STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

                                    (Additional Bench)

Savitri Devi, Widow of Late Sh. Ram Sewak, House No.1859, Block-D, Adarsh Nagar, Naya Gaon, District SAS Nagar-Mohali,  Punjab-160103

                                                                                             ...  Appellant.

                                               Versus

1. The Regional Director, O/o Employees’ State Insurance Corporation, Sector 19-A, Madhya Marg, Near Pracheen
   Shiv Mandir, Chandigarh-160019.
2. The Organizing Secretary, ICCW; Bal Bhawan, Sector 23-B, Chandigarh.

                                                                            ..... Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986 amended upo date against order dated 16.11.2022 passed by      District       Consumer Disputes Redressal Commission-I, U.T. Chandigarh in Consumer Complaint No.155/2019.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                       Mr.PREETINDER SINGH,MEMBER

Argued by:       Sh.M.G. Sharma, authorized representative of the appellant.                                   Ms.Seema Pasricha, Advocate for respondent No.1 alongwith                                 Sh.Sushain Jaidka, Social Security Officer of Respondent No.1.

                             Ms.Manjot Kaur, Advocate for respondent No.2.

 PER PADMA PANDEY,PRESIDING MEMBER

                   This appeal is directed against the order dated 16.11.2022, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it dismissed the complaint bearing No.CC/155/2019, being  meritless.

     2.                  Before the Ld. Lower Commission, it was case of the complainant/appellant that Late Mr. Ram Sewak, husband of the complainant was insured with ESIC (respondent No.1) through ICCW Chandigarh (respondent No.2). As per complaint, the insured person on the eventful day had gleefully started from his residence as per rough sketch (Annexure P/1) at around 8:10 AM to report on duty of respondent No.2 at 9:00 AM; but unfortunately at around 8:30 AM, the insured person  was probably hit by some unknown vehicle from behind and the victim had a fall because of the impact and further suffered head injury. He was picked up by a Police Control Room Van (PCR) and taken to  Govt. Multi-speciality Hospital, Sector 16, Chandigarh for first aid at around 8:50 AM. He was admitted in the hospital before 9:34 AM.   The treating doctor carried out requisite Lab Tests and after the scrutiny of reports at around 3:30 PM on 21.11.2017, the victim was referred to PGIMER, Chandigarh. On 27.11.2017, after 6 days of an extensive medical treatment, the insured person finally expired.  By that time, the relatives of the insured person  had come to know that he had suffered Aneurysm Rupture/Brain Haemorrhage due to head injury, so post-mortem of the dead body was not carried out due to religious reasons. It  was further averred that the insured person had met with an accident on the road while half way to his work-place and the route of his travel  and cycle as mode of his movement was also the same as usual.  Office timings of the deceased insured also matched his usual travelling schedule of  reporting on duty of his  employer.  It was further averred that the head injury suffered by the insured person on way to his work place cannot be called other than Employment Injury because as per settled law  when a worker  starts from his residence to his place of work, he is notionally on duty of his employer, provided timings and direction/mode of movement/transportation etc. remain unchanged.  The complainant, being widow of the insured person preferred claim which was found not tenable  and vide letter dated 18.1.2019 it was informed that there was no evidence of road side accident as per hospital’s record, however, there was sufficient evidence to infer that there was ruptured aneurysm probably due to  high Blood Pressure. Accordingly, the death of Late Sh.Ram Sewak was not accepted as an Employment Injury by the competent authority of the respondents. Alleging deficiency in service  for not granting  monthly pension alongwith arrears, interest and also payment of  Rs.55,000/- to the complainant as compensation on account of mental agony and physical harassment, a consumer complaint was filed. 

3.                  Respondents/Opposite Parties No.1 & 2 contested the complaint by filing their separate written  replies. In its reply, respondent No.1 stated that it was not a case of road accident, therefore, no post- mortem was conducted and no statement was recorded to that effect. Even no FIR was lodged to that effect. As per record, there was no eyewitness to establish the occurrence of accident. As per the treatment documents, Sh.Ram Sewak gained consciousness and he did not mention any history of accident, therefore, it is nowhere mentioned in medical treatment history. As per medical opinion on the basis of medical record of the deceased, there was ruptured aneurysm probably because of high BP.  It is also stated  that the  complainant did not disclose any cause of action to show that how and when the cause of action arose against the Opposite Party No.1 to prove  deficiency in service as alleged in complaint. It is   denied that the complainant is entitled to claim Rs.55,000/- for delay etc. It is further stated that after taking medical opinion, the competent authority  rejected the claim of the complainant and duly intimated to his son. It was pleaded that there was no deficiency in service and a prayer was made for dismissal of the complaint. 

4.               Opposite Party No.2/respondent No.2 in its written reply stated that the consumer complaint is not legally maintainable for the reason that the alleged cause of action, i.e. claim of dependent/widow pension, sought to be raised in the  complaint is not a ‘service’ as defined in the Consumer Protection Act 1986. Since contribution of ESI was deducted from the salary of the deceased employee and deposited with Opposite Party No.1 as per statutory requirements prescribed in the Employee State Insurance Act,1948 ;  and that a statutory deduction from salary cannot be termed as ‘consideration’- a pre-requisite for becoming a ‘consumer’. Thus, the complainant cannot be said to be a ‘consumer’.   It was further stated that the competent authority to sanction and release dependent/widow pension is Opposite Party No.1/respondent No.1 and whatever documents/information was required regarding the deceased employee from the answering OP that stands supplied to the complainant or Opposite Party No.1, as the case may be. Pleading that there was no deficiency in service or unfair trade practice on its part, a prayer was made  for dismissal of the complaint.

5.                  On appraisal of the complaint, and the evidence adduced on record, Ld. Lower Commission came to the conclusion that there was no deficiency in service or unfair trade practice on the part of the Opposite Parties and dismissed the  complaint of the appellant/ Complainant, being meritless, leaving the parties to bear their own costs.       

6.                 Aggrieved against  the aforesaid order passed by the Ld. Lower Commission, the instant Appeal  has been filed by the Appellant/Complainant for setting aside the impugned order and allowing the complaint.   

7.                     We have heard the authorized representative of the appellant, Counsel for both the respondents, and have gone through the evidence and record of the case with utmost care and circumspection.

8.                      The core question that falls for consideration before us, is as to whether, the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

9.                 Undisputedly the Insured late Mr.Ram Sewak was employed as Mali  and  his employer- respondent No.2 had duly enrolled the said worker as an Insured Person with respondent No.1 and all dues/contributions and subscriptions were used to be deducted from his monthly salary .The main ground, in the appeal, taken by the appellant is that the Ld. Lower Commission  failed to consider the provisions of law as provided under Section 2(8) which are further corroborated vide Section 51E and Rule 68 of ESIC Act,1948 wherein “Notional Extension of Work place’ has duly been defined as Employment Injury when the mode of travel, time of travel and direction of travel/commutation, happened to be the same as usual and as always from residence of the workman to his work place and back to residence from said work place. The plea of the appellant is that the death of the insured person occurred due to an internal injury on metal road and aneurysm rupture which was identified from C.T. Scan conducted on 21.11.2017, was conspicuously brain hemorrhage of  the injured when blood oozed out in brain vessel and the same had spilled around.    It was also put forth in the        appeal  that the Ld. Lower Commission has rejected the genuine claim of the complainant despite there being  three DDRs recorded by the police that there was road accident due to which deceased Ram Sewak was got admitted in Govt. Multi-specialty Hospital Sector-16, Chandigarh.  The representative of the appellant contended that the facts and circumstances in each case should be examined very carefully to determine whether the accident arose out of and in the course of employment, keeping in view at all time the theory of ‘notional extension’.  He further contended that the employer’s premises includes an area which the workman passes and re-passes in going to the actual place of work. The theory of notional extension can be made recourse in any reasonable manner to ascertain whether an accident to a workman may be regarded as in the course of employment, though he had not actually reached his employment premises.

10.                  On the other hand, learned Counsel for respondent No.1 contended that no such accident occurred in the course of employment and any accident which occurred to an employee while going to the place of employment or for the purpose of employment cannot be said to have arisen out of employment unless it can be shown that the employee was doing something incidental to his employment. Accident must take place within or during the period of employment. In support of her contention she referred to a judgment of Hon’ble Supreme Court in the case titled as Regional Director, ESI Corporation versus Francis De Costa (1996 LIC 2720), 1996 AIR(SCW) 3814 and stated that since there was no accident, the doctrine of notional extension of work place  is not applicable in the present case.

11.               The Learned Lower Commission while exonerating the respondents from the allegation of providing deficiency of service and indulgence into unfair trade practice, rightly observed as under ;

           “We peruse Section 2(8) of Employee State Insurance Act, 1948 which is reproduced here below, which defines employment injury. “employment injury” 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 the territorial limits of India”

           In the present complaint to avail the benefit of widow pension, the first thing which needs to be proved is that there was “accident” in which the deceased sustained injuries. In the present case on perusal of documents produced by the complainant, it does not appear to be a case of road side accident.

         The second condition precedent for liability under Section 2(8) of Act is that the accident had casual connection with the employment and the injury has been caused by the accident. In the present case, there is no connection of cause of death with employment. On perusal of  the treatment documents of General Hospital 16 (P-4), & PGI Chandigarh, the following opinion is provided by State Medical Officer ESI Corporation:-

         “In wake of above findings it can be interpreted that there is no evidence of Road Side Accident as per hospital record. However, there is sufficient evidence to infer that there was ruptured Aneurysm probably because of high BP. Aneurenal rupture cannot be linked to his employment.

          This does not seem to be case of Employment Injury.”

           DDR also does not reflect that it is a case of road side accident.

         Third necessary condition for liability of OP No.1 is that the accident must have occurred in the course of employment as mentioned above which the complainant has failed to prove.

          We are of the concerted view that in the present case all the three conditions precedent mentioned above to a liability under Section 2(8) of Act under “employment injury” are not fulfilled as the deceased died due to ruptured Aneurysm probably because of high BP as per doctor opinion which has no connection with his employment as no such accident qua the employment has taken place.”

The representative of the appellant could not show anything to the contrary which may persuade us to interfere in the order.   We find  that no case is  made out to interfere in the order, under challenge.

 12.                  For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed,   with no order as to costs. The order of the Ld. Lower Commission is upheld.

 13.                 Certified copies of this order be sent to the parties free of charge.

14.                     The file be consigned to Record Room, after completion.