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2024 DIGILAW 538 (GUJ)

Regional Director v. Hansaguari Babulal

2024-03-14

DEVAN M.DESAI

body2024
JUDGMENT : 1. Heard learned advocate Mr. Hemant S. Shah for the appellant and learned advocate Mr. P.S. Gogia for the defendant No.1. 2. The present First Appeal is filed under Section 82(2) of the Employees’ State Insurance Act, 1948 (hereinafter referred to as the ‘said Act), challenging the judgment and order passed by the Employees’ Insurance Court No.1 (Industrial Court), Rajkot in E.S.I. Application No.47/87 on 26.11.2002. 3. The brief facts of the case giving rise to this appeal are as under: 3.1 The deceased-Babulal Vallabhdas was working with respondent No.2 in the factory of respondent No.3. On 07.07.1980 at about 11:00 a.m., while proceeding towards his home for lunch, accidentally, he fell in water and died. The widow of deceased-Babulal Vallabhdas filed ESI Application for compensation and other benefits. 3.2 The appellant appeared and filed its written statement at Exhibit-9 and denied the liability to pay compensation. Issues were framed at Exhibit-11 and after considering the oral as well as documentary evidence, the learned lower Court allowed the application and directed the appellant to pay the benefits with 12% interest. 4. Learned advocate for the appellant has submitted that the limited challenge in the present First Appeal is regarding whether the accident which has taken place, can be said to have happened during the course of the employment or not. It is further submitted that, in the present case, the accident has taken place behind the factory premises of the respondent No.3 and the learned lower Court has committed an error in holding that injury was sustained during the course of his employment. It is further submitted that from the oral evidence of the parties, it is established that the deceased was going to his home for lunch through a private road, which was available for ‘ingress and egress’ towards the factory. It is further submitted that the original claimant has not established that the accident has taken place during the course of the employment. 4.1 Therefore, it cannot be said that the accident has taken place in the factory premises and during the course of employment. It is further submitted that there is no evidence to establish that the injury was an “employment injury” as defined under Section 2(8) of the Employees’ State Insurance Act, 1948. 4.2. 4.1 Therefore, it cannot be said that the accident has taken place in the factory premises and during the course of employment. It is further submitted that there is no evidence to establish that the injury was an “employment injury” as defined under Section 2(8) of the Employees’ State Insurance Act, 1948. 4.2. The reliance is placed upon Section 2(8) of the Employees’ State Insurance Act, 1948, which reads as under : “Section 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.” 4.3 It is submitted that the injury to an employee must be arising out of and in the course of employment. In the present case, the injury was neither arising out of course of employment nor in the course of employment and thus, the impugned judgment and order is bad in law and requires to be interfered. 4.4. In support of his submissions, learned advocate for the appellant has placed reliance upon the decision of Hon’ble Supreme Court in the case of Regional Director, E.S.I. Corporation and another, Appellants vs. Francis De Costa & Anr., respondents reported in AIR 1997 SC 432 and a decision in the case of Dhanlaxmiben Jitendraprasad & Anr. vs. Employees State Insurance Corporation reported in 2000 (4) GLR 3036 . 5. Learned advocate Mr. P.S. Gogia for original claimant-respondent No.1 has supported the impugned judgment and order and has submitted that the learned lower Court has rightly appreciated the evidence available on record and has rightly held that the accident has taken place during the course of employment. It is submitted that the deceased was working with respondent No.2 in the factory of respondent No.3 and on 07.07.1980, the deceased resumed his duty at 7:00 a.m. and during the break for lunch, while heading towards home, the deceased accidentally fell in water and died. It is further submitted that the timing of shift hours of the deceased was from 7:00 a.m. to 3:00 p.m. and the accident has occurred around 11:30 a.m. Thus, it can be said that the accident has taken place during the course of employment and the original claimant is entitled to get compensation. It is further submitted that the timing of shift hours of the deceased was from 7:00 a.m. to 3:00 p.m. and the accident has occurred around 11:30 a.m. Thus, it can be said that the accident has taken place during the course of employment and the original claimant is entitled to get compensation. It is further submitted that the accident has taken place in the company’s premises and applying the principle of notional extension for the course of employment, it is established that the accident has taken place during the course of employment. It is further submitted that the ESI contribution was being regularly paid by the workman, the principal employer as well as by respondent No.3. 5.1 In support of his submissions, learned advocate for respondent No.1 has placed reliance upon a case of Sadgunaben Amrutlal & Ors. vs. The Employees' State Insurance Corporation, Ahmedabad reported in 1981 GLR Vol. XXII, P 773. 6. I have heard the learned advocates for the parties and perused the record and proceedings which is available on record. The undisputed facts on the record are that the deceased was working with respondent No.2 in the factory of respondent No.3 and on 07.07.1980, while going home for a lunch from the factory, the deceased accidentally fell in water and died. The original claimant Hansaben Babulal Lodhia has filed her affidavit in lieu of examination-in-chief vide Exhibit-43. The Deputy Manager of respondent No.3 was examined vide Exhibit-64. In the cross-examination of Hansaben Babulal Lodhia, she has shown her ignorance about the place of accident, occurrence of the accident. In the oral evidence of Indravadan Navalchand Dhruv at Exhibit-64, the said witness has stated that the deceased was going on the salt area, which is behind the factory of respondent No.3 and there, the deceased slipped and fell in water. 7. From the entire evidence, it has not been brought on record that whether the place of accident was a public road or a private road. 8. The only question which falls for consideration before this Court is that whether the incident of accident can be said to be an ‘employment injury’. 7. From the entire evidence, it has not been brought on record that whether the place of accident was a public road or a private road. 8. The only question which falls for consideration before this Court is that whether the incident of accident can be said to be an ‘employment injury’. Before coming to the conclusion, Subsection 8 of Section 2 of the said Act is apt to be referred to which defines employment injury; The injury to be falling under the employment injury, the condition which is prescribed under the provisions is that the injury to an employee caused by the accident, must be out of and in the course of employment. 9. Similar issue came up in the case of Dhanlaxmiben (supra), wherein the deceased during the recess time, while going home for taking lunch, met with an accident and sustained injuries. In paragraph Nos.12 and 13, the Bench observed hereinunder;- “12. Even though there is evidence that it was routine course for the deceased to go home for taking lunch and rest during recess but that will not extend the doctrine of notional extention of course of employment. The Apex Court in Regional Director, E.S.I. Corporation (supra) on the facts where the employer while on his way to the factory where he was employed met with an accident which took place 1 km. away from the place of employment held that the injury suffered by him in the said accident could not be said to have been caused by the said accident arising out of his course of employment. 13. Learned Counsel for the appellant has tried to distinguish this observation on the ground that the employee was coming from his house to attend his first shift in the Mill and the journey from house to the gate of the Mill could not be construed to be journey in the course of employment and consequently any accident which occurred during such injury could not be said to be the accident injury in the course of employment. This distinction suggested by the learned Counsel for the appellants, to my mind, does not hold good. This distinction suggested by the learned Counsel for the appellants, to my mind, does not hold good. As pointed out earlier even in the opinion of Lord Denning, injury caused in the recess period while on visit to canteen or other place for break during recess cannot be stretched to this extent that the injury caused while the deceased was going to his home during recess period would also amount to injury which is reasonably incidental to the course of employment.” 10. The next decision which has been relied upon by the learned advocate for the appellant in the case of Regional Director (supra), wherein the Hon’ble Apex Court has distinguished the decision of Sadgunaben Amrutlal & Ors. vs. Employees' State Insurance Corporation, Ahmedabad in para 17, has observed, which is reproduced as under:- In the case of Sadgunaben Amrutlal v. Employees' State Insurance Corporation, Ahmedabad, 1981 Lab IC 1653, it was held by the Division Bench of the Gujarat High Court that though as a rule, employment of a workman did not commence until he reached the place of employment and did not continue after he has left the place of employment, the proposition was subject to the theory of notional extension of the employer's premises. The notional extension theory could not be related to the place of employment only. It could also be taken recourse to in order to extend the time in a reasonable manner. The Court took the view in the case, where an employee on his way to the factory died of acute cardiac arrest, that it was caused by accident arising out of and in the course of employment. The employee was employed as a jobber in the Wrapping Department of the mill. He worked in the premises from 8 a.m. to 4-30 p.m. On December 22, 1974, while he was on duty in the Mill, he felt unwell. He took medical treatment on the next day (December 23, 1974) which was an off-day for him. On December 24, 1974, he left his residence at about 7-20 a.m. i.e. 40 minutes before the reporting time. He walked a short distance from his house to the nearest bus stop and was waiting for a bus to take him to the Mill. While waiting for the bus, he felt unwell. On December 24, 1974, he left his residence at about 7-20 a.m. i.e. 40 minutes before the reporting time. He walked a short distance from his house to the nearest bus stop and was waiting for a bus to take him to the Mill. While waiting for the bus, he felt unwell. He complained to an ex-employee of the Mill who was also waiting to board the bus that it was due to the excessive and strenuous nature of work which he was required to do at the Mill that he was feeling unwell. When the bus arrived, Amrut Lal, the employee was about to step into the bus when he collapsed and became unconscious. He was taken to an hospital where he was pronounced dead. The post-mortem revealed that he died of cardiac failure. Both the Employees' Insurance Court and the single Judge of the High Court held that the employee had not died as a result of an accident in the course of employment. On appeal, the Division Bench held that both the 'Employees' Insurance Court and the single Judge were in error in holding that the death was not in course of employment. 11. Thus, applying the law laid down in the aforesaid decisions, the question with regard to the applicability of the employment injury as well as injury sustained in the course of employment and injuries sustained during the course of employment have been put to rest. 12. In the present case, the learned lower Court has erred in interpreting Sub-section 8 of Section 2 of the said Act and has failed to consider that the burden of proving the fact that the accident has occurred during the course of employment is on the claimant. In the present case, the original claimant has not been able to establish that the accident is the origin of the employment. Unless employee establishes that the injury has caused or had its origin in the employment, the claimant cannot succeed in claiming compensation. The journey from the factory premises towards the home for lunch was not certainly in the course of employment. If the journey from the work place to the home for a lunch break and similarly from home to work place after having lunch is interpreted as the accident taken place in the course of employment, it would lead to absurdity. 13. If the journey from the work place to the home for a lunch break and similarly from home to work place after having lunch is interpreted as the accident taken place in the course of employment, it would lead to absurdity. 13. Thus, in the totality of facts and considering the decisions referred hereinabove, the learned lower Court has committed an error in allowing the application. 14. Resultantly, the judgment and order passed by the Employees’ Insurance Court No.1 (Industrial Court), Rajkot in E.S.I. Application No.47/87 on 26.11.2002, is hereby quashed and set aside and accordingly, the present First Appeal is allowed. 15. Record and Proceedings be sent back to the concerned Court below forthwith.