D. C. SRIVASTAVA, J.

( 1 ) THIS is Applicants Appeal against the Judgment and Order dated 21. 8. 1979 of Employees Insurance Court, Ahmedabad, refusing to declare dependency benefits to the applicants- appellants on account of alleged death, of Jitendraprasad Chhotalal, which was alleged to have occurred in the course of his employment.

( 2 ) BRIEF facts giving rise to this appeal are that Jitendraprasad Chhotalal, an insured person, was working as employee in Ahmedabad - Sarangpur Mills Co. Ltd. as Kanta Karkoon. His duty hours were from 7. 00 a. m. to 6. 00 p. m. with recess from 11. 30 a. m. to 2. 00 p. m. On 19. 4. 1976 the deceased attended his duty in the aforesaid Mill at 7. 00 a. m. and worked till 11. 30 a. m. On account of mental and physical strain he informed his colleague Gotambhai Thakorlal Patel that he would be going to his home in the recess and take some rest and get rid of tireness and return to his job. At about 11. 30 a. m. on that date he boarded bus of Route No. 2 to reach his house and alighted from the bus near Model Cinema to walk down to his residence. On way to his residence near Balahanuman he stumbled presumably by something on the road that may have knocked his foot and it is alleged that he got reelings and fell down there with the resutl that his thigh bone, namely, femur got dislocated. According to the appellants all this happened because of strain of work in the course of employment. Initial treatment was given by one Noormohmed Haji Nabibax, Bone setter, who opined that it was a case of dislocation of bone of right thigh. 90 days rest was advised by him. Intimation was given to the officers of the Mill on 20. 4. 1976. On 26. 8. 1976 he was under treatment at Bapunagar General Hospital where he expired. It was alleged that the cause of death was injury sustained in the accident which arose out of and in the course of his employment. It was also alleged that it was general practice for the clerks to go home during recess for lunch and rest. It was alleged that the deceased while going home during recess met with an accident and sustained injuries on account of which he died.

( 3 ) THE claim was resisted on several grounds. It was denied that the death occurred on account of accident and that the sickness complained of had no connection with the employment of the deceased and that the injury could not be said to be the injury sustained in the course of or in connection with employment. With these averments it was pleaded that the claimants are not entitled to any relief.

( 4 ) THE Employee Insurance Court found that the injury was caused to Jitendraprasad Chhotalal on account of accident, but this injury did not result in his death on 26. 8. 1976. The court below further found that the accidend did not occur in the course of employment of the deceased. It further found that the claimants are the dependents of the deceased within the meaning of Employees Insurance Act. With these findings the Application was dismissed, hence this Appeal.

( 5 ) SHRI S. R. Shah, learned Counsel for the respondent contended that the case is fully covered by the Apex courts decision in the case of Regional Director, ESI Corporation and anr. v/s. Francis De Costa and anr. , reported in AIR 1997 SC 432, whereas Shri H. M. Patel appearing for Mr. A. J. Patel contended that on facts the case before this Court is distinguishable from the facts of the case before the Apex Court. He has placed reliance upon a decision of Calcutta High Court in P. E. Devis and Co. v/s. Kesto Routh, reported in AIR 1968 Cal 129.

( 6 ) THE appellants can succeed only on establishing three things. The first is that there was accident in which the deceased sustained injuries. This is fully established from the evidence on record. The second point to be established by the appellants is that the accident had casual connection with the employment and the third condition is that the accident must have occurred in the course of employment. Unless th

Click Here to Read the rest of this document