Chandigarh

DF-II

CC/298/2018

Smt. Reena (Rina) Sharma - Complainant(s)

Versus

Employees State Insurance Corporation - Opp.Party(s)

Dinesh Kumar Adv.

01 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

 

Consumer Complaint  No	:	298 of 2018
Date  of  Institution	:	30.05.2018
Date   of   Decision	:	01.05.2019

 

 

 

 

 

Smt.Reena (Rina) Sharma w/o Late Sh.Alok Kumar Sharma, C/o Sh.Durgesh Kumar, Ambuja Cement Worker Union (AITUC) Union Office, Truck Clincker Yard, Vill. Daburji, Post Office Lodhi Majra, District Roopnagar, Punjab 140113    

 

             …………….Complainant

 

Versus

 

1]  Employees State Insurance Corporation, Panchdeep Bhawan through its Director Comrade Inderjeet Gupta, (CIG Marg), New Delhi 110 002

 

2]  The Regional Director, Employees’ State Insurance Corporation, Regional Office, Panchdeep Bhawan, Sector 19-A, Madhya Marg, Chandigarh.

 

3]  The Branch Manager, Employees’ State Insurance Corporation, H.No.28, Shaheed-E-Azam, Bhagat Singh Nagar, near DC residence, Roopnagar, Punjab 140 001

 

…………..Opposite Parties

 

4]  Rajnish Brothers, Contractor & Transporters, Ambuja Cement Ltd., Daburjee, P.O. Lodhimajra, District Ropar 140 113

 

        

………. Performa Opposite Party

 

BEFORE:  MR. RAJAN DEWAN           PRESIDENT

MRS.PRITI MALHOTRA        MEMBER

                    MR.RAVINDER SINGH         MEMBER

           

 

For Complainant   : Sh.Hitender Kansal, Advocate for complainant

 

For OP(s)         : Sh.Yogesh Gupta, Adv. for OPs No.1 to 3

                    None for OP No.4 (Performa Party)

 

 

RAVINDER SINGH, MEMBER

 

                    The case of the complainant is that the husband of the complainant namely late Sh.Alok Kumar Sharma, was employed as Silo Attendant in packing plant department of Opposite Party NO.4 since 1995 and unfortunately, he expired during the course of employment on 14.5.2015 (Ann.C-1 & C-2 respectively). It is averred that late Sh.Alok Kumar Sharma, was member of OPs No.1 & 3 with IP No.1210020232 and complainant being his wife was nominee in his ESIC papers and name of his other legal heirs/family was also mentioned in ESIC documents.  It is also averred that late Sh.Alok Kumar Sharma was regularly contributing his share towards the ESIC and for the month of May, 2015 his contribution for 14 days amounting to Rs.239/- stands deposited in the accounts of ESIC (Ann.C-5).  It is stated that after the death of late Sh.Alok Kumar Sharma, the ESIC approved & paid funeral charges to the tune of Rs.10,000/- and also paid medical expenses of late Sh.Alok Kumar Sharma to the tune of s.6929/- (An.C-6). Thereafter, the complainant made a representation for payment of service benefits on account of death of her husband while on duty, but the same was denied by OP Corporation vide their letter dated 6.5.2016/9.5.2016 (Ann.C-9). The complainant consequent thereto, through her Advocate Sh.Dinesh Kumar, served a legal notice dated 21.4.2017 upon the OP Corporation and in reply thereto, the OP Corporation vide its letter dated 1.6.2017 (Ann.C-12) did not pay any heed to the claim of the complainant and declined the payment of any service benefits accruing thereupon on the death of her husband Sh.Alok Kumar Sharma.  Hence, this complaint has been filed for pensionary benefits, alleging the above act of the OP Corporation as gross deficiency in service.

 

2]       The OPs No.1 to 3 have filed reply and while admitting the factual matrix of the case, stated that the complaint is not maintainable as this Forum has no jurisdiction to entertain and adjudicate the present matter being barred under section 75 (3) of the Employees State Insurance (ESI) Act, 1948. It is stated that late Sh.Alok Kumar Sharma had died in a road accident and the complainant and her children had instituted a claim petition before Motor Accidents Claim Tribunal, Mohali wherefrom they have received the compensation of Rs.29,70,288/- vide Award dated 7.3.2017.

         It is submitted that payment of funeral expenses and medical reimbursement paid to the complainant passed on the basis of Online status of contribution paid by the employer w.r.t. the deceased prior to the verification of wage records with respect to the deceased, but the husband of the complainant, at the time of his death, was not an employee as his wage limit exceeds to Rs.15,000/- per month.  It is also submitted that the employer paid ESI contribution in respect of deceased at his own calculations in view of Section 40 of the ESI Act, which provides that contribution at the first instance has to be paid by the employer whereas the deceased was drawing remuneration more than ESI limit. It is further submitted that the claim of the complainant has been rightly rejected as per the provisions laid down in the ESI Act, as the deceased did not came within the purview of the ESI Act. 

         Opposite Party No.4 has filed short reply stating that Sh.Alok Kumar Sharma was working with it, who met with an accident and expired on 14.5.2015, while going back to his residence after duty hours.  It is stated that his last contribution was deposited for the month of May, 2015.

 

3]       Rejoinder has been filed by the complainant thereby reiterating the assertions as made in her complaint.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and also carefully examined the entire evidence on record.

 

6]       After careful examination of pleadings of the parties and evidence on record, it is noticed that OPs No.1 to 3 i.e. Employees State Insurance Corporation (ESIC) have opposed the claim of the complainant interalia on the following grounds:-

 

a)  That the complaint is barred by limitation;

 

b)  That the District Consumer Disputes Redressal Forum has no jurisdiction to adjudicate this matter as the jurisdiction of Consumer Forum is barred by section 75(3) of The Employees State Insurance Act, 1948.

 

C)  That the deceased Sh.Alok Kumar Sharma, was drawing monthly wages of more than Rs.15,000/- per month and as such, was not eligible for any benefit under ESI Act.

 

d)  That the complainant has filed claim petition under Section 166 of Motor Vehicles Act before Motor Accident Claims Tribunal, SAS Nagar (Mohali), which was decided on 7.3.2017 and the complainant was awarded a compensation of Rs.29,70,286/- and as such not entitled for any further relief/compensation from Opposite Parties No.1 to 3.

 

e)  That the deceased Sh.Alok Kumar Sharma died on 14.5.2015 in a road accident at Nuhon Colony, Ropar, due to rash and negligent driving of motorcycle driven by Deepak Thakur and the same cannot be attributed to his employment with Opposite Party No.4.

7]       Sh.Alok Kumar Sharma, the deceased Husband of the complainant, holder of Insurance No.1210020232, expired on 14.5.2015. Thereafter, the complainant made a representation for payment of service benefits on account of death of her husband while on duty, but the same was denied by OP Corporation vide their letter dated 6.5.2016/9.5.2016 (Ann.C-9). The complainant consequent thereto, through her Advocate Sh.Dinesh Kumar, served a legal notice dated 21.4.2017 upon the OP Corporation and in reply thereto, the OP Corporation vide its letter dated 1.6.2017 (Ann.C-12) declined the payment of any service benefits on the death of her husband Sh.Alok Kumar Sharma. 

 

         From the perusal of the evidence on record, especially Ann.C-12 letter dated 1.6.2017, the present complaint filed by the complainant before this District Forum on 30.5.2018 is found to be within limitation as envisaged under Section 24-A of The Consumer Protection Act, 1986, which provides as under:-

Limitation period. - (l) The District Forum, the State Commis­sion or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

   

         Therefore, the present complaint is held to be well within time keeping into consideration the denial of claim by the OP Corporation vide their letter dated 1.6.2017.

 

8]       The OP Corporation alleged that ESI Act being a Special Act, the remedy available to the complainant was to approach the ESI Court and jurisdiction of Forum constituted under Consumer Protection Act, 1986, to entertain complaint is barred under Section 75(3) of the ESI Act. 

 

         The Hon’ble Supreme Court of India in case titled as “Kishori Lal Vs. Chairman, Employees State Insurance Corporation, 2007(3) M.L.W. 234, has held that the “Jurisdiction of consumer forum not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of E.S.I. Act.”    

            

         Further, the Hon’ble National Consumer Disputes Redressal Commission, in Revision Petition No.96,97,98,99 of 2006 – Employees State Insurance Corporation Vs. Sri Siddaramaiah, has also held that ‘jurisdiction of the District Forum to entertain and decide the complaints is not ousted under Section 75(3) of the Employee’s State Insurance Act, 1948.’

         In addition, Section 3 of The Consumer Protection Act, 1986 provides that “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. The provisions contained in the act are in addition to and not in derogation of any other law for the time being in force.

 

         Taking into consideration the law laid down by the Hon’ble Supreme Court as well as Hon’ble National Consumer Disputes Redressal Commission, as referred above, the objection of OP Corporation with regard to jurisdiction of this Forum, is unsustainable, without merit and as such dismissed.

 

9]       The ESI Act, 1948 garner social security for industrial workers. The ESI Corporation provides medical care to industrial workers and their dependents i.e. eligible for health care from primary to tertiary at the Hospitals run by ESIC directly or indirectly.  The ESI Act encompasses health related eventuality, which workers are exposed to on daily basis, which includes any type of sickness, temporary or permanent disability or disease contracted from workplace, death due to employment.  The ESI claim is applicable to an individual, who is employed in a non-seasonal factory that uses electricity and has more than 10 employees and a factory where no electricity/power is used, then having 20 or more employees.  The employees are entitled to the benefits as per provisions of ESI Act keeping into consideration their wages.  The ESI Corporation have raised the wage ceiling for the purpose of entitlement of workers under the ESI Policy over the last 20 years as per following :-

 

Date	Unrevised	Revised
1.1.1997	Rs.3000/-	Rs.6500/-
1.4.2004	Rs.6500/-	Rs.7500/-
1.10.2006	Rs.7500/-	Rs.10,00/-
1.5.2010	Rs.10,00/-	Rs.15,000/-
1.1.2017	Rs.15,000/-	Rs.21,000/-

  

         The minimum wage limit for the physical disable employees for availing ESI benefits is Rs.25,000/-. 

         Further Section 50 of The ESI (Central) Rules, 1950 stipulates as under:-

“50. Wage Limit for coverage of employees under the Act.

The wage limit for coverage of an employee under sub-clause (b) of clause (9) of Section 2 of the Act shall be {fifteen thousand} rupees a month.”

 

         The contentions as raised by the complainant in the present complaint that the OPs have granted funeral expense of Rs.10,000/- on 19.6.2015 as well as reimbursed the medical bill of the deceased, ipso-facto is not sufficient enough to conclude that the deceased Sh.Alok Kumar Sharma was eligible employee under the ESI scheme. The OP Corporation has stated in its reply that they have extended the benefit of funeral and medical expenses keeping into consideration the contributions received from the employer of the deceased without considering the eligibility of the deceased Sh.Alok Kumar Sharma at the time of his death.  It has been alleged that the worker goes out of the purview of ESI Scheme once his salary crosses the wage ceiling as envisaged under the ESI Scheme.   

         Sh.Alok Kumar Sharma has expired on 14.5.2015 when the overall maximum ceiling of wages was fixed at Rs.15,000/-.  As on the date of death of deceased Sh.Alok Kumar Sharma, he was drawing wages of Rs.26,491/- (Ann.C-5) and as such, he was rightly excluded from the category of eligible employee for the purpose of grant of benefits under the ESI scheme.

 

10)      The contentions raised by the Opposite Parties regarding award of compensation by Motor Accidents Claim Tribunal, Mohali in favour of the complainants justifying their denial for benefits under the ESI Act, are untenable.  The award of compensation under Motor Accidents Claim Tribunal, Mohali does not bar the complainant to seek remedy for claim of service benefits from the employer of his deceased husband, if he is legally eligible and entitled to under the law applicable thereto governing his service in the company.  

        

11]      The contentions raised by the complainants for benefits as envisaged under the ESI Act, simply on the ground that deceased Sh.Alok Kumar Sharma has died while he was in service with Opposite Party NO.4, is emphatically opposed by the Opposite Parties on the ground that the husband of the complainant has died in road accident outside his employment, while travelling in a civil area meaning thereby neither in the company nor arises out of his employment with Opposite Party No.4 and as such cannot be attributed to his job/work with Opposite Party No.4.    

         The Hon’ble Supreme Court of India in case “The Regional Director, E.S.I. Corporation & Anr. Vs. Francis De Costa & Anr., decided on 11.9.1996 while considering the issues as involved in the present complaint, has held as under:-

“In order to appreciate the scope of the controversy, it will be necessary to set out the relevant, provisions of the Employees' State Insurance Act, 1948:

……The definition given to "employment injury" in sub-section (8) of Section 2 envisages a personal injury to an employee caused by an accident or an occupational disease "arising out of and in the course of his employment", Therefore, the employee, in the order to succeed in this case, will have to prove that the injury that he had suffered arose out of and was in the course of his employment. Both the condition will have to be fulfilled before he could claim any benefit under the Act.

Xxxx

…..the words "arising out of....his employment ", the legislature gave a restrictive meaning to "employment injury ". the injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment. "Out of" in this context, must mean caused by employment………..the injury must be caused by an accident which had its origin in the employment. A mere road accident, while an employee is on his way to his place of employment cannot be said to have its origin in his employment in the factory…………… There is no causal connection between the accident and the employment…………. If employment begins from the moment the employee sets from his house for the factory, then even if the employee stumbles and falls down at the door-step of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided…

In order to succeed, it has to be proved by the employee that (1) there was an accident,(2) the accident had a causal connection with the employment and (3) the accident must have bee suffered in course of employment.”

 

         The Hon’ble Karnataka High Court in case of Rajappa Vs. Employees State Insurance, decided on 27.11.1991 – 1992 ACJ 434, has held as under:-

9. The 'employment injury' is defined under Section 2(8) of the Act, which reads as follows:-

"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."

10. The word 'accident' is not defined under the Act. But the term accident contemplated in the Act is assigned a separate and distinct meaning from the general or dictionary meaning. Not all accidents that may occur to an employee are accidents within the meaning of the Act. It is those accidents which occur out of and during the course of employment and cause some personal injury resulting in the loss of physical or earning capacity of the employee fall within 'employment injury'. The important condition for constituting an employment injury for claiming compensation under the Act, in respect of the injury caused, is that it should arise out of and in the course of employment, and the injury must be personal to the employee and it must be caused by an accident resulting in his disablement, whether temporarily or permanently, or fully or partially to attend his work.

Xxxx

Therefore, the principle is that in order to make the Corporation liable to pay compensation for the death or injury suffered by the employee, it must be as a consequence of an accident arising out of and in the course of his employment. But where employment is not a contributing factor to create any incident or accident, or to accelerate causes of death or personal injury of employee, a claim cannot be made for compensation under the Act.

Xxxx

(iv) It is well settled that when a workman is on a public road or public place or on a public transport he is there as any other member of the public and is not there in the course of his employment."

xxxxxx

the condition precedent to a liability under the said provision is a casual connection or association between the employment and the injury caused by the accident.”

 

12]      The husband of the complainant Sh.Alok Kumar Sharma, had died in a road accident, which cannot be said to be arisen out of his employment with Opposite Party No.4.  As held by the Hon’ble Supreme Court of India, referred above, the claim of the complainant for benefit from ESI Corporation under Employees State Insurance Act on account of death of her husband Sh.Alok Kumar Sharma in road accident, found to be without merit and as such, the present complaint is hereby dismissed. No order as to costs.

         The copy of this order be forwarded to the parties as per rules.

Announced

1^st May, 2019                                                                          Sd/-

 (RAJAN DEWAN)

PRESIDENT

                                                                                               

Sd/-

                                                                    (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER

Om