IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 MFA.No. 455 of 1997(B) --------------------------------- I.C.NO.8/1994 OF EMPLOYEES INSURANCE COURT, ALAPPUZHA. .................... APPELLANT/ OPPOSITE PARTY: ---------------------------------------------- 1. THE REGIONAL DIRECTOR, E.S.I CORPORATION, THRISSUR. 2. THE MANAGER, E.S.I LOCAL OFFICER, THRIPPUNITHURA, ERNAKULAM. BY ADV. SRI.T.V.AJAYAKUMAR, SC, ESI CORPN., RESPONDENT/ APPLICANT: ---------------------------------------- STEPHAN GOMAS, S/O. SUNNY GOMAS, UNSKILLED WORKER. BY ADV. SRI.MATHEWS K.PHILIP. THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.No.455 of 1997 ------------------------------------- Dated 10th December, 2008 JUDGMENT Koshy,J . The respondent in this case was an unskilled worker attached to Kerala Electricals Ltd., Mamala. Earlier he was working in Kundara unit. He was transferred to Mamala unit only on 8.2.1993. Duty hours was 8 a.m. to 4 p.m. On 4.3.1993 he was deputed to work in the structural division Mamala and at about 10 a.m. while he was proceeding to main office he felt dizziness. He fainted and fell down near the car porch in front of the main office with foaming liquid emitting from his mouth. He was treated an an inpatient in the ESI Hospital from 4.3.1993 to 19.3.1993. The Medical Referee who examined him on 12.4.1993 had given remark “Compound fracture, T10 Vertebra can result due to injury trauma.” Ext.P1 is the accident report given by the employer where it was stated as follows: “While he was going to main office, near the Car Porch in front of the main office, he felt dizzy and fell down and fainted.” MFA.455/1997 2 Respondent claimed disablement benefit for the injuries sustained during the course of employment. The Insurance Court by the impugned judgment found that the accident occurred during the course of employment and it was arising out of employment and he is entitled to accident benefits. Accordingly, accident benefits were awarded treating this as employment injury. This appeal is filed by the Employees' State Insurance Corporation alleging that the accident was not arising out of employment. Employment injury is defined under section 2(8) of the Employees' State Insurance Act as follows: “2.(8)”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;” Hence, it is not only to be proved that the personal injury is caused in the course of employment, but also it is arising out of employment. To say that it is arising out of employment, there should be casual connection with the employment also. It is not disputed that the accident occurred during the course of employment. Section 51-A reads as follows: MFA.455/1997 3 “51A. 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.” It is a rebuttable presumption. Therefore, if the accident occurred during the course of employment, there is a presumption that the accident arose out of employment and if the Corporation contends that it is not arising out of employment, it is for the Corporation to prove otherwise. Here, the Corporation failed to prove the same. It is true that two witnesses were examined and they produced Exts.D1 and D1(a). Ext.D1(a) is the investigation report of the Local Office Manager of the ESI Corporation. In the above report relied on by the Local Office Manager it is stated as follows: “In view of the investigation conducted by me and facts disclosed to me I am of the opinion that occurrence of a fall at the Company premises by the IP is confirmed. But the presence of the IP at 10 A.M. in front of the Main office and the connection of the fall with his nature of work and whether it was out of his employment, could not be confirmed.” MFA.455/1997 4 DW1 only proved the above. DW2 also did not adduce any evidence to rebut the presumption. The E.I. Court also noticed that the accident occurred in the premises of the establishment itself during the course of employment in duty hours and accident has got nexus with the employment. He was there at the accident spot because of his employment. In these circumstances, the finding that it is an employment injury is a finding of fact based on evidence and we are of the view that no grounds are made out to interfere with the impugned judgment. The appeal is dismissed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks