IMPORTANT POINT
The burden of proving an accident during the course of employment lies with the claimant, and the journey from the workplace to home for a lunch break is not considered in the course of employment.

JUDGMENT :

1. Heard learned advocate Mr. Hemant S. Shah for the appellant and learned advocate Mr. P.S. Gogia for the defendant No.1.

2. The present First Appeal is filed under Section 82(2) of the Employees’ State Insurance Act, 1948 (hereinafter referred to as the ‘said Act), challenging the judgment and order passed by the Employees’ Insurance Court No.1 (Industrial Court), Rajkot in E.S.I. Application No.47/87 on 26.11.2002.

3. The brief facts of the case giving rise to this appeal are as under:

3.1 The deceased-Babulal Vallabhdas was working with respondent No.2 in the factory of respondent No.3. On 07.07.1980 at about 11:00 a.m., while proceeding towards his home for lunch, accidentally, he fell in water and died. The widow of deceased-Babulal Vallabhdas filed ESI Application for compensation and other benefits.

3.2 The appellant appeared and filed its written statement at Exhibit-9 and denied the liability to pay compensation. Issues were framed at Exhibit-11 and after considering the oral as well as documentary evidence, the learned lower Court allowed the application and directed the appellant to pay the benefits with 12% interest.

4. Learned advocate for the appellant has submitted that the limited challenge in the present First Appeal is regarding whether the accident which has taken place, can be said to have happened during the course of the employment or not. It is further submitted that, in the present case, the accident has taken place behind the factory premises of the respondent No.3 and the learned lower Court has committed an error in holding that injury was sustained during the course of his employment. It is further submitted that from the oral evidence of the parties, it is established that the deceased was going to his home for lunch through a private road, which was available for ‘ingress and egress’ towards the factory. It is further submitted that the original claimant has not established that the accident has taken place during the course of the employment.

4.1 Therefore, it cannot be said that the accident has taken place in the factory premises and during the course of employment. It is further submitted that there is no evidence to establish that the injury was an “employment injury” as defined under Section 2(8) of the Employees’ State Insurance Act, 1948.

4.2. The reliance is placed upon Section 2(8) of the Employees’ State Insurance Act, 1948, which reads as under :

“Section 2(8) "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.”

4.3 It is submitted that the injury to an employee must be arising out of and in the course of employment. In the present case, the injury was neither arising out of course of employment nor in the course of employment and thus, the impugned judgment and order is bad in law and requires to be interfered.

4.4. In support of his submissions, learned advocate for the appellant has placed reliance upon the decision of Hon’ble Supreme Court in the case of Regional Director, E.S.I. Corporation and another, Appellants vs. Francis De Costa & Anr., respondents reported in AIR 1997 SC 432 and a decision in the case of Dhanlaxmiben Jitendraprasad & Anr. vs. Employees State Insurance Corporation reported in 2000 (4) GLR 3036.

5. Learned advocate Mr. P.S. Gogia for original claimant-respondent No.1 has supported the impugned judgment and order and has submitted that the learned lower Court has rightly appreciated the evidence available on record and has rightly held that the accident has taken place during the course of employment. It is submitted that the deceased was working with respondent No.2 in the factory of respondent No.3 and on 07.07.1980, the deceased resumed his duty at 7:00 a.m. and during the break for lunch, while heading t