S. RAMATHILAGAM, J.

1. The appellant/Employees State Insurance Corporation has preferred this appeal against the order passed in ESIOP No.12 of 2005, on the file of the Employees State Insurance Court (II ADJ) at Pondicherry dated 13.01.2010 and set aside the same.

2. The brief facts leading to the Claim Application is as follows:-

(i) The petitioner's son by name Palani was working in Appasamy Ocular Devices (P) Ltd., as Electrician for the past 1=years. Since there was no canteen facility in the said Company, his son used to come home for lunch and go back for work.

(ii) On 6.5.2005, as usual, the said Palani went home and after taking his lunch, he was returning in his motorcycle to his Company and at that time, one lorry dashed against him and he died. The said Palani was a member in ESI Corporation and also died during the course of his employment. The petitioner also sent a letter to the respondent, claiming the dependent benefits. But, the respondent refused to sanction the same by stating that the accident could not be deemed to have arisen during the course of employment. Hence, the petition was filed claiming dependent benefits from the employer.

(iii) The appellant herein, as the respondent therein, in the counter statement stated that the road accident occurred while returning to the factory after taking lunch and the same is not deemed to have arisen during the course of the employment sought for the dismissal of the petition.

3. The Tribunal, after analyzing the documents and based on earlier decisions given a finding that the petitioner's son is deemed to have died, while on duty and the petitioner is entitled to get the dependent benefits from the respondent.

4. Aggrieved against the said order, the E.S.I Corporation has preferred this appeal.

5. In the grounds of appeal, it has been stated that the case law referred by the respondent is no way concerned with the case. The grievance of the appellant herein is that the E.S.I Court failed to verify the judgments of the Supreme Court relied on by the Corporation. It is further stated that the employee had gone for lunch on his own, as there is no canteen inside the factory.

6. In such circumstances, the employee must have been aware that there is no obligation for the employer to provide a canteen when the strength of the employees is below 250, which applied to the employer in the present case. Therefore, the employee has to make his own arrangement for the lunch within the factory. If the employee had gone out on his own accord and when an accident had occurred at that time, it cannot be construed as an "employment injury" within the meaning of Section 2(8) of the ESI Act. The claimant has failed to establish the fact that the accident only occurred during the employment.

7. It is further averred that only on his own risk, the employee went out for lunch without considering the distance from the place of occurrence to the place of work. Hence, the road accident cannot be construed as arisen out of employment injury. Hence, the appellant/ESI Corporation states the reasons assigned by the E.S.I Court are un-sustainable.

8. Heard both sides.

9. On the side of the appellant, it is argued that it is the own admission of the claimant that his son Palani, while he was returning from his house after taking lunch to the work met with the accident by the hit of the lorry and hence, he claimed the dependent benefits from the appellant. The appellant/ E.S.I Corporation rejected the claim by stating that the accident is not the result of employment injury. Hence, aggrieved against the said order, the claimant preferred the proceedings in the E.S.I Court. The E.S.I Court based on the arguments and relied on the case law placed by claimant LLJ 1996 Page 867 as Ex.A6, wherein the Hon'ble Supreme Court has held as follows:-

"When a workman dies in an accident while proceeding to the place of his duty from home or returning from the place of his duty to home, he should be deemed to ha