Holding

The Court held that the deceased's death was not an employment injury under the Act, and therefore the dependency benefit could not be granted.

Summary

The Employees' State Insurance Corporation (ESI) appealed against an ESI Court order granting dependency benefits to the family of the deceased Ramanbhai Patel, who died of a cardiac arrest while on duty. The appellant argued that the death was due to a pre‑existing coronary disease and not an employment injury under Section 2(8) of the Employees' State Insurance Act, 1948. The respondent claimed that physical workload and mental stress at work caused the heart disease, invoking the presumption under Section 51A. The Court examined the statutory definition of "employment injury" and the burden of proof, emphasizing a liberal interpretation of the Act but requiring a causal nexus between employment and injury. Relying on precedent, the Court held that no evidence linked the death to an occupational disease arising out of and in the course of employment. Consequently, the appeal was allowed, the ESI Court order was set aside, and the dependency benefit claim was dismissed.

Issues considered

Whether death due to coronary heart disease constitutes an "employment injury" under Section 2(8) of the Employees' State Insurance Act, 1948.
Whether the presumption under Section 51A in favour of the claimant can be rebutted by the ESI Corporation.
Whether the ESI Court erred in granting dependency benefit without sufficient evidence of a causal link between employment and death.
Whether the matter involves a substantial question of law warranting High Court intervention under Section 82 of the Act.

Legislation cited

Employees' State Insurance Act, 1948s. 2(8), s. 51A, s. 82
Limitation Act, 1963s. 12, s. 5

Subjects

employment injurydependency benefitEmployees' State Insurance Actheart diseaseoccupational diseaseburden of proofliberal interpretationsection 2(8)section 51A

Judgment

C/FA/656/2011 CAV JUDGMENT DATED: 02/04/2026

Reserved On : 20/03/2026
Pronounced On : 02/04/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 656 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================

Approved for Reporting Yes No

==========================================================
EMPLOYEES STATE INSURANCE CORPORATION
Versus
SUDHABEN RAMANBHAI PATEL & ORS.
==========================================================
Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant
MS ASHA H GUPTA(1025) for the Respondent
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT

1. Being aggrieved by the Judgment and Order dated
3.12.2010 passed by the ESI Court, Ahmedabad in ESI
Application No.78 of 2005, the appellant – ESI Corporation
has preferred this first appeal u/s 82 of the Employees’ State
Insurance Act, 1948 (in short “the Act”).

2. Brief facts of the case are as under:-

2.1 Deceased Ramanbhai Shivabhai Patel was covered under
the insurance being No.37/4060376 and he was working as
Fitter mechanic in Bajaj Processors. On 6.9.2004, deceased

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Ramanbhai, while was working in second shift with hale and
hearty condition, suddenly at around 4:45 in late afternoon,
complained of chest and abdomen pain. Thereafter, he slept
in the corner of the working department. Since, his condition
was worsened, he was shifted to the Hospital, where the
doctor declared him dead at around 6:30 p.m.

2.2 In the hospital, postmortem of the deceased was carried
out, whereby cause of death recorded in the postmortem was
cardiac respiratory arrest due to coronary heart disease.

2.3 The claimant initially preferred an application before the
ESI Corporation vide letter dated 2.2.2005, which was
rejected vide letter dated 2.4.2005 by the ESI Corporation.

2.4 Being aggrieved, the claimant preferred ESI Application
No.78 of 2005 before the ESI Court seeking compensation,
which was allowed.

2.5 Being aggrieved, the ESI Corporation has preferred
present appeal.

3. Heard learned advocate Mr. Sachin Vasavada for the
appellant Corporation and learned advocate Ms. Asha Gupta
for the respondent claimant.

3.1 Learned advocate Mr. Vasavada for the appellant
referred to the judgment of this Court rendered in First
Appeal No.5069 of 2023 and submitted that this Court has
believed that injury of heart attack or heart disease being

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reason of death, is not an employment injury and therefore,
the claimant is not entitled to claim any compensation. He
would further submit that the facts of the present are
identical to the facts of the case mentioned in First Appeal
No.5069 of 2023 and thus, applying the ratio to the facts of
the present case, the ESI Court has committed serious error
in granting dependency benefit to the claimant.

3.2 Learned advocate Mr. Vasavada would further submit
that the substantial question involved in the matter is as to
whether heart attack being simplicitor cause of death can be
considered as employment injury within section 2(8) of the
Act? He would further submit that in the present case, the
claimant has not produced any evidence on record to suggest
that the deceased was suffering from physical stress and
trauma and which has developed heart disease. He would
further submit that the heart disease is not unknown in this
country, may it remain undetected, but its development is not
unknown in this country. He would further submit that the
deceased while was in duty, suffered heart attack and expired
and prior to it, at no point of time, he had any complaint of
physical stress and trauma or angina pain being result of
physical and mental stress and trauma being root cause of
heart disease. In absence of specific evidence thereof,
granting of compensation in favour of the claimant by the ESI
Court is an erroneous approach.

3.3 Learned advocate Mr. Vasavada submits that the
findings of cause of death cannot be considered as injury
arose out of the employment and therefore, the learned Court

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has committed manifest error in granting dependency benefit.

3.4 Upon above submissions, he prays the Court to allow
this First Appeal and quash and set aside the impugned order
passed by the ESI Court.

4. Having objected to the arguments of learned advocate
Mr. Vasavada, learned advocate Ms. Asha Gupta vehemently
submitted that the learned ESI Court has passed well
reasoned order in line of object and purpose of the ESI Act.
She would further submit that a specific pleading has been
made by the appellant that the deceased had complained of
physical work load and which may be converted into mental
stress and trauma being root cause of the heart disease. She
would further submit that necessary ingredients as defined in
section 2(8) of the Act are pleaded and established in the
matter.

4.1 Referring to section 51A of the Act, learned advocate
Ms. Gupta would submit that presumption as to accident
arising in course of employment runs in favour of the
claimant. The ESI Corporation is required to rebut this
presumption by leading evidence. She would further submit
that though the ESI Corporation has submitted report of the
State Medical Officer at Mark 6/8, such report is not signed by
any medical officer. Even, the original report has not been
produced and the ESI Corporation has not led evidence of any
of the officers, who has prepared such report to the effect that
the deceased has expired due to natural cause. In view of
above, she would submit that since the ESI Corporation has

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failed to dislodge statutory burden upon it, as against that, the
claimant has successfully established his claim and in that
circumstances, no substantial question of law arise in the
matter.

4.2 Upon above submissions, learned advocate Ms. Gupta
prays to dismiss the First Appeal.

5. Having heard learned advocates for the respective
parties and considering the record and proceedings, let refer
section 82 of the Act being governing provision to file present
First Appeal, as under:-

“82. Appeal.
(1) Save as expressly provided in this section, no
appeal shall lie from an order of an Employees’
Insurance Court.
(2) An appeal shall lie to the High Court from an
order of an Employees’ Insurance Court if it involves
a substantial question of law.
(3) The period of limitation for an appeal under this
section shall be sixty days.
(4) The provisions of sections 5 and 12 of the
[Limitation Act, 1963] shall apply to appeals under
this section.
If any substantial question of law is involved, appeal
before the High Court from an order of the ESI Court
is maintainable. In the present matter, the ESI
Corporation has raised following substantial question
of law.”

6. If any substantial question of law is involved, the appeal
shall iie before the High Court from an order of an Employees’
Insurance Court. In the present matter, the ESI corporation
has raised following questions of law as substantial questions

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of law:-

“(a) In, facts of present case and in view of the ESI
Act, Rules and Regulations, WHETHER the ESI Court
is right and justified in ignoring the vital statutory
provision about employment injury / stress which
causes a death to Insured Person? AND can the
opponent be given the disablement benefit as the
deceased died only because of disease for which the
deceased was suffering since long?

(b) WHETHER the ESI Court is right and justified in
not believing the evidences of doctors of ESI
Corporation and is it right and justified in ignoring the
evidences produced by ESI Corporation?

(c) WHETHER the diverse findings and conclusions of
the ESI Court are right and justified and based on
without leading evidences or they are contrary to the
weight of evidence on record AND WHETHER the ESI
Court is right and justified?”

7. Before examining that the aforesaid questions as
substantial questions of law of not, let refer the judgment of
the Hon’ble Apex Court in case of the ESI Corporation Vs. M/s
Radhika Theatre, rendered in Civil Appeal No.312 of 2023 to
mark object and purpose of the ESI Act. Para 6 and 6.1 are
relevant, which reads as under:-

“6. While answering the aforesaid issues/questions
the object, purpose and preamble of the ESI Act is
required to be referred to and considered. The
Preamble of the ESI Act is as under: -

"An Act to provide for certain benefits to
employees in case of sickness, maternity and
employment injury and to make provisions for
certain other matters in relation thereto."

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6.1 Thus, the ESI Act being a social welfare
legislation, any interpretation which would lean in
favour of the beneficiary should be given. The object
and purpose of the ESI Act has been elaborately
considered by this Court in the case of Bangalore
Turf Club Limited (supra). After considering catena of
earlier decisions under the ESI Act, it is observed and
held that ESI Act should be given liberal
interpretation and should be interpreted in such a
manner so that social security can be given to the
employees. In paragraph 16 to 21, it is observed and
held as under: -

"16. The primary rule of interpretation of
statutes may be the literal rule, however, in the
case of beneficial legislations and legislations
enacted for the welfare of employees, workmen,
this Court has on numerous occasions adopted
the liberal rule of interpretation to ensure that
the benefits extend to those workers who need
to be covered based on the intention of the
legislature.
17. The ESI Act is a welfare legislation enacted
by the Central Government as a consequence of
the urgent need for a scheme of health
insurance for workers. It would be beneficial to
reproduce the Preamble of the ESI Act in this
context. It is as under:
"An Act to provide for certain benefits to
employees in case of sickness, maternity and
employment injury and to make provision for
certain other matters in relation thereto"
18. In ESI Corpn. v. Francis De Costa [1993
Supp (4) SCC 100 : 1994 SCC (L&S) 195] , this
Court held that : (SCC pp. 105-06, paras 5-6)

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"5. The Act seeks to cover sickness, maternity,
employment injury, occupational disease, etc.
The Act is a social security legislation. It is
settled law that to prevent injustice or to
promote justice and to effectuate the object and
purpose of the welfare legislation, broad
interpretation should be given, even if it
requires a departure from literal construction.
The court must seek light from loadstar Articles
38 and 39 and the economic and social justice
envisaged in the Preamble of the Constitution
which would enliven meaningful right to life of
the worker under Article 21. The State is
enjoined under Article 39(e) to protect the
health of the workers, under Article 41 to secure
sickness and disablement benefits and Article 43
accords decent standard of life. Right to medical
and disability benefits are fundamental human
rights under Article 25(2) of the Universal
Declaration of Human Rights and Article 7(b) of
the International Convention on Economic,
Social and Cultural Rights. Right to health, a
fundamental human right stands enshrined in
socio-economic justice of our Constitution and
the Universal Declaration of Human Rights.
Concomitantly right to medical benefit to a
workman is his/her fundamental right. The Act
seeks to succour the maintenance of health of
an insured workman. The interpretative
endeavour should be to effectuate the above.
Right to medical benefit is, thus, a fundamental
right to the workman.
6. Moreover, even in the realm of interpretation
of statutes, rule of law is a dynamic concept of
expansion and fulfilment for which the
interpretation would be so given as to subserve
the social and economic justice envisioned in
the Constitution. Legislation is a conscious
attempt, as a social direction, in the process of
change. The fusion between the law and social
change would be effected only when law is
introspected in the context of ordinary social
life. Life of the law has not been logic but has

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been experience. It is a means to serve social
purpose and felt necessities of the people. In
times of stress, disability, injury, etc. the
workman needs statutory protection and
assistance. The Act fastens in an insured
employment, statutory obligation on the
employer and the employee to contribute in the
prescribed proportion and manner towards the
welfare fund constituted under the Act (Sections
38 to 51 of the Act) to provide sustenance to the
workmen in their hours of need, particularly
when they become economically inactive
because of a cause attributable to their
employment or disability or death occurred
while in employment. The fact that the employee
contributed to the fund out of his/her hard-
earned wages cannot but have a vital bearing in
adjudicating whether the injury or occupational
disease suffered/contracted by an employee is
an employment injury. The liability is based
neither on any contract nor upon any act or
omission by the employer but upon the
existence of the relationship which employer
bears to the employment during the course of
which the employee had been injured. The Act
supplants the action at law, based not upon the
fault but as an aspect of social welfare, to
rehabilitate a physically and economically
handicapped workman who is adversely affected
by sickness, injury or livelihood of dependents
by death of a workman."
19. A three-Judge Bench of this Court, in
reference to the ESI Act, in Transport Corpn. of
India v. ESI Corpn. [(2000) 1 SCC 332 : 2000
SCC (L&S) 121] , held that : (SCC pp. 357-58,
paras 27-28)
"27. Before parting with the discussion on this
point, it is necessary to keep in view the salient
fact that the Act is a beneficial piece of
legislation intended to provide benefits to
employees in case of sickness, maternity,
employment injury and for certain other matters

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in relation thereto. It is enacted with a view to
ensuring social welfare and for providing safe
insurance cover to employees who were likely to
suffer from various physical illnesses during the
course of their employment. Such a beneficial
piece of legislation has to be construed in its
correct perspective so as to fructify the
legislative intention underlying its enactment.
When two views are possible on its applicability
to a given set of employees, that view which
furthers the legislative intention should be
preferred to the one which would frustrate it. .
28. Dealing with this very Act, a three-Judge
Bench of this Court in Buckingham and Carnatic
Co. Ltd. v. Venkatiah [AIR 1964 SC 1272]
speaking through Gajendragadkar, J., (as he
then was) held, accepting the contention of the
learned counsel, Mr Dolia that : (AIR p. 1277,
para 10)
'10. . It is a piece of social legislation intended
to confer specified benefits on workmen to
whom it applies, and so, it would be
inappropriate to attempt to construe the
relevant provisions in a technical or a narrow
sense. This position cannot be disputed. But in
dealing with the plea raised by Mr Dolia that the
section should be liberally construed, we cannot
overlook the fact that the liberal construction
must ultimately flow from the words used in the
section. If the words used in the section are
capable of two constructions one of which is
shown patently to assist the achievement of the
object of the Act, courts would be justified in
preferring that construction to the other which
may not be able to further the object of the
Act.'"
20. In Bombay Anand Bhavan Restaurant v. ESI
Corpn. [Bombay Anand Bhavan Restaurant v.
ESI Corpn., (2009) 9 SCC 61 : (2009) 2 SCC
(L&S) 573] , it was observed that : (SCC p. 66,
para 20)
"20. The Employees' State Insurance Act is a

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beneficial legislation. The main purpose of the
enactment as the Preamble suggests, is to
provide for certain benefits to employees of a
factory in case of sickness, maternity and
employment injury and to make provision for
certain other matters in relation thereto. The
Employees' State Insurance Act is a social
security legislation and the canons of
interpreting a social legislation are different
from the canons of interpretation of taxation
law. The courts must not countenance any
subterfuge which would defeat the provisions of
social legislation and the courts must even, if
necessary, strain the language of the Act in
order to achieve the purpose which the
legislature had in placing this legislation on the
statute book. The Act, therefore, must receive a
liberal construction so as to promote its
objects."
21. The legislature enacted the ESI Act to
provide certain benefits to employees in case of
sickness, maternity in case of female employees,
employment injury and to make provision in
certain other matters in relation thereto. The
provisions of the ESI Act apply to all the
factories other than seasonal factories. The
State Government with the approval of the
Central Government is authorised to make the
provisions of the ESI Act applicable to any other
establishment or establishments. The provisions
of the ESI Act provide that all employees in
factories or establishments to which the ESI Act
applies shall be insured in the manner provided
under the ESI Act. Since the ESI Act is passed
for conferring certain benefits to employees in
case of sickness, maternity and employment
injury, it is necessary that the ESI Act should
receive a liberal and beneficial construction so
as to achieve legislative purpose without doing
violence to the language of the enactment."

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8. Thus, liberal rule of interpretation is required to be
adopted by the Court, as the Act provides for benefit to the
employee in case of sickness, maternity and employment
injury. It is an admitted fact that deceased Ramanbhai was
serving as employee and was covered under the ESI Act. It is
further an admitted fact that on 6.9.2004 deceased
Ramanbhai, while was working in second shift with hale and
hearty condition, suddenly at around 4:45 in late afternoon,
complained of chest and abdomen pain. Thereafter, he slept
in the corner of the working department. Since, his condition
was worsened, he was shifted to the Hospital, where the
doctor on duty declared him dead at around 6:30 p.m. The
autopsy report indicates that rigor mortis was present all over
the body, brain and meninges are found congested, no
internal injury was seen, even both the lungs were congested.
The heart was sent to histopathology examination. The cause
of death was pending till report of heart from histopathology
comes. The report of histopathology recorded following
reasons for cause of death:-

“Right and left coronary arteries thickened and
shows moderate decree of atherosclerosis.”

9. On perusal of the averments made by the claimant, it
appears that the claimant averred nexus of death of the
deceased with employment injury on the ground that
deceased was suffering physical load as well as mental stress
and trauma, which led to thicken the coronary artery and
ultimately resulted into death of the deceased. To prove such
averment, claimant as well as co-worker entered into the

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witness box and examined themselves as PW 1 and PW 2. The
claimant deposed that her husband was suffering from
physical and mental stress and trauma, however, except that,
she did not pledge any other evidence to prove that cardiac
arrest being root cause of death of the deceased was
employment injury. PW 2 Gokulbhai Ramdin deposed about
work of fitter. He has deposed that the fitter was required to
lift and put down heavy goods through machine chain pulley
block. He has further deposed that routine work is for eight
hours. In the present case, the deceased joined in second
shift at 4 o’clock. Normally, 10 to 15 times, the employee has
to operate machine chain pulley block for lifting and putting
down heavy goods. He also deposed that at the time of the
work, around 40 decree temperature was generally
maintained. Apart from the aforesaid evidence, no other
evidence has been produced by the claimant to link the nexus
of death with the employment injury.

10. Section 2(8) defines employment injury, which reads as
under:-

“2(8) “ 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.”

11. It means that it should be a personal injury to an
employee either caused by an accident or an occupational

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disease arising out of and in the course of the employment.

12. The Hon’ble Apex Court in case of Regional
Director,E.S.I.Corporation Versus Francis De Costa,
1996 (6) SCC 1, interpreted words “arising out of his
employment”. In para 5 to 8,10,11 and 13, the Hon’ble Apex
Court reads as under:-

“5. That the first respondent has suffered a
personal injury is not in dispute. The only dispute is
whether the injury will amount to "employment
injury" within the meaning of Sec. 2(8), so as to
enable respondent to claim benefit under the Act.
The definition given to "employment injury" in sub-
sec. (8) of Sec. 2 envisages a personal injury to an
employee caused by an accident or an occupational
disease "arising out of and in the course of his
employment". Therefore, the employee, in order to
succeed in this case, will have to prove that the
injury he had suffered arose out of and was in the
course of his employment. Both the conditions will
have to be fulfilled before he could claim any
benefit under the Act. It does not appear that the
injury suffered by the employee in the instant case
arose in any way out of his employment. The injury
was sustained while the employee was on his way
to the factory where he was employed. The
accident took place one kilometer away from the
place of employment. Unless it can be said that his
employment began as soon as he set out for the
factory from his home, it cannot be said that the
injury was caused by an accident "arising out of .....
his employment". A road accident may happen
anywhere at any time. But such accident cannot be
said to have arisen out of employment, unless it
can be shown that the employee was doing
something incidental to his employment.

6. In our judgment, by using the words "arising out

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of ... his employment", the legislature gave a
restrictive meaning to "employment injury". The
injury must be of such an extent as can be
attributed to an accident or an occupational
disease arising out of his employment. "Out of", in
this context, must mean caused by employment. Of
course, the phrase "out of" has an exclusive
meaning also. If a man is described to be out of his
employment, it means he is without a job. The
other meaning of the phrase "out of" is "influenced,
inspired, or caused by : out of pity; out of respect
for him". (Webster's Comprehensive Dictionary -
International Edition - 1984). In the context of Sec.
2(8), the words "out of" indicate that the injury
must be caused by an accident which had its origin
in the employment. A mere road accident, while an
employee is on his way to his place of employment
cannot be said to have its origin in his employment
in the factory. The phrase "out of the employment"
was construed in the case of South Maitland
Railways Proprietary Ltd. V/s. James, 67 CLR 496,
where construing the phrase "out of the
employment", Stake, J., held - "the words 'out of'
require that the injury had its origin in the
employment".

7. Unless an employee can establish that the injury
was caused or had its origin in the employment, he
cannot succeed in a claim based on Sec. 2(8) of the
Act. The word "accident ... arising out of ... his
employment" indicate that any accident which
occurred while going to the place of employment or
for the purpose of employment, cannot be said to
have arisen out of his employment. There is no
causal connection between the accident and the
employment.

8. The other words of limitation in sub-sec. (8) of
Sec. 2 are "in the course of his employment". The
dictionary meaning of "in the course of" is "during
(in the course of time, as time goes by), while
doing" (The Concise Oxford Dictionary, New

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Seventh Edition). The dictionary meaning indicates
that the accident must take place within or during
the period of employment. If the employee's work-
shift begins at 4-30 p.m., any accident before that
time will not be "in the course of his employment".
The journey to the factory may have been
undertaken for working at the factory at 4-30 p.m.
But this journey was certainly not in the course of
employment. If `employment' begins from the
moment the employee sets out from his house for
the factory, then even if the employee stumbles and
falls down at the doorstep of his house, the
accident will have to be treated as to have taken
place in the course of his employment. This
interpretation leads to absurdity and has to be
avoided.

10. Under the Employees' State Insurance Act,
1948, a Tribunal has been set up to decide, inter
alia, any claim for recovery of a benefit admissible
in this Act. A reference lies to the High Court on a
question of law. In other words, the decision of the
Insurance Court set up under the statute is final
and binding, so far as the findings of fact are
concerned. But, if any error of law has been
committed, the Courts are expected to correct it
and to give guidance to the Insurance Court.

11. Construing the meaning of the phrase "in the
course of his employment", it was noted by Lord
Denning that the meaning of the phrase had
gradually been widened over the last 30 years to
include doing something which was reasonably
incidental to the employee's employment. The test
of "reasonably incidental" was applied in a large
number of English decisions. But, Lord Denning
pointed out that in all those cases the workman
was at the premises where he or she worked and
was injured while on a visit to the canteen or other
place for a break. Lord Denning, however,
cautioned that the words "reasonably incidental"
should be read in that context and should be

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limited to the cases of that kind. Lord Denning
observed :
"Take a case where a man is going to or from his
place of work on his own bicycle, or in his own car.
He might be said to be doing something
`reasonably incidental' to his employment. But, if
he has an accident on the way, it is well settled
that it does not `arise out of and in the course of
his employment'. Even if his employer provides the
transport, so that he is going to work as a
passenger in his employer's vehicle (which is surely
`reasonably incidental' to his employment),
nevertheless, if he is injured in an accident, it does
not arise out of and in the course of his
employment. It needed a special `deeming'
provision in a statute to make it `deemed' to arise
out of and in the course of his employment (See
Sec. 8 of the 1965 Act)."
13. The meaning of the words "in the course of his
employment" appearing in Sec. 3(1) of the
Workmen's Compensation Act, 1923, was examined
by this Court in the case of Saurashtra Salt
Manufacturing Co. V/s. Bai Valu Raja. There, the
appellant, a salt manufacturing company, employed
workmen both temporary and permanent. The salt-
works was situated near a creek opposite to the
town of Porbandar. The salt-works could be
reached by at least two ways from the town, one an
overland route nearly 6 to 7 miles long and the
other via a creek which had to be crossed by a
boat. In the evening of 12.6.1952, a boat carrying
some of the workmen, capsized due to bad weather
and overloading. As a result of this, some of the
workmen were drowned. One of the questions that
came up for consideration was whether the
accident had taken place in the course of the
employment of the workers. S. Jafer Imam, J.,
speaking for the Court, held :
"As a rule, the employment of a workman does not
commence until he has reached the place of
employment and does not continue when he has
left the place of employment, the journey to and

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from the place of employment being excluded."
After laying down the principle broadly, S. Jafer
Imam, J., went on to observe that there might be
some reasonable extension in both time and place
to this principle. A workman might be regarded as
in the course of his employment even though he
had not reached or had left his employer's
premises in some special cases. The facts and
circumstances of each case would have to be
examined very carefully in order to determine
whether the accident arose out of and in the course
of the employment of a workman, keeping in view
at all times this theory of notional extension. But,
examining the facts of the case, in particular, after
noticing the fact that the workman used a boat,
which was also used as public ferry for which they
had to pay the boatman's dues, S. Jafer Imam, J.,
observed :
"It is well settled that when a workman is on a
public road or a public place or on a public
transport he is there as any other member of the
public and is not there in the course of his
employment unless the very nature of his
employment makes it necessary for him to be
there. A workman is not in the course of his
employment from the moment he leaves his home
and is on his way to his work. He certainly is in the
course of his employment if he reaches the place of
work or a point or an area which comes within the
theory of notional extension, outside of which the
employer is not liable to pay compensation for any
accident happening to him. In the present case,
even if it be assumed that the theory of notional
extension extends up to point D, the theory cannot
be extended beyond it. The moment a workman left
point B in a boat or left point A but had not yet
reached point B, he could not be said to be in the
course of his employment and any accident
happening to him on the journey between these
two points could not be said to have arisen out of
and in the course of his employment. But the
Commissioner for Workmen's Compensation and

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the High Court were in error in supposing that the
deceased workmen in this case were still in the
course of their employment when they were
crossing the creek between points A and B. The
accident which took place when the boat was
almost at point A resulting in the death of so many
workmen was unfortunate, but for that accident the
appellant cannot be made liable."

13. The cause of death recorded by the Medical Officer,
Ahmedabad reads as under:-

“From gross postmortem finding and report of
histopathology, final cause of death is cardio
respiratory arrest due to coronary heart disease.”

14. The claimant did not lead any evidence to link the
aforesaid nexus of death with the employment injury or to
establish that the aforesaid injury was an injury arising out of
the employment of the deceased or it is occupational disease
arising out of and in the course of the employment.

15. Learned advocate Ms. Asha Gupta vehemently argued
that the deceased was not suffering from any disease prior to
his death during the employment, which suggests that the
death of the deceased due to heart attack is occupational
disease arising out of and in the course of his employment, as
presumably, he was suffering from physical and mental stress
and trauma. I am totally unimpressed by such contention. It
is the employee who was to establish the exclusive link or
nexus of injury and death whereby injury or occupational
disease was arising out of and in the course of the

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employment.

16. The Hon’ble Apex Court in case of Mackinnon
Mackenzie And Company Private Limited Versus
Ibrahim Mahmmed Issak, 1969 (2) SCC 607, held that it
is a burden upon the claimant to prove that the accident or
occupational disease was arising out of and in the course of
the employment. Though, the claimant is not required to
prove by leading direct evidence, but the onus to prove that
injury by accident or occupational disease arose out of and in
the course of the employment, rest upon the claimant and
essentially, it can be proved by inferring when the facts
proved justify the inference. The findings of the Hon’ble Apex
Court in para 5 and 6 reads as under:-

“5. To come within the Act the injury by accident
must arise both out of and in the course of
employment. The words "in the course of the
employment' mean "in the course of the work which
the workman is employed to do and which is
incidental to it". The words 'arising out of
employment" are understood to mean that "during
the course of the employment, injury has resulted
from some risk incidental to the duties of the service,
which, unless engaged in the duty owing to the
master, it is reasonable to believe the workman would
not otherwise have suffered". In other words, there
must be a causal relationship between the accident
and the employment. The expression "arising out of
employment" is again not confined to the mere nature
of the employment. The expression applies to
employment as such - to its nature, its conditions, its
obligations and its incidents. If by reason of any of
those factors the workman is brought within the zone
of special danger, the injury would be one which
arises 'out of employment'. To put it differently, if the

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accident had occurred on account of a risk which is
an incident of the employment, the claim for
compensation must succeed, unless of course the
workman has exposed himself to an added peril by his
own imprudent act. In Lancashire and Yorkshire Rly.
Co. V/s. Highley, 1917 AC 352, Lord Summer laid
down the following test for determining whether an
accident "arose out of the employment":
"There is, however, in my opinion, one test which is
always at any rate applicable, because it arises upon
the very words of the Statute, and it is generally of
some real assistance. It is this: Was it part of the
injured person's employment to hazard, to suffer, or
to do that which caused his injury- If yea, the
accident arose out of his employment. If nay, it did
not, because, what it was not part of the employment
to hazard, to suffer, or to do, cannot well be the cause
of an accident arising out of the employment. To ask
if the cause of this was within the sphere of the
employment or was one of the ordinary risks of the
employment, or reasonably incidental to the
employment, or reasonably incidental to the
employment, or conversely, was an added peril and
outside the sphere of the employment, are all
different ways of asking whether it was a part of his
employment, that the workman should have acted as
he was acting, or should have been in the position in
which he was, whereby in the course of that
employment he sustained injury."

6. In the case of death caused by accident the burden
of proof rests upon the workman to prove that the
accident arose out of employment as well as in the
course of employment. But this does not mean that a
workman who comes to court for relief must
necessarily prove it by direct evidence. Although the
onus of proving that the injury by accident arose both
out of and in the course of employment rests upon the
applicant these essentials may be inferred when the
facts proved justify the inference. On the one hand
the Commissioner must not surmise, conjecture or
guess; on the other hand, he may draw an inference
from the proved facts so long as it is a legitimate

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inference. It is of course impossible to lay down any
rule as to the degree of proof which is sufficient to
justify an inference being drawn, but the evidence
must be such as would induce a reasonable man to
draw it. Lord Birkenhead L. C. in Lancaster V/s.
Blackwell Colliery Co. Ltd., 1918 WC & IR 345
observed:

"If the facts which are proved give rise to conflicting
inferences of equal degrees or probability so that the
choice between them is a mere matter of conjecture,
then, of course, the applicant fails to prove his case,
because it is plain that the onus in these matters is
upon the applicant. But where the known facts are
not equally consistent, where there is ground for
comparing and balancing probabilities as to their
respective value, and where a reasonable man might
hold that the more probable conclusion is that for
which the applicant contends, then the Arbitrator is
justified in drawing an inference in his favour."

17. A worthy assistance can also be taken from the authority of
the Hon’ble Apex Court in case of Shakuntala Chandrakant
Shreshti Vs. Prabhakar Maruti Garvali & Anr., (2007) 11
SCC 668, wherein the Hon’ble Apex Court while referring to
its earlier judgment and the definition of “accident” was
pleased to dismiss the claim made by the claimant on the
ground that the deceased had not died due to external injury.
The Hon’ble Apex Court examined the issue in detail, including
the meaning and scope of the word “arising out of and in the
course of employment.” In paragraph 20 to 26, the Hon’ble
Supreme Court has held as under :-

“20.Sufferance of heart disease amongst young
persons is not unknown . A disease of heart may
remain undetected. A person may suffer mild heart
attack but he may not feel any pain. There must, thus,
be some evidence that the employment contributed to

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the death of the deceased. It is required to be
established that the death occurred during the course
of employment.

21.This Court in E.S.I. Corporation (supra) referred
to with approval the decision of Lord Wright in Dover
Navigation Co. Ltd. v. Isabella Craig, [1940 AC 190],
wherein it was held :

“Nothing could be simpler than the words `arising
out of and in the course of employment'. It is clear
that there two conditions to be fulfilled. What arises
`in the course of the employment is to be
distinguished from what arises `out of the
employment'. The former words relate to time
conditioned by reference to the man's service, the
latter to casualty. Not every accident which occurs to
a man during the time when he is on his employment
- that is, directly or indirectly engaged on what he is
employed to do - gives a claim to compensation,
unless it also arises out of the employment. Hence the
section imports a distinction which it does not define.
The language is simple and unqualified”.

22. We are not oblivious that an accident may
cause an internal injury as was held in Fenton
(Pauper) v. J. Thorley & Co. Ltd., [1903 AC 443], by
the Court of Appeal :

"I come, therefore, to the conclusion that the
expression "accident" is used in the popular
and ordinary sense of the word as denoting an
unlooked-for mishap or an untoward event
which is not expected or designed."
Lord Lindley opined :
"The word "accident" is not a technical legal
term with a clearly defined meaning. Speaking
generally, but with reference to legal
liabilities, an accident means any unintended
and unexpected occurrence which produces
hurt or loss. But it is often used to denote any
unintended and unexpected loss or hurt apart
from its cause; and if the cause is not known

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the loss or hurt itself would certainly be called
an accident. The word "accident" is also often
used to denote both the cause and the effect,
no attempt being made to discriminate
between them. The great majority of what are
called accidents are occasioned by
carelessness; but for legal purposes it is often
important to distinguish careless from other
unintended and unexpected events."

23. There are a large number of English and
American decisions, some of which have been taken
note of in ESI Corporation (supra), in regard to
essential ingredients for such finding and the tests
attracting the provisions of Section 3 of the Act.

24. The principles are :
(1) There must be a causal connection
between the injury and the accident and the
accident and the work done in the course of
employment.
(2) The onus is upon the applicant to show that
it was the work and the resulting strain which
contributed to or aggravated the injury.
(3) If the evidence brought on records
establishes a greater probability which
satisfies a reasonable man that the work
contributed to the causing of the personal
injury, it would be enough for the workman to
succeed, but the same would depend upon the
fact of each case.

25. Injury suffered should be a physiological injury.
Accident, ordinarily, would have to be understood as
unforeseen or uncomprehended or could not be
foreseen or comprehended. A finding of fact, thus,
has to be arrived at, inter alia, having regard to the
nature of the work and the situation in which the
deceased was placed.
26. There is a crucial link between the causal
connections of employment with death. Such a link
with evidence cannot be a matter of surmise or
conjecture. If a finding is arrived at without pleading

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or legal evidence the statutory authority will commit
a jurisdictional error while exercising jurisdiction.“

18. In view of above, the substantial question involves in the
matter is that in absence of any evidence to prove that the
deceased died due to occupational disease arising out of and
in the course of the employment, whether under the ESI Act
can grant dependency benefit? The question is answered in
favour of the ESI Corporation that in absence of evidence
proving the nexus between the occupational disease arising
out of and in the course of the employment and death. The
ESI Act cannot grant any dependency benefit to an employee.

19. Resultantly, present First Appeal is allowed. Impugned
Judgment and Order dated 3.12.2010 passed by the ESI
Court, Ahmedabad in ESI Application No.78 of 2005 is hereby
quashed and set aside. ESI Application No.78 of 2005 is
dismissed. Consequently, CA, if any, does not survive and
stands disposed of accordingly.

20. However, it is clarified that the dependency benefit
given to the original claimant uptil now, if any, shall not be
recovered.

21. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.

(J. C. DOSHI,J)
SHEKHAR P. BARVE

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 02/04/2026 14:53:26

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