Full Judgment Text
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CASE NO.:
Appeal (civil) 6497 of 2001
PETITIONER:
P.B.Krishnankutty Nair
RESPONDENT:
The Regional Director,ESI Corpn. & Anr
DATE OF JUDGMENT: 07/03/2008
BENCH:
TARUN CHATTERJEE & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO.6497 OF 2001
HARJIT SINGH BEDI,J.
1. This appeal arises out of the following facts.
2. The appellant who was a covered employee under the ESI
scheme met with an accident in the course of his employment
on 15th June 1990. An accident report was sent by the
employer respondent No.2 in the present appeal to the
respondent Corporation. The Corporation however refused to
treat the injuries sustained, as injuries suffered during
employment on the plea that on the date of the accident the
employee was not covered under the ESI scheme. It was also
communicated to the employee by a communication dated 4th
December 1990 that he had ceased to be an employee with
effect from 1st October 1989 and therefore he would not be
entitled to any benefit for the disability but would be eligible
for sickness benefits for the period 16th June 1990 to
30th June 1990. The employee thereupon filed an application
before the Employees Insurance Court, Alappuzha claiming
the benefit of disability on account of the injuries that he had
suffered. In the counter statement filed by the Corporation, it
was pointed out that the employee as an insured person had
made contributions up to 30th September 1989 and that he
ceased to be an employee with effect from 1st October 1989 as
his salary had exceeded Rs.1600/- per month from 1st October
1989 and as such was not entitled to any benefit towards
disability. The Employees Insurance Court in its order dated
14th November 1991 examined the various provisions of the
Employees State Insurance Act 1948 (hereinafter called the
"Act") and in particular the definition of ’employee’ and
’insured person’ under section 2(9) and 2(14) respectively as
well as section 46 that dealt with ’benefits’ and ultimately
concluded that although the claimant ceased to be an
employee with effect from 30th September 1989 he was
nevertheless an "insured person" in terms of section 2(14) as
he had paid contributions towards his insurance which would
cover his case from 1st April 1989 to 30th September 1989
though he continued to be an insured person up to 30th June
1990 and as such his claim for the injury on 15th June was
fully justified under the Act.
3. Aggrieved by the order of the Employees Insurance Court,
the Corporation preferred an appeal before the High Court of
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Judicature at Kerala. The High Court in its judgment dated
28th February 2000 noted that the facts of the case were not
disputed and relying on a decision of the Division Bench of
that very court in MFA 621/1986 (Regional Director, ESI
Corporation vs. K.K.Surendra Babu) observed that if a person
was not an employee during a particular contribution period
and an accident had taken place during such period, he would
not be entitled to ESI benefits. Having held above, the court
further concluded that as the accident in the present case had
also occurred after the claimant had ceased to be an employee,
though within the contribution period, he was not entitled to
the benefit of the payment of insurance from the Corporation.
The appeal was accordingly allowed and the order of the
Employees Insurance Court dated 14th November 1991 was set
aside. It is in this situation that the matter is before us in
appeal at the instance of the employee.
4. Certain facts are admitted on record: the date of
accident 15th June 1990, and that the contribution had been
made for the period 1st April, 1989 to 30th September 1989
which brought the contribution period to 30th June 1990. In
these admitted facts, the learned counsel for the appellant has
raised several arguments before us with reference to the
statutory provisions. He has referred us to the definitions of
’employee’ in section 2(9) of the Act and to ’insured person’ in
Section 2 (14) of the Act and to section 46 which talks about
the benefits for an insured person in case of injury or
sickness, and has argued that as the claimant was an insured
person up to the end of the contribution period i.e. up to 30th
June 1990, the accident having taken place within that
period, the Corporation was liable to make payment to him.
As against this, the learned counsel for the respondent has
argued that the sine qua non for determining the eligibility for
the payment of insurance under the Act was that a person was
required to be an employee on the date of the accident and the
claimant had admittedly ceased to be an employee with effect
from 1st October 1989 and thus, he was not entitled to the
payment of any disability benefit.
5. At the very outset, we may point out that the judgment
relied upon by the Division Bench in reaching the impugned
decision has not been cited before us by any of the counsel.
We, therefore, do not have the benefit of the wisdom of the
Division Bench in those cases and have accordingly examined
the matter ourselves.
6. The matter must hinge on the various provisions brought
to our notice by the learned counsel. We produce hereinbelow.
Section 2(9), 2 (14) and Section 46 of the Act:
"Sec.2(9) "employee" means any person
employed for wages in or in connection with
the work of a factory or establishment to which
this Act applies and \026
(i) who is directly employed by the
principal employer on any work of, or
incidental or preliminary to or connected
with the work of, the factory or
establishment, whether such work is
done by the employee in the factory or
establishment or elsewhere; or
(ii) who is employed by or through an
immediate employer on the premises of
the factory or establishment or under the
supervision of the principal employer or
his agent on work which is ordinarily
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part of the work of the factory or
establishment or which is preliminary to
the work carried on in or incidental to the
purpose of the factory or establishment;
or
(iii) whose services are temporarily lent
or let on hire to the principal employer by
the person with whom the person whose
services are so lent or let on hire has
entered into a contract of service;
Sec.2(14) "insured person" means a person
who is or was an employee in respect of whom
contributions are or were payable under this
Act and who is, by reason thereof, entitled to
any of the benefits provided by this Act.
Sec.46.Benefits. \026 (1) Subject to the provisions
of the Act, the insured persons [their
dependants or the persons hereinafter
mentioned, as the case may be,] shall be
entitled to the following benefits, namely \026
(a) periodical payment to any insured person
in case of his sickness certified by a duly
appointed medical practitioner [or by any
person possessing such qualifications and
experience as the Corporation may, by
regulations, specify in this behalf
(hereinafter referred to as sickness benefit);
(b) periodical payments to an insured woman
in case of confinement or miscarriage or
sickness arising out of pregnancy,
confinement premature birth of child or
miscarriage, such woman being certified to
be eligible for such payments by an
authority specified in this behalf by the
regulations (hereinafter referred to a
maternity benefits);]
(c) periodical payments to an insured person
suffering from disablement as a result of an
employment injury sustained as an
employee under this Act and certified to be
eligible for such payments by an authority
specified in this behalf by the regulations
(hereinafter referred to as disablement
benefit);
(d) periodical payments to such dependants of
an insured person who dies as a result of
an employment injury sustained as an
employee under this Act, as are entitled to
compensation under this Act (hereinafter
referred to as dependants’ benefit);
(e) medical treatment for an attendance on
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insured persons (hereinafter referred as to
medical benefit; and
(f) payment to the eldest surviving member of
the family of an insured person who has
died, towards the expenditure on the
funeral of the deceased insured person, or,
where the insured person did not have a
family or was not living with his family at
the time of his death, to the person who
actually incurs the expenditure on the
funeral of the deceased insured person (to
be known as [funeral expenses]
Provided that the amount of such payment
shall not exceed [such amount as may be prescribed
by the Central Government] and the claim for such
payment shall be made within three months of the
death of the insured person or within such extended
period as the Corporation or any officer or authority
authorized by it in this behalf may allow.]
(2) The Corporation may, at the request of the
appropriate Government, subject to such conditions
as may be laid down in the regulations, extend the
medical benefits to the family of an insured person."
7. An examination of the provisions would show that
the claimant was an employee up to 30th September 1989
and ceased to be so on the next day as his salary had
exceeded Rs.1600/- per month which was the cut off wage
fixed under the Act at that time. Admittedly, also the
claimant was an insured person and the only difference
between the two contesting parties is with regard to the
significance of the contribution period which was to end on
30th June 1990. For determining as to whether an
employee was entitled to the benefit under the Act,
reference has to be made to section 46(c) which would cover
the present case. Section 46(c) specifically provides for two
cumulative conditions for its applicability i) the claimant
must be an insured person and ii) that such an injury must
be sustained when he was an employee. We therefore find
that as the injury had been suffered after the claimant
ceased to be an employee, he would not be entitled to any
benefit of disablement notwithstanding the fact that his
contribution period and his status as an insured person
continued up to 30th June 1990. The Corporation has been
taken pains to point out that certain benefits which would
accrue to the claimant such as the benefit of sickness, has
already been given to him. In this view of the matter, we
find no merit in the appeal. It is accordingly dismissed. No
costs.