned advocate Mr. Modi, the insurance company
had challenged the judgment and award passed by
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the Workmen's Compensation Commissioner, Labour
Court, wherein the substantial questions of law
were raised. The first two questions are relevant,
which are reproduced hereunder:-
"(A) Whether an accident that takes place
on a public road while the deceased
employee is on his way to his work-
place, can be said to fall under Section
3 of the Workmen's Compensation Act,
1923?
(B) Whether in light of the ruling of
the Hon'ble Supreme Court of India in
the case of Francis De Costa, reported
in 1996 (6) SCC 1, the case of the
deceased workman who died in a vehicular
accident while on his way to his work-
place, can be said to fall within
Section 3 of the Workmen's Compensation
Act, 1923?"
17. The case of Francis De Costa, 1996 (6) SCC 1, has
been noted in the question raised, in that matter,
the facts of the case was that, the deceased was
going from his home to his place of work, he
suffered injury in an accident on the way. The
Hon'ble Supreme Court concluded that it cannot be
said that the accident had arisen out of and in
the course of his employment. However, to the
facts of the case, it was observed under Section 3
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of the Workmen's Compensation Act that where an
employer goes to the residence of an employee and
takes the employee on his vehicle and proceeds
towards the work-place, but on way, an accident
takes place, the law would hold that the accident
took place in the course of employment.
18. In the case on hand, Accident report dated
10.2.2004 was received from M/s. Arvind Mills Ltd.
The brief description of the accident in the
report says that "while he was leaving the main
gate by his scooter after completion of his duty
hours, he fell down from his scooter and blood
found in his mouth". The occupation of the insured
person in the report was shown as "Caustic Plant
Operator" and the duty hours were shown as 7.00
a.m. to 3.00 p.m. with the time of incident as
3.00 p.m.
19. The authority at the Branch Office Naroda Road,
ESI Corporation-the appellant communicated to the
Regional Director, ESI Corporation, Ahmedabad on
2nd April 2004, which is verbatim reproduced as
under:-
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"The case has been considered as 'CASE
OF SICKNESS' on the basis of the
preliminary information submitted by
the Employer in the Accident Report
and findings shown as under:-
(1) Since the Employer has stated that
'after completion of his duty hours'
the incident take place means the
accident not happened during the
course of employment.
(2) The accident took place at the
main gate of the factory it could also
not established that the same happened
out of employment.
(3) The incident take place at main
gate i.e. outside the factory
premises.
(4) The I.P. has not met with an any
kind of physical accident but near the
main gate he fell down from his
scooter and the blood came out from
his mouth. He may feel giddiness or so
because of that he may fell down from
his scooter.
In view of the above it was considered
that the incident taken place is not
happened during the course of
employment and also not out of
employment and the same was considered
as a case of 'SICKNESS'.
Now the dependant Smt. Sangitaben-wife
(her name is not shown in Declaration
Form) has informed about the said
accident and claimed that the accident
happened during the course of
employment and requested for dependant
Benefit.
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It is, therefore, requested to please
examine the case at R.O. and the
decision taken by this office may
please review/re-examine, if fit, and
the dependant may please be informed
accordingly. If it is necessary to
carry out complete investigation of
the case, this office may please be
advised accordingly.
Accident Report, in original, is
enclosed herewith which is self
explanatory, for further necessary
action at your end."
20. In the present matter, the case has been urged by
the dependant as both under 'occupational disease'
as also of 'accident injury' through her evidence.
21. As was observed in the case of Francis De Costa
(supra), the Hon'ble Supreme Court in the case of
Saurashtra Salt Manufacturing Co. v. Bai Valu
Raja, reported in AIR 1958 SC 881 had held that
when an employee is traveling to and fro from his
place of work, if an accident occurs while
commuting to and fro from the place of work, the
accident cannot be said to have arisen out of and
in the course of employment, because the accident
does not happen within the premises of the
employer. This Division Bench judgment of Three
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Judges and the ratio laid down found change to
certain extent by the Constitutional Bench
judgment of the Hon'ble Supreme Court in the case
of Best Undertaking (supra). The Hon'ble Supreme
Court in the case of Best Undertaking (supra) has
held that since the service rules requires the
employees of the BEST Undertaking to use official
transport while going to and fro from work, would
be an accident arising out of and in the course of
employment.
22. The judgments in the case of Francis De Costa
(supra) and Saurashtra Salt Manufacturing Co.
(supra) are the judgments which would be in the
favour of appellant ESI, but the progress in law
requires appreciation to understand the welfare
legislation.
23. The ESI Act, 1948 came to be enacted to provide
for certain benefits to employees in case of
sickness, maternity and employment injury and aims
to make provision for certain other matters in
relation thereto. The ESI Act found amendment time
to time, the substitution of Section 51E was with
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effect from 1.6.2010, while Section 52A had found
place in the Act with effect from 28.1.1968.
24. Section 51E deals with accidents happening while
commuting to the place of work and vice versa. The
date of the incident in the present matter is
9.2.2004. The ESI Act being a social welfare
legislation, the interpretation which furthers the
intention of the legislation must be adopted. The
object of the ESI Act itself clarifies making of
provision in relation to the Act. The
interpretation of the provision should be
progressive and purposive. Definition provision
Section 2(8) of the ESI Act gives the meaning of
'employment injury' which is reproduced
hereinbelow to get a better understanding of law.
"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;]"
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25. This definition Section 2(8) was brought in force
with effect from 28.1.1968 giving meaning to
'employment injury', as personal injury to an
employee caused in accident or an occupational
disease. The Section thus makes it clear that
injury caused in accident or occupational disease
are employment injury, expanding the meaning in
the definition clause as arising out of and in
course of employee's insurable employment,
immaterial of such employment injury contracted
within or outside the territorial limits of India.
26. Section 2(8) substitutional insertion in the ESI
Act, at the same time had the provision of
presumption, as rule of law, through Section 51A,
which provides for presumption as to accident
which is arising in course of employment, which
had been incorporated in the ESI Act in following
terms:-
"51A. Presumption as to accident
arising in course of employment.- For
the purposes of this Act, an accident
arising in the course of an employee's
employment shall be presumed, in the
absence of evidence to the contrary,
also to have arisen out of that
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employment."
By the employment of expression 'shall be
presumed' in the section, as directed, the Court
shall record such fact as proved, unless and until
it is disproved.
27. Section 51E was instituted into the statute book
with the effect to have force on and from 1.6.2010
with the following provision:-
"51E. Accidents happening while
commuting to the place of work and
vice versa.-
An accident occurring to an employee
while commuting from his residence to
the place of employment for duty or
from the place of employment to his
residence after performing duty, shall
be deemed to have arisen out of and in
the course of employment if nexus
between the circumstances, time and
place in which the accident occurred
and the employment is established."
28. Section 51E is to be read in context with Section
2(8) of the ESI Act as well as to note, that while
introducing Section 51E in the ESI Act, there has
been no change in the definition of 'employment
injury'. It can be clearly said that the provision
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of Section 51E is declaratory and clarificatory in
nature. This can well be understood and
acknowledged, as since, with effect from
28.1.1968, Sections 51B, 51C and 51D, too were put
in statute, where Section 51B refers to accidents
happening while acting in breach of regulations
etc., while Section 51C explains in context with
accidents happening while traveling in employer's
transport, and Section 51D deals with accidents
happening while meeting emergency. Section 51B to
51E are deeming provision to consider such
accidents, as provided for, to have arisen out of
and course of the employee's employment.
29. Thus, Section 51E as can be read, is declaratory
and clarificatory of the expression 'accident
injury' as defined under Section 2(8) of the ESI
Act. The provision of Section 51E would have to be
invoked as and when the facts associated to the
condition described therein arises. Section 51E of
the ESI Act is declaratory and clarificatory
section having retrospective effect, such view
gets support from the observation made in the case
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of Delhi High Court, where in Employees State
Insurance Corporation & Anr. v. Smt. Poonam Sharma
& Ors. in FAO no.177/2012 & CM no.7366/2012, it
was observed as under:-
"8. The issue therefore to be decided
is as to whether the provision of
Section 51(E) is prospective or it is
only declaratory and clarificatory so
far as definition of employment injury
as found in Section 2(8) of the Act is
concerned i.e the clarification in
Section 51(E) of the definition of
employment injury does or does not
apply to accidents before Section
51(E) was enacted.
9. ...the provision of Section 51(E)
must be held to be prospective i.e it
does not apply to accidents which
happen before bringing in of this
amendment w.e.f 1.6.2010 i.e. if
accidents are caused to the employee
while commuting to and fro from the
place of work if they occur before
1.6.2010, then, such accidents should
not be included in the expression
'employment injury' as per Section
2(8) of the Act.
12. I am unable to agree with the
arguments urged on behalf of the
appellant because para 21 of the
judgment in the case of C.Gupta
(supra) before making observations
with respect to date of coming into
effect of an amended provision, has
specifically observed that the
position would be different when the
amending provision is merely
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declaratory and clarificatory.
Clarifying this further, the Supreme
Court said that in the facts of
C.Gupta's case (supra) the definition
of 'workman' was specifically amended
by adding expression 'operational' for
the first time in the definition and
the expression 'skilled' and
'unskilled' were made independant
categories unlinked to the word
'manual'ie the amendment hence touched
substantive right which changed
because of the amendment. When we see
the provision of Section 2(8) of the
Act, which defines the 'employment
injury', we find that there is no
amendment carried out to this
provision in that any words have been
taken away from the said provision
which would have taken away vested
rights. The amendment is declaratory
or clarificatory and not stated by its
language to be prospective. For
example, let us take a case where
statutorily the definition provided
that a person who commutes to and fro
from place of work when he suffers an
accident is excluded, and then such an
accident does not arise out of and in
the course of employment. If these
words are sought to be removed by
amendment by bringing in Section 51(E)
by simultaneously deleting these
expressions if were found in Section
2(8), then, of course, it could have
been argued that originally by the
definition itself of employment
injury, accident taking place while
commuting to and fro from the place of
employment though was earlier excluded
specifically, and which is sought to
be included by amendment, and
consequently by its very nature
amendment will be prospective because
the amendment is not clarificatory or
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declaratory but there is a substantive
amendment of the definition of
employment injury by removing specific
words and adding specific words hence
affecting substantive rights. This
however is not so. Therefore, in my
opinion, Section 51(E) is merely
declaratory and clarificatory of the
expression 'employment injury' and by
virtue of the Section 51(E) it is only
clarified that an injury which takes
place on account of an accident
outside the premises of the employment
but when the employee is commuting to
and fro from the place of work, the
accident will be included in the
expression 'accident arising out of
and in the course of employment'. In
my opinion, the fact that the
provision of Section 51(E) uses the
expression 'deemed' also shows that
the provision of Section 51(E) is
clarificatory and declaratory so far
as definition of 'employment injury'
as found in Section 2(8) of the Act is
concerned. Merely because the Section
is brought into effect on a particular
date will not take away the effect of
the Section being declaratory or
clarificatory, and once the Section is
only clarificatory and declaratory
with respect to the accident arising
out of and in the course of
employment, then in such a case the
date of bringing into operation of the
Section cannot in any manner change
the aspect that the amendment is only
declaratory and clarificatory and is
not a substantive amendment affecting
substantive rights."
30. The Insurance Inspector, while filing the reply to
the E.S.I. Application no.52 of 2004, has denied
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of any ill-effect of the employee's occupation.
Such plea of the applicant-dependant was pleaded
to be not true and tenable at law. It was stated,
before the ESI Court, through the reply that the
death of the husband of the dependant-widow was
due to accidental injury on head owing to fall
from scooter and further it was urged that the
cause of death is shock and hemorrhage due to head
injury, which is evident from the postmortem
report. It is further pleaded that after
completion of the regular duty hours and while the
employee had already left the mill compound after
the security check, he fell from the scooter,
therefore, it has been proved beyond doubt that
the accident had not occurred during the course of
employment and out of employment and thus, it was
urged that the ESI Corporation has rightly
rejected the case. It was also stated that there
is no relation of accidental death with the course
of employment as had occurred after completion of
his regular duty hours and after having left the
mill premises. Death was due to head injury after
working hours outside the mill premises. The cause
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of death is brain hemorrhage due to accidental
injury to head and the plea taken by the widow
that her husband working in the caustic plant was
inflicted with occupational disease, was pleaded
to be false, fabricated and far from truth and
afterthought with some motivated intention to
extract undue advantage from the present
appellant. That the deceased had never complained
of any ailments as such, throughout his regular
duty hours and passed well the whole time and left
for home and expired due to accidental injury to
head due to fall from scooter outside the mill
gate and therefore, pleaded that it cannot be
treated as employment injury due to accidental or
occupational disease during the course of
employment and that the appellant had rightly
rejected the case.
31. Dr. Sumanlal Srimali was examined at Exh.18 who
was CAMO of Civil Hospital, Ahmedabad and had
performed the postmortem of the deceased on
10.2.2004. The report shows hemorrhage as the
cause of death because of the head injury. For
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histopathology report, the heart was sent at the
pathological department, as per the report, weight
of the heart was found 250 gms., and veins
providing blood to the heart found ethokerisis
giving meaning to it as wall of the veins had
thicken because of cholesterol. The Doctor deposed
that because of cholesterol, if veins get thicken,
and such a person falls on the ground, then owing
to the injury on head, the death as noted can
occur. The Doctor specifically opined that because
of fracture in the skull, there was hemorrhage in
front part of the brain, parietal and temporal
area and because of Spontaneous Tansillar
Hemorrhage (STH) on the cerebellum (small brain)
death has occurred. The Doctor has denied of any
effect because of caustic soda, except weaking of
lungs, so the Doctor has ruled out the cause of
occupational disease.
32. The case urged by the dependants was also of
occupational disease. Section 52A deals with
occupational disease, which is extracted
hereinbelow:-
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"52A. Occupational disease.-- (1) If an
employee employed in any employment
specified in Part A of the Third
Schedule contracts any disease
specified therein as an occupational
disease peculiar to that employment, or
if an employee employed in the
employment specified in Part B of that
Schedule for a continuous period of not
less than six months contracts any
disease specified therein as an
occupational disease peculiar to that
employment or if an employee employed
in any employment specified in Part C
of that Schedule for such continuous
period as the Corporation may specify
in respect of each such employment,
contracts any disease specified therein
as an occupational disease peculiar to
that employment, the contracting of the
disease shall, unless the contrary is
proved, be deemed to be an "employment
injury" arising out of and in the
course of employment.
(2) (i) Where the Central Government or
a State Government, as the case may be,
adds any description of employment to
the employments specified in Schedule
III to the Workmen's Compensation Act,
1923 (8 of 1923), by virtue of the
powers vested in it under sub-section
(3) of section 3 of the said Act, the
said description of employment and the
occupational diseases specified under
that sub-section as peculiar to that
description of employment shall be
deemed to form part of the Third
Schedule.
(ii) Without prejudice to the
provisions of clause (i), the
Corporation after giving, by
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notification in the Official Gazette,
not less than three months' notice of
its intention so to do, may, by a like
notification, add any description of
employment to the employments specified
in the Third Schedule and shall specify
in the case of employments so added the
diseases which shall be deemed for the
purposes of this section to be
occupational diseases peculiar to those
employments respectively and thereupon
the provisions of this Act shall apply,
as if such diseases had been declared
by this Act to be occupational diseases
peculiar to those employments.
(3) Save as provided by sub-sections
(1) and (2), no benefit shall be
payable to an employee in respect of
any disease unless the disease is
directly attributable to a specific
injury by accident arising out of and
in the course of his employment.
(4) The provisions of section 51A shall
not apply to the cases to which this
section applies.]"
33. The provision under Section 52A deals with the
disease contracted during the course of
employment. The deceased herein was working in the
mill as Caustic Plant Operator. The list of
occupational disease under Section 52A is in Third
Schedule bifurcated as Part-A, B and C. The
occupational disease peculiar to that employment
shall be termed as "employment injury" arising out
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of and in course of employment as provided under
Section 52A of the Act, which further clarifies
that provision of Section 51A shall not apply to
the cases to which Section 52A would apply.
Nothing has been brought on record to prove of any
occupational disease. Doctor conducting the
postmortem has denied of any such cause.
34. The dependant had urged compensation under both
the grounds i.e. personal injury caused by
accident and "occupational disease" arising out of
and in the course of his employment. Section 2(8)
as was prior to 28.1.1968 would require a
reference as the right of the dependant for
claiming compensation on the death of the insured
employee would fall as 'employment injury' with
reference to Section 51E and 52A. Section 2(8)
prior to 28.1.1968 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 in a factory or
establishment to which this Act
applies, which injury or occupational
disease would entitle such employee to
compensation under the Workmen's
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Compensation Act, 1923 (VIII of 1923),
if he were a workman within the
meaning of the said Act;"
35. Earlier Section 2(8), refer to the personal injury
caused by accident or occupational disease arising
out of or in the course of employment in factory
or establishment to which the ESI Act applies.
Thus, earlier the accident occurring in the
factory or the connected establishment as covered
under the ESI Act was considered as employment
injury. Section 2(8) presently in force has
broadened its aspect by considering the employment
injury within or outside the territorial limits of
India. The specification of such injury in factory
or in establishment to which the Act applies has
been done away with. Hence, the issue as to
whether the employee suffered injury falling from
the scooter outside the mill compound or within
would now be of no significance, as any injury
arising out of or in the course of his employment
would be considered as an employment injury,
reading with the clarificatory and declaratory
provision under Section 51E, which would be
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applicable in the present case as the accident had
occurred while going from the place of employment.
Any accident while commuting from his residence to
the place of employment for duty or from the place
of employment to his residence after performing
duty, shall be deemed to have been arisen out of
and in the course of employment. In the present
case, by the evidence of the Doctor as well as the
report and the reply of the appellant with the
evidence of the dependant clearly establish the
nexus of the time and place when the accident
occurred establishing the employment injury. The
cholesterol of the heart is not the direct cause
of death. Accident would mean an unfortunate
incident that happens unexpectedly and
unintentionally, typically resulting in damage or
injury. Such event happens by chance, without any
apparent or deliberate cause. The case on record
clearly proves that after performing the duty, the
deceased was leaving the mill premises, where at
the gate of the premises, the employee after
undergoing security check suffered accident by a
fall. The cause of death has been shown as
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hemorrhage because of the injury to the head. The
case therefore has been proved by the dependant
under Section 51E.
36. In view of the above observation of facts and
provision of law, it would be right to hold that
provision of Section 51E is only declaratory and
clarificatory to the definition of employment
injury contained in Section 2(8) of the Act and
the benefit of the provision shall have to be
given to the employee even if the accident had
occurred prior to 1.6.2010. considering the
accident injury arising out of and in the course
of his employment.
37. In view of the above, appeal fails merits. No
substantial question of law is involved, the
findings of facts on appreciation of material and
evidence by the ESI court cannot be said to be
erroneous or perverse, it therefore does not call
for any exercise of discretion under section 82 of
the ESI Act. The appeal, therefore, stands
dismissed with no order as to costs. The amount
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deposited by the appellant be paid to widow, as
dependent, on verification of identity.
(GITA GOPI,J)
Maulik
