Punjab

Fatehgarh Sahib

CC/50/2018

Kamaljit Kaur - Complainant(s)

Versus

Employees State Insurance Corp. - Opp.Party(s)

Sh. N.S.Toor

07 Oct 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB

Consumer Complaint No. 50 of 2018

 

Date of institution : 26.10.2018

 

Date of decision : 07.10.2019

 

1. Kamaljit Kaur aged about 58 years, wife of Late Sh. Gian Singh.

 

2. Amrinder Singh aged about 25 years, S/o Late Sh. Gian Singh, (D.O.B. 29.01.1993).

 

3. Manpreet Kaur aged about 27 years, daughter of Late Sh. Gian Singh, (D.O.B.14.09.1991).

 

All residents of Ward No.23, Near Spring Dale School, Khanna Khurd Road, Khanna, Tehsil Khanna, District Ludhiana.

 

……..Complainant

Versus

1. Employees State Insurance Corporation, Madhya Marg, Sector- 19, Chandigarh, through its Deputy/Regional Director.

2. A.S.Modern, Senior Secondary School, Malerkotla Road Khanna, District Ludhiana through its Principal.

3. E.S.I. Corporation, Head Quarter Office, CIG Marg, Panchdeep Bhawan, New Delhi-110002 through its Director General.

4. E.S.I. Corporation, Branch/Local Office at Dadheri Road, Guru ki Nagri, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib through its Authorized Signatory.

…..Opposite Parties

Complaint Under Sections 12 of the Consumer Protection Act 1986.

 

Quorum

Sh. Amrinder Singh Sidhu, President.

Sh.Y.S.Matta, Member

 

Present: Sh. N.S.Toor, Counsel for the complainant.

Sh. K.S.Khera, Counsel for the O.P.No.1,3 &4

Opposite Party No.2, Ex-Parte.

ORDER

By AMRINDER SINGH SIDHU, President

 The complainants filed the present complaint pleading that husband of complainant no. 1 and father of complainant no. 2 and 3 namely Gian Singh (since deceased) has been working with O.P. no. 2 since 2^nd April 2016 as General Duty Employee cum Gate Keeper and he was insured with O.P. no. 1,3 and 4 and his ESI no. was 12/1214157731 and premium of Rs. 127 per month was paid by O.P. no.2 to O.P. no. 1 by deducting it from the salary of deceased namely Gian Singh. The duty hours of Gian Singh was from 7 am to 3 pm daily. That on 01.11.2016 another employee namely Major Singh (GDE-cum-Gate Keeper) was on leave on that date and O.P. no.2 extended duty of aforesaid Gian Singh (now deceased) from 3 pm to 11 pm on that day and while doing his duty at about 4:40 pm aforesaid Gian Singh suffered severe heart attack and he become unconscious and he was taken to Jeevan Jot Hospital, Khanna from the place of his employment by the school van where he was declared brought dead and then he was taken to Civil Hospital, Khanna for his post mortem. The cause of death of Shri Gian Singh was declared as Ischaemic Heart Disease in post mortem report by the Doctors of Civil Hospital Khanna. Thereafter, complainant gave relevant documents to O.P. no. 2 (Employer of deceased). O.P. no.2 who is employer of deceased forwarded the same to local branch office at Mandi Gobindgarh, District Fatehgarh Sahib which is O.P. no. 4. In this regard Mr. Phool Chand the then branch Manager investigated the case and submitted his report to O.P. no.1 (the Regional Director, Chandigarh) for approval of case along with the required documents. The complainants alleged that heart attack occurred at the place of employment, so it falls within the purview of the accidental death covering ‘employment injury’ as per ESI Medical Manual but O.P. no.1 rejected/denied the claim of the complainants on the ground that Ischaemic Heart disease was not covered under ‘employment injury’. The complaints requested the higher authorities but in vain. It is pleaded in the complaint that complainant has no other source of income other than the pension which is to be sanctioned by the Employees Provident Fund Organization (EPFO). The complainant filed the present complaint with a request to give the direction to O.Ps to give benefit of pensions etc. to the complainants along with of other arrears and interest since the date of the death of the deceased Gian Singh.

2. After the notice served upon the O.Ps, the O.P no.1, 3 and 4 filed written statement to the complainant where as O.P. no.2 preferred to be proceeded against ex-parte as it did not appear before the Forum despite service of notice upon him. O.P. no. 1,3, and 4 filed legal objections in their written statements pleading that the complaint is not maintainable in the present Forum; that this Hon’ble Forum has no jurisdiction in the present complaint as per Section 75(3) of ESI Act; Further this Forum has no territorial jurisdiction to entertain and adjudicate upon this complaint because no cause of action arose to the complainants within territorial jurisdiction of this Forum. On Merits, the O.Ps denied all the allegations made against them. The above mentioned O.Ps admitted that Gian Singh was employee with O.P. no.2 and he has availed insurance policy from O.Ps but he did not die due to ‘employment injury’. The O.Ps took a stand that as per post mortem report the cause of death was Ischaemic Heart disease and as the disease does not fall within the purview of accidental death covering ‘employment injury’ so case was rightly rejected by the O.Ps. The death was not caused due to stress and strain of employment. Hence, the O.Ps stated that the claim was rightly rejected by the O.Ps and lastly they requested for dismissal of complaint with cost.

3. In order to prove his case, complainant has tendered affidavit as Ex CW1/A, true copy report of Principal of O.P.No.2 as Ex. C-1, true copy of deduction of insurance premium Rs.127/- as Ex. C-2, true copy of e-pehchan card as Ex. C-3, true copy of report of Jeewan Jot Hospital dated 01.11.2016 as Ex. C-4, true copy of Post Mortem report dated 02.11.2016 as Ex. C-5, true copy of letter dated 04.10.2017 as Ex. C-6, true copy of letter of complainant no.1 as Ex. C-7, true copy of certificate of matriculation as Ex. C-8, true copy of voter card of complainant as Ex. C-9, true copy of Bank A/C as Ex. C-10, true copy of voter card of Gian Singh as Ex. C-11, letter of principal of O.P.No.2 as Ex. C-12, true copy of ESI entry as Ex. C-13, true copy of accident report as Ex. C-14 & 15, true copy of information report as Ex. C-16 and close the evidence.

4. Opposite parties no. 1, 3 & 4 tendered affidavit of Yashpal, S.S.O representative of opposite parties as Ex.OP1/A, photocopy of application dated 07.05.2019 as Ex.OP1, photocopy of post mortem report as Ex. O.P.NO.2 and close the evidence on behalf of O.P. No. 1, 3 & 4.

5. The Complainants are held beneficiary Consumers of O.Ps as they fall within the definition of consumer being Legal representatives of deceased Gian Singh who availed services of O.Ps by paying a premium amount Rs. 127 per month from his salary account. It is admitted fact that Rs. 127 were charged by O.Ps which were deducted from his salary. Even otherwise, complainants proved it by placing on record Ex C2 which is Pay Bill Register of A.S. Modern School, Khanna at O.P. No.2.

The first legal objection taken by O.P. is that this Forum has no territorial jurisdiction as the cause of action arose to the complainants at Khanna Town and Khanna town falls within the territorial jurisdiction of District Forum, Ludhiana. We are of the considered view that this Forum has territorial jurisdiction to entertain and adjudicate upon present complaint as opposite party has branch office situated within territorial jurisdiction of Fatehgarh Sahib. The complainant has made this branch office as opposite party no. 4. Hence, it has fulfilled the requirement of Section 11(2) of the Consume Protection Act 1986.

Secondly, the complainants submitted their documents to O.P. no. 2 who submitted the same with O.P. no. 4 which is branch office of O.P. no.1. Hence, it can be safely concluded that this Forum has territorial jurisdiction to entertain, adjudicate and decide the present complaint as O.P. no.4 is branch office O.P. no.1 and as the part cause of action arouse to the complainants within the revenue estate of territorial jurisdiction of Fatehgarh Sahib. It is an admitted fact that deceased has taken policy from opposite party no. 1, 3, and 4 and this insurance policy was in existence when his death was caused. It is also admitted fact that death of employee was caused during the duty hours during his employment and at the place of his employment. “Now the material question is whether O.P. no.1 has rejected the claim of complaints on just ground or arbitrary and wrongly? The O.P. no. 1 rejected the claim of the complainants on the ground that Ischaemic Heart disease does not fall within purview of accidental death covering ‘employment injury’. But the complainant has filed the present complaint pleading that Ischaemic Heart attack falls within purview of accidental death covering ‘employment injury.’ Now the only question which is required to be decided by this Forum is that whether the death caused by Ischemic Heart disease falls within purview of accidental death covering ‘employment injury’ or not? For this purpose we would refer to the relevant paragraph of Halburys Laws of England (IV edition 2003 Re-issue, insurance, 569). In Rita Devi alias Rita Gupta Versus National Insurance Co. Ltd. Revision Petition No. 973 of 2007, Hon’ble National Commission discussed the meaning of accidental death and observe that the Halburys Laws of England the meaning of word accident is given and also accidental death in case of exposure to natural elements as stated to be accidental death.

“569. Meaning of accident. The event insured against may be indicated in the policy solely by reference to the phrase injury by accident or the equivalent phrase accidental injury, or it may be indicated as injury caused by or resulting from an accident. The word accident or its adjective accidental is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital as insidious diseases or the natural progression of some constitutional physical or mental defect. But the ambit of what is included by the word is not entirely clear. It has been said that what is postulated is the intervention of some cause which, is brought into operation by chance so as to be fairly describable as fortuitous.

The Idea of something is haphazard is not necessarily inherent in the word; It covers any unlooked for mishap or an untoward event which is not expected or designed, or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence, it being irrelevant that the a person with expert knowledge, for example of medicine, would have regarded it as inevitable. The stand point is that of the victim, so that even willful murder may be accidental as far as the victim of concerned. Further, it is settled law that when two reasonable interpretations in the terms and policy are possible within the interpretation in favor of insurer will be accepted and not the interpretation with favors the insurer. Further, the terms of the insurance policy are drafted one sided by the insurance company.

Therefore, in case the terms of the policy are vague, benefit should be given to insured and not the insurer. The law on the subject is settled by the Apex Court in Skandia Insurance Co. Ltd. Vs Kokliaban Chandravadan & Ors. (1987) 2 SSC 654; Shashi Gupta Vs. LIC of India (1955) I SCC 754; B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd.(1996) 4 SCC 648; and, LIC Vs. Raj Kumar Rajgarhia & Anr. (1999) 3 SCC 465.

The question as to whether the death arose in the course of employment due to heart attack can be treated as ‘employment injury’ and presumption under section 51-A of the Act, came up for consideration before the Punjab and Haryana High Court in the decision reported in 1995 (3) LLJ (supp) 593 ( HarjinderKaur and amp V. Employees’ State Insurance Corporation, Amritsar) and in paragraphs 4 to 6 it is held as follows:

4. I have heard the learned counsel for the parties. I find that this appeal deserves to be allowed, Section 2 (8) of the Act defines employment injury thus:

‘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.

5. Section 51-A which was added by Amendment Act No.44 of 1966 provides thus:

51-A Presumption as to accident arising in course of employment, for the purposes of this Act, an accident arising in the course of an insured person’s employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment.

6. Thus, the moment it is proved that the accident arose in the course of an insured person’s employment, it is to be presumed, in the absence of evidence to the contrary, that the accident has arisen out of that employment. The learned trial judge was, therefore, wrong in requiring proof from the appellants that in spite of the fact that the death of Gian Singh took place in the course of his employment, it had arisen out of that employment. No doubt, this presumption is rebuttable but there is no evidence worth the name on the record which may be styled as evidence to the contrary.

8. The Madras High Court further proceeded to observe at paragraph Nos.12 and 13 as under:-

12. The object of the Employees’ State Insurance Act, 1948( Act 34 of 1948) is to provide certain benefits to the employees or dependants in case of sickness, maternity and employment injury, etc., to give effect to Article 1 of the Universal Declaration of Human Rights, 1948, which assures human sensitivity of moral responsibility of every State that all human beings are born free and equal in dignity and rights. In recognition of the said rights only act 34 of 1948 was enacted and the same is to be liberally construed as it is a social legislation.”

13. The Supreme Court in the decision reported in (1986) 3 SCC 238: AIR 1986 SC 1686, Regional director, Employees’ State Insurance Corporation, Madras V. South India Flour Mills (P) Ltd., in paragraph 13 held as follows:

“The act is a piece of social security legislation enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury. To hold that the workers employed for the work of construction of buildings for the expansion of the factory are not employees within the meaning of section 2 (9) of the Act on the ground that such construction is not incidental or preliminary to or connected with the work of the factory will be against the object of the Act. In an enactment of this nature, the endeavor of the Court should be to interpret the provisions liberally in favour of the persons for whose benefit the enactment has been made. Hence the Hon’ble Supreme Court in Nirmal Madhokar Mongal Vs Oriental Insurance Co. Ltd. held that heart attack is an accidental death. In Rita Devi Gupta Vs National Insurance Co. Ltd. 2002(III) BLJ 126, the Hon’ble National Consumer Commission reiterated that “It is held that, documentary unintentionally, something that happens by chance without apparent cause”.

In the present complaint as the incident happened by chance unexpected and unintentionally and it happened during course of employment therefore it is held that it is a clear cut case of accidental death covered by ‘employment injury’ for which the heirs of deceased i.e. complainants deserve to be benefitted as per policy’s terms and conditions. The rejections of claim by the op no.1 on the ground that it is not an employment injury is set aside being wrong and arbitrarily. The O.P.no.4 is directed to process the case as per rules and get sanction of the same from the O.P.no.1 and 3, as the case may be, and pay the claim to the complainants along with interest @ 9% per annum from the date claim became due till the date of its actual payment to the complainants within the period of 60 days from the date of receipt of this order. Copy of order be sent to the parties free of cost and there after the file be consigned to record room.

 

 

 

Pronounced: ____

 

 

 

 

(Amrinder Singh Sidhu)

President

 

 

 

(Y.S.Matta)

Member