Gujarat High Court
Employee State Insurance Corp vs Lilaben Ramjibhai Jalaji,Wd/O ... on 21 February, 2023
Bench: A.Y. Kogje
C/FA/1255/2002 JUDGMENT DATED: 21/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1255 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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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 ? 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 ?
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EMPLOYEE STATE INSURANCE CORP.
Versus
LILABEN RAMJIBHAI JALAJI,WD/O RAMJIBHAI FATAJI & 1 other(s)
===============================================================
Appearance:
MR SHASHIKANT S GADE(1706) for the Appellant(s) No. 1
MR.ASHUTOSH DAVE, AGP, for the Defendant(s) No. 1,2
===============================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 21/02/2023
ORAL JUDGMENT
[1] This First Appeal under Section 82(2) of the Employee's State
Insurance Act, 1948 (for short "the Act") is against the judgment and
order dated 28.09.2001 in Application No.90 of 1988 by the Employees'
State Insurance Court. Under the impugned award, the Insurance Court
declared the legal representatives of the deceased employee to be entitled
to the dependent's benefit as per Section 52 and Schedule 1 of the Act.
[2] Learned advocate for the corporation submitted that the judgment
and order is not based on any cogent evidence as the claimants had
failed to establish the nexus between the nature of employment and the
C/FA/1255/2002 JUDGMENT DATED: 21/02/2023
cause of death. It is also submitted that the medical evidence which was
recorded through the witnesses being doctor also does not indicate of any
injury suffered on account of an accident within the premises which has
resulted in death of the employee. Learned advocate has submitted that
even if the entire evidence of the doctor is perused, the witness has not
deposed that the cause of death is due to the heart attack and that the
cause of heath attack is also not relatable to the nature of work.
[2.1] Learned advocate submitted that the Insurance Court has therefore,
proceeded on the basis of presumption and assumption and has awarded
the compensation. Learned advocate lastly submitted that there was a
failure on the part of the employer in filing a report with regard to any
accident which has taken place which has resulted in death of the
employee.
[3] As against this, learned Assistant Government Pleader Mr. Ashutosh
Dave who has been directed under an order dated 11.01.2023 to assist
the Court on behalf of the respondent-claimants as there was no sufficient
representation on their behalf, obviously considering the social status of
such respondents. He submits that no substantial question of law is
raised.
[4] The Court has heard learned advocates for the parties and perused
the documents placed on record. The incident is of 18.01.1988 when the
employee Ramaji Rataji had complained about chest pain while on duty
and had continued to complete his shift, whereupon reaching home his
condition was deteriorated and even after meager medical attention could
not survive and expired.
[5] The perusal of the judgment and order would indicate the evidence
being appreciated by the Insurance Court, particularly Exh.17 which was
the deposition of co-employee, who has deposed that the deceased
C/FA/1255/2002 JUDGMENT DATED: 21/02/2023
employee was performing his duty in the second shift as a Doffer and
had described the nature of work which a Doffer has to undertake during
his duty hours. The deposition clearly indicates the strenuous nature of
work. The deposition also indicates that the complaint with regard to the
chest pain on account of the strenuous work was made to the supervisor
however, supervisor refused to permit the suffering employee to go on
recess and therefore, continued to work which further deteriorated the
condition of the employee. It appears that upon the conclusion of the
shift when the employee went home, at that stage, his condition was
deteriorated further and the employee succumbed to the medical
condition. The Court had also taken into consideration a small incident
which took place while the employee was on duty, wherein co-employee
had deposed that while on duty, there was an accident where a
machinery (Bobin) had fell upon the employee (deceased) which was also
the cause for the discomfort suffered by the employee while on duty.
[6] The contention raised by the appellant with regard to no report
being made by the employer with regard to the so called incident of
falling of Bobin on the body of the employee, it would be pertinent to
refer to the decision of the Madras High Court in case of S. Vimala v/s.
Manager, Branch Office, Employees State Insurance Corporation and
others, reported in 2020 SCC Online Mad 24517, wherein the provisions
of the Act are discussed holding that it is the primary responsibility of
the employer to report an accident if any involving the employee, where
no such report is made by the employer, the employee cannot be made
to suffer such lapse on the part of the employer.
[7] In this connection, learned AGP Mr. Ashutosh Dave has rightly
relied upon the decision of the Madras High Court in case of S. Vimala
(supra). Similar view is also taken in yet another decision of the Orissa
High Court in case of the Employees' State Insurance Company v/s. Sri
C/FA/1255/2002 JUDGMENT DATED: 21/02/2023
Nityananda Swain and others, reported in 2011 SCC OnLine Ori 22,
wherein also the view is taken that a delay in sending the report or non-
sending of the report at all would not prove fatal against the employee
who has suffered.
[8] The Court is therefore, convinced that the incident took place
within the factory premises which has resulted in the suffering of the
heart attack by the employee, who later on after receiving meager
medical treatment had expired.
[9] Yet another ground with regard to the non entertaining of the
appeal is the non-framing of any substantial question of law. Learned
AGP Mr. Dave has drawn attention of this Court to the relevant
provisions under Section 82 of the Act, wherein appeal is to be
entertained only on the substantial question of law. The pleadings in
appeal would indicate the so-called substantial question raised in the
appeal is that the judgment of the ESI Court is on assumption and
presumption and not warranted by facts. In the opinion of the Court, the
pleadings and the facts of the Court, would not go on to support raising
any substantial question of law. Moreover, even from the arguments
before this Court as well as pleadings, it is apparent that the only ground
for challenge is with regard to the lack of evidence. Once the ESI Court
has found sufficient evidence and has after taking into consideration such
evidence has declared the entitlement for dependent's benefit, the Court is
not inclined to interfere Hence, the appeal deserves to be and is hereby
dismissed.
(A.Y. KOGJE, J)
SIDDHARTH
