Gangaben and Others vs Regional Director, E.S.I. Corporation

J.N. Bhatt, J.—Whether the appellants have successfully proved that the death of the deceased was the result of employment injuries sustained by the deceased who was an insured person under the provisions of the Employees'' State Insurance Act, 1948 (''Act'' for short) and whether they are entitled to dependent''s benefits u/s 77 of the Act is the theme of this appeal u/s 82 of the Act.

The appellants are the original applicants who claimed dependents'' benefits from the respondent-E.S.I. Corporation as dependents of the deceased workman Chhaganbhai Havabhai by invoking assistance of provisions of Section 77 of the Act.

According to the case of the original applicants, deceased Chhaganbhai was an insured person under the Act and he was employed by the New Swadeshi Mills. The deceased was working in the Frame Department of the company in the night shift on 3.10.1974 are Drawing Tenter. Hewasworkingon Machine No. 5-A. The deceased while working on 3.10.1974 in the night shift, sustained injuries on" the back of his head on account of a fall because of uneasiness and giddiness. Other workers of the deapartment having come to know about this, informed the responsible officer of the department. The accident occurred at l.00 a.m. The deceased had become unconscious and he was taken to the office of the Spinning Master who was informed about thedetailsof this accident. The Spinning Master has sent the deceased to the dispensary for primary treatment. Upon examination in the dispensary of the Millis, the deceased wasadvised to be shifted to the Emergency dispensary where he was takenon the next day, i.e. on 4.10.1974. The deceased was later on shifted to D-9 dispensary where he was admitted as an Indoor Patient from 4.10.1974 to 11.10.1974. Since there was no improvement in the health of the deceased, he was shifted to the Civil Hospital at Ahmed a bad where hewas treated as an Indoor Patient from 11.10.1974 to 7.11.1974. Again on 8.11.1974 the deceased was examined in the Civil Hospital. The deceased was under treatment at D-9 dispensary upto 13.11.1974. The deceased was, thereafter, shifted to private dispensary of Dr.Suryakant Shah, Physician who treated the deceased upto 25.11.1974. It is also the case of the applicants that since he was again bleeding, the deceased was admitted in the Civil Hospital on 26.11.1974 and while under treatment, he expired on 1.12.1974. According to the case of the claimants, the deceased expired because of the employment injuries sustainedon 3.10.1974. The cause of death was due to chronic renal failure with uremia. AppellantNo. 1 is the widow of the deceased and appellant Nos. 3 to 7 are the least dependents of the deceased. They are the original applicants who claimed dependents'' benefits.

The respondent-E.S.I. Corporation resisted the claim by written statement Ex. 4 contending inter alia that the deceased was suffering from chronic disease of uremia and he was under treatment. According to the case of the E.S.I.Corporation, death is not attribu table to any employment injury, and therefore, the claim is not maintainable.

The original applicants relied on the evidence of the following witnesses:

Original applicant No. 1--widow Gangaben, Ex. 7.

Co-workman Mohanbhai Ghelabhai--Ex. 8.

Dr. Patel, Ex. 23.

The ESI Corporation did not lead any oral evidence. The medical papers are produced at Exs. 17, 18 and 19.

In order to claim dependent''s benefits u/s 77 of the Act, it must be shown that the deceased died on account of employment injuries. The nexus between the death and employment injuries must be proved. If no evidence is led to show casual connection between the death and the employment injuries, dependent''s benefits are not available. Upon appreciation of the facts and circumstances, the ESI Court found that the applicants have failed to prove that deceased had sustained personal injuries on 3.10.1974 in an accident resulting into his death on 1.12.1974. If the injured person is hurt or if such hurt results into death, in the course of his work and duties, his dependents are entitled to pension because of the dependent''s benefits.

The original applicant-widow of the deceased, Gangaben is examined at Ex. 7 who has no personal knowledge about the accident occurring in the factory premises on 3.10.1974. Co-workman Mohanbhai Ghelabhai is examined at Ex. 8 who was working with the deceased in the night shift at the relevant time. According to his evidence, the deceased had sustained gidddiness and fell down and he sustained injuries. The deceased was also under treatment of private consultant Dr. Suryakant Shah. The applicants have examined Dr. Suryakant Shah to show that there was injury on the back of his head and it was the cause of his death.

The applicants relied on the medical case papers. Ex. 17 is the history card of Arvind, Ashok and Arun Mills Hospital. According to this documentary evidence, the deceased was admitted on 4.10.1974 and was discharged on 11.10.1974 and he was treated for uremia. Ex. 18 is the medical card of Civil Hospital, Ahmedabad where the deceased was admitted on 13.11.1974 and was discharged on 17.11.1974. According to the said medical evidence, the deceased was undergoing treatment for uremia. The deceased was again admitted in the Civil Hospital on 26.11.1974 for treatment. The deceased died on 1.12.1974, at 8.30 a.m. There is no dispute about the fact that the cause of death was due to chronic renal failure with uremia. No post-mortem was done for ascertaining the cause of the death. There is no evidence on record to show that the deceased had sustained head injury and that injury on the back of the head was serious.

E.S.I. Court onappreciation of the facts and circumstances and the medical evidence on record, reached the conclusion that the deceased was suffering from renal failure which means the deceased was suffering from malfunctioning of kidneys. In such a situation, malfunctioning of kidneys which leads to uremia and uremia means retention in the blood of urinary constituents due to failure of the kidneys to excrete them and the constitutional symptoms resulting. In such disease, headache, nausea, vomiting and coma are normal attributes. Therefore, the E.S.I. Court observed from the analysis of the evidence that the deceased was suffering from disease of kidneys and uremia and he may have got feelings because of that disease while he was working and may have fallen because of such reelings. The Trial Court observed that the applicants have failed to show that there was casual connection between the death and the employment injury. It is also found by the Trial Court that there is no evidence to show that the nature of employment was such which may lead to aggravation of that disease if any he had sustained. In the absence of such evidence, the E.S.I. Court held that there was no casual connection between the disease and his employment or that there was some aggravation of the disease because of the employment so that even inference could be drawn.

Having regard to the facts and circumstances and the evidence on record, this Court finds that the views and ultimate conclusion recorded by the E.S.I. Court cannot be said to be unreasonable, unjust, perverse or illegal. It must be shown by evidence that if a person suffers from chronic renal disease or disease of kidneys, the exertion one takes in the employment in which the deceased was engaged, it was likely to aggravate or accelerate the disease and likely to cause death. There is no evidence on record to show what was the nature of work and whether it was likely to aggravateor accelerate the disease of kidneys. The original applicants relied on the evidence of Dr. J.K. Patel, Ex. 23. There is no dispute about the fact that he is not one of the doctors who had examined, does not prove the employment injury. It is also very clear from the evidence of Dr. Patel that there are various causes for kidnely diseases. Since the death is related to the kidney disease, it must be shown even prima facie that there was direct connection between the death and the employment of the deceased. Malfunctioning of kidney is not shown to have connection with the employment. Employment itself is not shown to be a cause for the death. There is also no evidence to show that employment was a contributory cause or factor so that it could be held as employment injury even on the basis of Section 51 of the Act wherein a presumption can be raised that if the accident arises in the course of employment, it will be presumed to have arisen out of employment. In the absence of any evidence to show the nexus between the accident and the employment, the claimants are not entitled to dependent''s benefits. The E.S.I. Court has observed that the evidence on the contrary suggested that the sole cause of death by way of manifestation ofdisease relating to kidneys.

No doubt, if nexus is established between the death and the employment, the original claimants are the dependents of the deceased within the statutory background of Section 2(6A) of the Act which provides for definition of ''dependent. The applicants are falling within the said definition and would be entitled to dependent''s benefits u/s 77 of the Act.

Employment injury is defined u/s 2(8). It 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 tine territorial limits of India. The Trial Court on assessment of the evidence has observed that on account of failure on the part of the applicants to show that the death is the result of the employment injury, they are not entitled to dependent''s benefits. Even while examining the evidence on the touchstone of preponderance of probabilities, the injury on the back of the deceased is not the cause of death of the deceased.

Having regard to the facts and circumstances and the evidence on record, it cannot be contended that the death of the deceased was relatable to the employment injury. The cause of death was chronic renal failure within uremia. Therefore, presumption u/s 51A also cannot be pressed into service. Section 51A provides that an accident arising in the course of employment and arising out of and in the course of employment be presumed for the purpose of provisions of the Act, in the absence of evidence to the contrary that it has arisen out of employment. Whether the death arose out of employment of the deceased is required to be determined by applying the test of casual relationship between the death and the employment injury or accident. The reliance is placed on three decisions of this Court in support of the submissions made on behalf of the applicants.

Firstly the decision of Division Bench of this Court rendered in Shantaben Thakor Vs. New Raipur Mills Co. Ltd., is relied on. It was held in the said decision that it was not necessary for the dependent of a deceased workman to establish that the deceased was engaged in such an exceptional work of a particular kind which placed excessive strain on the deceased so as to result in his death. If the work that the workman was doing was likely to accelerate death, it could be said the casual connection between the injury and the accident was established and the accident and the work done were in the course of employment. In that case, it was also held that contention, if made, that there must be positive evidence to show that death was not caused by the disease butan excessive strain of doing a particular work in which the workman was engaged at the time of his death cannot, therefore, be accepted. The question whether the evidence in a particular case was sufficient to create the liability of the employer for compensation would no doubt depend upon the fact whether the evidence has as such tendency and probability that it would satisfy a reasonable man that the work contributed to the causing of the injury or that the workman was engaged in such activity that was likely to cause such strain as would accelerate his death. The pre-existing disease or infirmity would not by itself disentitle the dependents of the deceased workman from claiming compensation and that the existence of such disease or infirmity would not by itself negative the possibility of the existence of a casual connection which is required to prove a claim for compensation. Unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time and that it would also be natural to presume that such work involved some strain, the disease that was existing was likely to be aggravated provided there was some evidence to support such a finding. Further, it would not be necessary for the claimant to establish specifically that the deceased at the relevant time was working on a particular job which exercised upon him such excessive strain that resulted in his death. The real question in such cases would be whether the deceased had worked at the relevant time on a job which would cause strain and whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death.

In the present case, what was the nature of work and whether it was likely to accelerate pre-existing disease, etc. has not been proved. In absence of nature of employment and the job or the work which was the deceased was doing, legitimate presumption or justifiable presumption cannot be made so as to hold that the pre-existing disease had been aggravated on account of such work. Therefore, the said decision is of no avail to them.

Reliance isalso placed on the second decision of this Court rendered in the case of Amubibi, wdlo Sheikhamu Sheikmohatnmed v. Nagri Mills Co. Ltd., reported in (1977) GLR 681, wherein this Court has observed that leaving aside any technical consideration, common courseof human conductor common sense knowledge tells us that coronary insufficiency is generally the consequence of strain, extra work, fatigue. In the case of workman working on a loom in an artificial atmosphere of humidity, if he is shown to have died on account of coronary insufficiency one may safely assume that it was the result of strain or fatigue caused by continuous work. In any event, if strain of work causes insufficiency that strain itself would be cause of death and it would be personal injury suffered by an employee in course of employment within the meaning of Workmen''s Compensation Act. In that case, the workman had died on account of heart failure due to acute coronary insufficiency. Considering the nature of work and the cause of death, it was presumed that the death was due to personal injury suffered by an employee in course of employment within the meaning of Workmen''s Compensation Act. So is not the factual scenario in this appeal before this Court. In the present case, the injury was on the back of the head. On 3rd October, 1974 when the deceased was working on a machine in night shift, on account of giddiness, he had fallen down and had sustained injury on the back of the head. The cause of death is renal failure. There is no connection with the injury sustained by the deceased with his death. As there cannot be a presumption or assumption that renal failure was on account of injury on the back of the head as contended on behalf of the appellants. The pre-existing kidney disease is not shown to have been aggravated. As such in absence of nature of work done by the deceased, there cannot be a presumption thatit was such that itmust have aggravated pre-existing disease which culminated intodeath. Therefore, the said decision is also not helpful to the appellants.

Lastly, the reliance is placed on a decision of this Court rendered in the case of Broach Municipality v. Raiben Chimanlal and Ors. reported in 1986 CLR 398. This decision is also not applicable to the facts of the present case. The principle laid down in the said decision cannot be questioned. It is held in the said case that the injury suffered during the course of employment had resulted into the death. In that case, the workman had died because of heart-attack suffered during course of employment. There was evidence that the deceased workman was performing his duty as a driver from 7 a.m. and he had worked upto 20''clock next morning. Therefore, it was observed that by no stretch of reason, it can be said that the work of the deceased did not involve stress and strain. Thus, there was evidence about type and nature of work to be done by the deceased which had aggravated heart disease. Therefore, the principle laid down in Amubibi, wdlo Shaikhamu''s case (supra) was followed and the appeal of the employer was dismissed.

As observed hereinbefore, in absence of sufficient evidence or any evidence, E.S.I. Court has rightly observed that there was no direct nexus between injury and deceased. Upon true analysis and appreciation of the evidence on record, this Court is also satisfied that the ultimate conclusion reached by the learned Judge of E.S.I. Court, is justified. There is nothing on record to connect the unfortunate death of deceased and employment injury.

Having regard to the facts and circumstances and evidence on record and relevant provisions of the E.S.I. Act, the ultimateconclusion recorded by the E.S.I. Court cannot be said to be unjust, unreasonable or perverse requiring interference of this Court in this appeal u/s 82 of the Act. With the result, this appeal is required to be dismissed being meritless. Accordingly, it is dismissed with no order as to costs, in the facts and circumstances of the case.