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LATIKABEN & OTHERS V/S REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORP., decided on Friday, May 5, 2017.
[ In the High Court of Gujarat at Ahmedabad, F.A. No. 1771 of 1994. ] 05/05/2017
Judge(s) : RAJESH H. SHUKLA
Advocate(s) : Asha H. Gupta. Defendant Hemant S. Shah.
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  "2017 (3) LLJ 411"  ==   "2017 LLR 1079"  ==   "2017 (155) FLR 136"  ==   ""  







    Oral:1. Present appeal is filed by the appellants-original applicants under Section 82 of the Employees State Insurance Act being aggrieved with the judgment and order passed in Application (ESI) No. 15 of 1981 by the Employees Insurance Court Ahmedabad dated 10.09.1991 on the ground stated in the appeal inter-alia that judgment and order is passed without appreciating relevant material and record and statutory provisions. It is contended that the court below has erred in holding that the death of the employee was not on account of injury sustained during the course of employment. It is also contended that the court below erred in law in coming to the conclusion that the death of the employee was not on account of injury caused by the accident arising out of and in course of employment.2. Heard learned advocate Ms. Asha Gupta for the appellants-original applicants.3. Learned advocate Ms. Gupta has referred to the grounds mentioned in this appeal and submitted that the provisions of Section 2(8) defines employment injury which is required to be considered. Learned advocate has referred to this definition and submitted that any injury to an employee arising out of and in course of his employment would include personal injury to an employee. She therefore submitted that any untoward incident which has occurred like in the present case while returning to the Mill after the recess would be covered by this definition. She has submitted that in case of external or internal injury the internal injury may not be visible whereas external injury may be visible. Learned advocate therefore submitted that the workman who was returning to the Mill company after the recess may not be dis-entitled on the ground that the death had occurred due to tetanus and it cannot be said to be due to employment injury. It is observed that due to the tetanus cardiac respiratory failure occurred and he died due to such cardiac attack. However learned advocate Ms. Gupta referred to the papers including the accident report from the employer in para-15 which clearly records that while he was coming on duty after enjoying his recess suddenly he felt near Railway Station found both his shoulders injured in checkup position.She also referred to para-17 which clearly records that the nature and accident of injury refers tominor injury on his both the shoulders in checkup position.4. Learned advocate Ms. Gupta has also referred to other papers and submitted that the injured workman had fallen down and had minor injuries for which Dr. Dinesh Pandit had examined and thereafter issued the certificate which is produced on record. She therefore submitted that because of such injury tetanus may have occurred but it cannot be said that such injury is not caused during the course of employment. However if he fell down and received the injuries tetanus may be the consequence resulting in death. However it is clear that the employee has received injury when he was in his employment. Learned advocate Ms. Gupta also referred to Section 51A and submitted that the law provides for such presumption. She pointedly referred to Section 51 A which reads as under: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 insured person's employment shall be presumed in the absence of evidence to the contrary also to have arisen out of that employment.Learned advocate Ms. Gupta therefore submitted that fact remains that the workman had gone out during the recess so his presence is marked. However when he went out in recess he received injury while returning back and ultimately died. Therefore it cannot be said that it is not arising out of and in the course of employment which is required to be interpreted liberally. Learned advocate Ms. Gupta also submitted that social piece of legislation is required to be interpreted liberally and therefore narrow interpretation may not be made. She further submitted that the court below has taken hyper technical view while considering the aspect of injury as to whether it could be said to be the employment injury. She has referred to rely upon the judgment reported in 2009 2LLN (Madras High Court) 302. Again she has also referred to judgment reported in 2014-II-LLJ-703. She therefore submitted that the provisions of the Act which is a benevolent and social piece of legislation is required to be interpreted liberally which has not been considered by the court below. She therefore submitted that the present appeal may be allowed.5. Learned advocate Shri Hemant Shah has referred to the background of the facts as well as paper book and the application as well as reply filed by the Corporation. Learned advocate Shri Shah submitted that the facts are that the deceased-workman had gone out during the recess and while returning he had fallen down. He submitted that the medical evidence suggest that he had tetanus for which he was also treated and admitted and ultimately he died. Learned advocate Shri Shah also referred to the forms filled by the employer more particularly column nos. 12 14 15 and 17 and emphasized that as per para 17C of the form it is stated that he was not on work meaning thereby at the time of the incident he was not on work and therefore injury cannot be said to have been received during the employment and it would not fall into the definition of employment injury if he has fallen down outside. Learned advocate Shri Shah also referred to the written statement at Exh.5 as well as deposition of witness including the widow of applicant.6. Learned advocate Shri Hemant Shah submitted that it is required to be considered whether the accident had occurred during the course of employment. He further submitted that if the accident has occurred during the working hours on duty then it is required to be considered whether it could be said to be an employment injury or not. Learned advocate Shri Shah submitted that if the injury is received outside the premises it could not be an injury as provided in the definition of an employment injury. Learned advocate Shri Shah therefore submitted that admittedly he fell down when he had gone out in the recess and received the injury resulting in tetanus. He therefore submitted that it cannot be said to be an employment injury by any stretch of imagination. Learned advocate Shri Shah has referred to and relief upon the judgment of the High Court reported in (2000) 1 GLR 284. He therefore relief upon the judgment of the Hon'ble Apex Court reported in AIR 1997 SC 432 : (1997) 2 GLR 1336.Learned advocate Shri Shah therefore submitted that while interpreting the statutory provisions it has to be read as it is and natural meaning should be given without any advantage where the meaning is simple. He therefore submitted that the word employment injury is relevant for the purpose of deciding the present issue. He submitted that the injury must be during the course of employment in connection with the work and while he was on duty. Learned advocate Shri Shah submitted that admittedly when an employee has gone outside the premises during the recess for food and something happens it would not justify the claim based on employment injury received outside and it cannot be said to be an employment injury. He submitted that there is nothing in the application to show that the deceased has received any injury.7. Learned advocate Shri Shah referred to Section 51A of the Act and submitted that same is added by amendment in the year 2010 and the present case is of employment injury in the year 1990. He therefore submitted that Section 51A would not be attracted as it is not retrospective in operation. Learned advocate Shri Shah further submitted that in any case while interpreting the provisions of the Act there has to be a social piece of legislation as per the rule of interpretation and construction and also subject to fulfilment of the require condition. He submitted that if the injury has taken place outside the premises while the workman is not on his job it is required to be considered whether it could be covered as employment injury. He therefore submitted that if the injury itself has not occurred while on duty or in connection with his work and the injury received outside it cannot be said to be an employment injury. Learned advocate Shri Shah therefore submitted that the present appeal may not be entertained.8. In view of the rival submissions the moot question which is required to be considered is whether the present appeal deserves consideration and whether the injury received by the workman can be said to be an employment injury as defined in Section 2(8) of the Act.9. As observed while recording the rival submissions it is not in dispute that the workman had attended his work and his presence was marked. However during the recess when he had gone out for the food and was returning he received some injury and resulting in tetanus and ultimately he died. Therefore the word employment injury as defined in Section 2(8) suggesting causal connection between the injury and his employment which has to be established. The word during the course of employment which has been interpreted liberally and which may include the injury received by the workman will have to be examined. The reliance placed by learned advocate Shri Shah on a judgment of the Hon'ble Apex Court reported in AIR 1997 SC 432 has considered this aspect and has clearly observed:unless an employee can establish that the injury was caused or had its origin in the employment he cannot succeed in a claim based on Section 2(8) of the Act. The words accident arising out of his employment indicated that any accident which occurred while going to the place of employment or for the purpose of employment cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment.The words of limitation in sub-section (8) of Section 2 is in the course of his employment. The dictionary meaning of 'in the course of is during (in the course of time as time goes by) while doing (The Concise Oxford Dictionary New Seventh Edition). The dictionary meaning indicates that the accident must take place within or during the period of employment. If the employee's work shift begins at 4-30 p.m. any accident before that time will not be in the course of his employment. The journey to the factory may have been undertaken for working at the factory at 4-30 p.m. But this journey was certainly not in course of employment. If employment begins from the moment the employee sets out from his house for the factory then even if the employee stumbles and fall down at the door step of his house the accident will have be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided.10. Thus though the workman may have remained present and his presence is marked fact remains that he has gone out in recess for the food and has fallen down and has received the injury and it cannot be said to have in any causal connection with his work. Therefore it would not be covered by employment injury as defined in Section 2(8) of the Act. Thus the injury which can be attributed to an accident arisen out of employment could be covered. The word out of employment has also been considered in this judgment referring to the Western Comprehensive Dictionary and it has been observed that the word out of' requires that injury on its origin in the employment. I Further in this judgment the Hon'ble Apex Court has considered the other judgment and it has been observed that the test 'reasonable incidental' could be applied however while examining the use of the same words in the course of employment in the Workman Compensation Act 1923 the Hon'ble Apex Court has interpreted that it has to have a causal II connection with his employment and if it has occurred on a public road or public place it is I not in the course of employment. Again I reference is made to the earlier judgment of the High Court of Gujarat in the case of Sadgunaben Amrutlal v. Employees' State I Insurance Corporation Ahmedabad 1981 La-bour IC 1653 : LNIND 1981 GUJ 45 wherein I it has been observed that the employment of a workman did not commence until he reaches the place of employment referring the case of notional extension theory but the same has been distinguished referring to the judgment of the Hon'ble Apex Court reported in AIR 1956 SC 881. In this context it has been observed that it has to be proved that:(1) there was an accident.(2) the accident had the causal connection with his employment.(3) accident must have been suffered in course of employment.11. In facts of the case as it transpires it cannot be said that accident which the workman suffered while he had gone out of the premises for food had any causal connection with the work and as he was doing work at the factory the judgment of the court below cannot be said to be erroneous.12. Moreover reliance placed by learned advocate Ms. Gupta upon Section 51A of the Act which referred to the presumption as to the accident arisen in course of employment to suggest that law provides for presumption is misconceived. As rightly submitted there is scope of such presumption in light of the Section 51A of the Act. It would be from 2010 when it has been added by amendment in the year 2010. Therefore any such presumption with regard to the accidental injury could have prospective application. As the accident in question is of 1990 Section 51A would not be attracted as it is not retrospective in operation nor it has been made so specifically by the legislature. Therefore the submission made by the learned advocate Ms. Gupta referring to Section 51A is also cannot be accepted.13. Moreover while interpreting the provisions which is said to be a social piece of legislation it has to adhere to the rules of interpretation and construction while interpreting the provision of the law or the statute. It cannot be stretched beyond a point to ignore the specific words which could not have meaning or restrictive meaning used in this statute for the purpose of defining the word employment injury. Therefore as the injury has occurred outside the premises during the recess when the workman had gone out for his food it cannot be said to be an employment injury by any stretch of imagination. Therefore the judgment passed by the ESI court does not call for any interference.14. The present appeal therefore deserves to be dismissed and accordingly stands dismissed.Appeal dismissed.