Gujarat High Court
Regional Director Employees State ... vs Kusumben Maheshkumar Kadiya Wd/O ... on 13 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3758 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION
Versus
KUSUMBEN MAHESHKUMAR KADIYA WD/O MAHESHKUMAR
DASHRATHLAL KADIYA & ANR.
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Appearance:
VIVAN T SHAH(7947) for the Appellant(s) No. 1
MR PARESH J BRAHMBHATT(9788) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 13/06/2025
ORAL JUDGMENT
1. The present First Appeal is filed under Section 82(2) of
Employees' State Insurance Act, 1948 (hereinafter referred to as
'the Act'), wherein the appellant-original respondent No.1 has
assailed the judgment and award of Employees' State Insurance
Court, Ahmedabad passed in ESI Application No.24 of 2019
dated 21.01.2022.
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2. Heard learned advocate Mr. Vivan T. Shah for the
appellant and learned advocate Mr. Paresh J. Brahmbhatt for the
respondent. Though served, none appeared for respondent No.2.
3. The brief facts of the case are as under;
3.1. The respondent No.1-original applicant filed an
application under Section 75-76 of the Act stating the fact that
her husband Maheshkumar Dashrathlal Kadiya was serving as a
Security Guard with opponent No.2-Employer and the duration
of the service was from 8:00 p.m. to 8:00 a.m. The employer-
opponent No.2 used to deduct contribution from the salary and
the Insurance No.3712004020 was allotted to her husband. On
16.10.2017 when her husband was in the employment of
opponent No.2, while performing his duties, fell down from the
chair and sustained injuries. Deceased was taken to his residence
at first and thereafter, was admitted in Hospital and ultimately,
expired on 21.10.2017. As opponent No.1-present-appellant
rejected the claim on 28.12.2018. Claimant-widow filed an
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application claiming benefits under the Act. Notice of claim
application was served upon the employer and present
appellant. The employer though served did not contest the
application whereas appellant-original opponent No.1 appeared
and filed Written Statement at Exhibit-7 and produced
documentary evidence vide list Exhibit-8. Opponent-corporation
denied the case pleaded by claimant mainly on the ground of
injury not being an employment injury and having no nexus
between injury and death. Following issues were framed by the
learned Court below;
"(1) Does the claimant prove that her late husband died while
performing his duty with respondent No.2?
(2)Does respondent No.1 prove that the late husband of the claimant
did not die during the course of performing his duty?
(3) Is claimant legally entitled to get benefits sought in the application?
4. What order?"
3.2. Claimant examined herself at Exhibit-10. Opponent No.1-
Corporation examined Jayeshbhai Ishwarbhai Rathod at Exhibit-
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37. After considering the evidence on record, learned ESI Court
allowed the application.
3.3. Being aggrieved and dissatisfied with the impugned
judgment and order, Corporation-appellant has filed the present
First Appeal before this Court.
4. Learned advocate for the appellant-Corporation has
mainly harped upon two issues. The first contention raised by
learned advocate for the appellant is that the alleged injury is not
an employment injury and secondly there is no nexus between
injury and the cause of death. As claimant could not establish
basic requirements, learned ESI Court has gravely erred in
granting application. It is submitted that the alleged incident
occurred on 16.10.2017 but the employer reported the accident
on 10.11.2017. On receiving the intimation vide communication
dated 06.08.2018 Exhibit-17, employer was asked to furnish
details. The case was referred to by the Corporation to the State
Medical Officer and as per the opinion of State Medical Officer,
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deceased had complaint of convulsion. The medical papers of
the Hospital indicate the cause of death is cardiac respiratory
arrest and death has occurred during hospitalization and not
during and in course of employment. It is further contended that
considering the cause of death which cannot be termed as an
accidental injury arising during and in course of employment.
The cause of death is not because of any accidental injuries but
it is a natural death arising out due to cardiac arrest. There is no
other evidence led by claimant that the heart failure was because
of the stress and strain during the employment. The State
Medical Commissioner after examining the case papers opined
that the death of deceased was a natural death and it has no
relation with the employment. Though investigating Officer who
has investigated into the case has opined in his report dated
27.04.2018 Exhibit-27 that deceased sustained nose injury due
to falling down from the chair, the said report is not binding to
the corporation as the final authority is the highest authority of
the corporation who has taken its decision by rejecting the
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application of claimant. The medical record does not indicate
that deceased had fallen down from the chair and sustained
injuries.
4.1. In support of the contentions, learned advocate for the
applicant has placed reliance upon the decision in the case of
Shakuntala Chandrakant Shreshti versus Prabhakar Maruti
Garvali and Another reported in 11 (2007) SCC 668. It is
submitted that the medical opinion would be relevant unless
evidence is brought on record to establish that death by of
cardiac arrest was because of stress and strain of work. The
corporation cannot be saddled with any liability to pay
compensation under the Act. Reliance is placed upon paragraph
Nos.36, 37 and 38 of the said decision, which are reproduced as
under;
"36. Only because the cause of death was due to heart attack,
the same by itself may not be a ground to arrive at a conclusion
that an accident had occurred resulting in injury.
37. The nature of duty of the deceased was that of a helper.
Per se that the duties would not be such which could cause stress
or strain. If an additional duty were required to be performed by
him, the same was required to be clearly stated.
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38 Unless evidence is brought on record to elaborate that the
death by way of cardiac arrest has occurred because of stress or
strain, the Commissioner would not have jurisdiction to grant
damages. In other words, the claimant was bound to prove
jurisdictional fact before the Commissioner. Unless such
jurisdictional facts are found, the Commissioner will have no
jurisdiction to pass an order. It is now well-settled that for
arriving at a finding of a jurisdictional fact, reference to any
precedent would not be helpful as a little deviation from the fact of
a decided case or an additional fact may make a lot of difference
by arriving at a correct conclusion. For the said purpose, the
statutory authority is required to pose unto himself the right
question."
4.2. Learned advocate for the applicant has also placed
reliance upon the decision in the case of Gangaben Widow of
Chhaganbhai Havabhai, and others between Regional
Director, Employees State Insurance Corporation reported in
1995-II L.L.N. 1174. It is submitted that there must be nexus
between death of insured employee and injury sustained during
his employment for assuming that death has occurred during the
course of employment. Claimant has to successfully prove the
death of deceased was a result of employment injury and on
failure to establish such mandatory requirement, Corporation
cannot be saddled with the liability.
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5. Per contra, learned advocate for the respondent-applicant
has supported the judgment and order. It is contended that
appellant has to first of all satisfy that there are substantial
questions of law involved in the appeal which require
consideration. Section 82(2) of the Act has been pressed into
service by the learned advocate for the respondent, which is
reproduced as under;
"82. Appeal.
(1) ****
(2) An appeal shall lie to the High Court from an order of an
Employees' Insurance Court if it involves a substantial question of
law."
5.1. It is submitted that there are no substantial questions of
law involved in the present appeal and the substantial questions
of law which are proposed by appellant are of more of touching
facts than law, much less, substantial questions of law.
5.2. On the factual aspect, it is submitted that deceased was in
the employment of respondent No.2-Company and on
16.10.2017 at 6:00 a.m. while performing his duties, fell down
from the chair and sustained injuries. The injury sustained to
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deceased was an employment injury as deceased sustained
injury during and in course of employment. Deceased was firstly
taken to his home by a co-employee, and thereafter, he was
shifted to Civil Hospital, Ahmedabad and on 21.10.2017, the
husband of claimant expired due to cardiac respiratory arrest.
The medical papers which were placed on record indicate that
deceased had two episodes of convulsions before and one
episode of convulsion on the date of accident. Deceased became
unconscious after falling down from chair which is also
mentioned in the medical papers. The Investigating Officer of
the Corporation who has investigated into the claim has
submitted his report dated 27.04.2018 Exhibit-27. As per report
employee sustained nose injury due to falling down from the
chair. The said observation has been derived at by the
Investigating Officer by placing reliance upon the accident
report which was prepared and submitted by the employer to the
Corporation. The Investigating Officer Jayeshbhai Ishwarbhai
Rathod has been examined at Exhibit-37 and in the cross-
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examination, he has admitted that deceased has expired due to
employment injury. It is further contended that though in the
Written Statement, it is the case put up by the Corporation that
the State Medical Officer as well as the State Medical
Commissioner have opined that injury is not an employment
injury and there is no nexus between the injury and the cause of
death, however, no such vital evidences, though was in power
and possession of Corporation, were not produced. In absence of
any contrary evidence, a presumption as to accident arising in
the course of employment is required to be drawn and learned
ESI Court has rightly drawn that presumption. Section 51-A of
the Act has been referred to by the learned advocate for the
respondent which is reproduced as under;
"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
employment".
As the said provision envisages a presumption to be
drawn in absence of evidence to the contrary, the submissions of
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learned advocate for the appellant are misconceived and the
appeal deserves to be dismissed.
5.3. So far as the decisions of Shakuntala Chandrakant
Shreshti (supra) and Gangaben Widow of Chhaganbhai
Havabhai, and others (supra) are concerned, learned advocate
for the respondent tried to distinguish and submitted that the
ratio laid down in those two decisions are not applicable to the
facts of the present case as the facts before this Court are
different and distinct from the facts before the Hon'ble Apex
Court as well as before the Co-ordinate Bench of this Court.
6. I have considered the submissions canvassed by learned
advocates for the parties and also perused record and
proceedings. It appears from record that there is no dispute with
regard to the fact that deceased was in the employment of
respondent No.2-Company and was having an Insurance
No.3712004020. The employer-Company has remained absent
throughout the trial and did not contest the application.
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Following substantial questions of law are proposed in the
memo of appeal are reproduced;
"(1) Whether in the case of deceased security guard, cause of death
shown in treatment papers of Civil Hospital Ahmedabad and as per
medical commissioner report "patient developed sudden cardiac arrest
on 17/10/17 means during hospitalization (convulsion) and not during
course of employment, so no nexus between death and accident felling
from chair at work place, fetches dependent benefits U/s 52 of ESI Act?
(II) Whether natural Heart Attack during hospitalization with no
accident can be called employment injury u/s 2 (8) of ESI Act?
(III) Whether applicant is legally entitled for getting dependents'
benefits u/s 52 of ESI Act when there is "no employment injury" as per
latest Citations of Hon. Supreme Court looking to present matter's facts
and circumstances?"
No other substantial questions of law are proposed by
appellant, except above.
7. The core contentions which are tried to be developed
by learned advocate for the appellant is whether in the
present case accident occurred on 16.10.2017 can be said to
be an accident arising and during the course of employment
and whether the injury sustained is an accidental injury while
performing the duties and secondly whether the cause of
death can co-relate with the alleged injury. It is the
contention of the appellant that the cause of death is a
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cardiac respiratory arrest and has nothing to do with the
alleged injury. To determine such controversy, it is pertinent
to observe that the employer-Company reported the incident
of 16.10.2017 on 10.11.2017. Upon receipt of such
intimation of accident, appellant sought for information and
more particularly, sought clarification from employer with
regard to no weekly offs mentioned in the Attendant Register
and also months to which it relates is not shown. It appears
that the company replied to demand of such clarification but
did not provide any explanation with regard to the non-
mentioning of weekly offs in Attendant Register. On such
material, it can be presumed that deceased was not given any
weekly offs by employer and had to perform his duties from
8:00 p.m. to 8:00 a.m next morning every day. The
Investigating Officer in his report Exhibit-27 has also
supported the happening of the injury due to falling down
from the chair and the cause of death is cardiac arrest as per
the certificate issued by Civil Hospital. The said officer has
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also been examined by Corporation at Exhibit-37 and in the
cross-examination, he has admitted that the injury sustained
to deceased was an employment injury and the Investigating
Officer has also examined Attendant Register, Salary
Statements and also taken statements of witnesses and
thereafter, submitted his report. However, it is surprising to
note here that the contention of learned advocate for the
appellant is that the said investigation report is not binding to
the Corporation and the final authority is the higher
authority. If that is so, nothing comes out from the
appellant's side to substantiate the reason and purpose of
having an investigation report. The contention that report of
investigating officer is not binding to Corporation is not only
misconceived but also an eyewash. The report of
investigating officer is binding to the Corporation, unless the
same is not a genuine report or that the officer has carried
out investigation without any evidence or base. In the
present case, only because investigating officer has opined
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and admitted in cross-examination that employee suffered
injury on nose during employment, is no ground for
Corporation to bypass such report. It is further apt to observe
that though opinions were sought for by Corporation from
State Medical Officer as well as from the State Medical
Commissioner, none of the reports are produced by the
corporation for the reasons best known to them. When the
Corporation withheld material piece of medical evidence in
the form of opinions, a contention would not lie in the mouth
of Corporation that there is no nexus between injury and
cause of death and that deceased did not receive injury
during the course of employment. Section 51-A of Act
would squarely apply in such cases where though an
opportunity was there for the Corporation to lead a contrary
evidence but chosen not to lead such evidence and in
absence of any contrary evidence, a presumption as to
accident arising in course of employment is required to be
drawn and learned ESI Court has rightly presumed the
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accident arising out of the course of employment. There
cannot be any direct evidence of stress and stain undergone
by the employee such stress and strain can be presumed
considering the nature of work deceased was performing.
The supportive evidence is a clarification which was sought
for by Corporation from the company-employer with regard
to the non-mentioning of weekly offs in the Attendant
Register which can lead to a conclusion that deceased was
not having any weekly offs, which might have resulted into
stress and strain considering the nature of work deceased
was performing.
8. The decision of Shakuntala Chandrakant Shreshti
(supra) is not helpful to the case of appellant for the reason
that deceased was working as a cleaner in a vehicle and was
travelling in the vehicle at night. As he suddenly developed
chest pain, was admitted into the Government Hospital
where he was declared dead. Claimant-widow in her
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examination also stated that she has no personal knowledge
and had no knowledge how the accident had arisen. In the
present case, the accident report as well as Investigating
Officer of the Corporation has arrived at a conclusion that
deceased fell down from the chair resulted into a nose injury
and thereafter, was shifted to Hospital.
9. The decision in the case Gangaben Widow of
Chhaganbhai Havabhai, and others (supra) is also not
helpful to the case of the appellant for the reason that in the
aforesaid decision, injury sustained to the deceased was on
the back of the head and the cause of death of employee was
a renal failure. The nature of work of deceased was also
absent in the said case and therefore, a presumption could
not be drawn that culmination of death was due to
aggregation of pre-existing disease.
10. So far as the proposed substantial questions of law are
concerned, they are more of, in the form of a factual aspects
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and are no more substantial questions of law. When ESI
Court has considered all the material available with him and
arrived at a conclusion on facts that injury sustained to
deceased was an employment injury which has ultimately
resulted into death, does not require any interference. In
absence of any substantial question of law, the appeal fails
and the same is dismissed.
11. Record and proceedings be sent back to the concerned
Court below forthwith.
12. After pronouncement of the judgment, learned
advocate for the appellant has prayed for stay of the
judgment for a period of one month. Against which,
objection is raised by the learned advocate for the
respondent. Prayer for stay is rejected.
(D. M. DESAI,J)
RINKU MALI
