Point of Law: presumption under Section 51(A) of the ESI Act, that in the absence of evidence to the contrary, an accident arising in the course of an employee’s employment shall be presumed.

JUDGMENT :

1. The Appellant-Original Opponent – ESI Corporation, Ahmedabad (for short ‘the Corporation’) has filed this First Appeal under Section 82 of the Employees State Insurance Act, 1948 (for short ‘the ESI Act’) being aggrieved and dissatisfied with the judgment and order passed by the Employees Insurance Court, Ahmedabad (for short ‘Learned Trial Court’) dated 09.04.1996 in ESI Application No. 89 of 1991, preferred by the present respondents-applicants against the appellant ESI Corporation, Ahmedabad under Section 76 of the ESI Act, which was allowed.

2. Heard learned advocate Mr. Hemant S. Shah for the appellant- Corporation and learned advocate Mr. Shivang P. Jani for the respondents.

3. The facts of the present case are that Mr. Dahyabhai Shantilal Joshi who was the husband of the respondent No. 1 and the father of the Respondents No. 2 and 3 and the insured workman under the ESI Scheme and he was possess Insurance No. 37/3634846 under the ESI Act. He was serving in the Bharat Vijay Mills Company Ltd at Kalol. He was used to go from home to the Mill on cycle and returned at the end of shift. On 29.03.1991, Mr. Joshi was to attend the first (Day) shift, which would begin on 7.15 in the morning and which was to end at 3:45 p.m. On that day at 6.45 am, he went from his house on bicycle to attend service. When he was going on bicycle towards Mill, while crossing the railway line Mr. Joshi met with an accident with engine and died on the spot. That Mr. Ganshyam Natvarlal Patel and Mr. Rameshbhai Joitaram Patel were the eye-witnesses of the accident. The Mill was informed about the accident and accordingly the form was filled up by the Mill. That the accident was took place during the working hours. After accident Mr. Joshi was removed to the hospital for postmortem. As per postmortem report the cause of death of the deceased Mr. Dahyabhai Shantilal Joshi was haemorragic and Neurogenic shock due to Railway train accident. The Corporation has denied to give dependency benefits. Therefore, the respondent applicants had filed an application for claiming dependency benefit under the ESI Act, before the Trial Court.

3.1 The learned Trial Court has issued notice to the Corporation. The Corporation had appeared and contested the said application by denying the claim of the applicants inter-alia all other available grounds by filing written statement at Exh. 5 before the Trial Court.

3.2 The learned Trial Court has framed the issued vide Exh. 7 and the parties have produced their evidence before the Trial Court. After affording opportunities to both the parties, learned Trial Court has allowed the application on 09.04.1996 and ordered that the deceased Dahyabhai Joshi succumbed to the injury on 29.03.1991, such injury can be said to be occurred during the course of employment, therefore, the respondent Corporation was directed to pay applicable dependency benefits under Section 52 read with Schedule I of the ESI Act.

3.3 Being aggrieved and dissatisfied with the impugned order dated 09.04.1996 the appellant Corporation has filed present appeal for the grounds mentioned in the memo of appeal.

The argument on behalf of the appellant:

4. Learned advocate for the appellant has argued that the learned Trial Court has erred in the interpretation of the meaning of the expression ‘Employment Injury’ which, means personal injury to an employee cause by accident arising out of and in the course of his employment. That learned Trial Court has erred in applying the decision reported in 22 GLR 773 in the instance case. That the principle laid down by the Hon’ble Supreme Court of Notional extension was applicable because it is so held that when a workman is commuting to the place of employment, it means that the accident on the road which will be considered to be an employment injury during the course of employment.

4.1 It is further argued that in