Madhya Pradesh High Court
Rajesh Kumar Tiwari vs Raviram on 2 January, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
MA 6228-19
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
MISC APPEAL NO.6228 OF 2019
BETWEEN:-
RAJESH KUMAR TIWARI, S/O
PADAMNATH TIWARI,
OCCUPATION - UNEMPLOYED,
AGED ABOUT 36 YEARS, R/O
TIWANI KAWN TOLA, POLICE
STATION & TEHSIL - MANGAWA
DISTRICT REWA, M.P.
.....APPELLANT
(BY SHRI SHASHANK UPADHYAY - ADVOCATE)
AND
1. RAVIRAM S/O SATIRAM
R/O VIRANO, POLICE
STATION - VARNO,
DISTRICT GAJIPUR,
UTTARPRADESH DRIVER
OF VEHICLE, TRUCK
BEARING NO.UP-65-BT-
0252
2. MAHENDRA KUMAR
MORYA, S/O LTD. S.L.
MORYA, R/OMAWAIYA
2
MA 6228-19
ASHAPUR, SARNATH,
WARANASI, UTTAR
PRADESH, OWNER OF
VEHICLE, TRUCK
BEARING NO.UP-65-BT-
0252
3. AUTHORIZED OFFICER,
UNIVERSAL SHAMPOO
GENERAL INSURANCE
COMPANY LIMITED,
PRAYAWAS BHAWAN,
FIRST FLOOR, ARERA
HILLS, BHOPAL, M.P.
VEHICLE TRUCK
BEARING NO.UP65-BT-0252
.....RESPONDENTS
(SHRI L.P. SINGH - ADVOCATE FOR THE RESPONDENT 1 AND SHRI
VIVEK SHUKLA - ADVOCATE FOR RESPONDENT 3)
......................................................................................................
Reserved on : 22.12.2023
Pronounced on : 02.01.2024
This appeal having been heard and reserved for order, coming on for
pronouncement this day, the Court pronounced the following:
ORDER
This misc. appeal has been preferred by appellant/claimant challenging the award dated 13.09.2019 passed by 13th Additional Motor Accident Claims Tribunal, Rewa in claim case no.245/2016 whereby learned Tribunal at the time of passing final award held the claim petition to be not maintainable in the light 3 MA 6228-19 of decision of Supreme Court in the case of National Insurance Company Limited vs. Hamida Khatoon and others AIR 2009 SC 2599 = (2009) 13 SCC
361.
2. Learned counsel for the appellant/claimant submits that on 07.02.2013 during the course of employment, the appellant by driving his motor cycle, along with his uncle went to Hanumana for the purpose of machine servicing and while returning from Hanumana towards Rewa, at about 3.00 p.m. one truck no.UP65-BT-0252 dashed his motor cycle and caused grievous injuries to him and due to such accident, claim petition for compensation was filed before Motor Accident Claims Tribunal (in short 'MACT') under Section 166 of the Motor Vehicles Act, 1988.
3. Despite service of notice the respondents 1-2 (driver and owner) did not appear and were proceeded ex parte.
4. Non-applicant 3-Insurance Company appeared and filed written statement denying averments made in the claim petition. Taking pleas of breach of policy, especially breach of driving license, it is contended that claimant is not entitled for any compensation. On inter alia allegations, the claim petition was prayed to be dismissed. Undisputedly no objection in respect of maintainability of claim petition before MACT, was taken.
5. On basis of pleadings of the parties, MACT framed issues and recorded evidence of the claimant and as no evidence was adduced by the Insurance Company, therefore, MACT heard arguments but while passing final award, learned MACT on basis of fact to the effect that during the course of departmental work the appellant/claimant on 07.02.2013 went Hanumana for servicing of machine and met with an accident, hence without deciding already framed issues, held the claim petition to be not maintainable in the light of decision of National Insurance Company Limited (supra).
4MA 6228-19
6. Learned counsel for the appellant/claimant submits that plea regarding non-maintainability of claim petition was not even raised by respondent/Insurance Company and even no issue in that regard was framed by MACT and surprisingly at the stage of passing final award and even without giving any opportunity to meet out question of non-maintainability, learned MACT just contrary to law laid down by Supreme Court in the case of National Insurance Company Limited (supra) erred in holding the claim petition to be not maintainable. In support of his submissions, he placed reliance on same decision of Supreme Court and submits that learned Tribunal has not cared to consider conclusive/last paragraph of judgment of Supreme Court in the case of National Insurance Company Limited (supra), which has vitiated impugned award. Learned counsel further placed reliance on a decision of Punjab & Haryana High Court in Tata AIG General Insurance Company Ltd. vs. Ram Avtar 2019 ACJ 210 and submits that claim petition before MACT is maintainable.
7. Learned counsel appearing for the respondent 3-Insurance Company supports the impugned award and prays for dismissal of the misc. appeal.
8. Heard learned counsel for the parties and perused the record.
9. Perusal of record shows that objection of non-maintainability of claim petition was not raised by respondent/Insurance Company in reply, hence no issue was framed by MACT in that regard and despite affording several opportunities, the respondent/Insurance Company did not adduce any evidence also.
10. Pleadings made in claim petition are to the effect that the appellant/claimant during course of his employment went to Hanumana for servicing of machine and while returning he was dashed by the truck in question 5 MA 6228-19 owned and driven by non-applicants 1-2 and oral evidence has also been adduced on the same line.
11. Although the Insurer neither adduced any oral evidence in rebuttal nor filed any document to show that claimant was covered under the provisions of ESI Act and he has already received benefits from the ESI Corporation, but the claim petition has been dismissed on the ground of maintainability as the appellant/claimant is Service Engineer and under employment of Deccan Earthmovers Private Limited.
12. Though there are restrictions under Sections 53 of the Employees' State Insurance Act, 1948 (in short "ESI Act") that an insured person or his dependents 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 under the Workmen's Compensations Act, 1923 or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under the ESI Act and there is a bar of getting similar benefits, but it is to be noticed that under the Act of 1988, any person, irrespective of the fact whether he was an employee or not, can file a claim petition if the death is due to accident arising out of and use of motor vehicle. Therefore, in making claim under the Act of 1988, the restrictions imposed in Sections 53 of the ESI Act would not be a bar. However, the claims Tribunal should take into consideration the pension or any other benefits being received by the claimant, while calculating the compensation.
13. Relevant paragraphs 6 to 9 of the decision in the case of National Insurance Company Ltd. v. Hamida Khatoon and others (2009) 13 SCC 361 :
(AIR 2009 SC 2599), are as under :
"6. It is to be noticed that in Regional Director, ESI Corporation & Anr. v. Francis De Costa and Anr. [1993 Suppl.(4) SCC 100] at para 44 it was observed as follows:6
MA 6228-19
44. The next contention that the Motor Vehicles Act provides the remedy for damages for an accident resulting in death of an injured person and that, therefore, the remedy under the Act cannot be availed of lacks force or substance. The general law of tort or special law in Motor Vehicles Act or Workmen's Compensation Act may provide a remedy for damages. The cover- age of insurance under the Act in an insured employment is in addition to but not in substitu- tion of the above remedies and cannot on that account be denied to the employee. In K. Bharathi Dev v. G.I.C.I [AIR 1988 AP 361] the contention that the deceased contracted life insurance and due to death in air accident the appellant received compensation and the same would be set off and no double advantage of damages under carriage by Air Act be given was negatived.
7. In A Trehan v. Associated Electrical Agencies [1996(4) SCC 255] it was observed as follows:
"The ESI Act was enacted with an object of introducing a scheme of health insurance for in - dustrial workers. The scheme envisaged by it is one of 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 other than seasonal factor- ies. The ESI Act which has replaced the Workmen's Compensation Act, 1923 in the fields where it is made applicable is far more wider than the Workmen's Compensation Act and en- larges the scope of compensation. Section 38 provides that all employees in factories or estab- lishments to which the ESI Act applies shall be insured in the manner provided in it. Under Section 39 the employer is also made liable to pay contribution. Section 42 provides for cir- cumstances under which the employee need not pay his contribution. Section 46 provides for the benefits which the insured persons, their dependants and the persons mentioned therein shall be entitled to get on happening of the events mentioned therein. Sections 51-A to 51-D create certain fictions in favour of the employee so as to have wider coverage for him. In case of an employment injury Section 46 provides periodical payments to him or to his dependants in case of his death. Employment injury is defined by Section 2(8) to mean 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 occu- pational disease is contracted within or outside the territorial limits of India. Section 2(9) defines employee to mean any person employed for wages in or in connection with the work of a factory or establishment to which the ESI Act applies. It includes other persons but it is not necessary to refer to that part of the definition. Insured person is defined by Section 2(14) to mean a person who is or was an employee in respect of whom contributions are or were payable under the Act and who is by reason thereof, entitled to any of the benefits provided by the ESI Act. The Second Schedule to the ESI Act specifies the injuries deemed to result in permanent total disablement or permanent partial disablement. Rule 54 of the Employees' State Insurance (Central) Rules, 1950 provides the daily rate of benefit which the employee would get if an employment injury is suffered by him. Rule 57 provides for disablement bene- fits. Rule 58 provides for dependant's benefits in case the injured person dies as a result of an employment injury. Rule 60 provides for the medical benefits to an insured person who ceases to be in an insured employment on account of permanent disablement. Other benefits are also conferred by the ESI Act and the Rules but it is not necessary to refer to them for deciding the point which arises in this case. Two other provisions in the ESI Act to which it is necessary to refer are Sections 53 and 61. The present Section 53 was substituted by Act No. 44 of 1966 with effect from 28-1-1968. Section 61 has been there in the Act since it came into force. It provides that when a person is entitled to any of the benefits provided by the ESI Act he shall not be entitled to receive any similar benefits admissible under the provisions of any other en - actment. Thus, by enacting Section 61 the legislature has created a bar against receiving sim - ilar benefits under other enactments. Section 53 before its amendment read as under:7
MA 6228-19 "53. Disablement and dependant's benefits.--When an insured person is or his dependants are entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or otherwise, in respect of an employment injury sustained by the insured person as an em- ployee under this Act, then the following provisions shall apply, namely--
(i) The insured person shall, in lieu of such compensation or damages, receive the disable -
ment benefit provided by this Act, (but subject otherwise to the conditions specified in the Workmen's Compensation Act, 1923) from the Corporation and not from any employer or other person.
(ii)-(iv) * * *
(v) Save as modified by this Act the obligations and liabilities imposed on an employer by the Workmen's Compensation Act, 1923, shall continue to apply to him."
9. Experience of the administration of the ESI Act had disclosed certain difficulties in its working. It was, therefore, further amended in 1966. Along with other amendments made in the ESI Act the legislature substituted present Section 53 which read as under:
"53. Bar against receiving or recovery of compensation or damages under any other law.--An insured person or his dependants 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 under the Workmen's Compensation Act, 1923 (8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act."
10. The Workmen's Compensation Act was enacted by the legislature in 1923 with a view to provide for the payment by certain classes of employers to their workmen compensation for injury by accident. Section 3(1) of the Act provides that if personal injury is caused to a work- man by accident arising out of and in the course of his employment, his employer shall be li- able to pay compensation in accordance with the provisions contained in that Act. Under Sec- tion 2(1)(c) the word compensation is defined to mean compensation as provided for by the Act. The definition of the workman under the Act is as under:
"2. (1)(n) `workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or busi - ness) who is--
(i) * * *
(ii) employed in any such capacity as is specified in Schedule II, whether the contract of em-
ployment was made before or after the passing of this Act and whether such contract is ex- pressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependants or any of them."
11. A comparison of the relevant provisions of the two Acts makes it clear that both the Acts provide for compensation to a workman/employee for personal injury caused to him by acci- dent arising out of and in the course of his employment. The ESI is a later Act and has a wider coverage. It is more comprehensive. It also provides for more compensation 8 MA 6228-19 than what a workman would get under the Workmen's Compensation Act. The benefits which an employee can get under the ESI Act are more substantial than the benefits which he can get under the Workmen's Compensation Act. The only disadvantage, if at all it can be called a dis- advantage, is that he will get compensation under the ESI Act by way of periodical payments and not in a lump sum as under the Workmen's Compensation Act. If the legislature in its wis- dom thought it better to provide for periodical payments rather than lump sum compensation its wisdom cannot be doubted. Even if it is assumed that the workman had a better right under the Workmen's Compensation Act in this behalf it was open to the legislature to take away or modify that right. While enacting the ESI Act the intention of the legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident arising out of and in the course of his employment.
12. In this background and context we have to consider the effect of the bar created by Sec- tion 53 of the ESI 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 other- wise in respect of an employment injury. The bar is absolute as can be seen from the use of the words shall not be entitled to receive or recover, "whether from the employer of the in- sured person or from any other person", "any compensation or damages" and "under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise". The words "employed by the legislature" are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision. In view of the clear language of the section we find no justification in interpreting or construing it as not taking away the right of the workman who is an insured person and an employee under the ESI Act to claim com- pensation under the Workmen's Compensation Act. We are of the opinion that the High Court was right in holding that in view of the bar created by Section 53 the application for compens - ation filed by the appellant under the Workmen's Compensation Act was not maintainable.
13. The observations made in Francis De Costa2 by K. Ramaswamy, J. were made in a differ- ent context. In that case the question which had arisen for consideration was whether the in - jury caused by an accident on a public road while an employee was on his way to join duty can be held as arising out of or in the course of his employment within the meaning of Section 2(8) of the ESI Act. Moreover, in that case the Court was not examining the bar created by Section 53 of the ESI Act."
8. In Bharagath Engg. v. R. Rangamayaki [2003(2) SCC 138] it was held as follows:
8. Section 2(14) of the Act, which is the pivotal provision, reads as follows:
"`Insured person' means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, en- titled to any of the benefits provided by this Act."
9. 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 the Act ap- plies to the factory or the establishment. In ESI Corpn. v. Harrison Malayalam (P) Ltd. [1993(4) SCC 361] the stand of the employer that employees are not traceable or that there is dispute about their whereabouts does not do away with the employer's obligation to pay the contribution. In ESI Corpn. v. Hotel Kalpaka International [1993 (2) SCC 9] it was held that the employer cannot be heard to contend that since he had not deducted the employee's contri - bution on the wages of the employees or that the business had been closed, he could not be 9 MA 6228-19 made liable. The said view was reiterated in ESI Corpn. v. Harrisons Malayalam Ltd [1998(9) SCC 74] That being the position, the date of payment of contribution is really not very mater- ial. In fact, Section 38 of the Act casts a statutory obligation on the employer to insure its em - ployees. That being a statutory obligation, the date of commencement has to be from the date of employment of the employee concerned.
10. 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. Un- der 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 Regula - tion 17-A, 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(1-C) and Rule 2(2-A) 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 the corresponding be- nefit period shall commence on the expiry of the period of nine months from the date of such employment. In cases where employment injuries result in death before the commencement of the first benefit period, Rule 58(2)(b)(ii) provides the method of computation of dependant's benefits. It provides for computation of dependant's benefits in the case of an employee dying as a result of employment injuries sustained before the first benefit period and before the ex - piry of the first wage period.
11. Rule 58(2)(b)(ii), insofar as it is relevant, reads as follows:
"58. Dependant's benefits.-- (1) * * * 2(b) Where an employment injury occurs before the commencement of the first benefit period in respect of a person, the daily rate of dependant's benefit shall be--
(i) * * *
(ii) where a person sustains employment injury before the expiry of the first wage period in the contribution period in which the injury occurs, the rate, forty per cent more than the stand-
ard benefit rate, rounded to the next higher multiple of five paise corresponding to the group in which wages actually earned or which would have been earned had he worked for a full day on the date of accident fall."
12. When considered in the background of statutory provisions, noted above, the payment or non-payment of contributions and action or non-action prior to or subsequent to the date of accident is really inconsequential. The deceased employee was clearly an "insured person", as defined in the Act. As the deceased employee has suffered an employment injury as defined under Section 2(8) of the Act and there is no dispute that he was in employment of the em- ployer, by operation of Section 53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that the Corporation has filed an affidavit indicating that the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons."
9. Above being the position in law, the appeal deserves to be allowed. The entitlement shall be worked out by the concerned MACT by taking note of Section 53 of the Act."
10MA 6228-19
14. From aforesaid quoted paragraphs 6-9 it is clear that after taking into con- sideration the legal position in the case of Regional Director, ESI Corporation & Anr. (supra); A Trehan (supra); and Bharagath Engg. (supra), even the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Hamida Khatoon and others (2009) 13 SCC 361 (supra) had directed the con- cerned MACT to work out entitlement of the claimant by taking note of Section 53 of the Act and nowhere it has been said that claim petition before MACT is not maintainable.
15. Following the law laid down by Supreme Court, a coordinate Bench of Telangana High Court in the case of M/s. New India Assurance Company Limited vs. Ravula Shanker & Shanker Goud and another 2021 ACJ 250, has held as under :
"35. In the result, the appeal is dismissed confirming the order and decree, dated 27.10.2015, passed in O.P. No.363 of 2013 by the Tribunal, with the following findings:
i) An application filed under MV Act claiming compensation by injured/legal repres-
entatives of deceased is maintainable even if the injured/deceased is covered under ESI Scheme as per the provisions of the ESI Act;
ii) Injured/Legal Representatives of deceased are entitled for compensation under the provisions of the MV Act.
iii) Bar under Section 53 of the ESI Act will apply only if claimant received compens- ation in respect of an employment injury as defined under Section 2 (8) of the ESI Act; and
iv) Injured/Legal Representatives of deceased cannot claim amounts under the provi- sions of MV Act which were claimed and received by them towards reimbursement under the provisions of ESI Act;"
16. In view of the aforesaid discussion, I am of the considered opinion that MACT has committed illegality in holding the claim petition to be not maintainable.
17. Resultantly, misc. appeal succeeds and is allowed in part and the matter is remanded back to MACT, Rewa with the further direction to restore the claim 11 MA 6228-19 petition to its original number and to decide the same on merits after taking into consideration the entire material available on record.
18. Pending application(s), if any, shall stand disposed off.
19. It is made clear that this Court has not expressed any opinion on merits and demerits of the case.
(DWARKA DHISH BANSAL) JUDGE pb Digitally signed by PRASHANT BAGJILEWALE Date: 2024.01.03 14:50:42 +05'30'