M.D. Shah, J.@mdashThe present appeal arises from an order dated 25-5-2001 passed by the Employees'' Insurance Court, Ahmedabad, in ESI Application No. 12 of 1992 whereby the application of the appellants was dismissed.
2. In brief, it is the case that husband of the appellant No. 1 while working in Subhlaxmi Mills on 17-8-1991 died due to chest disease in a hospital. To get the dependency benefits being legal heirs of the deceased, the appellants filed an application in the EI Court, Ahmedabad, after serving a notice on the respondent. On recording the evidence of the witnesses and considering the documents on record, the EI Court dismissed the application of the appellants.
3. Being aggrieved by the said dismissal, the appellants preferred First Appeal No. 2306 of 1995. Learned Single Judge of this Court was of the opinion that since no substantial question of law was involved in the appeal and tuberculosis of lungs cannot be said to be an ''occupational disease'', as defined u/s 52A of the Employees State Insurance Act, 1948, (''the Act'' for short), the provisions of Section 96 of the CPC could not be invoked by the appellants and hence, the appeal was summarily dismissed.
4. In the appeal preferred by the appellants against the said order being Letters Patent Appeal No. 1288 of 1996, a Division Bench of this Court held that the case of the deceased-Gopalbhai was covered under the Act. However, since there was no pleading in the application nor was any evidence led to that effect as recorded by the EI Court, the matter was remanded to EI Court.
5. The EI Court, on considering the pleadings and evidence led by both the parties, dismissed the application of the appellants vide impugned order, giving rise to the present appeal by the appellants, who are widow and minor children of the deceased-Gopalbhai Haribhai Chunara.
6. I have heard learned Counsel, Mr. K.M. Sheth for the appellants and Mr. Mayur S. Barot for the respondent and have also gone through the record as well as the impugned order passed by the EI Court.
7. Mr. Sheth, learned Counsel for the appellants, submitted that it was proved beyond reasonable doubt before the EI Court that tuberculosis was sustained by the deceased as the cotton and dust went into the lungs of the deceased while filling up bobbins during the course of employment in Subhlaxmi Mills. He further submitted that the room in which the deceased had worked did not have a window except a door and in view of the unhygienic working condition prevailed at the place of employment, Gopalbhai became the patient of tuberculosis. Although this fact has been proved through the evidence of deposition of the wife of the deceased as well as the important witness namely, Ramswarup Sunderlal Sharma, the trial court, by not appreciating the evidence on record in its true perspective, held that death of the deceased was not caused due to employment injury and dismissed the application of the appellants.
8. Mr. Mayur Barot, learned Counsel for the respondent, however, submitted that the order passed by the trial court is legal and proper. He further submitted that as per the evidence of doctor, cause of death was not due to employment injury and therefore, the trial court rightly rejected the claim of the appellants. He further submitted that as cause of death in the death certificate was shown to be tuberculosis, it means that Gopalbhai died due to sickness and not due to occupational disease and hence, no benefit under the Act would accrue to the appellants and hence, the claim was rightly rejected by the trial court. He was, however, extended sickness benefits. According to him, u/s 82 of the Act, no substantial question of law has arisen to file the appeal against the order passed by the EI Court and, therefore also, appeal deserves to be dismissed. He relied on the decisions of the Kerala High Court in the case of
9. This Court has gone through the evidence on record more particularly evidence of witness, Ramswarup Sunderlal Sharma. As per the evidence of this witness, Gopalbhai was working with him in the autolooms division and because of cotton and dust spread in the room entered into his lungs, he became a patient of tuberculosis. He specifically deposed that Gopalbhai was doing the work of filling of bobbins in a basket which can contain 150 boggins for which, he had to go up and down for more than 100 times. He further deposed that no Helper was provided to him and a basket was only given to him for doing this work. He further deposed that the room in which the deceased was working did not have any window nor provision for any ventilation but had a door and if any person passes by touching the said door, the door would get automatically shut. He further deposed that 48 autolooms were there in the said room. He further deposed that at the time of weaving the clothes, cotton, dust and other small particles used to spread in the room and as room remained closed during the course of work, the said particles enter into the lungs while breathing and Gopalbhai became the patient of tuberculosis during the course of employment. According to this witness, the deceased did not have the habit of taking tobacco. He further deposed that in past also, three boys died in the said division and he also became patient of cancer while working in the said division. According to him, persons working in the said division would meet with physical incapacity.
10. It is to be noted that this witness was not cross-examined on any of these aspects and hence, the testimony of this witness remained unchallenged and uncontroverted. In his cross-examination, this witness admitted that the deceased used to work in night shifts on alternate months. Nothing came out from his cross-examination which falsify the evidence of this witness. Thus, the evidence of this witness inspires confidence in the mind of the Court and it is established beyond reasonable doubt through the evidence of this witness that the deceased died due to injury of tuberculosis sustained during the course of employment.
11. Another important witness is the doctor, Dr. Kirit Dharaiya, who was examined at Ex.31. He deposed that if a person works in a room where dust and cotton are spread, there are chances of tuberculosis of lung being suffered by the person and due to infection of the same, Cardiac Failure can also occur. He however denied in his cross-examination when he was shown Sr. No. 3, Part-C of Schedule-3 of the Act that Gopalbhai was suffering from lungs tuberculosis but the disease shown in the said column and the disease which the deceased was suffering from are different. The respondent did not examine any witness.
12. In light of the evidence of afore referred witnesses, Sr. No. 3 of Part-C of Schedule III of the Act is to be seen, which reads as under:
Sr. No. Occupational disease Employment
3. Bronchopulmonary diseases caused by cotton, flax hemp and sisal dust (Byssinosis)
All work involving exposure to the risk concerned.
13. It is clear from the above that injury caused to the deceased would fall under Sr. No. 3 of Part-C of Third Schedule of the Act. This is supported by the unchallenged testimony of witness Ramswarup Sunderlal Sharma. Merely because it was deposed by the doctor that the injury sustained by the deceased was different from the injury described in the Schedule-III, it could not be said that the deceased did not suffer from tuberculosis of lungs during the course of employment and that it was not an employment injury especially when it has been proved through the evidence of witness Ramswarup Sharma substantiated by the death certificate.
14. In view of the above, this Court is of the opinion that trial court failed to read and appreciate the important piece of evidence in its true perspective more particularly the evidence of witness Ramswarup Sunderlal Sharma. Merely on the testimony of the doctor deposing that the injury shown in the Schedule-III was different from the injury sustained by the deceased, it appears that their claim was disallowed by the EI Court. Although Sr. No.3 of Part-C of Third Schedule would cover the case of the deceased, merely because of the testimony of the doctor, said provision was held to be not applicable in the present case by the trial court which has resulted into miscarriage of justice. This Court is of the considered opinion that death of the deceased Gopalbhai was caused due to injury sustained during the course of employment in Subhlaxmi Mills. Thus, the trial court was erred in not properly appreciating the evidence led before it which has resulted in miscarriage of justice and since it directly and substantially affected the merits of the case resulting into miscarriage of justice, it is a substantial question of law. The trial court, having failed to take a positive approach of the beneficent legislation, has deprived the appellants of their fair claim.
15. There is, therefore, no force in the submission of Mr. Bharot that death of the deceased Gopalbhai was not caused due to employment injury. Similarly, his submission that no substantial question of law has arisen in this appeal has also no thrust. In view of the above, since this Court has held that a substantial question of law has arisen in this appeal, the decisions relied on by the learned Counsel, Mr. Barot, would not be applicable to the facts of this case.
16. Thus, the appeal is allowed. The impugned order of the EI Court is quashed and set aside. The application filed by the widow and children of the deceased is allowed. The appellants are entitled to get compensation as per the provisions of the Act with interest @ 9% p.a. from the date of the application till realization. There shall be no order as to costs.
