FAO No. 729 of 1989 1 In the Punjab and Haryana High Court,at Chandigarh. Decided on 02.3.2009. Sawraj Yadav alias Suraj Yadav --Appellant Vs. Employees State Insurance Corporation and another -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.R.S.Sihota,Sr.Advocate, with Mr.B.R.Rana,Advocate, for the appellant Mr.Vikas Suri,Advocate, for respondent No.1. Mr.Ashwani Bakshi,Advocate,for respondent No.2. Rakesh Kumar Jain,J: (Oral) This appeal is directed against the order dated 26.11.1988, passed by the Employees Insurance Court, Faridabad, whereby an application filed by the appellant under Section 75 of Employees' State Insurance Act,1948 (for short,'the Act'), was dismissed. Briefly, the facts culled out from the record are that the appellant was working as a permanent operator with M/S Escorts Tractors Ltd. Faridabad and was insured under the Employees State Insurance Scheme vide Insurance Card No.1668935. On 24.10.1985, while coming for duty from his house situated at village Molahera, he took lift in a Car No. HRU-4912, which met with an accident with D.T.C.Bus No.DEP-8780, operating on route No. 790 on Delhi Gurgaon Road. In the said accident, he suffered FAO No. 729 of 1989 2 fracture of the left leg. The appellant was taken to Ram Manohar Lohia Hospsital ,Delhi where he remained admitted from 24.10.1985 to 6.12.1985. In the said accident, the appellant's left leg was shortened by 2 inches and on that account, he became permanently disabled. It was further averred that the employer of the appellant had informed the Employees State Insurance Corporation (for short,'the Corporation') on the prescribed Form No.16 about the accident, but despite that his case for payment of compensation, pension, medical benefits and benefits for permanent disablement in his earning capacity was rejected on the ground that the injury suffered was not during the course of employment. The case of the respondent-Corporation is that the appellant was not travelling to his place of work on normal route and the report of the accident dated 24.10.1985 was sent to the respondent on 17.6.1986, after about eight months to put up an after- thought claim. It was also maintained that the injuries suffered by the appellant could not be termed to be the injuries suffered during the the course of employment beause the appellant had taken a contradictory stand as he stated in the FIR that he had taken lift from Gurgaon, whereas he took lift in Maruti Van from Jwala Textile,which is nearer to his village. On the pleadings of the parties, following issues were framed:- 1. Whether the impugned order of the respondent is illegal, arbitrary and against the principles of natural justice as alleged ?OPP FAO No. 729 of 1989 3 2. Whether the applicant sustained fracture injury on his left leg as alleged, if so, to what effect ? OPP 3. Whether the petition is not maintainable ? OPR 4. Relief: In support of his case, the appellant examined five witnesses ,namely the appellant himself as PW1, Hukam Singh as PW-2, Narinder Kumar as PW-3, Braham Parkash as PW-4 and Harish Chander as PW-5. On behalf of the Corporation, K.S.Minhas Head Clerk, E.S.I. Corporation was examined as RW-1. After taking into consideration the evidence on record, the leanred Court below observed as under:- “ The perusal of the file shows that the facts thereof are distinguishable from the cases cited by learned counsel for the petitioner in the manner that the lifting point of the petitioner in the instant case is Dhaula Kuan, because it is from this point and back that the petitioner has been provided with a free bus facility. Beyond Dhaula Kuan, the petitioner is required to make his own arrangement and pay from his pocket for the mode of conveyance that he adopts. Apart from the fact that there has been 8 months delay in referring the accident case of the petitioner to the respondent No.1. The stand taken by the petitioner about the route adopted by him is also discrepant. In his statement made as PW1, the stand taken by the petitioner is that he had taken a lift in Maruti Van from his village. Whereas in the report which he has lodged with police about the occurrence, mention made is that he had taken a lift FAO No. 729 of 1989 4 in the Maruti Van from Gurgaon. This discrepancy, therefore, renders it dodubtful as to whether the petitioner was on his way to factory or was going somewhere elese. On that account, the injury sustained by him does not get linked with his employment. Had the petitioner met with an accident between lifting point viz, Dhaula Kuan and factory premises or back, then there could not be two opinions that the injuries sustained by him were employment injuries. This could be so even in that situation also, if the petitioner had adopted some alternative convenient route to reach his factory, but the First Information Report lodged by him showing that he had boarded Maruti Van from Gurgaon, leaves much scope for doubt as to what had taken him to Gurgaon earlier in the morning at 6.30.A.M. For that matter, any journey taken by him from Gurgaon onwords cannot be accepted to be a journey to his duty point, that being the case, I do not find any illegality or arbitrariness or violation of principles of natural justice in the order passed by respondent No.1 for rejecting the case of petitioner. Accordingly, this issue is decided against petitioner and in favour of respondent”. Mr.R.S.Sihota, learned Senior counsel for the appellant has contended that the findings recorded by the Court below are patently erroneous and illegal because it has come in the document Mark 'B' which is available on record at page 41 that the shift hours of the appellant in his “DEPTT.CTCH,'A' SHIFT was from 8 AM to 4.30 PM. Thus, there is nothing unusual because it takes at least 1.30 hours to reach from Gurgaon to Faridabad. Therefore, the finding recorded by the learned Court below is wrong that lift in FAO No. 729 of 1989 5 Maruti Van taken by the appellant at 6.30.A.M in the morning from Gurgaon does not mean that he was taking journey from Gurgaon onwards to his duty point. Moreover, PW-5 Harish Chander has categorically stated in his examination-in-chief that factory bus takes up their employees from Dhaula Kuan but up to Dhaula Kuan, the employees had to make their own arrangement. In the cross examination, he stated “that he does not know as to how workmen reach Dhaula Kuan” The learned Court below while rejecting the claim of the appellant has observed that had the accident occurred between lifting point, viz, Dhaula Kuna and factory premises or back, then there could not be two opinions that the injuries sustained by him were deemed to have been sustained during the course of employment. In my view, this finding is totally erroneous because journey undertaken by the appellant from his village to Dhaula Kuan is also a journey taken to reach the place of employment. Learned counsel, for the apellant has relied upon cases reported as Regional Director, E.S.I.C, Trichur Vs. A. Parameswaran Pillai 1977 LAB I.C.194 and Regional Director, Employees' State Insurance Corporation,Bangalore-20 Vs. Ranga Rao and another 1981 LAB.I.C. 1563. In the case of A.Parameswaran Pillai(Supra) it was held that employee deputed to play match died in a car accident while proceeding to play ground, then the death was held as a result of employment injury. In Employees' State Insurance Corporation, FAO No. 729 of 1989 6 Bangalore-20 (Supra) , it was held that if workman while on way to join duty in factory is run over by a vehicle on national highway, the accident was one in the course of employment notwithstanding that the employee was killed while walking on public road and that he was not travelling in a vehicle provided by the employer. In view of the above discussion and the settled principle of law that for any injury or death caused during the course of employment while coming from his home to his place of work, the employee is entitled to the amount of compensaion, if he is insured with the Corporation. Hence, the present appeal is allowed. The impugned order passed by the Court below is set aside. The matter is remanded back to the Court below at Faridabad with a direction to constitute a 'Board of Doctors' for assesssing the permanent disability of appellant for the purpose of granting compensation and then pass appropriate order in accordance with law within a period of three months from the date of appearance of parties before him. The parties through their counsel are also directed to appear before the Court concerned on 10.6.2009. 02.3.2009 (Rakesh Kumar Jain) RR Judge