-1- IN THE HIGH COURT OF BOMBAY AT GOA APPEAL UNDER E.S.I. NO. 12 OF 2008 Employees State Insurance corporation, through its Deputy Regional Director, Panchadeep Bhavan, EDC Plot No.23, Patto, Panajil Goa. …... Appellants Versus 1. Shri K. T. Somarajan, s/o. K. Thankappan, major, r/o H.no.455, Christian Vaddo Marcela, Tiswadi Goa. 2. Mr. Hariram K. Cham Plot no. 78 sector 8 Vashi Navi Mumbai 400 703. 3. The Director, M/s. Himaganga Freezers Pvt. Ltd. Marcela Goa (Registered addresses) …... Respondents Mrs. A. A. Agni, Advocate for the Appellant. Mr. Sudin Usgaonkar, Advocate for the Respondent no.1. Mr. Valmiki Menezes, Advocate for the Respondent no.3. Coram :- F. M. REIS, J Date : 2 nd December, 2011. ORAL JUDGMENT Heard Mrs. A. Agni, learned Counsel appearing for the Appellant, Shri AUE No.12-08 -2- Sudin Usgaonkar, learned Counsel appearing for the Respondent no.1 and Shri V. Menezes, learned Counsel appearing for the Respondent no.3. 2. The above Appeal challenges the Judgment and Order dated 21.07.2008, passed in Employees Insurance Case no. 1/2002, whereby the application filed by the Respondent no.1 under Section 75 of the Employees State Insurance Act, 1948, came to be allowed thereby directing the Appellants to have disablement questions decided by the Medical Board and proceed in accordance with law. 3. It is the case of the Appellant that the Respondent no.1 filed an application under Section 75 of the Employees State Insurance Act on 31.01.2002, claiming that he had suffered burn injuries due to ammonia leakage while he was working at Radhey Ice factory of the Respondent no.3. It is further the case of the Respondent no.1 that he had suffered employment injury which claim was not accepted by the local Officer of the Appellant. Accordingly, proceedings were initiated by the Respondent no.1 on that count. The Appellants filed their written statements and, inter alia, contended that no medical certificate was produced by the Respondent no.1 and that there was nothing on record to demonstrate that the Respondent no.2 who was the employer of the Respondent no.1 has directed the Respondent no.1 to carry out the work of the Respondent no.3 or Radhey Ice Factory. Accordingly, the Appellants denied that there was any employment injury as set out in Section 54-A of the Employees State Insurance Act and, contended as such that, the question of referring the Respondent no.1 to the Medical Board AUE No.12-08 -3- would not arise at all. By Order dated 24.07.2006, an Order came to be passed directing the Appellants to refer the Respondent no.1 to the Medical Board. The said Order came to be challenged by the Appellants by filing an Appeal before this Court which was allowed and the matter came to be remanded to the E.S. I. Court for inquiry. Thereafter, evidence came to be recorded in the inquiry and the impugned Judgment came to be passed on 21.07.2008 whereby the application filed by the Respondent no.1 was directed to be examined by the medical board to ascertain the disablement question. 4. Being aggrieved by the said Judgment, the Appellants have preferred the present Appeal. 5. Mrs. Agni, learned Counsel appearing for the Appellants, has assailed the impugned Judgment by pointing out that the Courts below have erroneously come to the conclusion that the injury had occasioned in the course of the employment. Learned Counsel further pointed out that there is sufficient material on record that the Respondent no.1 was not the employee of the Respondent no.3 and, consequently, the question of claiming any compensation on account of the injuries sustained by him during the course of carrying out some work at the employment of the Respondent no.3, would not arise at all. Learned Counsel further pointed out that the Respondent no.1 has failed to establish that he was directed by the Respondent no.2 to carry out the duties of the Respondent no.3 and, as such, the Court below has erroneously appreciated the evidence on record and has come to an erroneous conclusion that the Respondent no.1 is entitled to AUE No.12-08 -4- the compensation under the Act. Learned Counsel has further taken me through the material on record as well as the impugned Judgment and pointed out that the Court has erroneously appreciated the evidence on record and has come to a perverse finding of fact that the Respondent no.1 is to be referred to the Medical Board to ascertain his disablement. As such, learned Counsel further submits that there are substantial questions of law which arise in the present Appeal which requires adjudication by this Court. In support of her submission, the learned Counsel has relied upon the Judgment of the Apex Court reported in 1996 (6) S.C.C. 1, in the case of Regional Director, E.S.I. Corporation & anr. vs. Francis De Costa and anr. 6. On the other hand, Shri Sudin Usgaonkar, learned Counsel appearing for the Respondent no.1, has supported the impugned Judgment. Learned Counsel further pointed out that all the contentions raised by the Appellants are essentially questions of fact which cannot be interfered by this Court in the present Appeal. Learned Counsel further pointed out that jurisdiction of this Court to entertain the present Appeal are restricted to substantial questions of law and, as such, considering the contention of the learned Counsel appearing for the Appellants, there is no substantial question of law which arises in the present Appeal which calls for adjudication by this Court. Learned Counsel further pointed out that it is well settled that the provisions of the Employees State Insurance Act, are beneficial legislation and strict standard of proof to establish that the injured was in the course of employment are not always required. Learned Counsel further pointed out that the Respondent nos. 2 and 3 did not even enter the witness box to AUE No.12-08 -5- substantiate their case in the written statement and, in any event, it is not open to the Appellants to raise such contentions before this Court. Learned Counsel as such submits that considering that substantial delay has occasioned to enable the Respondent no.1 to claim the compensation, this Court should dismiss the above Appeal at the threshold. 7. I have carefully considered the submissions advanced by the learned Counsel appearing for the respective parties as well as Shri Valmiki Menezes, learned Counsel appearing for the Respondent no.3. I have also gone through the records and the impugned Judgment passed by the Presiding Officer of the Employees Insurance Court, North Goa, at Panaji. On perusal of the impugned Judgment, I find that the learned Presiding Officer on the basis of the pleadings of the parties, has framed four issues. The learned Presiding Officer has taken note of the fact that in the affidavit filed by the Respondent no.1, there is a categorical averment to the effect that he was employed as an electrician in the factory of the Respondent no.2 and that being a workmen, he was covered by the provisions of E.S.I. Scheme and was also having E.S.I. Card. The factory of the Respondent no.3 was supplying ice to the factory of the Respondent no.2. It is further the contention of Respondent no.1 that the factory of Respondent no.3 had a branch at Ribandar by name and style “Radhey Ice Factory”. It is further the contention of the Respondent no.1 that upon instructions from his employer, the Respondent no.2, he used to proceed to carry out electrical works for the Respondent no.3 as well as at their said branch at Ribandar. The learned Presiding Officer has also noted the fact that the Respondent no.3 did not lead any evidence to dispute the fact that the AUE No.12-08 -6- Respondent no.3 was supplying ice to Respondent no.2 and that the Respondent no.1 was directed to carry out some works in the factory from time to time. As the Respondent nos. 2 and 3 did not lead any evidence to substantiate their contention in the written statement, the learned Presiding Officer came to the conclusion that there were business commitments between the Respondent nos. 2 and 3. On affidavit, the Respondent no. 1 has also stated that he used to be directed to carry out electrical works for the Respondent no.3 as well as to their said branch at Ribandar. These facts have also not been disputed by the Respondent nos. 2 and 3 by leading any evidence on record. This fact has further been corroborated by Aw.2, who was an employee of the Respondent no.2. On the basis of such corroborative evidence on record, the learned Presiding Officer came to the conclusion that the Respondent no.1 was working at the relevant time, upon instructions, from the Respondent no.2. The accident in the present case occurred at the branch office at Ribandar on 14.11.1998 at about 4.00 p.m., which resulted in ammonia leakage and, consequently, the Respondent no.1 suffered serious burn injuries on his face and both his eyes. Another material piece of evidence on record is the report submitted by the Respondent no.2 about the said accident in form no. 16(Regulation 68). The said certificate discloses that the Respondent no.2 had, inter alia, mentioned that the accident had occurred on 14.11.1998 during the duty hours. The said form is at exhibit 32 collectively. On perusal of the said form, there is a specific averment made therein that the accident occurred during the regular shifts in the factory machines room due to leakage of liquid ammonia from the compressor. No doubt, the Respondent no.1 was referred for treatment to the hospital but, however, it is material to note that the Respondent no.2 made medical AUE No.12-08 -7- claims on behalf of the Respondent no.1 to the E.S.I. Office at Margao and such amounts were duly paid and/or reimbursed. The Tribunal has rightly considered the report and found that such report would itself establish that the Respondent no.2 had accepted that the accident had occurred during the course of the employment with the Respondent no.2. 8. Mrs. Agni, learned Counsel appearing for the Appellants, has filed an application to produce additional evidence to demonstrate that on the relevant date, the signature of the Respondent no.1 is not found during the second half of the day in the muster book. The very fact that it is not disputed that his signature is found in the first half of the working hours, would itself disclose that on the relevant day, the Respondent no.1 had reported for duty with the Respondent no.2. As the Respondent no.1 was asked to carry out some duties for the Respondent no.3 on the said day, merely because his signature is not found for the remaining half when he admittedly met with an accident, by itself would not suggest that the Respondent no.1 was not in employment of the Respondent no.2 at the relevant time. Apart from that, the leave application, if any, has not even been produced by the Appellants to substantiate their alleged contention. The records of the muster book sought to be produced by the Appellants do not in any way advance their case to establish that the Respondent no.1 did not meet with an accident in the course of his employment with the Respondent no.2. 9. The learned Presiding Officer as such has rightly come to the conclusion that the injuries suffered by the Respondent no.1 falls within the AUE No.12-08 -8- meaning of Section 2(8) of the E.S.I. Act and is an employment injury. 10. With regard to the contentions of Mrs. Agni, learned Counsel appearing for the Appellants, I find that the questions sought to be raised by the Appellants are essentially questions of fact. Admittedly, the Respondent nos. 2 and 3 did not enter the witness box in support of their alleged contention in their written statement nor did the Appellants think fit to examine any persons on their behalf during the proceedings before the learned Presiding Officer. The Respondent no.1 has suffered serious injuries and it is not possible to accept the contention of the learned Counsel appearing for the Appellants that merely because written instructions have not been produced, the claim of the Respondent no.1 deserves to be rejected. The learned Presiding Officer has rightly appreciated the evidence on record and I find no perversity in such findings arrived at by the learned Presiding Officer whilst passing the impugned Judgment. 11. With regards to the Judgment relied upon by the learned Counsel appearing for the Appellants, the said Judgment is not applicable to the facts of the present case. In the said case, the employer was unable to prove that the accident had any casual connection with the work he was doing at the factory. In the present case, the situations is otherwise, the evidence disclose that Respondent no.3 was supplying ice to the Respondent no.2. The Respondent no.2 used to send Respondent no.1 to perform some duties for the Respondent no.3 and, as such, there was ample evidence on record to establish that the accident had occurred in the course of his employment. In the present case, there is no material AUE No.12-08 -9- adduced by the Appellant to suggest that Respondent no.1 was working contrary to any instruction of the Respondent no.2 at the relevant time. What is required in such cases is that there should be a casual connection between the employment and the accident. The employment is the cause and the accident is the effect. Hence, in the present case, the connection has been established as admittedly the Respondent no.1 was working for the Respondent no.2 and upon their instructions, he performed functions at the branch office of the Respondent no.3. 12. In view of the above, I find that there is no substantial question of law which arises in the present Appeal which calls for any interference of this Court. There is no infirmity committed by the learned Presiding Officer whilst passing the impugned Judgment. Hence, the Appeal stands dismissed and the application for additional evidence under Order 41 Rule 27 of the Civil Procedure Code filed by the Appellants also stands rejected. F .M. REIS, J. arp/* AUE No.12-08