The Deputy Director, Employees' State Insurance Corporation v. Amrutha W/o Late Santosh Kumar Kolody and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` FRIDAY, THE 30[TH] DAY OF JUNE 2023 / 9TH ASHADHA, 1945 ``` ``` INS.APP NO. 6 OF 2019 ``` ``` AGAINST THE JUDGMENT DATED 08.08.2018 OF E.I.COURT, KOZHIKODE IN EIC NO.23 OF 2015 ``` ## **`APPELLANT/RESPONDENT NO.1:`** ``` THE DEPUTY DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION, SUB-REGIONAL OFFICE, KOZHIKODE – 673 006. ``` ``` BY ADV THOMAS MATHEW NELLIMOOTTIL ``` ## **`RESPONDENTS/APPLICANTS AND RESPONDENT NO.2:`** - **`1 MRS.AMRUTHA W/O. LATE SANTHOSH KUMAR KOLODY, HOUSE NO.34/7130, “ASHIRWAD”, VAZATHURUTHI, CIVIL STATION-POST, KOZHIKODE - 673 020.`** - **`2 ABHIJAY KUMAR AGED 18 YEARS S/O. LATE SANTOSH KUMAR KOLODY, HOUSE NO.34/7130, “ASHIRWAD”, VAZATHURUTHI, CIVIL STATION-POST, KOZHIKODE – 673 020.`** - **`3 SANJANA AGED 16 YEARS (MINOR), D/O. LATE SANTOSH KUMAR KOLODY, HOUSE NO.34/7130, “ASHIRWAD”, VAZATHURUTHI, CIVIL STATION-POST, KOZHIKODE – 673 020, MINOR REPRESENTED BY HER MOTHER AND GUARDIAN, THE IST RESPONDENT.`** - **`4 M/S. INDUS MOTORS COMPANY (P) LTD. INDUS HOUSE, P.B.NO.923, CHAKKORATHKULAM, WEST HILL, KOZHIKODE - 673 005.`** ``` BY ADVS. SRI.P.RAMAKRISHNAN K MANOJ CHANDRAN SMT.PREETHI RAMAKRISHNAN ``` ``` INS.APP NO.6 OF 2019 ``` ``` 2 ``` ``` SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE P.R.AJITH KUMAR ``` ``` THIS INSURANCE APPEAL HAVING COME UP FOR FINAL HEARING ON 30.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` INS.APP NO.6 OF 2019 ``` ``` 3 ``` ## **`JUDGMENT`** The Insurance Appeal is filed by the 1[st] respondent in E.I.C No.23 of 2015 against the order dated 08.08.2018 passed therein by the Employees’ Insurance Court (for short, ‘the E.I Court’), Kozhikode. The parties are referred to as per their status in the claim petition. 2. The applicants before the E.I Court are the wife and children of deceased Santhosh Kumar, who was a Canvassing Agent of Indus Motors Company (P) Limited, the 2[nd] respondent, and an insured employee. According to the applicants, the deceased employee was deputed to U.A.E by the 2[nd] respondent, the employer as part of expansion of their business in the Middle East. The 1[st] applicant, the wife of the deceased had also gone to U.A.E and was staying with him. There was business arrangements between the 2[nd] respondent and a company by name M/s.Bridge Way ``` INS.APP NO.6 OF 2019 ``` ``` 4 ``` Group of Companies L.L.C, U.A.E. The said company is a subsidiary company of one of the Directors of the 2[nd] respondent. As per the direction of the 2[nd] respondent, deceased Santhosh Kumar worked as an employee of M/s.Bridge Way Group of Companies for marketing Maruti Suzuki Cars in U.A.E. The salary and other benefits were paid by the 2[nd] respondent and for technical reasons alone, Santhosh Kumar continued to be an employee of M/s.Bridge Way Group of Companies. The 2[nd] respondent was deducting E.S.I contribution from the salary of Santhosh Kumar and was remitting the same to the 1[st] respondent Corporation. According to the applicants, due to stress and strain of the duties entrusted to Santhosh Kumar, he died on 20.12.2012 during the course of his employment. Contending that the deceased died as a result of an employment injury sustained by him, the applicants have preferred the application under Section 75 read with Section 77 of the Employees’ State ``` INS.APP NO.6 OF 2019 ``` ``` 5 ``` Insurance Act, 1948 (for short, ‘the E.S.I Act’) for a declaration that the death of Santhosh Kumar was due to heart attack while on duty. 3. The 1[st] respondent, E.S.I Corporation filed a written statement resisting the application. According to the 1[st] respondent, the deceased Santhosh Kumar was an employee of the 2[nd] respondent and the 2[nd] respondent was not having any branch in U.A.E. The death of Santhosh Kumar was not due to any employment injury and the deceased was not an employee as defined under Section 2(9) of the E.S.I Act. 4. The 2[nd] respondent, employer has filed a written statement admitting the employer-employee relationship between the 2[nd] respondent and the deceased employee. It is also stated that the 2[nd] respondent has deducted E.S.I contribution from the salary of Santhosh Kumar till December 2012 and remitted the said amount to the 1[st] respondent. It is the stand of the 2[nd] respondent that Santhosh Kumar ``` INS.APP NO.6 OF 2019 ``` ``` 6 ``` was their employee and is covered under the provisions of the E.S.I Act. 5. The E.I Court, after considering the evidence in detail, found that the deceased Santhosh Kumar was an insured person and died due to employment injury and is entitled for the benefits from the 1[st] respondent. The E.I Court found that the affliction of disease and the consequential death of Santhosh Kumar while on duty was due to stress and strain of his work which has arisen out of his employment and the death of Santhosh Kumar was due to an employment injury and therefore his dependents are eligible to get benefits as per law. 6. In this appeal, the E.S.I Corporation contends that the employer of deceased Santhosh Kumar was M/s.Bridge Way Group of Companies LLC, a U.A.E based company, which has no branches in India. It is also contended that the 2[nd] respondent is not having any branches in U.A.E. Accordingly, it is contended that ``` INS.APP NO.6 OF 2019 ``` ``` 7 ``` the deceased was not an employee as defined under Section 2(9) of the E.S.I Act. It is further contended that employees who are deputed to work in an area where the provisions of the ESI Act have no application are not covered by the said Act. Finally, it is contended that the E.I Court went wrong in finding that the deceased died due to employment injury. The appeal is filed raising the following substantial questions of law: “1) Has not the E.I Court erred in declaring that the deceased Santhosh Kumar Kolody, is an employee of M/s Indus Motors and covered by Employees State Insurance Act, 1948, while he was working with M/s Bridge way Trading LLC, Dubai, UAE, a different entity, as per Exhibits D7 and D10 without appreciating the oral and documentary evidence adduced. 2) Whether the E.I Court was justified in coming to the conclusion that the affliction of disease and consequential death of Santhosh Kumar Kolody on 21.12.2012, was while on duty and was due to stress and strain of his work which has arisen out of his ``` INS.APP NO.6 OF 2019 ``` ``` 8 ``` employment and as such the death was due to Employment Injury sustained by him out of and during the course of his employment on 21.12.2012, when there is no documentary proof for the same and Documents Exhibit D7 and D10 evidence that the deceased was working with M/s Bridge way Trading LLC. 3) Whether the E.I Court was justified in coming to conclusion that the dependents of the deceased, are eligible to dependents' benefits as per law, when there was no documentary evidence for the employment of the deceased in Indus Motors during the period of his death and no documentary proof has been produced to show that there was any branch for M/s Indus Motors, Kozhikode in UAE or there is any business connections with M/s Bridge Way Trading LLC, Dubai, UAE. 4) Has not the Employees Insurance Court went erred in coming to a conclusion that the deceased was an employee defined in ESI Act when Kerala Government had issued a notification dated 25.11.1976 in exercise of the powers conferred by Section 88 of the ESI Act ``` INS.APP NO.6 OF 2019 ``` ``` 9 ``` exempting some categories of employees from the provisions of the said ACT and admittedly the deceased comes under the exempted employee category as per the notification.” 7. Heard the learned counsel appearing on behalf of the respective parties. 8. The E.I Court, on the basis of the evidence adduced, found that the deceased was an employee of the 2[nd] respondent and was covered under the provisions of the E.S.I Act and was deputed to U.A.E to find out market for their cars as a measure of promoting their business in the Middle East. The E.I Court found that though the 2[nd] respondent has no business establishment or Branch at U.A.E, it has come out in evidence that the 2[nd] respondent had job understanding with M/s.Bridge Way Group of Companies LLC to promote their sale at U.A.E and the deceased employee was deputed to Dubai for Overseas Marketing and that the deceased was an employee of ``` INS.APP NO.6 OF 2019 ``` ## **`10`** the 2[nd] respondent as per the provisions of the E.S.I Act. As regards the contention of the E.S.I Corporation that employees who are deputed to work in an area where the provisions of the ESI Act have no application are not covered by the Act, the E.I Court, adverting to the definition of 'employee' under Section 2(9) of the E.S.I Act, held that, in view the wider scope and ambit of the Section, employees who are working as sales representatives or canvasing agents engaged for marketing the products of the employer are also included in the definition of 'employee' under the Act. The E.I Court also observed that the deceased was an Insured Person till December 2012 and the ESI contribution has been duly paid till December 2012. The finding of the E.I Court is based on evidence. It has come out in evidence that the deceased was an employee of the 2[nd] respondent and was deputed to U.A.E for overseas marketing in connection with the business of the 2[nd] respondent. The deceased person is ``` INS.APP NO.6 OF 2019 ``` ``` 11 ``` an Insured Person under the E.S.I Act. ESI contribution was deducted from his salary by the 2[nd] respondent and remitted with the Corporation up to December 2012. The deceased was thus an employee defined under E.S.I Act and for the reason that he died in U.A.E, where the E.S.I Act has no application will not take him out of the purview of employee as defined under Section 2(9) of the Act. Therefore, the contention of the Corporation that the deceased was not an employee under the E.S.I Act cannot be sustained. 9. To arrive at the finding that the injury which resulted in the death of the deceased was an employment injury, the E.I Court, after referring to the decision of the Apex Court in **Shakunthala v. Prabhakaran** [2006 (4) KLT 1031 (SC)] and the decision of this Court in **Shah v. Rajankutty** [2005 (3) KLT 1014], held as follows: “Here, the deceased employee was a Sales Manager and he was deputed by his employer to find out ``` INS.APP NO.6 OF 2019 ``` ``` 12 ``` marketing of their products in the Middle East. Ext. D5 is the letter dated 02.11.2012 issued by the 2nd Respondent/Employer to the deceased employee Santhosh Kumar Kolody informing his deputation to Dubai-U.A.E for Overseas Marketing starting from 09.11.2012. In order to achieve the goal he has to travel a lot irrespective of time. On the day of his death he was in consultation with one customer viz, Mr.Suresh Manoly at customer's residence in connection with bulk sale of Cars. The time of occurrence was at about 10.45 night. All these factors indicate the stress and strain of work under taken by the deceased employee. One cannot expect to do his work that of Sales promotion within a fixed time schedule like Morning 10 O'clock to 5 O'clock in the evening. They have to meet Customers at the customer's convenience. In the instant case, the deceased was attending his customer at 10.45 night. We cannot imagine that he was sitting idle for the entire day time. He may be doing his routine official work in the rest of time also. Further, it is manifest from Ext. D15 Letter dated 12.05.2014 issued by the ``` INS.APP NO.6 OF 2019 ``` ``` 13 ``` employer to the ESI Corporation that Late Santhosh Kumar was sales oriented employee and the nature of his works is related to target base therefore he had been suffering stress and strain. It is also stated in Ext. D15 that the Death due to heart failure during the course of his employment was an employment injury irrespective of the site of accident. It would be unrealistic to think that the job of a Sales Manager whose work is based on target basis does not involve stress and strain, particularly bearing in mind the multiplicity of launching of new branded cars in the market by different branded Companies. The success of his job lies on the achievement of maximum target. In order to achieve his target the employee has to toil irrespective of time and working hours. In order to find out new market in Middle East is not an easy task, particularly bearing in mind that to open new market in the Middle East which require stress and strain and day and night work. The job entrusted to Santhosh Kumar to establish their new venture in the Middle East is really a hectic task which require strain and stress. In view of all the above discussions, it can ``` INS.APP NO.6 OF 2019 ``` ``` 14 ``` only be concluded that the affliction of disease and consequential death of Santhosh Kumar Kolody on 21.12.2012, while on duty was due to stress and strain of his work which has arisen out of his employment and that the death of Santhosh Kumar Kolody on 21.12.2012 was due to Employment Injury and therefore his dependents are eligible to get dependents benefit accordingly as per law.” 10. Employment injury can be determined by the E.I Court on the basis of evidence adduced in the case. The E.I Court on the basis of the testimony of the 1[st] applicant and Ext. D2 Accident report has come to the conclusion that affliction of disease and consequential death of the employee, while on duty, was due to stress and strain of his work which has arisen out of his employment and that the death was due to employment injury. I find no reason to disagree with the conclusion reached by the E.I Court. The death of the deceased due to cardiac arrest had the requisite causal ``` INS.APP NO.6 OF 2019 ``` ``` 15 ``` ## connection and nexus with his employment. 11. The impugned findings of the E.I Court are pure findings of fact which do not involve any question of law, much less, any substantial question of law. 12. In **Bombay Anand Bhavan Restaurant v. ESI Corpn. [2009 (9) SCC 61]** , the Hon'ble Supreme Court observed thus: “20. The Employees' State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees' State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so ``` INS.APP NO.6 OF 2019 ``` ``` 16 ``` as to promote its objects.” I agree with the findings of the E.I Court that the deceased was an employee of the 2[nd] respondent coming within the ambit of Section 2(9) of the E.S.I Act and an insured person and died of employment injury and therefore his dependents are eligible to get dependents' benefit as per the said Act. The appeal is devoid of any merit and is, accordingly, dismissed. ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR