JUDGMENT : 1. The Appellant-Original Opponent – ESI Corporation, Ahmedabad (for short ‘the Corporation’) has filed this First Appeal under Section 82 of the Employees State Insurance Act, 1948 (for short ‘the ESI Act’) being aggrieved and dissatisfied with the judgment and order passed by the Employees Insurance Court, Ahmedabad (for short ‘Learned Trial Court’) dated 09.04.1996 in ESI Application No. 89 of 1991, preferred by the present respondents-applicants against the appellant ESI Corporation, Ahmedabad under Section 76 of the ESI Act, which was allowed. 2. Heard learned advocate Mr. Hemant S. Shah for the appellant- Corporation and learned advocate Mr. Shivang P. Jani for the respondents. 3. The facts of the present case are that Mr. Dahyabhai Shantilal Joshi who was the husband of the respondent No. 1 and the father of the Respondents No. 2 and 3 and the insured workman under the ESI Scheme and he was possess Insurance No. 37/3634846 under the ESI Act. He was serving in the Bharat Vijay Mills Company Ltd at Kalol. He was used to go from home to the Mill on cycle and returned at the end of shift. On 29.03.1991, Mr. Joshi was to attend the first (Day) shift, which would begin on 7.15 in the morning and which was to end at 3:45 p.m. On that day at 6.45 am, he went from his house on bicycle to attend service. When he was going on bicycle towards Mill, while crossing the railway line Mr. Joshi met with an accident with engine and died on the spot. That Mr. Ganshyam Natvarlal Patel and Mr. Rameshbhai Joitaram Patel were the eye-witnesses of the accident. The Mill was informed about the accident and accordingly the form was filled up by the Mill. That the accident was took place during the working hours. After accident Mr. Joshi was removed to the hospital for postmortem. As per postmortem report the cause of death of the deceased Mr. Dahyabhai Shantilal Joshi was haemorragic and Neurogenic shock due to Railway train accident. The Corporation has denied to give dependency benefits. Therefore, the respondent applicants had filed an application for claiming dependency benefit under the ESI Act, before the Trial Court. 3.1 The learned Trial Court has issued notice to the Corporation. Dahyabhai Shantilal Joshi was haemorragic and Neurogenic shock due to Railway train accident. The Corporation has denied to give dependency benefits. Therefore, the respondent applicants had filed an application for claiming dependency benefit under the ESI Act, before the Trial Court. 3.1 The learned Trial Court has issued notice to the Corporation. The Corporation had appeared and contested the said application by denying the claim of the applicants inter-alia all other available grounds by filing written statement at Exh. 5 before the Trial Court. 3.2 The learned Trial Court has framed the issued vide Exh. 7 and the parties have produced their evidence before the Trial Court. After affording opportunities to both the parties, learned Trial Court has allowed the application on 09.04.1996 and ordered that the deceased Dahyabhai Joshi succumbed to the injury on 29.03.1991, such injury can be said to be occurred during the course of employment, therefore, the respondent Corporation was directed to pay applicable dependency benefits under Section 52 read with Schedule I of the ESI Act. 3.3 Being aggrieved and dissatisfied with the impugned order dated 09.04.1996 the appellant Corporation has filed present appeal for the grounds mentioned in the memo of appeal. The argument on behalf of the appellant: 4. Learned advocate for the appellant has argued that the learned Trial Court has erred in the interpretation of the meaning of the expression ‘Employment Injury’ which, means personal injury to an employee cause by accident arising out of and in the course of his employment. That learned Trial Court has erred in applying the decision reported in 22 GLR 773 in the instance case. That the principle laid down by the Hon’ble Supreme Court of Notional extension was applicable because it is so held that when a workman is commuting to the place of employment, it means that the accident on the road which will be considered to be an employment injury during the course of employment. 4.1 It is further argued that in the present case the accident do not occur en-rout to the place of employment or back home. But the accident had occurred while the deceased was going along with his family to leave the family to the bus station and for that purpose he was required to cross the railway line. And he met with the accident with railway engine. It is therefore, cannot be said to an employment injury. But the accident had occurred while the deceased was going along with his family to leave the family to the bus station and for that purpose he was required to cross the railway line. And he met with the accident with railway engine. It is therefore, cannot be said to an employment injury. That no notional extension of meaning as held by the Hon’ble Supreme Court is applicable in this case. 4.2 It is also argued that the learned Trial Court has erred in appreciating the oral as well as documentary evidence on record in proper perspective. That under facts and circumstance of case as well as legal position, judgment and order passed by the Trial Court is grossly illegal, erroneous and bad in law and deserves to be set aside. Learned advocate for the appellant has requested to allow the appeal and quash and set aside judgment and order. 5. Learned advocate for the respondent has argued that the learned Trial Court has appreciated oral as well as documentary evidence on record in proper perspective. That the judgment and order passed by learned Trial Court is legal, correct and proper in eye of law. That the learned Trial Court has considered the benevolent provisions of the law and interpreted the facts of the case in favour of the applicant. That the learned Trial Court has rightly relied upon the judgment of the Hon’ble Supreme Court reported in 22 GLR 777 and directed to the respondent - Corporation to pay the applicable dependency benefits to the applicant dependents of the deceased. Learned advocate for the Respondent has requested to dismiss the appeal with cost. Scope of Examination in Appeal 6. This appeal is filed under section 82 of the ESI Act which reads as under; Section 82. Appeal. — (1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees’ Insurance Court. (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. (3) The period of limitation for an appeal under this section shall be sixty days. (4) The provisions of sections 5 and 12 of the 1[Limitation Act, 1963 (36 of 1963)] shall apply to appeals under this section. 6.1 The scope and examination of judgment and order pass by the Employees’ Insurance Court is limited. (3) The period of limitation for an appeal under this section shall be sixty days. (4) The provisions of sections 5 and 12 of the 1[Limitation Act, 1963 (36 of 1963)] shall apply to appeals under this section. 6.1 The scope and examination of judgment and order pass by the Employees’ Insurance Court is limited. As per section 82 of the ESI Act the grounds of appeal are also restricted. All the provisions of Appeal under Code of Civil Procedure are not applicable to the appeal filed under section 82 of the ESI Act. Power of the appellate court is subject to sub-section 2 of the Section 82 of the ESI Act. An appeal to the High Court from an order of an Employees’ Insurance Court is permitted only if a substantial question of law is involved. Substantial Question of Law 7. Here in this case, as per the argument of the learned advocate for the appellant, the substantial question is that the injury caused in this case cannot be said employment injury under Section 2(8) of the ESI Act. That the looking to the facts of the case, it is not the case of Accidents happening while commuting to the place of work. 8. Before entering into the interpretation, it is necessary to mention hereunder some of the relevant provisions of the ESI Act, which read as under: Section 2. Definitions. In this Act, unless there is anything repugnant in the subject or context, (6-A) ‘dependant’ means any of the following relatives of a deceased insured person, namely:- (i) a widow, a legitimate or adopted son who has not attained the age of twenty-five years, an unmarried legitimate or adopted daughter; (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; Section 51-A. 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. 51-E. Accidents happening while commuting to the place of work and vice versa. 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. 51-E. 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. 52. Dependants’ benefit. — (1) If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependants’ benefit shall be payable at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government to his dependants specified in sub-clause (i), sub-clause (i-a) and] sub-clause (ii) of clause (6-A) of section 2. (2)... 9. Section 2(8) of the ESI Act, defines the ‘employment injury’. This definition is not changed since 1966. The ‘employment injury’ means a personal injury to an employee caused by accident arising out of and in the course of his employment, whether the accident occur is within or outside the territorial limits of India. There is a presumption under Section 51A of the ESI Act that in the absence of evidence to the contrary, an accident arising in the course of an employee’s employment shall be presumed, to have arisen out of that employment. In this case, the deceased insured person had started his traveling from his home towards his work place at 6.45 am in the morning on cycle. He has to report to his duty at 7.00 am. This time is the starting time of the first shift of the Mill. 10. Learned advocate for the respondent applicants submitted that as per the clarificatory provision under Section 51-E of the ESI Act, in this case the accident was occurred to deceased insured person Dahyabhai Joshi while he was commuting from his residence to the place of employment for duty. 10. Learned advocate for the respondent applicants submitted that as per the clarificatory provision under Section 51-E of the ESI Act, in this case the accident was occurred to deceased insured person Dahyabhai Joshi while he was commuting from his residence to the place of employment for duty. The the circumstances, time and place are suggestive of the nexus between the accident occurred and the employment is established. 10.1 Per contra, the learned advocate for the Corporation has submitted that the Section 51-E of the ESI Act was incorporated by the amendment in the year 2010 and accident occurred on 29.03.1991. Therefore, Section 51-E is not applicable in the present case. He placed very strong reliance on the judgment of the Supreme Court in the case of C. Gupta Vs. Glaxo-Smithkline Pharmaceuticals Ltd. (2007) 7 SCC 171 to argue that the provision of Section 51(E) must be held to be prospective. 11. The same question is come before the Delhi High Court in case of Employees State Insurance Corp. & Anr. Vs. Smt. Poonam Sharma & Ors. and the Delhi High Court has held that the Section 51-E of the ESI Act is only clarificatory provision and this can be applied to the cases in which an employee who suffers an accident prior to coming into force of Section 51-E of the ESI Act. The following paragraphs are read reference for that; “Para 2. The only issue which is argued before this Court is whether the benefit of Section 51(E) of the Act is available to such an employee who suffers an accident prior to coming into force of Section 51(E) of the Act which was brought in by Act 18 of 2010 w.e.f 1.6.2010. In the present case, the accident happened on 10.12.1992 i.e. before Section 51(E) of the Act came into force. Para 6. The Supreme Court in the case of Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja, AIR 1958 SC 881 held that when an employee is travelling to and fro from his place of work, if an accident is caused while commuting to and fro from the place of work, the accident cannot be said to arise out of and in the course of employment because the accident does not happen within the premises of the employer. This judgment of the Supreme Court was of a Division Bench of three Judges and the ratio of this judgment was to an extent changed by the Constitution Bench judgment of the Supreme Court in the case of G.M.,B.E.S.T Undertaking, Bombay Vs. Mrs. Agnes, (1964) 3 SCR 930 . The Constitution Bench of the Supreme Court in the B.E.S.T Undertaking’s (supra) has held that since the service rules required the employees of the B.E.S.T Undertaking to use official transport while going to and fro from work, the accident which happened to an employee while commuting to and fro from the place of work would be an accident arising out of and in the course of employment. So far as appellant authority is concerned, the issue is covered in its favour that injury caused to an employee while commuting to and fro from the place of work is not included in the employment injury as per the judgment of the Supreme Court in the case of Regional Director, E.S.I.Corporation And Anr. Vs. Francis De Costa and Anr. (1996) 6 SCC 1 . The judgment of the Supreme Court in the case of Francis De Costa (supra) does not deal with Section 51(E) of the Act, and obviously that could not be so, inasmuch as, the provision of Section 51(E) came into force by virtue of the Act 18 of 2010. Para 7. In my opinion, the provision of Section 51(E) was brought in to clarify and to remove any confusion with regard to the issue as to whether an employee to whom the accidental injury is caused while commuting to and fro from the place of work, such an employee would be entitled to claim that the injury is an employment injury as per Section 2(8) of the Act. In a way, the provision of Section 51(E) of the Act has been brought in contrary to the ratios of the decisions in the judgments in the cases of Francis De Costa (supra) and Saurashtra Salt Manufacturing Co. (supra). In a way, the provision of Section 51(E) of the Act has been brought in contrary to the ratios of the decisions in the judgments in the cases of Francis De Costa (supra) and Saurashtra Salt Manufacturing Co. (supra). I must hasten to observe that bringing in of Section 51(E) can be read as if it was to lay down the law which is contrary to the judgments of the Supreme Court in the cases of Francis De Costa (supra) and Saurashtra Salt Manufacturing Co.(supra) , however, really the amendment does not intend to do that, although the consequence of bringing in of Section 51(E) will be to define the expression ‘arising out of and in the course of employment’ which would be different than as held by the Supreme Court in the judgments passed till the bringing in of Section 51(E). It is however an established position in law that legislature does have the necessary powers to lay down the law, and merely because laying down of the law may have the effect of the law being taken to be different than as has been interpreted by the Supreme Court in its judgments, enactment by the legislature cannot be interpreted to mean that the legislature was not competent to bring in such an appropriate statutory provision. Para 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. 12. The Delhi High Court has also dealt with the judgment on the judgment of the Supreme Court in the case of C. Gupta Vs. Glaxo- Smithkline Pharmaceuticals Ltd. (Supra) and held that the facts of the cited judgment was termination of the service of the employee by virtue of Clause 17 of the appointment letter who was appointed as an Industrial Relations Executive. It was pleaded to be illegal because as per Section 25-N of the Industrial Disputes Act, 1947. Therefore, the cited judgment was not made applicable. In this case, I agree with the finding of the Delhi High Court. It was pleaded to be illegal because as per Section 25-N of the Industrial Disputes Act, 1947. Therefore, the cited judgment was not made applicable. In this case, I agree with the finding of the Delhi High Court. Therefore, no separate reasons are required to be mentioned for non-applicability of the judgment in case of C. Gupta Vs. Glaxo- Smithkline Pharaceuticals Ltd. (Supra) The Concept Of Retroactive And Retrospective 13. For interpretation of amended provision of law, as to whether it is prospective or retrospective; whether it is retrospective or retroactive; whether it is a clarificatory and declaratory, the Hon’ble Supreme Court has held in the following judgments. 13.1 Hon’ble Supreme Court in judgment of three judges bench in case of M/s. Shanti conductors(p) ltd. & anr. V/s Assam state electricity board & ors. Civil appeal nos.8442-8443 of 2016 reported in 2019 1 Supreme 641 ; 2019 0 Supreme(SC) 58; held as under: Para 54. The opinion of Justice Gowda dated 31.08.2016 although holds that Act is not retrospective but he holds the Act retroactive. The word retroactive has been defined in Black's Law Dictionary in the following words: "Retroactive. adj.(17C) (Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. -Also termed retrospective. Cf. Prospective (1).-retroact, vb." Para 55. Two-Judge Bench of this Court in State Bank's Staff Union (Madras Circle) vs. Union of India and ors. , (2005) 7 SCC 584 , had occasion to examine the concept of retroactive and retrospective. In paragraphs 20 and 21 of the judgment following has been laid down: "20. Judicial Dictionary (13th Edn.) K.J. Aiyar, Butterworth, p. 857, states that the word "retrospective" when used, with reference to an enactment may mean (i) affecting an existing contract; or (ii) reopening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases, Permanent Edn., Vol. 37- A, pp. 224-25, defines a "retrospective or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, o r attaches a new disability, in respect to transaction or considerations already past. 21. 224-25, defines a "retrospective or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, o r attaches a new disability, in respect to transaction or considerations already past. 21. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edition, 2005) the expressions "retroactive" and "retrospective" have been defined as follows at page 4124 Vol.4) "Retroactive- Acting backward; affecting what is past. (Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. - Also termed retrospective. (Black, 7th Edn. 1999) 'Retroactivity' is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion.. . . The foundation of these concepts is the distinction between completed and pending transactions...." Retrospective- Looking back; contemplating what is past. Having operation from a past time. 'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general however the Courts regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other past conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing. (Vol.44 Halsbury's Laws of England, Fourth Edition, page 570 para 921)" Para 56. Further in Jay Mahakali Rolling Mills vs. Union of India and others, 2007 (12) SCC 198 , explaining the retroactive and retrospective following has been laid down: "8. (Vol.44 Halsbury's Laws of England, Fourth Edition, page 570 para 921)" Para 56. Further in Jay Mahakali Rolling Mills vs. Union of India and others, 2007 (12) SCC 198 , explaining the retroactive and retrospective following has been laid down: "8. "Retrospective" means looking backward, contemplating what is past, having reference to a statute or things existing before the statute in question. Retrospective law means a law which looks backward or contemplates the past; one, which is made to affect acts or facts occurring, or rights occurring, before it comes into force. Retroactive statute means a statute, which creates a new obligation on transactions or considerations or destroys or impairs vested rights." Para 57. Retroactivity in the context of the statute consists application of new rule of law to an Act or transaction which has been completed before the Rule was promulgated. 13.2 Hon’ble Supreme Court of India in the judgment reported in 2005 AIR(SC) 3446; 2005 7 SCC 584 in case of State Bank’s Staff Union (Madras Circle) versus Union of India and Ors. examined the scope of retrospective and retroactive legislation is held as under: 21. Every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect. Craies on Statute Law (7th Edn.) at p. 387 defines retrospective statutes in the following words : “A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.” 25. In Harvard Law Review, Vol. 73, p. 692 it was observed that “it is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called `small repairs’. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislature’s or administrator’s action had the effect it was intended to and could have had, no such right would have arisen. Thus the interest in the retroactive curing of such a defect in the administration of government outweighs the individual’s interest in benefiting from the defect”. 26. The above passage was quoted with approval by the Constitution Bench of this Court in the case of The Asstt. Commr. Thus the interest in the retroactive curing of such a defect in the administration of government outweighs the individual’s interest in benefiting from the defect”. 26. The above passage was quoted with approval by the Constitution Bench of this Court in the case of The Asstt. Commr. of Urban Land Tax v. The Buckingham and Carnatic Co. Ltd. ( 1969 (2) SCC 55 ). In considering the question as to whether the legislative power to amend a provision with retrospective operation has been reasonably exercised or not, various factors have to be considered. It was observed in the case of Stott v. Stott Realty Co. (284 N.W. 635) - as noted in Words and Phrases, Permanent Edn., Vol. 37-A, p. 2250 that: “The constitutional prohibition of the passage of `retroactive laws’ refers only to retroactive laws that injuriously affect some substantial or vested right, and does not refer to those remedies adopted by a legislative body for the purpose of providing a rule to secure for its citizens the enjoyment of some natural right, equitable and just in itself, but which they were not able to enforce on account of defects in the law or its omission to provide the relief necessary to secure such right.” 27. Craies on Statute Law (7th Edn.) at p. 396 observes that: “If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right.” 28. Thus public interest at large is one of the relevant considerations in determining the constitutional validity of a retrospective legislation. 29. The above position was elaborately noted in Virendra Singh Hooda and Ors. v. State of Haryana & Anr. ( 2004 (12) SCC 588 ). 33. As noted in Indira Nehru Gandhi v. Raj Narain (1975 (suppl.) SCC 1) rendering ineffective of judgments or orders of competent Courts or Tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. There is a distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. There is a distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. As noted by this Court in M/s. Tirath Ram Rajindra Nath, Lucknow v. State of U.P. and Anr. ( 1973 (3) SCC 585 ) the former is outside the competence of the legislature but the latter is within its permissible limits.” 14. From the above judgments the following remarkable points are required to be taken into consideration which read as under: (A) Retroactive means Acting backward; affecting what is past. (Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. (B) A statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing. (C) Retroactivity in the context of the statute consists application of new rule of law to an Act or transaction which has been completed before the Rule was promulgated. (D) It is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called `small repairs’. Thus the interest in the retroactive curing of such a defect in the administration of government outweighs the individual’s interest in benefiting from the defect. (E) If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right.” (F) Thus public interest at large is one of the relevant considerations in determining the constitutional validity of a retrospective legislation. Beneficial legislation - Its interpretation 15. Hon’ble Supreme Court has held in the judgment reported in 2019 4 Scale 218 ; 2019 (0) Supreme(SC) 244 delivered in case of Mantri Techzone Private Limited Vs Forward Foundation and Others –Civil Appeal Nos. 5016, 14966 of 2017, 2246 of 2018 Decided On : 05-03- 2019 that held that while interpreting the beneficial legislation the interest of the public at large required to be considered. Para 44. 5016, 14966 of 2017, 2246 of 2018 Decided On : 05-03- 2019 that held that while interpreting the beneficial legislation the interest of the public at large required to be considered. Para 44. The NGT Act being a beneficial legislation, the power bestowed upon the Tribunal would not be read narrowly. An interpretation which furthers the interests of environment must be given a broader reading. Kishsore Lal vs. Chairman, Employees' State Insurance Corporation, (2007) 4 SCC 579 . The existence of the Tribunal without its broad restorative powers under Section 15(1)(c) read with Section 20 of the Act, would render it ineffective and toothless, and shall betray the legislative intent in setting up a specialized Tribunal specifically to address environmental concerns. The Tribunal, specially constituted with Judicial Members as well as with Experts in the field of environment, has a legal obligation to provide for preventive and restorative measures in the interest of the environment. Nexus between the circumstances, time and place in which the accident occurred: 16. Before discussing the evidence on record, it will be beneficial to place hereunder what kind and what quantity of evidence are produced by the parties. Which reads as under: Sr. Description of the evidence Date Exh. Oral Evidence of the applicants 1 Deposition of PW 1 Bhavnaben Dahyabhai Joshi wife of deceased 31.01.1995 Exh. 10 Documentary evidence of the applicants 1. Form No. 16 Accident Report From Employer – The Bharat Vijay Mills Ltd. Kalol - Mark 2/1 2. Post card written by Vasantbhai to the deceased 14.03.1991 Exh. 11 3. Invitation Card – Thread Ceremony 31.03.1991 Exh. 12 4. Death certificate of deceased Mr. Dahyabhai Joshi issued by the Kalol Nagarpalika 02.04.1991 Mark 2/2 5. Letter dated 05.07.1991 of the Corporation to reject the accidents claim 05.07.1991 Mark 2/3 6. Injury certificate cum cause of death issued by the ESI Hospital, Kalol 09.04.1991 Mark 2/4 7. Postmortem report of the deceased Mr. Dahyabhai 29.03.1991 Mark 2/5 Documentary Evidence produced by the Opponent- Corporation 1 ESIC – 25 Investigation Report in form of Annexure-A with check list, death certificate and statement of one witness 09.04.1991 Exh. 15 2 Form No. 16 (Regulation) 68- Accident report from employer 29.03.1991 Exh. 16 3 Postmortem report 29.03.1991 Exh. 17 4 Inquest Panchnama 29.03.1991 Exh.. 18 17. The applicant respondent no. 1 Bhavnaben Dahyabhai Joshi has deposed on oath at Exh. 10. 15 2 Form No. 16 (Regulation) 68- Accident report from employer 29.03.1991 Exh. 16 3 Postmortem report 29.03.1991 Exh. 17 4 Inquest Panchnama 29.03.1991 Exh.. 18 17. The applicant respondent no. 1 Bhavnaben Dahyabhai Joshi has deposed on oath at Exh. 10. She has stated that on 29.31991 her husband has gone for work in first shift. First shift of the Mill was to be started at 7.00 and to be ended at 3.45 pm. On the day of incident i.e. 29.3.1991 her husband has departed at about 6.45 in the morning. That she has to go to her father’s home at Kheralu, therefore, she and her daughter were accompanied with her husband. It is stated that her daughter was sitting on the baby seat of the cycle and she and her husband were walking. There is a railway crossing on the way, she went two steps ahead and her husband (deceases) came with cycle besides her. At that time Railway engine was came and dashed with her husband and he was died on the spot. He daughter was also injured but she was rescued. 17.1 She has produced a post card written by her brother she had identified his signature and it was exhibited as Exh. 11. This is produced to show that she was invited by her brother. She has produced Invitation Card which was exhibited at Exh. 12. It is further stated that she with her husband children were residing at Shreyas Society Kalol. They were to drop at ST Station, therefore, they have on the railway crossing. Learned advocate for the Corporation has cross examined this witness. 18. The Corporation has produced Employment Injury Report ESIC 25 an Annexure 1, before the Trial Court at Exh 15, which reads as under; As per the employment injury report ESIC 25 Sr. Description Details 11 Date and time of injury. 29.03.1991 at 7.00 am. 12 Nature of injury Expired on the spot. 13 Cause of injury While he was crossing the railway line for coming to the factory accidentally Railway Train passed on his body and he expired on the same spot. 14 Name and address of the witnesses Ganshyambhai Natvarlal and Ramesh Joitaram. 29.03.1991 at 7.00 am. 12 Nature of injury Expired on the spot. 13 Cause of injury While he was crossing the railway line for coming to the factory accidentally Railway Train passed on his body and he expired on the same spot. 14 Name and address of the witnesses Ganshyambhai Natvarlal and Ramesh Joitaram. 15 Date and time of the receipt of the intimation (i) By local office 1.04.1991 at 3.00 pm (ii) by investigating officer 01.04.1991 16 Date and time of visit 09.4.1991 at 11.30 am Findings of the official 13. Are the particulars in 11, 12 and 13 above as reported by the employer fully corroborated by the evidence? If not, statement of facts as found by the officer Yes 14 Is there any evidence showing that the injury is not as employment injury Please additional Remarks as under 22 Person interviewed and whether accident confirmed 1. Ganshyambhai N., Department - Weaving; Shift -I; Residential Address- Shreyas Society, Kalol; Whether accident confirmed – Yes 2. Ramesh J. Department - Weaving; Shift -I; Residential Address- Shreyas Society, Kalol; Whether accident confirmed – Yes 18.1 Additional Remarks; I visited M/s. Bharat Vijay Mills Co. Ltd., Kalol Case No. 37/5386/1 on 09.04.1991 at 11/30 p.m. for investigation of death case of late Insured Person (IP) Shri Dahyabhai Shatilal Joshi No. 37/3634846. The accident took place on 29.03.1991 at 7.00 AM whereas the accident report has submitted on 01.04.1991 by the employer. The IP was appointed as Data Entry Operator in computer Department as trainee w.e.f. 26.03.1991. He was marked present on 26, 27, 28/3/1991 in the attendance register maintained by the employer. Entry in accident book (Form No. 15) is duly recorded in chronological order on verification of wage register he has been found paid as under : paid for 3 days amounting Rs. 175.26. Basic DA Adhoc Conveyance 36=00 122.99 13.39 2.88 Deduction of Rs. 3.90 has been made from his salary towards employment contribution to ESIC. 18.2 IP was a first shift employee. His duty hours was from 7.10 am to 3.45 pm. He met with an accident while crossing the railway line for coming to the factory, accidentally , railway train passed on his body and he expired on the same spot. The IP was residing at Shreyas Society (Kalol East) and the Mill is also in Kalol East. His duty hours was from 7.10 am to 3.45 pm. He met with an accident while crossing the railway line for coming to the factory, accidentally , railway train passed on his body and he expired on the same spot. The IP was residing at Shreyas Society (Kalol East) and the Mill is also in Kalol East. It is not known why IP wanted to cross the railway line to come to the place of his duty. IP was not supposed to cross railway line to reach the place of duty. It is not the normal recognized root. In case of IP for reaching the place of duty. After the fatal accident railway police made Inquest Panchnama was carried out and dead body of IP was sent for Postmortem. A zerox copy of the death certificate along with PM report are sent herewith for kind perusal. And a copy of the Panchanama and the sketch of the occurrence of the incident of occurrence are awaited from the employer. Statement of witness is enclosed the case may kindly be decided on merits. 19. Employment Injury Report ESIC 25 an Annexure 1 with A check list at Page No. 32 and statement of witness recorded by the investigating officer are produced on record by the Corporation. it is stated in column np 3 of the check list that If the accident has occurred while the IP was proceeding for duty, has the attendance on presiding day or days been verified and information recorded in Investigation Reports? Is IP a permanent/Badli worker? answer is - Yes IP was attended as trainee w.e.f. 26.03.1991 in computer department. 20. The Corporation has produced statement of Mr. Ganshyambhai Natvarlal Barot with the Employment Injury Report ESIC 25, before the Trial Court. He has stated that he is working in Bharat Vijay Mill as fitter in weaving Department since last 20 years. On 29.03.1991, he and Mr. Dahyabhai Shantilal Joshi - deceased went together for attending Mill. As both are residing in one society. They have gone from house at about 7.00 am. He went for to temple for Darshan as routine. When he come out of temple, he saw other ladies with the wife of Dahyabhai who was crying. He came to know on inquiry that the Dahyabhai expired due to incident taken place. As both are residing in one society. They have gone from house at about 7.00 am. He went for to temple for Darshan as routine. When he come out of temple, he saw other ladies with the wife of Dahyabhai who was crying. He came to know on inquiry that the Dahyabhai expired due to incident taken place. It is also stated that he has seen the dead body of Dahyabhai. thereafter, the Railway police came there and started preparing of panchnama. He was also joined as Panch witness by the police. After inquest panchanama a dead body of deceased Dahyabhai has been taken to the Sheth C.M. Muncipal Hospital. 20.1 On perusing the contents of the statement of the witness more particularly timing, and person is accompanied with a deceased have started their journey together for going to Bharat Vijay Mill for their work. This is the natural witness he was accompanied with deceased and he remained present for preparing of Inquest Panchnama and taking the dead body of the deceased to the Hospital. The Corporation has produced the statement before the Trial Court. They have relied upon the statement, there is nothing revealed not to believe the version of the witness. 21. On perusing the Inquest Panchnama at Exh. 18, it is stated that cycle of Hercules company brand is laying at a distance of three feet away from the dead body. Therefore, it can be said that the deceased IP was carrying cycle of the Hercules Brand at the time of accident. It support the version of the Applicant Bhavnaben that the deceased IP was used to go to work place on Cycle. 22. The Inquest Panchnama was started at 7.45 and completed at 8.45 on 29.03.1991. Considering the time of Inquest Panchnama which is matching with the timing to proceed for work in the first shift of the mill by deceased Dahyabhai Joshi. This circumstance also support the case of applicants. 23. 22. The Inquest Panchnama was started at 7.45 and completed at 8.45 on 29.03.1991. Considering the time of Inquest Panchnama which is matching with the timing to proceed for work in the first shift of the mill by deceased Dahyabhai Joshi. This circumstance also support the case of applicants. 23. The appellant Corporation has produced Accident Report from employer Form No 16 (regulation 68), before the Trial Court at exh 16, which reads as under; Sr Description Details 11(a) Hour at which started work on day of accident At 7.10 am 11(c) Whether the E.C. is payable to the IP for the wage period of accident Yes 12(b) Cause of the accident – State exactly what the injured person was doing at that time He was crossing the Railway line for coming in the factory 15 Describe briefly how the accident occurred While he was crossing the Railway line for coming in the factory accidentally a railway train passed on his body and he expired on the same spot From the above details, it appears that the accident was occurred to the insured person deceased Dahyabhai Joshi while he was crossing the railway line for coming the factory. It means an accident occurred to the IP while commuting from his residence to the place of employment for duty. 24. Considering the factual aspect, presumption under Section 51(A) of the ESI Act, that in the absence of evidence to the contrary, an accident arising in the course of an employee’s employment shall be presumed. In this case, the documents produced by the Corporation itself prove the case of the applicants. I have also considered the ratio laid down by the Hon’ble Apex Court and the Delhi High Court in above referred cases and find that I am of the view that the applicant has established their case that the deceased Dahyabhai has been died on the way for going to work place, therefore, it can be said to be employment injury. Further I find that the Trial Court has rightly appreciated the evidence and allowed the application in favour of the applicants and directed to pay the dependency benefits under Section 52 of the ESI Act. Therefore, the appeal is required to be dismissed. 24.1 In view of the above discussion, and facts and circumstances of the case, the appeal is hereby dismissed and passed the following order. Final Order 1. Therefore, the appeal is required to be dismissed. 24.1 In view of the above discussion, and facts and circumstances of the case, the appeal is hereby dismissed and passed the following order. Final Order 1. The appeal file by the Corporation is hereby dismissed. 2. The judgment and order dated 09.04.1996 passed by the Employees’ Insurance Court, Ahmedabad in ESI Application No. 89 of 1991 is hereby confirmed. At this stage learned advocate for the appellant has requested to suspend this order for three month. 3. Considering the prevailing circumstances as regards to the epidemic Covid-19 (Corona), the appellant Corporation is directed to pay the applicable dependency benefits under Section 52 and Schedule I of the ESI Act to the applicants within three months from today. 4. Decree be drawn accordingly. 5. As per Order 41 Rule 37 of the Code of Civil Procedure, copy of the judgment and the decree certified by the officer as appointed in this behalf shall be sent to the Court which pass the decree appealed from and shall be filed with the original proceeding in the suit, and entry of the judgment of this court shall be made in the institution register. 6. No order as to cost. Rules is discharged. 7. Record and proceedings be sent to the concerned Employees’ Insurance Court forthwith. Application dismissed