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1976 DIGILAW 192 (KER)

REGIONAL DIRECTOR, ESIC. TRICHUR v. PARAMESWARAN PILLAI

1976-09-03

CHANDRASEKHARA MENON, K.BASKARAN

body1976
Judgment :- 1. On 2411972 one Sri Unnikrishnan Nair, an insured employee, working as a trainee in M/s. Thoshiba Anand Lamps Ltd., Kalamassery, succumbed to injuries sustained by him on 21-11972 as a result of a car accident on the National Highway near the factory gate when he was proceeding to the playground to play in a foot ball match for which he was officially deputed by the management. These facts, as disclosed by Ext. P-1 accident report dated 221-1972 and Ext. P-2 death intimation dated 241 1972 sent by the management, are not in dispute. The sole question that falls for decision in this appeal under S.82(2) of the Employees' State Insurance Act, 1948, filed at the instance of the Regional Director of the Employees' State Insurance Corporation, Trichur (Opposite party before the Employees' Insurance Court, Calicut) is whether the Employees' Insurance Court was correct in deciding that the said Unnikrishnan Nair's death was as a result of employment injury and that the respondent Sri A. Parameswaran Pillai, the father of the deceased (Applicant before the Employees' Insurance Court) was entitled to get dependant's benefit. 2. The material portion of Ext. P-3 letter dated 14121972 sent by the appellant to the respondent reads as follows: "I regret to inform you that the case of your son has been rejected by our Headquarters Office and hence you are not entitled for Dependents Benefit. The decision communicated to you admitting the case as one of death due to Employment Injury stands cancelled." The appellant was constrained, according to the counsel, to review the legal position and revise its original stand in the matter since the death of the employee was found to be one which did not occur out of and in the course of his employment, as, in his opinion, the employee was allowed to take part in the foot-ball match only as a recreational facility. It was contended by the counsel that participation in the foot-ball match was purely optional without any compulsion; and it was not incidental to or in any way connected with the business or trade of the employer so as to attribute the death to employment injury. It was contended by the counsel that participation in the foot-ball match was purely optional without any compulsion; and it was not incidental to or in any way connected with the business or trade of the employer so as to attribute the death to employment injury. The accident report dated 2211972 sent by the management soon after the occurrence, and long before the death of the employee, showed that it was at the instance of the management that the said Unnikrishnan Nair proceeded towards the playground; and it was while going so that he got himself involved in the accident which resulted in injuries and ultimately in bis death. The main contention of the appellant, as already noticed, is that participation in recreation was purely optional without any compulsion, and that injury resulting from such participation would not amount to employment injury as defined in Section 2(8) of the Employees' State Insurance Act which reads as follows: "(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;" The argument of the counsel for the appellant that there is not even casual connection between the employment and the accident, cannot be accepted inasmuch as recreation is part of the activities of the concern. In a welfare State the management is not only interested in boosting up production and maintaining economy, but also in creating proper atmosphere for improvement of the health, both mental and physical, of the employees which may in its turn add to the efficiency of the working of the business and trade of the employer. 3. In this connection it would be advantageous to refer to the decision in R. v. National Insurance Commissioner ((1976) 1 All England Law Reports 566). There the facts were: The applicant was a police officer. The Police Athletic Association arranged a cup competition between teams representing different police forces. Although police officers could not be compelled to play in those games, nor be disciplined if they refused to do so, refusal to play was viewed with displeasure. There the facts were: The applicant was a police officer. The Police Athletic Association arranged a cup competition between teams representing different police forces. Although police officers could not be compelled to play in those games, nor be disciplined if they refused to do so, refusal to play was viewed with displeasure. The standing orders of the applicant's local constabulary allowed players time off-duty to participate in sport where they were representing their force, on the understanding that they would use their free time when necessary to play in a match. The applicant played in a cup match against another police force, when he was off-duty, and was injured. He claimed industrial injury benefit under S.5(i) of the National Insurance (Industrial Injuries) Act, 1965. The case came before the National Insurance Commissioner who found that the applicant's participation in the foot-ball match was not something reasonably incidental to his employment as a police officer. In a subsequent passage of his decision he stated: '...the playing of football, and indeed any other game, is a recreational activity and is not something done in the course of a police officer's employment and therefore cannot be held to be reasonably incidental to the employment'. The Commissioner concluded that the accident was not one which had arisen out of and in the course of the applicant's employment, within S.5(i) of the 1965 Act, and that he was not therefore entitled to benefit. The applicant applied for an order of certiorari to quash the commissioner's decision It was held by the Queen's Bench Division that if the commissioner's decision had been based on the proposition that nothing which happened in the course of activities which were recreational and not part of a police officer's duties could be said to arise out of and in the course of his employment, it would have been erroneous in law. It was also held that reading the decision as a whole, however, it was clear that it was not based on that erroneous dichotomy; the commissioner had considered all the evidence and applied his mind to the right issue, namely, whether the applicant's participation in the football match had been reasonably incidental to his employment as a police officer, and on the facts it was open to him to come to the conclusion that it was not. S.5(i) of the National Insurance (Industrial Injuries) Act 1965, referred to above, so far as material, reads as follows: "Subject to the provisions of this Act, where an insured person suffers personal injury caused ...by accident arising out of and in the course of his employment, being insurable employment, then (a) industrial injury benefit... shall be payable to the insured person if during such period ...he is, as the result of the injury, incapable of work..." From the case referred to above two positions seem to emerge: (i) it is not safe to conclude always that nothing which happened in the course of activities which were recreational, not part of the officer's normal duties, could be characterised as something not arising out of and in the course of his employment; and (2) finding on facts entered by the competent authority would not be normally interfered by the appellate authority unless it involves substantial question of law. 4. In this case the respondent's son, during the material time, was a trainee. It is the definite case of the employer that he was deputed to play in the football match by the management. This being the position, the finding of fact by the Insurance Court that the death of Unnikrishnan Nair was as a result of employment injury and that the respondent was entitled to get dependant's benefit with effect from the date of death of the insured employee could not be disturbed. 5. There is no scope for interference with the decision of the Insurance Court particularly in view of the very limited jurisdiction under S.82(2) of the Employee's State Insurance Act which provides: "An appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law." Whether the employee sustained injury out of and in the course of his employment is purely a question of fact; and even if it is possible for this Court sitting in appeal to come to a different conclusion as long as the appellant is not able to establish that the order of the Employees' Insurance Court involves a substantial question of law, this Court need not and shall not interfere with the decision arrived at by the Insurance Court. In this view the appeal is without merit and is dismissed. In this view the appeal is without merit and is dismissed. However, in the circumstances of the case, we make no order as to costs.