1. The present appeal has been preferred by the appellant- ESI Corporation against the order dated 3-9-1993 passed by the Employees' Insurance Court, Ahmedabad, in ESI Application No.56 of 1988 whereby the application filed by the dependents of deceased Rameshbhai, the present respondents herein, was allowed.
2. Facts in short are that deceased Rameshbhai was working as a helper in R.J.K.Industries and he was an insured person vide insurance No.36/1343143. The deceased Rameshbhai was on Privilege Leave with effect from 1-3-1988 to 26-3-1988 and on 17-3-1988 at about 10.30 p.m. he had gone to his factory for getting salary and leave encashment amount on bicycle. While returning, he collided with a truck and died on the spot. The present respondents, being dependents of the deceased filed an application being Application No.56 of 1988 before the ESI Court praying for compensation. ESI Corporation filed its reply vide Ex.3 contending inter alia that deceased was on leave and hence, injury received by the employee would not be falling under the category of employment injury and, therefore, claimants are not entitled to any compensation. The trial court, after framing issues and after considering oral as well as documentary evidence, held that the deceased Rameshbhai died during employment and dependents of the deceased are entitled to get compensation as per Schedule-I which is under challenge in this appeal.
3. Heard learned advocate, Mr.H.S.Shah for the appellant ESI Corporation and learned advocate, Ms.Asha Gupta for the respondents.
4. Learned counsel, Mr.H.S.Shah for the appellant submitted that it is an admitted fact that deceased was on Earned Leave and he went to the place of service not for the purpose of doing job but for collecting salary and leave encashment amounts and, therefore, from any stretch of imagination, it cannot be said that the incident took place during the course of employment. He further submitted that trial court has relied upon the judgment in the case of Sadgunaben Amrutlal & Ors. Vs. ESI Corporation reported in XXII GLR page 776, however, according to him, said judgment has been overruled by the Higher Forum.
5. Learned advocate, Ms. A.H.Gupta for the respondents, dependents of the deceased, submitted that no error has been committed by the trial court and rightly held that for getting salary and leave encashment amounts, the worker has to go to the factory. She further submitted that as leave is the right of a worker, injury caused to the worker while returning from the place of service, either for collecting salary or leave encashment amounts, is an injury caused during the course of employment. She further submitted that dependents are very poor persons and trial court relying upon the judgment reported in 22 GLR page 776 has rightly passed the order which is legal and valid requiring no interference in this appeal.
6. This Court has gone through the judgment and order passed by the ESI Court together with oral as well as documentary evidence produced on record.
7. It is an undisputed fact that the deceased went to the factory for collecting salary and leave encashment amounts. As deceased went to collect salary and leave encashment at the place of service, it could not be said that he went to the factory for doing job and, therefore, the respondents are not entitled to any benefit. Reliance is placed on a decision of Three Judge Bench of Hon'ble Apex Court reported in AIR 1997 Supreme Court page 432 in the case of Regional Director, ESI Corporation and another Vs. Francis De Costa and another. In the said case, an employee on his way to factory met with an accident a kilometer away from the said place and sustained injuries. It was held therein by the Hon'ble Apex Court that said injuries cannot be said to be caused by accident arising out of and in the course of his employment. In the present case, the employee met with an accident while returning after collecting the salary and leave encashment amounts during his leave period. In view of the above law laid down by the Hon'ble Apex Court, this Court is of the opinion that the trial court has committed a grave error in holding that the deceased worker died during the course of employment. Hence, this appeal deserves to be allowed.
8. This appeal is accordingly allowed. The impugned order dated 3-9-1993 passed by the Employees' Insurance Court, Ahmedabad, in ESI Application No.56 of 1988 is quashed and set aside. It is ordered that the amount which was already paid to the respondents-dependents of the deceased will not be recovered from the respondents. If amount as ordered by this Court (Coram: S.D.Shah,. as His Lordship then was) as early as in 1995 has not been paid by the applicant Corporation as dependency benefit, the respondents are at liberty to take appropriate action against the concerned authority for non-compliance.
[M.D.SHAH,J.] radhan