JUDGMENT :

(Gita Gopi, J.)

1. The appeal is filed by the Employees State Insurance Corporation under Section 82 of the Employees State Insurance Act, 1948 (for short ‘ESI Act’) being aggrieved by the judgment dated 29.1.2008 passed by the Employees State Insurance Court, Ahmedabad (ESI Court) in ESI Application no.52 of 2004.

2. The appellant is an establishment of Central Government and has raised the ground that the impugned judgment and order is illegal, arbitrary, oppressive, unreasonable, unjustified and also discriminatory, along with the ground that the judgment and order is contrary and in total disregard to the vital oral and documentary evidence, to justify the diverse findings which is perverse, and deserves to be set aside.

3. Facts of the case reflects that deceased Mahesh Kulkarni was working as a Helper in Arvind Mills Ltd. On 9.2.2004, after the working hours of the employment, while going towards his home, at the gate of premises of Arvind Mills, he fell down with the scooter and received injury on the head.

4. Advocate Mr. Sachin Vasavada for the appellant submitted that the deceased was not in actual work of his service, at the time when he met with an accident, which had occurred outside the gate of the Company and at that time, he was heading towards his home. Mr. Vasavada submitted that when the accident occurred, he was not driving the two wheeler, subsequently, when he was brought to the hospital, he was declared dead, and thus, Advocate Mr. Vasavada submitted that the death cannot be considered as arising out of and in the course of his employment. Advocate Mr. Vasavada submitted that the death has no casual connection with the employment, and for the first time, the opponent, in ESI Court, by way of filing ESI Application no.552 of 2004, had contended about death owing to the combine cause of accident and occupational disease. Mr. Vasavada stated that ESI Court without appreciating the merits of the case and without considering the provision of law had delivered the judgment ordering ESIC to pay benefits to the dependants.

5. Advocate Mr. Vasavada has submitted that there are diverse observation and finding of ESI Court in the impugned judgment which is wholly unjustified and is without application of mind which itself is contrary to the evidence and material on record and is based on mere assumption and presumption. Mr. Vasavada has submitted that ESI Court ought to have observed and followed the provisions of law, its rules and regulations and should have directed the opponent to make the representation according to ESI (General) Regulation, 1950 under Regulations no.77 to 80 and thus, ought to have rejected the application. Mr. Vasavada submitted that the evidence on record clearly suggests that the deceased died because of his own medical reasons and the death has not occurred because of any kind of employment injury. Mr. Vasavada thus submitted that ESI Court ought to have held that the opponent’s application had not pleaded of any reason of any strain in work or accident arising during the course of the employment and how the service strain has caused heart attack. Mr. Vasavada thus stated that ESI Court ought to have held that the death of the deceased was because of his callousness and not in the course of his employment a