Madras High Court
Vasuki vs M.Govindarajan on 24 August, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.No.2184/2003
Vasuki .. Appellant
Vs
1.M.Govindarajan, Proprieteor
M/s.Microtherm Engineers, Chennai-98
2.The Manager, Local Office
ESI Corporation, Chennai-98 .. Respondents
Prayer:- This Civil Miscellaneous Appeal is filed against the order dated 18.3.2003 made in IA.No.55/2002 in WC.No.124/2001 by the Deputy Commissioner for Workmen's Compensation, Chennai.
For Appellant : Ms.D.Geetha
For Respondent : Mr.D.Veda-R1
Mrs.S.Jayakumari-R2
JUDGEMENT
The applicant before the Labour Deputy Commissioner-II for Workmen's Compensation, Chennai is the Appellant in this Civil Miscellaneous Appeal and it is is filed assailing the order dated 18.3.2003 made in IA.No.55/2002 in WC.No.124/2001, whereby the Labour Deputy Commissioner dismissed the claim petition on the ground that the deceased V.Saravanakumar being an employee of the 1st Respondent registered with the Employees State Insurance Corporation, the applicant is barred from claiming compensation under the Workmen's Compensation Act, 1923.
2. The brief facts are that the Appellant's son Saravanakumar was employed under the 1st Respondent for more than two years prior to the accident and on 18.11.2000, he met with an accident and died on 20.11.2000. At the time of the accident, he was aged about 21 years old and receiving a salary of not less than Rs.3000/- p.m. The deceased was working in the heat treatment plant and he fell into the oil tank that was having no safety wall and without having any amenities as laid down under the Factories Act and Rules thereunder. In spite of repeated approaches, the 1st Respondent failed to pay any compensation, which had necessitated the claimant to approach the Labour Deputy Commissioner under the Workmen's Compensation Act. The case of the Appellant is that the said accident and the death of the deceased were during the course of his employment with the 1st Respondent and therefore, the 1st Respondent is liable to pay compensation.
3. The 1st Respondent filed a reply statement before the Labour Deputy Commissioner stating that the deceased was covered by the Employees State Insurance Act and his insurance number is 51-13475682. It is further stated that the Employees State Insurance Corporation Limited also sanctioned the compensation benefit to the dependent as per the letter NO.LO/A1E/51-13475682/Death Case/2001-02 dated 27.6.2001.
4. Pending the main application, the Appellant filed an application in IA.No.55 of 2002 to direct the Employees State Insurance Corporation to produce (1) the application for registration in Form1, (2) Employer's Code Number Register, (3) declaration form and to direct the 1st Respondent to produce the Wages Register for the period from 1.6.2001. The Respondents 1 and 2 produced the above said documents and the Labour Deputy Commissioner had reserved the case for orders. In the mean while, the applicant filed an application in IA.No.21/2002 to reopen the case and to permit the Petitioner to examine herself in support of her case, which was resisted by the 1st Respondent.
5. The Labour Deputy Commissioner dismissed the interim application and also the main claim petition holding that only the provisions of the Employees State Insurance Act are applicable to the deceased and the applicant is barred from claiming compensation under the Workmen's Compensation Act.
6. At the time of admitting this Civil Miscellaneous Appeal, the following substantial question of law has been framed by this court:-
"Whether the workman of an establishment which is not registered with the Employees State Insurance Corporation, is also barred from claiming compensation under the Workmen's Compensation Act, 1923?"
7. The Labour Deputy Commissioner has recorded a finding that the claim under the Workmen's Compensation Act is not maintainable, because the deceased at the relevant point of time was covered by the provisions of the Employees State Insurance Act, 1948 and the substantial question of law pertains to the very same question of law.
8. The deceased V.Saravanakumar had entered into employment with the 1st Respondent and had signed the declaration Form 9 (under Regulations 11 and 12 of the Employees State Insurance General Regulations, 1950, framed under the Employees State Insurance Act, 1948) on 11.10.2000. It is not in dispute that the said declaration Form 9 along with the accident report in Form 16 has been received by the local office of the Employees State Insurance Corporation, Ambattur Real Estate on 11.12.2000, that is, after the accident that occurred on 17.11.2000 and the resultant death of the deceased on 20.11.2000.
9. It is submitted by the Employees State Insurance Corporation that the applicant had filed claim Form 18 claiming dependent benefit duly signed and certified by the Assistant Judge, City Civil Court, Chennai. Further, the father of the deceased/Insured person being the eldest surviving member of the family of the deceased/insured was paid funeral expenses as provided under Rule 46(f) and Rule 59 of the Rules framed thereunder. The Respondents have produced documents to show that the applicant is receiving periodical payments of dependent benefit from the Branch Office, Mount Road of the Employees State Insurance Corporation.
10. The learned counsel for the Respondent Corporation, drawing the attention of this court to Section 53 of the Employees State Insurance Act, contended that it provides a total bar to make a claim under the Workmen's Compensation Act and the Commissioner has rightly rejected the claim of the applicant made under the provisions of the Workmen's Compensation Act. The learned counsel relied on the decision of the Honourable Supreme Court reported in 2003-1-LLJ-324 (Bharaqgath Engineering Vs. R.Ranganayaki and another) in support of his contention.
11. The learned counsel for the Appellant would contend that since contribution was neither paid by the deceased nor it was deducted from the salary of the deceased, the deceased would not come within the provisions of the Employees State Insurance Act.
12. The decision of the Honourable Supreme Court reported in 2003-1-LLJ-324 cited supra is the straight answer to the said contention raised by the learned counsel for the Appellant. The relevant portion of the said decision of the Honourable Supreme Court, in which Section 2(14) of the Employees State Insurance Act is dealt with, is extracted as below:-
"8. It is to be noted that the crucial expression in Section 2(14) of the Act is 'are or were payable'. It is the obligation of the employer to pay the contribution from the date of the Act applies to the factory or the establishment. In ESI Vs. Harrisson Malayalam Pvt. Limited (AIR-1993-SC-2655:1993-4-SCC-361:1994-I-LLJ-12) the stand of the employer that employees are not traceable or that there is dispute about their whereabouts does not do away with the employers' obligations to pay the contribution. In Employees State Insurance Corporation Vs. Hotel Kalpaka International (AIR-1993-SC-1530:1993-2-SCC-9:1993-I-LLJ-939) it was held that the employer cannot be heard to contend that since he had not deducted the employee's contribution on the wages of the employees or that the business had been closed, he could not be liable. Said view was reiterated in Employees State Insurance Corporation Vs. Harrissons Malayalam Limited (1998-9-SCC-74:1999-1-LLJ-284) that being the position, the date of payment of contribution is really not very material. In fact, Section 38 of the Act casts a statutory obligation on the employer to insure its employees. That being a statutory obligation, the date of commencement has to be from the date of employment of the concerned employee.
9. The scheme of the Act, the rules and the Regulations clearly spell out that the insurance covered under the Act is distinct and different from the contract of insurance in general. Under the Act, the contributions go into a Fund under Section 26 for disbursal of benefits in case of accident, disablement, sickness, maternity, etc. The contribution required to be made is not paid back even if an employee does not avail any benefit. It is to be noted that under Regulation 17A, if medical care is needed before the issuance of temporary identification certificate, the employer is required to issue a certificate of employment so that the employee can avail the facilities available. "Wage period', 'benefit period' and 'contribution period' are defined in Section 2(23) of the Act, Rule 2(1C) and Rule 2(2A) of the Rules. Rule 58(2)(b) is a very significant provision. For a person who becomes an employee for the first time within the meaning of the Act, the contribution period under Regulation 4 commences from the date of such employment from the contribution period current on that day and corresponding benefit period shall commence on the expiry of the period of nine months from the date of said employment. In cases where employment injuries results in death the commencement of the first benefit period, Rule 58(2)(b)(i) provides the method of computation of dependent benefit. It provides for computation of dependent benefits in the case of an employee dying as a result of employment injuries sustained before the first benefit period and before the expiry of the first wage period."
13. It is held in paragraph 11 of the said decision as below:-
"11. When considered in the background of statutory provisions, noted above, payment or non payment of contribution action or non action prior to or subsequent to the date of the accident is really inconsequent. The deceased employee was clearly an insured person as defined in the Act. As the deceased employee has suffered from employment as defined under Section 2(8) of the Act, there is no dispute that he was in employment if the employer, by operation of Section 53 of the Act, proceedings under the Compensation Act were excluded statutorily."
14. The Workmen's Compensation Act was enacted by the Legislature in the year 1923 with a view to provide for the payment by certain classes of Employers to their Workmen, compensation for injury by accident. According to Section 3(1) of the Workmen's Compensation Act, which deals with Employer's liability for compensation, if personal injuries caused to a workman in any accident arising out of in the course of the employment, the employer shall be liable to pay compensation in accordance with the provisions contained in the said Act.
15. The Employees State Insurance Act was introduced in the year 1948 with the main object of introducing a scheme of health insurance for industrial workers. As per the scheme, compulsory state insurance providing for certain benefits in the event of sickness, maternity and employment injury to workmen employed in or in connection with the work in factories is a must. A comparison of the relevant provisions of the two Acts makes it clear that both are beneficial legislation and are enacted to provide for compensation to a workman/employee for personal injury caused to him by accident arising out of and in the course of employment. The Employees State Insurance Act is subsequent Act and is having wider coverage and is more comprehensive. The very purpose of enacting Employees State Insurance Act is to see that a workmen, in the case of personal injuries and death, would get more compensation than what is provided for under the Workmen's Compensation Act. The benefits, which an employee gets under the Employees State Insurance Act, are more substantial than the benefits what he gets under the Workmen's Compensation Act.
16. When once a workman or employee is having insurance coverage, it is always more desirous and advantageous to the said workman/employee to approach the Employees State Insurance Court constituted under Section 76 of the Employees State Insurance Act, 1948 than to approach the Commissioner under the Workmen's Compensation Act for the limited compensation which will be awarded by the Commissioner.
17. In view of the same, it appears that the legislature thought it fit to bring a provision, that is, Section 53 of the Employees State Insurance Act providing bar against receiving or recovery of compensation or damages under any other law. The very purpose of providing such a bar is to see that a workman/employee gets more compensation and further, he will be precluded from approaching both the authorities i.e the Commissioner under the Workmen's Compensation Act and the court constituted under Section 76 of the Employees State Insurance Act, 1948.
18. In this background and context, we have to consider the effect of the bar created by Section 53 of the Employees State Insurance Act. Bar is against receiving or recovering any compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute, as can be seen from the usage of words 'shall not be entitled to receive or recover, 'whether from the employer of the insured person or from any other person' 'any compensation or damages and under the Workmen's Compensation Act 1923'. When such a bar is created in clear and express terms, it would be neither permissible nor proper to infer a different intention by referring to the previous history of legislature.
19. Under the said circumstances, the findings of the Labour Deputy Commissioner to the effect that the deceased was an insured employee and hence, the Appellant could claim benefits under the Employees State Insurance Act alone, on the death of the insured employee and the applicant is not entitled to claim compensation under the Workmen's Compensation Act are sustainable.
20. In view of the above, this Civil Miscellaneous Appeal fails and is dismissed. The impugned order dated 18.3.2003 made in IA.No.55/2002 in WC.No.124/2001 by the Deputy Commissioner for Workmen's Compensation, Chennai is confirmed. The Appellant is entitled to claim benefits under the Employees State Insurance Act from the 2nd Respondent. No costs.
Srcm To:
1.The Deputy Commissioner for Workmen's Compensation, Chennai
2.The Record Keeper, VR Section, High Court, Madras