The Manager, Employees' State Insurance Corporation, Local Office, Valappattanam, Kannur District vs Neena Felix and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939** **INS.APP.NO. 5 OF 2017 ()** **-------------------------** **AGAINST THE ORDER IN E.I.C. NO.05/2013 OF THE EMPLOYEES' INSURANCE COURT, KOZHIKODE DATED 09-08-2016** **-------------------** ## **APPELLANT(S)/RESPONDENTS:-:** **--------------------------** **1. THE MANAGER,** **ESI CORPORATION, LOCAL OFFICE, VALAPATTANAM, KANNUR DISTRICT - 670 010.** ## **2. THE REGIONAL DIRECTOR,** **ESI CORPORATION, REGIONAL OFFICE, THRISSUR - 680 020.** **BY ADV. SRI.K.SANDESH RAJA** ## **RESPONDENT(S)/APPLICANTS:-:** **---------------------------** ## **1. NEENA FELIX,** **W/O.LATE FELIX MANAVALAN, AGED 40 YEARS.** ## **2. FEBINA FELIX,** **D/O.FELIX MANAVALAN, AGED 18 YEARS.** ## **3. FEMINA FELIX (MINOR),** **D/O.FELIX MANAVALAN, AGED 11 YEARS.** ## **4. MARY VARGHESE,** **M/O.FELIX MANAVALAN, AGED 73 YEARS, ALL RESIDING AT MANAVALAN HOUSE, ST.VINCENT COLONY, BAKKALAM P.O., KANUL, KANNUR DISTRICT - 670 010.** **R1-R3 BY ADVS. SRI.P.U.SHAILAJAN** **SRI.M.SURESH KUMAR SMT.K.B.REKHA SMT.D.N.NISHANI SRI.V.SREEJITH (K/1398/2000)** **THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------Ins. Appeal. No.5 of 2017 ---------------------------------Dated this the 13[th] day of July, 2017** ## **J U D G M E N T** This appeal is preferred against the order in E.I.C. No.5 of 2013 of the Employees' Insurance Court, Kozhikode by the Manager, Employees' State Insurance Corporation (for short, the E.S.I. Corporation), Kannur. The legal representatives of the deceased filed the above application for a declaration that the deceased Felix Manavalan is an insured employee attached to Prime Veneers Limited, Valappattanam and entitled for compensation as a result of an employment injury sustained to him under the Employees' State Insurance Act (for short, the E.S.I. Act). The learned Tribunal allowed the petition and held that the death of Felix Manavalan on 30.03.2011 was due to the employment injury sustained and his dependants are eligible for dependants benefits as per law. 2. Learned counsel appearing for the appellant contended that the death was not due to the injury Ins. Appeal. No.5 of 2017 2 sustained at the time of employment. It may be a suicide death and the contention that the death happened while he was returning from the company to his residence after submitting the leave certificate to the employer is unsustainable. He might have jumped in front of the running train and committed suicide, hence it is not an employment injury as stated under Sec.2(8) of the E.S.I. Act, 1948 and he is not entitled to get the benefits under Sec.46(d) of the E.S.I. Act. 3. The word employment injury has been defined under Sec.2(8) of the E.S.I. Act, 1948 which reads as follows: “ 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; Various benefits under the provisions of the E.S.I. Act provided to the insured persons and their dependants are specifically mentioned under Sec.46 of the E.S.I. Act. Ins. Appeal. No.5 of 2017 3 Sec.46(d) reads as follows: “46(d) periodical payments to such dependents of an insured person who dies as a result of an employment injury sustained as an employee under this Act, as are entitled to compensation under this Act (hereinafter referred to as dependents' benefit)” A perusal of the above section shows that if a person makes periodical payments to the Corporation, his/her dependants are entitled to get the benefits. 4. In this context, I have considered the evidence of PW1, the wife of the deceased, which shows that the deceased was on leave on 30.03.2011 due to illness and he submitted leave application obtained from the E.S.I. Dispensary, Pappinissery. The leave letter was handed over to the company on the same day and his way back to home, he was hit by a running train and died. The evidence of PW1 shows that the employees of the company usually used that way for their travel and while the deceased was proceeding through the side of the railway track, he was hit by a running train. In this incident, the Valappattanam Police registered a crime and Ext.P2 is the FIR. Ext.P3 is the copy of the Ins. Appeal. No.5 of 2017 4 postmortem certificate and Ext.P4 is the death certificate. Ext.P1 is the E.S.I. Identity card in the name of the deceased. 5. A perusal of Ext.P3 postmortem certificate shows that his skull and brain were intact. Lungs were pale. Walls, chamber and valves of the heart were normal, coronaries patent, Mid line structures of the neck were intact and all other internal organs were pale otherwise normal. It is also seen from Ext.P3 that the deceased died due to crush injury sustained to the abdomen. The appellant examined DW1 and produced Ext.D1 to D7. Even though the appellant raised a contention that the deceased committed suicide, no evidence has been adduced in the trial court to prove that point. He further contended that the investigation was not proper to prove the suicide, but the available evidence shows that the death was due to the crush injury. Learned counsel appearing for the appellant handed over a decision of the apex court in **Mallikarjuna G. Hiremath** v. **Branch Manager, Oriental Insurance** Ins. Appeal. No.5 of 2017 5 **Co. Ltd. & Anr. [ AIR 2009 SC 2019]** , in which paragraph 9 reads as follows: “ Under Section 3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable. ” But the parameters provided in the above decision is not applicable in this case. The facts of the case shows that it is an accident. 6. The question of accident was considered by the apex court in **Jyothi Ademmma** v. **Plant Engineer [2006 (5) SCC 513]** which held as follows: “7. The expression 'accident' means an untoward Ins. Appeal. No.5 of 2017 6 mishap which is not expected or designed. 'Injury' means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly as follows: I think that the context shows that in using the word “designed” Lord Macnaghten was referring to designed by the sufferer.” In this context and in the light of Ext.P3 postmortem certificate, this court cannot take any inference with regard to suicide unless the evidence brought on record shows that the death was due to the suicide. From the order of the Commissioner, it appears that he had considered all the records placed before him and he cannot take any decision based upon surmise or inference. It is true that the deceased was proceeding to his house after submitting the leave application who met with an accident. It appears from the postmortem certificate and the evidence of the legal representative of the deceased that the death was due to crush injury. When there is no evidence to prove suicide, this court cannot reject the findings of the Commissioner. Therefore, the conclusion that the deceased died due to Ins. Appeal. No.5 of 2017 7 the injuries sustained while returning after submitting the leave application is undisputably proved. There is no proximate nexus between the allegation of suicide and the accidental death. Therefore, the conclusion reached by the Commissioner is correct. There is no merit in this appeal and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge