M/S Star Paper Mills Ltd. v. P. Girija and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939 MFA.No. 77 of 2015 () ---------------------AGAINST THE ORDER IN WC 130/2006 OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION COURT, KOZHIKODE DATED 25.07.2013 APPELLANT/IIND OPP.PARTY : ----------------------------------------- M/S.STAR PAPER MILLS LTD. SAHARANPUR, UTTER PRADESH, PIN-247001 REPRESENTED BY ITS MANAGER. BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.R.REKESH SRI.V.S.SHIRAZ BAVA SMT.ANNIAMMA THOMAS RESPONDENTS/APPLICANTS AND 1ST OPP.PARTY : ------------------------------------------------------------------------- 1. P.GIRIJA, W/O.GANGADHARAN, PARAMABILLITHODI HOUSE, VALLIKUNNU NORTH POST, VIA KADALUNDI NAGARAM, MALAPPURAM DISTRICT, PIN-673314. 2. SARITHA, D/O.GANGADHARAN, PARAMABILLITHODI HOUSE, VALLIKUNNU NORTH POST, VIA KADALUNDI NAGARAM, MALAPPURAM DISTRICT, PIN-673314. 3. SOUMYA, D/O.GANGADHARAN, PARAMABILLITHODI HOUSE, VALLIKUNNU NORTH POST, VIA KADALUNDI NAGARAM, MALAPPURAM DISTRICT, PIN-673314. 4. SANISHA, D/O.GANGADHARAN, PARAMABILLITHODI HOUSE, VALLIKUNNU NORTH POST, VIA KADALUNDI NAGARAM, MALAPPURAM DISTRICT, PIN-673314. 5. M/S.SHARMA FABRICATORS AND ERECTORS (P) LTD., C 27/273 PLOT NO.11 AND 12, SRI DAS NAGAR COLONY, MALDAHIYA, VARANASI, PIN-221002. R1-R4 BY ADVS. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------M.F.A.No.77 of 2015 ---------------------------------------------Dated this the 23[rd] day of March, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. In this appeal, the appellant challenges the order of the Commissioner for Employees' Compensation, Kozhikode, dated 25.07.2013. As per the order, compensation was awarded to the legal representatives of deceased Gangadharan, who was an employee of the appellant. The deceased was employed as a Fabricator for the fabrication work of the appellant. The workers used to take their lunch in a nearby restaurant located about 250 metres away from the company premises. For reaching the restaurant as well as for returning, the workers had to cross a railway line. The duty time of the workers is from 8.00 a.m to 5.00 p.m., with a lunch interval of one hour from 12.00 p.m to 1.00 p.m. On 08.07.2005, the deceased Gangadharan attended his duty up to lunch time. While proceeding to the restaurant for taking his lunch, he was hit by a train in the course of crossing the railway line, resulting in his death. The legal representatives of the deceased claimed a compensation amount of 3,12,940/-. ₹ 2. The appellant resisted the claim for compensation contending that, the deceased was an employee who was covered by the provisions of the Employees' State Insurance Act, 1948 M.F.A.No.77 of 2015 2 (hereinafter referred to as 'the ESI Act' for short). In view of Section 53 of the said Act, the right of dependants to seek compensation under the provisions of the Employees' Compensation Act, 1923 was barred, according to the appellant. The appellant produced a copy of the return of declaration in Form No.6 relating to the period from 01.04.2004 to 30.09.2005 to contend that, the deceased employee was covered by the provisions of the ESI Act. 3. The Employees' Compensation Commissioner took evidence, which consists of the oral evidence of AW1, who is the wife of the deceased worker and Exts.A1 to A6 documents produced by her. The appellant produced and marked Ext.R1 document. On a consideration of the respective contentions, the Employees' Compensation Commissioner found that though a declaration in Form No.6 relating to the period from 01.04.2004 to 30.09.2005 had been submitted by the appellant, the same was submitted only on 30.09.2005, which is two months and 23 days after the date of the accident, which resulted in the death of the worker. No action whatsoever was taken by the appellant to secure the dependants of the deceased worker with any compensation under the ESI Act. For the above reasons, the Employees' Compensation Commissioner found that there was no evidence in this case to prove that the ESI Act was applicable to the facts of the present case. The Employees' Compensation Commissioner, M.F.A.No.77 of 2015 3 therefore, proceeded to compute the compensation that was payable to the dependants of the deceased worker. The compensation amount has been worked out to 3,19,600/-. The₹ appellants have been directed to pay the said amount, with simple interest thereon at the rate 12% per annum with effect from 08.07.2005 and a further amount of 2,500/- towards funeral₹ expenses. The appellant is aggrieved by the said order. 4. According to Adv.Sri.A.A.Ziyad Rahman, who appears for the appellant, the Employees' Compensation Commissioner has wrongly found that, Section 53 of the ESI Act had no application to the facts of the present case. Our attention is drawn to Regulation 77 of the Employees State Insurance (General) Regulations, 1950 (hereinafter referred to as 'the ESI Regulations' for short) to contend that, the duty to report death of the employee was on the dependants, since the accident has admittedly occurred, outside the place of employment. It is therefore, contended that, the order appealed against requires to be interfered with and set aside. According to the learned counsel, it is under the provisions of the ESI Act that respondents 1 to 4 herein ought to have claimed compensation. 5. Heard. It is no doubt true that, Section 53 of the ESI Act bars an insured person or his dependants from receiving or recovering any compensation or damages under the Workmen's M.F.A.No.77 of 2015 4 Compensation Act, 1923, which is the present Employees' Compensation Act. However, it is worth noticing that in the present case, the return in Form No.6 purporting to bring the deceased employee under the provisions of the ESI Act, was submitted by the appellant only on 30.09.2005. The accident took place on 08.07.2005. Therefore, what the appellant has purported to do is to bring within the coverage of the provisions of the ESI Act, a person who was not alive on the date of submission of the return in Form 6. The said procedure itself is wrong. The concept of insurance does not permit the coverage of a person who is not alive. In other words, what the appellant has attempted to do was to bring within the coverage of ESI Act, a dead person, which cannot be countenanced. Therefore, as rightly found by the Employees' Compensation Commissioner, this is a case in which, the bar under Section 53 of the ESI Act has no application at all. 6. The second contention put forward by the learned counsel for the appellant is that, Regulation 77 of the ESI Regulations casts the duty to report the accident on the dependants of the deceased, the accident having occurred outside the place of employment. Regulation 77 is reproduced hereunder for convenience of reference : _“Report of death of employee by employment injury.- In case of death of an employee as a result of an employment injury-_ M.F.A.No.77 of 2015 5 - _(a) if the death occurs at the place of employment the employer shall, and_ - _(b) if the death occurs at any other place, a dependant intending to claim dependants' benefit shall, or_ - _(c) any other person present at the time of death may, immediately report the death to the nearest Branch Office and to the nearest dispensary, hospital, clinic or other institution where medical benefit under the Act is available.”_ A perusal of the above provision shows that, in the case of death of an employee as a result of an employment injury, it is for the employer to report the accident, if the death occurs at the place of employment and it is for the dependant to report, if death occurs at any other place. The above contention has to fail for more reasons than one. In the first place, the accident occurred on 08.07.2005 on which date, no return under Form No.6 had admittedly been submitted by the appellant. The return was submitted only on 30.09.2005. The dependants of the deceased cannot be expected to have reported the accident, immediately on the occurrence thereof, as stipulated by Regulation 77, anticipating that the appellant would submit a return on 30.09.2005. Therefore, to deny compensation to the dependants of the deceased workman on the said ground would be unjust. There is also no justification for permitting the appellant to shirk his responsibility under Regulation 77, on the said ground. If as a matter of fact, the return relating to the period from 01.04.2004 to 30.09.2005 had been submitted, M.F.A.No.77 of 2015 6 then it was only the appellant who was aware of the said fact and therefore, it was incumbent on the appellant to have reported the same to satisfy the requirement of Regulation 77. Apart from the above, what is worth noticing is that, the employee was at work, he had worked till the lunch interval and the accident had occurred when he had proceeded to the nearby restaurant for having food. The fact remains that he would not have been there at the accident site, had it not been for the requirement of his employment. Therefore, this is a case in which the theory of notional extension squarely applies. We have no doubt in our minds that the accident had occurred in the course of his employment. Viewed in the above perspective, the accident cannot be said to have taken place outside the place of employment, which by the theory of notional extension would include the accident site as well. Therefore, the responsibility for reporting the accident also was on the appellant. By the same reasoning, we find that it was the duty of the appellants to have taken notice of the accident under regulation 65 of the ESI Regulations. 7. The learned counsel for the appellant has placed reliance on the decision in _**A.Trehan v. M/s.Associated Electrical Agencies and Another [1996 (4) SCC 255 = 1996 KHC 829]**_ and _**Dhropadabai and Others v. Technocraft Toolings [2015 (14) SCC 454 = 2015 KHC 3121]**_ in support of his contention M.F.A.No.77 of 2015 7 that the bar under Section 53 would disentitle the dependants of the deceased worker from claiming compensation under the Employees' Compensation Act, 1923. For the reasons already stated above, the dicta in the said decisions have no application to the facts of the present case. Therefore, we refrain from considering the said decisions, in any detail. For the foregoing reasons, we find no grounds to interfere with the order appealed against. This Writ Appeal fails and is, accordingly, dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **MARY JOSEPH JUDGE** AV /True Copy/ P.A to Judge