REKHA GUPTA, PRESIDING MEMBER

                The present revision petition has been filed against the judgment dated 09.06.2016 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘the State Commission’) in First Appeal no. 858 of 2015.

2.     The facts of the case as per the petitioner/ complainant are that the petitioner, in his complaint, has alleged that he was working as a Sweeper with respondent no.6, i.e. M/s Bajaj Sons Ltd. and the ESI deductions were being made from his salary. His Insurance number was 2609459034. On 04.08.2011, while coming out of the factory while going to his house, he suffered an accident in the course of his employment and suffered injuries on his left leg and left shoulder. He was not in his senses and was taken to the hospital by the passers-by and was admitted in Civil Hospital, Ludhiana, and thereafter was admitted in ESI Hospital, Ludhiana, on 05.08.2011. On 13.08.2011, the petitioner was referred to Mediciti, which refused to treat him and he got himself admitted in Military Hospital, Jalandhar, and thereafter was shifted to Delhi. There was no treatment available at that place and, as such, he was got admitted in Amandeep Hospital, Amritsar. During his treatment, his left leg was operated and the bone of that leg was cut. The petitioner spent a huge amount for the treatment and after that operation, he was not in a position to work properly. No treatment was given regarding the injury on the shoulder and as a result thereof his left arm was not working and he has become disabled for life. On account of this disablement, he was entitled to receive the pension from respondent no.1-Corporation and was also entitled to the reimbursement of the amount spent by him on his treatment. It had been informed that on account of non-submission of the mandatory Accident Report by respondent no.6, the pension had not been granted to the petitioner. As he had no control over that respondent no.6, it was the duty of the Officer of respondent no.1-Corporation to get the Accident Report from the petitioner, if he was reluctant to submit the same. On account of the non-acceptance of his legal claim, he sent a legal notice dated 04.09.2013 to the respondents, through his counsel, and was told to submit the bills in original. When he went, along with the bills, he was told that he should come after submission of the Accident Report by respondent no.6. Neither the amount spent by him on his treatment was reimbursed nor was the Disability Pension given, which amounts to deficiency in service on the part of the respondents. He was entitled to payment of the bills, amounting to Rs.1,50,000/-, and also to the monthly pension, in addition to Rs.1,00,000/-, as compensation for the harassment and mental agony suffered by him on account of the said deficiency in service.

3.     The complaint was contested by the respondents. Respondent nos.1, 2 & 4 filed their joint written reply before the District Forum; in which they have admitted that the petitioner was working as a Sweeper with respondent no.6 and ESI contribution were being deducted from his salary. While disputing the other allegations made in the complaint, they averred that no notice of the accident, as required under Regulation 68 of ESI (General) Regulations, 1950 (in short, “the Regulations”), was received from respondent no.6 and no documentary evidence was submitted by the petitioner regarding his treatment. For reimbursement of the medical treatment, the petitioner was required to submit his claim to the concerned ESI Dispensary, so allotted to him. The petitioner did not furnish any FIR or Medico-legal Report and the inquiry revealed that as per the employee’s record, “employment injury” had not occurred to him. The legal notice sent by him was duly replied. The petitioner had already been paid the Sickness Benefit/Extended Sickness Benefit of Rs.7,917.00 + Rs.60,588.00 = Rs.68,505.00, as per his entitlement under the provisions of the Employees State Insurance Act, 1948 (in short, “the Act”). Therefore, it cannot be said that there was any deficiency in service on their part. He was not entitled to the monthly pension/compensation, on account of the above benefits already paid to him. They also averred that the District Forum had no jurisdiction to adjudicate upon the matter, in dispute, in view of Section 74 of the Act and all the claims by the employees are to be adjudicated upon by the Insurance Court, constituted under that Section.

4.     Respondent nos.3 & 5 filed their joint written reply before the District Forum. They averred that a specific procedure was laid down by the Government of Punjab regarding the reimbursement of the medical expenses by an employee covered under the Act. The reimbursement can be made, only after the procedure has been adopted by the insured person. The fact was duly brought to the notice of the petitioner, while giving reply to his legal notice. The petitioner was asked to submit the original bills and the Accident Report by respondent no.6, but he failed to complete all those formalities and, as such, it was not possible for them to reimburse his claim. Respondent no.5 was only to verify the bills submitted by the insured person and it was with the consent of respondent no.3 that the actual amount, as per CHGS/Government Rates for the treatment, so taken by the insured person from the private hospital, was to be sanctioned. Unless that procedure had been adopted, they were not in any way liable. Respondent no.3 was still ready to entertain the claim, provided the original bills are submitted and formalities are complied with. They were not deficient in service in any manner. There was no direct relationship of the petitioner with them. He had concealed the material facts from the District Forum and on that ground was not entitled to any relief sought by him. There was no relationship of “consumer” and “service provider” between them and the petitioner and the complaint filed against them was not maintainable. They prayed for the dismissal thereof, with costs; being false and frivolous.

5.     Respondent no.6, in their written reply, admitted that petitioner was in their employment and was insured with respondent no.4. They also admitted the receipt of the legal notice dated 04.09.2013 from the side of the petitioner. They denied the other allegations made in the complaint and averred that the petitioner was an operator on Auto Adda with him. No accident ever took place during the course of or arising out of his employment. In fact, he had been taking inconsistent stand regarding the alleged accident. In his first affidavit dated 12.07.2013, sworn in by him before the Notary Public, Ludhiana, he alleged that the injuries were received by him in the accident arising out of his employment on 03.08.2011. On the basis of that affidavit, respondent no.4, before whom the same was submitted, called for his explanation; which was duly submitted and it was explained that the petitioner had worked with him on 04.08.2011 and thereafter abstained from his duties from 05.08.2011 to 11.10.2011. The first Medical Certificate was submitted by the petitioner on 12.10.2011. Respondent no.4 was specifically informed that no such injury, as a result of accident arising out of employment, was received by the petitioner. After that, the petitioner changed his stand and submitted a fresh affidavit dated 20.08.2013, duly sworn in before the Notary Public, Ludhiana; in which he alleged that the injuries were received by him out of his employment; which occurred on 04.08.2011. No information was ever furnished to OP no.6 and, as such, they were unable to send any such report regarding the receipt of the injuries by the complainant in the accident. In fact, no such accident ever took place in the course of his employment. Respondent no.1-Corporation cannot dictate its terms for procuring Accident Report, at the behest of the insured person, unless proper investigation was made by it about the occurrence of the accident during the course of and arising out of the employment of the petitioner. The legal notice, so received by him, was duly replied; wherein the factual position was explained. No cause of action has accrued to the petitioner to file this complaint and the same is bad for mis-joinder of parties.

 6.    The District Consumer Disputes Redressal Forum, Ludhiana (‘the District Forum) vide its order dated 24.04.2015 while partly allowing the complaint observed as under:

“Sequel to the above discussion, the present complaint is allowed and OP 1, Op 2, OP 4 and OP 6 are directed to calculate the actual claim filed by the complainant and to pay difference, which is in excess of Rs.68,505/- to the complainant and also to consider his case for pension in view of his disability as per policy.”

7.     Aggrieved by the order of the District Forum, respondent nos. 1, 2 and 4 filed an appeal before the State Commission. The State Commission while allowing the appeal observed as under:

“11. For claiming the benefits, including the pension and expenses of treatment for the injuries, the complainant was required to prove that he received the “employment injury”; which is defined in Section 2 (8) of the Act and is reproduced below:

“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.

The complainant alleged in Para No.2 of his complaint that he suffered accident in the course of employment, while coming out from the factory for going to his house on 04.08.2011 and that accident occurred during the course of his employment. To the same effect is the deposition of the complainant made by him in his affidavit, Ex.C-A. To rebut that deposition of the complainant, opposite party No.6 proved on record the affidavit of Kanwaljit Singh Rahena, Manager Personnel, Ex.OP-6/X. In that affidavit, he deposed that the complainant did not suffer any accident in the course of his employment with opposite party No.6 on 04.08.2011, while coming out of the factory for going to his house and even no accident took place in the locality of that opposite party. In order to create doubt in the deposition made by the complainant, in the affidavit, this opposite party proved on record the affidavits; which were so submitted by the complainant to opposite party No.1-Corporation. The first affidavit is annexed with the letter dated 25.07.2013, Ex.OP-6/B, which was written by opposite party No.1-Corporation to opposite party No.6. In that affidavit, the complainant deposed that on 03.08.2011 at about 6.00 P.M., he was coming back to his house after finishing his duty in the factory and he met with an accident on the way and was removed to Civil Hospital, in unconscious condition and was admitted at that place. The second affidavit is annexed with the letter dated 05.09.2013, Ex.OP-6/D, which was also written by opposite party No.1-Corporation to opposite party No.6. In that affidavit, the complainant deposed that the accident had taken place on 04.08.2011 at 6.00 P.M. and that on account of his mental tension and illiteracy, he mentioned that date in the previous affidavit as 03.08.2011. The stating of wrong date may be on account of that mental tension or illiteracy, but it was specifically deposed by him in those affidavits that the accident had taken place, while he was on his way to his house, after having finished his duty, from the factory. In view of this contradictory deposition made by the complainant, it becomes very much doubtful, as to at which place the accident took place and he received the injuries. At the time of arguments, he was present in the Court and he was asked, as to at what place that accident had taken place. He disclosed that the accident had taken place at half kilometre away from the premises of the factory of opposite party No.6. This totally contradicts the allegations made by him in his complaint that he received the injury in the accident, while coming out of the factory for going to his house.

12. From our above discussion, we conclude that this accident had taken place, when he had already left the premises of opposite party No.6 and was on his way to his house. In these circumstances, the injury, so received by him, cannot be termed as “employment injury”, within the meaning of Section 2 (8) of the Act. It cannot be held that the said accident took place in the course of his employment. In Regional Director, ESI Corporation & Anr. Vs. Francis De Costa & Anr. (AIR 1997 Supreme Court 432), the employee was on his way to the factory, place of employment, and met with an accident, when he was one kilometer away from that place and received the injuries. It was held by the Hon’ble Supreme Court that it cannot be said that those injuries were caused to him by accident arising out of or in the course of his employment. The ratio of that judgment fully applies to the facts of the present case. In such an eventuality, the complainant does not become entitled to pension under the Act. Without going into that aspect of the case, the District Forum wrongly directed opposite parties No.1, 2, 4 and 6 to consider his case for pension, in view of the disability, as per the Policy. It also could not have issued the other direction; as that also relates to the benefit under the Act.

13. In the result, the appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed, without prejudice to his rights to apply for the reimbursement of expenses incurred by him regarding his medical treatment, by submitting the original bills to opposite party No.3 and by complying with other formalities required to be complied with, as per the rules of the Punjab Government, and that opposite party shall decide that case of reimbursement, within two months of the submission of the bills etc”.

8.     Hence, the present revision petition.

9.     I have heard the learned counsel for the petitioner Mr B K Mishra. He contended that since the petitioner was a member under the ESIC Act and he should have been paid the pension under the ESI Act. He further contended that since the respondent had been paid the sickness benefit, pension benefit should have also been made available. He however, admitted that there is no provision under the ESIC Act of 1948 to cover the same.

10.    The State Commission vide their order dated 09.06.2016 has correctly observed that as per the ESIC Act, 1948 ‘employment injury’ is defined in Section 2 (8) of the Act reads as under:

“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”.

11.    Admittedly, the complainant allegedly met with an accident after he left his duty and after he had come out of the factory and was on his way to his home. He has not given any specific details in his complaint about the nature of the accident or where and when he met with the accident. No FIR has been placed on record.

12.    The Hon’ble Supreme Court of India in the case of Regional Director ESI vs Francis De Costa and Anr., decided on 11.09.1996 has held as under:

“Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on Section 2(8) of the Act. The words "accident . . . arising out of . . . his employment" indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment. There is no causal connection between the accident and the employment.

The other words of limitation in sub-section (8) of Section 2 is "in the course of his employment". The dictionary meaning of "in the course of" is "during (in the course of time, as time goes by), while doing (The Concise Oxford Dictionary, New Seventh Edition). The dictionary meaning indicates that the accident must take place within or during the period or employment. If the employee's work shift begins at 4.30 P.M., any accident before that time will not be "in the course of his employment". The journey to the factory may have been undertaken for working at the factory at 4.30 P.M. But this journey was certainly not in course of 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.

We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometre away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.

In the case of Dover Navigation Company Limited v. Isabella Craig (1940 A.C 190), it was observed by Lord Wright that-

"Nothing could be simpler than the words" arising out of and in the course of the employment." It is clear that there are two condition to be fulfilled. What arise "in the course of" the employment is to be distinguished from what arises " out of the employment." The former words relate to time conditioned by reference to the man's service. the latter to causality. Not every accident which occur to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified."

Although the facts of this case are quite dissimilar, the principle laid down in this case, are instructive and should be borne in mind. 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 been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any causal connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment.”

12.    In view of the discussion above, it is clear that the petitioner has failed to establish that he suffered the accident during the course of employment and that the said accident had a causal connection with his employment.

13.    In view of the above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986.  Revision petition is, therefore, dismissed with no order as to costs.