1. The present appeal arises from an order dated 25-5-2001 passed by the Employees' Insurance Court, Ahmedabad, in ESI Application No.12 of 1992 whereby the application of the appellants was dismissed.

2. In brief, it is the case that husband of the appellant No.1 while working in Subhlaxmi Mills on 17-8-1991 died due to chest disease in a hospital. To get the dependency benefits being legal heirs of the deceased, the appellants filed an application in the EI Court, Ahmedabad, after serving a notice on the respondent. On recording the evidence of the witnesses and considering the documents on record, the EI Court dismissed the application of the appellants.

3. Being aggrieved by the said dismissal, the appellants preferred First Appeal No.2306 of 1995. Learned Single Judge of this Court was of the opinion that since no substantial question of law was involved in the appeal and tuberculosis of lungs cannot be said to be an 'occupational disease', as defined under Section 52-A of the Employees State Insurance Act, 1948, ('the Act' for short), the provisions of Sec.96 of the Code of Civil Procedure could not be invoked by the appellants and hence, the appeal was summarily dismissed.

4. In the appeal preferred by the appellants against the said order being Letters Patent Appeal No.1288 of 1996, a Division Bench of this Court held that the case of the deceased-Gopalbhai was covered under the Act. However, since there was no pleading in the application nor was any evidence led to that effect as recorded by the EI Court, the matter was remanded to EI Court.

5. The EI Court, on considering the pleadings and evidence led by both the parties, dismissed the application of the appellants vide impugned order, giving rise to the present appeal by the appellants, who are widow and minor children of the deceased-Gopalbhai Haribhai Chunara.

6. I have heard learned counsel, Mr.K.M.Sheth for the appellants and Mr.Mayur S.Barot for the respondent and have also gone through the record as well as the impugned order passed by the EI Court.

7. Mr.Sheth, learned counsel for the appellants, submitted that it was proved beyond reasonable doubt before the EI Court that tuberculosis was sustained by the deceased as the cotton and dust went into the lungs of the deceased while filling up bobbins during the course of employment in Subhlaxmi Mills. He further submitted that the room in which the deceased had worked did not have a window except a door and in view of the unhygienic working condition prevailed at the place of employment, Gopalbhai became the patient of tuberculosis. Although this fact has been proved through the evidence of deposition of the wife of the deceased as well as the important witness namely, Ramswarup Sunderlal Sharma, the trial court, by not appreciating the evidence on record in its true perspective, held that death of the deceased was not caused due to employment injury and dismissed the application of the appellants.

8. Mr.Mayur Barot, learned counsel for the respondent, however, submitted that the order passed by the trial court is legal and proper. He further submitted that as per the evidence of doctor, cause of death was not due to employment injury and therefore, the trial court rightly rejected the claim of the appellants. He further submitted that as cause of death in the death certificate was shown to be tuberculosis, it means that Gopalbhai died due to sickness and not due to occupational disease and hence, no benefit under the Act would accrue to the appellants and hence, the claim was rightly rejected by the trial court. He was, however, extended sickness benefits. According to him, under Sec.82 of the Act, no substantial question of law has arisen to file the appeal against the order passed by the EI Court and, therefore also, appeal deserves to be dismissed. He relied on the decisions of the Kerala High Court in the case of ESI Corporation and Sainaba reported in 2006-I-Labour Law Journal page 320; Allahabad High