Smt. Puttathayamma and Others Vs. Regional Director, Employees' State Insurance Corporation, Bangalore and Another (21.01.1998 - KARHC) - Court Judgment

Excerpt:
- section 138 & 139: [arali nagaraj, j] presumption that holder received cheque for discharge of debt held, the presumption under section 139 of the act extends only to the issuing of cheque towards discharge of a legally enforceable debt or liability and it has to be raised only after the complaint establishes that such debt or liability in fact existed as on the date of the cheque in question and that the cheque was given to him by the accused. therefore, since the very fact that the complainant lent to the accused a loan of rs.70,000/- and the accused issued in favour of the complaint and delivered to her cheque for the said loan amount of rs. 70,000/- have not been established by the complainant, no presumption under section 139 of n.1 act could be raised in favour of the complainant that the said cheque was issued by the accused towards discharge of the alleged loan amount. - while taking me through the facts and circumstances of the case and also urging the grounds made out in the memorandum of appeal, the learned counsel for appellants sri holla vehemently argued that there was no good reason for the esi court to reject the application and further to dismiss the main application of the appellants-applicants for dependents benefits totally overlooking the circumstances under which the appellants filed their application for the dependents benefits before the esi court belatedly. 6. according to sri holla, the esi court failed to note that the respondent 2-employer himself did not choose to report the death of the deceased and further that doctor of the respondent 2, esi corporation also failed to report the matter despite that the said esi doctor had treated the deceased at the first instance and also issued the medical certificate. in this context, he argued that the appellant 1 in her affidavit before the esi court had clearly stated that medical certificate in respect of the deceased was given to her in the year 1982 for the purpose of collecting the funeral benefits by respondent 1 and therefore according to mr. to sum up his arguments, sri gururajan submitted that the appellant had not made out any good ground for condonation of the delay. by observing the way in which the appellant 1 had affixed her signatures in the vakalat as well as the petition before the esi court, it is not difficult for one to say that she was an illiterate lady and all that she was knowing was to affix her signature in kannada; that being the position, it cannot be said that she was well informed of the dependents benefits admissible to her and her children under the esi act. further more, there was no good reason for her to doubt the conduct of her employer-respondent 2 in this regard. on going through thematerial on record it also appears to me that the learned judge does not appear to have applied his mind to the peculiar circumstances of the case and he had totally failed to see that the appellant 1 before him was an illiterate lady and furthermore the appellants 2 to 5 were helpless minors destined to be taken care of by their illiterate mother, the respondent 1 herein with an application for grant of dependents benefit available to them under law in esi act. 11. in my considered view in the matters like the one before the esi court, the court should not be utopian, but pragmatic down to earth to see actually the poverty, illiteracy, the living conditions and level of understanding of the larger part of our populace in this country, particularly when a dispute before the court is more to do with social justice under beneficial and social piece of legislation. in my considered view, the learned judge in the instant case had miserably failed to see the good case made out by the applicants for condonation of delay in filing la.1. this appeal is directed against an order dated 6-8-1994 on i.a. no. i filed in esi application no. 1 of 1994 passed by the employees' insurance court, channapatna at bangalore. in passing the impugned order the said court had rejected the said application for dependents benefits on the ground that the appellants have approached the court belatedly after 12 long years of delay.2. i heard the learned counsel for the appellants sri a.r. holla, sri r. gururajan appearing for respondent 1-esi corporation, and sri b.s. hadimani appearing for respondent 2-general manager of spun silk mills, channapatna. i have also perused the case records of the court below.3. the facts in brief are as hereunder:that the husband of the appellant 1 and the father of the appellants-minors nos. 2 to 5 died on 3-11-1981 while he was on duty due to employment injury, 'myo-cardial infraction' and that according to the appellants, the deceased died during the course of employment of respondent 2 and therefore they were entitled to dependents benefits under section 52 of the employees' state insurance act, 1948 ('the esi act' for short). that the appellants had filed their claim application, before the employees insurance court (hereinafter 'esi court' in short) on 10-1-1994 with a delay of about 12 years. they have also filed i.a. no. i under section 77(1)(g) of the esi act with a prayer that the delay in presenting the application be condoned and they be allowed to prosecute their application before the esi court. the said application was also accompanied by an affidavit sworn to by the appellant 1 on her behalf and also on behalf of her minor children, the appellants 2 to 5, wherein she had contended that her husband died on 3-11-1981 in the premises of the mill during the course of his employment, leaving behind him, his wife and 4 minor children, the appellants herein and further it is stated therein that they were entitled to receive the dependents benefits under the esi act consequent to the death of the deceased. it is further averred in the affidavit that the appellant no. 1 being an illiterate lady was not aware of the procedure to claim dependents benefits and that she was approaching respondent 2 all through for the said benefits and she was kept under promise by the respondent 2 that she would get the said benefits. it is also stated in the said affidavit that she was thus pursuing the matter with the respondent 2. it is also added therein that the accident report in question was sent by respondent 2 as late as on 11-3-1993 and finally that as against the claim put forth by the appellants, the respondent 1, esi corporation finally passed an order rejecting dependents benefits by a letter dated 27-7-1993 and that therefore they were forced to file an application before the esi court belatedly.4. in para 3 of the affidavit accompanying the i.a. no. i, the appellant 1 has stated as under;'i state that the statements made in the main application may please be treated as part of this affidavit, in order to avoid repetition. i am an illiterate lady and was not aware of the procedure to claim the dependent's benefit. i have been approaching the general manager, spun silk mills, for the said benefit and he has promised me that he would get me the dependent's benefit. later, on enquiry with the office of esic, i learnt that the esic doctor, who had treated my husband at the time of his death, did not send his report to the concerned authorities. i also learnt that the accident report was not sent to the office of esic. thereafter i have been pursuing the matter with general manager, spun silk mills, channapatna. however, the accident report was sent on 11-3-1993 and the opposite party has rejected my claim finally on 27-7-1993'. in support of the said i.a. no. i, the appellant 1 adduced the evidence from the side of the appellants and produced and marked a copy of representation dated 1-11-1992 as ex. a-1, medical certificate of the deceased as ex. a-2 and accident report as ex. a-3 before the esi court. she had also deposed before the esi court in support of the i.a. no. i on the lines of the application. the inspector of the esi corporation was examined, on behalf of the respondent 1. it had also produced ledger sheet of the deceased, marked as ex. r-1 before the esi court. on appreciation of the oral evidence and other relevant documentary evidence on record, the esi court passed the impugned order, wherein the court held that the appellants had not made out a case for condonation of delay in presenting the application under section 75 of the esi act, for dependents benefits and consequently the main application was also dismissed by the esi court without going into the merits in it. 5. aggrieved by the said order, the applicants before the esi court are before this court to challenge the same. while taking me through the facts and circumstances of the case and also urging the grounds made out in the memorandum of appeal, the learned counsel for appellants sri holla vehemently argued that there was no good reason for the esi court to reject the application and further to dismiss the main application of the appellants-applicants for dependents benefits totally overlooking the circumstances under which the appellants filed their application for the dependents benefits before the esi court belatedly.6. according to sri holla, the esi court failed to note that the respondent 2-employer himself did not choose to report the death of the deceased and further that doctor of the respondent 2, esi corporation also failed to report the matter despite that the said esi doctor had treated the deceased at the first instance and also issued the medical certificate. it is also his submission that when the esi court was interpreting the beneficial piece of legislation in esi act, it ought to have been liberal in the matter of consideration of the same and that in that view of the matter, the esi court would have allowed the application accompanying the main application for the dependents benefits filed by the appellants. incidentally he had also pointed out that the respondent 2-employer kept the appellant 1 under promise that she and her children would be afforded with the dependents benefits by them. for the said reasons sri holla prayed that the impugned order passed by the esi court rejecting the said application be set aside and in the process, this court be pleased to restore the application of the appellants and further be pleased to remand the main application to the esi court for fresh consideration. he also prayed that esi court be directed to consider the main application of the appellant on merits out of turn.7. on the other hand, the learned counsel appearing for the respondent 1-esi corporation sri gururajan while supporting the impugned order passed by esi court submitted that under sub-section (1-a) of section 77 of the esi act, the appellants had to file their application for dependents benefits within a period of one year. he also argued that the esi court could allow the application for dependentsbenefit if a case was made out by the appellants for such a condonation. according to mr. gururajan, the application for condonation of delay filed by the appellants was totally belated and without there being valid reasons assigned for such an inordinate delay of 12 years. in this context, he argued that the appellant 1 in her affidavit before the esi court had clearly stated that medical certificate in respect of the deceased was given to her in the year 1982 for the purpose of collecting the funeral benefits by respondent 1 and therefore according to mr. gururajan, it could be said that the appellants were not at all knowing about the admissibility of the dependents benefits under the esi act. to sum up his arguments, sri gururajan submitted that the appellant had not made out any good ground for condonation of the delay. he therefore, prayed that the instant appeal be dismissed.8. the learned counsel appearing for the employer-respondent 2, sri hadimani repudiated the argument of the learned counsel for respondent 1 and supported the impugned order passed by the esi court. however, he added that in the event this court were to come to the conclusion that the impugned order passed by the esi court is wrong, this court be pleased to set aside that order and remand the matter to esi court for consideration of main application on its merits.9. the sole question that arises for my consideration in the instant appeal is whether the impugned order passed by the esi court is just and proper and whether the same is based on the material evidence on record or not. at the threshold i have to point out here that the appellant 1 had stated in the i.a. i and in her evidence that she was an illiterate lady and was not in a position to contact anyone for claiming dependents benefits before the esi court. it is also her case in the application and also in the evidence that respondent 2-employer had assured the dependents benefits under the esi act to her and her children. by observing the way in which the appellant 1 had affixed her signatures in the vakalat as well as the petition before the esi court, it is not difficult for one to say that she was an illiterate lady and all that she was knowing was to affix her signature in kannada; that being the position, it cannot be said that she was well informed of the dependents benefits admissible to her and her children under the esi act. it is therefore, obvious that she totally took it for granted that her employer-respondent 2, who had also stated to have offered her an appointment on compassionate ground on the demise of her husband would get her the benefits under the esi act. further more, there was no good reason for her to doubt the conduct of her employer-respondent 2 in this regard.10. in the totality of the facts and circumstances of the case, it appears to me that the esi court would not have rejected the i.a. no. 1 filed by the appellant for condonation of delay in presenting the main application for dependents benefits under esi act. on going through thematerial on record it also appears to me that the learned judge does not appear to have applied his mind to the peculiar circumstances of the case and he had totally failed to see that the appellant 1 before him was an illiterate lady and furthermore the appellants 2 to 5 were helpless minors destined to be taken care of by their illiterate mother, the respondent 1 herein with an application for grant of dependents benefit available to them under law in esi act. as argued by the learned counsel for the appellants, sri holla, the court would have been liberal when it was dealing with the case one under a social piece of legislation in the esi act.11. in my considered view in the matters like the one before the esi court, the court should not be utopian, but pragmatic down to earth to see actually the poverty, illiteracy, the living conditions and level of understanding of the larger part of our populace in this country, particularly when a dispute before the court is more to do with social justice under beneficial and social piece of legislation. it should bear in top of its mind that social justice is our constitutional scheme and as such duty is cast on it to act fairly, justly and further liberally, so that court's action is always in aid to impart social justice to the parties before it. in my considered view, the learned judge in the instant case had miserably failed to see the good case made out by the applicants for condonation of delay in filing la. i in passing the impugned order.12. in that view of the matter, it appears to me that the impugned order is liable to be set aside; in the process the main application of the appellants in application no. 1 of 1994 for dependents benefits under the esi act filed by the appellants should be restored on the file of the esi court. therefore, i pass the following:order (1) the impugned order dated 6-8-1994 on i.a. i passed by the esi court in esi application no. 1 of 1994 rejecting the said application stands set aside.(2) the said i.a. i for condonation of delay of 12 years in filing the main application for the dependents benefits under the employees' state insurance act is allowed and further the consequential order dismissing the main petition of the appellants also stands set aside and in the process the main esi application no. 1 of 1994, on the file of esi court stands restored.(3) the esi court is directed to dispose of the said application on its merits. the said court is further directed to dispose of the said matter in accordance with law within a period of six months from the date ofcommunication of this order.the appeal therefore succeeds and accordingly allowed. no costs.the registry of this office is directed to return the record to the esi court at the earliest.