Bangalore District Court
Sri.Saravana K vs M/S Precision Fab on 9 November, 2020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
DATED THIS THE 9th DAY OF NOVEMBER 2020
(SCCH25)
Present: Miss. ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
XXI A.C.M.M. & XXIII A.S.C.J, Bengaluru.
ECA No.71/2017
PETITIONER/S: Sri.Saravana K
S/o Kodandarama,
Aged about 48 years,
83, 5th Cross, Friends Colony,
Andrahalli Main Road,
Peenya 2nd Stage, Bangalore - 91.
(By Sri.L. Naveen Kumar,
Advocate)
V/S
RESPONDENT/S 1. M/s PRECISION FAB
162/A, 15th Main, 5th Cross,
Industrial Suburb, 2nd stage,
Yeshwanthapura,
Bangalore - 560 022.
2. Sri. Prakash A
Aged 62 years,
S/o. Annamalai,
162/A, 15th Main, 5th Cross,
Industrial Suburb, 2nd stage,
Yeshwanthapura,
Bangalore - 560 022.
3. Sri. Manohar AAged about 55
years,
162/A, 15th Main, 5th
Cross,Industrial Suburb, 2nd
stage,
Yeshwanthapura,
Bangalore - 560 022.
4. Sri. Madan P
Aged about 29 years,
S/o Prakash A,
162/A, 15th Main, 5th Cross,
Industrial Suburb, 2nd stage,
Yeshwanthapura,
Bangalore - 560 022.
(R.1 to R.4 By Sri.Lakshmi Narayan,
Advocate/s)
JUDGMENT
This is a Petition filed by the Petitioner under Section 22 of Employees Compensation Act, 1923 seeking Compensation for the accidental injuries sustained by him in an accident dated 01.12.2016 arising out of and in the course of his employment under the Respondent Nos.1 to 4.
2. The case of the Petitioner in brief is that, the Respondent No.1 is the partnership firm dealing in motor spare parts and the Respondent Nos.2 to 4 are the partners of the establishment. The Petitioner joined the establishment on 21.04.2012 and at that time there were more than 25 employees. He was drawing salary of Rs.14,000/. On 01.12.2016, at about 7.00 p.m., he was working on milling machine and loading the MS rod and due to moving of the rod suddenly it fell on his right thumb and crushed his right thumb thereby a grievous injury was caused to his right thumb. Due to the said accident it caused him permanent disability.
3. It is further case of the Petitioner that, at the time of accident he was drawing a salary of Rs.19,500/ per month. After the said accident and after discharge from the hospital, the respondent compelled him to attend the duty and hence without taking sufficient rest he attended the duty. At that time inspite of his permanent disability the respondent assigned him the same duty and later on observing his inability to work as before, the respondents pressurized him to resign from the job and not to attend the duty here onwards. Later on when he tried to attend the duty respondent has not allowed him to work but resisted him from continuing the service. From last six months the respondents not allowed him to work in the establishment, without assigning any sufficient reason not paid his salary for the last six months. The respondent establishment is the gross violator of labor and other loss. To evident the same, the respondent have not registered themselves under Provident Fund and Miscellaneous Provisions Act from last 10 to 12 years even though there employees strength crossed
20. With an arterial motive the employer is not maintaining any records pertaining to labors, not issuing appointment letters, salary slips. The respondents have not registered with ESIC. The respondents make payment of all employees by cash even though the law does not support the same. As the respondents did not registered under ESI hence he suffered huge medical expenses. After the above accident the respondent got covered him under ESIC and made online accident report. When ESIC sought for some record he approached the respondents for signing those records but the respondents have denied to sign on them stating that respondent will be under scanner, thereby he was denied his opportunity of getting treatment form ESIC. Due to said act of respondent he spent Rs.5,00,000/ for his treatment. Due to said accident he has become permanent disabled person and not able to do any work as he was dong earlier and no employer will hire him. He is a sole bread earning member and entire family depending on him and suffered from last 6 months and borrowed huge amount for his treatment and for day to day expenses. His family is suffering from mental agony. He has already served a legal notice to the respondents claiming compensation and the respondents have replied to it indirectly admitting the contents of the legal notice and given untenable reply.
4. It is further case of the Petitioner that, he has spent huge amount towards medical and conveyance expenses. He is claiming future 12 years wages, medical expenses, loss of future prospectus and for mental agony in total Rs.48,08,000/. Therefore, the Respondents, being the employers are liable to pay compensation to the Petitioner and hence this petition.
5. In response to summons issued by this court, the Respondents appeared through their counsel and filed written statement. The Respondent Nos.1 to 4 in their joint written statement have denied that on 21.04.2012 the Petitioner joined their establishment and drawing salary of Rs.14,000/ per month and there were 25 employees in their establishment and submitted that the petitioner joined their unit on 01.04.2016 and drawing total wages of Rs.9,000/ per month. They further submit that on 01.12.2016 at 7.00 p.m the petitioner met with an accident due to his self negligence and carelessness and denied that petitioner was drawing salary of Rs.19,500/. They have further denied the contents of Para 2 to 9 which are traversed against them and further submitted that the petitioner is covered under ESIC scheme. After above said accident the respondent has provided first aid treatment at City Hospital at Rajajinagar and all the medical charges of the hospital was incurred by them. Their unit was covered under ESI Act w.e.f 01.01.2016. They made payments in cash but within the parameters of law. After the accident and recovery the Petitioner was provided suitable work, after some time without any information the petitioner remained absent to work.
6. The respondent have further submitted that, the Petitioner joined their unit on 01.04.2016 and drawing gross wages of Rs.9,000/ per month and got ESI coverage with code No.49000351180000606 and issued with epehachan Card with ESI insurance No.5341063382 and ESI contribution was regularly paid to the ESI Corporation. After occurring the accident immediately accident report in Form No.12 was submitted to the ESI corporation. Immediately Petitioner was admitted to the City Hospital at Rajajinagara, Bangalore, wherein first aid was given and admitted as an inpatient, received advance treatment and discharged after complete recovery. They have followed Labor Legislation and extended welfare measures to the Petitioner. All the medical charges of the hospital was incurred by them. After recovery suitable placement was provided and inspite of irregular attendance full wages till 31.03.2017 was paid to the Petitioner. Thereafter, the Petitioner fail to turn over and commenced bad propaganda against there unit. They reliably learnt that the Petitioner is working and is in gainful employment with some other unit, as such voluntarily remained absent from duty. The claim of the Petitioner is not maintainable. When a worker is covered under ESI scheme as per 53 of the ESI Act bars receiving or recovery of compensation or damages under any other law. They relied on a decision of Hon'ble Apex court in the case of National Insurance Co., Ltd., Vs. Hameeda Khathun & Others in support of their contention. Therefore, prayed for dismissal of the petition.
7. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioner proves that, he is an employee under the Respondent No.1 as defined under the provisions of Workmen Compensation Act.?
2. Whether the Petitioner proves that, on 01.12.2016 at about 7.00 p.m., while he was working on milling machine has sustained a grievous injury which is arisen out of and in the course of employment under the respondent No.1?
3. Whether respondent No.1 proves that, the petition is hit by Sec.53 of Employees State Insurance Act. 1948?
4. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
5. What Order or Award?
8. In order to prove his case, the Petitioner has examined himself as PW.1 and produced 30 documents as per Exs.P.1 to P.22 and P.25 to P.32. One Smt.Nirmala Kumari - Social Security Officer, SRO, Peenya, is examined as PW.2 and produced 2 documents as per Exs.P.23 and P.24. On the other hand the Respondent No.4 is examined himself as RW.1 and produced 14 documents as per Exs.R.1 to R.14.
9. Heard both Counsels.
10. My finding to the above issues are as follows: Issue No.1 : In the affirmative Issue No.2 : In the affirmative Issue No.3 : In the affirmative Issue No.4 : In the negative Issue No.5 : As per final order for the Following:
REASONS
11. Issue Nos.1 & 2:
Since, both these issues are interconnected each other and required common discussion, for the sake of brevity and convenience, both these issues are taken together for consideration and discussion.
At the outset, it is pertinent to mention that, as the Petitioner has filed this present petition seeking compensation under Employees Compensation Act, it is imperative on the part of the Petitioner to prove that, he is an employee under the Respondents as defined under the provisions Employees Compensation Act. In this regard, the Petitioner has got examined himself as PW.1 and reiterated the averments of the petition in his evidence. He also has examined one Smt.Nirmala Kumari
- Social Security Officer as PW.2. The respondents in their written statement have admitted that the petitioner was their employee and joined to their duty on 01.04.2016 with monthly wages of Rs.9,000/ and got ESI coverage. Even though the Petitioner claims that he joined the respondent establishment on 21.04.2012 with salary of Rs.14,000/ per month and not covered under ESI scheme, but failed to prove these aspects. Further in the crossexamination the PW.1 has clearly stated that he did not produce any document to show that he joined respondent firm on 21.04.2012 and drawing Rs.14,000/ and admits that in Ex.P.2/ePehachan card his date of joining mentioned as 01.04.2016 and he has produced the Ex.P.1 which is the online accident report submitted to ESI Corporation. The PW.2 has also supported to Ex.P.1 and P.2 stating that they received the ESI contribution of the petitioner from 01.04.2016 to 31.03.2017 and also stated that the Petitioner did not claim any payment for the said accident.
12. The petitioner in his petition stated that on 01.12.2016 at about 7.00 pm he was working on Milling Machine and loading MS rod and due to moving of the rod suddenly it fell on his right thumb and crushed on his right thumb, thereby a grievous injury was caused to his right thumb which caused permanent disability and at the time of work he was drawing salary of Rs.19,500/ per month. The Respondents admitted the said accident but contended that it was due to negligence of the petitioner and on the date of accident the petitioner was drawing salary of Rs.9,000/ per month and covered under ESI scheme. The respondents have not denied that the said accident not occurred during the course of employment. In this regard the petitioner has produced Ex.P.1 online accident report submitted to ESI Corporation, wherein it discloses that accident occurred while working in milling machine. The Ex.P.5 shows that the accident occurred at the time of work while handling machinery and Exs.P.3, P.4, P.6 and P.7 are the discharge summary, medical bills and clinical reports pertaining to the treatment taken by the petitioner for the alleged accident due to which he sustained injury to right thumb which was operated. Ex.P.8 is the legal notice issued to the respondent claiming compensation with regard to treatment for injury sustained by him while working in their establishment and Exs.P.19 and P.20 which are the reply given by the respondents clearly depicts that the petitioner was covered under the ESI and holding valid insurance on the date of accident which was also reported to ESIC and relevant papers have been signed and handed over to the petitioner for ESI claim. Exs.R.7 to P.10 are produced by the RW.1 stating that he has paid the treatment expenses of petitioner amounting to Rs.64,000/. From this it is clear that as the accident occurred during the course of employment and hence admitting the same the respondents have paid the treatment expenses of the petitioner which is evident from Ex.R.7. From this evidence and admission of the respondent and documents with regard to ESI coverage and Ex.R.7, it is clear that the Petitioner was employee of the respondent No.1 from 01.04.2016 to 31.03.2017 and as the accident occurred during the course of employment the treatment expenses are borne by the respondent establishment. To prove the contention that the said accident occurred due to the negligence on the part of the petitioner, the respondents have not produced any documents and oral evidence to support the same. As per the admission of the respondents they have paid the treatment expenses of the petitioner, which affirms that the said accident occurred during the course of employment and hence the respondents being the employer have met the treatment expenses of the petitioner. The very action of the respondents itself clear that the Petitioner met with the accident in the course of and arising out of employment under them. Apart from that, the Respondents have produced Exs.R.3 to R.6 ESI coverage letter, ePehachan Card, online accident report submitted to ESI corporation and ESI contribution challans pertaining to petitioner. These documents clearly disclose the Petitioner being employee under the Respondents has received the wages for having done work. Under these circumstances, relying upon the above discussion, this court is of the opinion that the Petitioner has proved that he was an employee under the Respondents and met with an accident arising out of and in the course of his employment under the Respondents and sustained injuries. Accordingly, issue Nos.1 and 2 are held in Affirmative.
13. Issue No.3:
The burden of proving this issue is on the respondent No.1. The respondents contended that as the Petitioner covered under the ESI scheme and hence the petition is hit by Sec. 53 of ESI Act. It is purely a question of law. If the respondents are success in proving that the petitioner is insured under ESI scheme then as per Sec. 53 of ESI Act the petitioner is barred from availing compensation or recovery under other Labor Acts.
14. Now it is proper to narrate Sec. 53 of ESI Act.
"Sec. 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 or from any other person, any compensation or damages under the Workmen's Compensation 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 Act.'
15. Further it is proper to narrate the provisions of Sec 75(3) of ESI Act which reads thus, 'No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which buy or under this act is to be decided by a medical board or by a medical appeal tribunal or by the employees insurance court.
16. On careful perusal of Sec. 53 and Sec. 75(3) of ESI Act on its interpretation it is clear that when an employee is covered under ESI Scheme formulated under ESI Act he is debarred from making claim under Employee's Compensation Act. In this regard it is proper to rely upon decisions of Hon'ble Apex Court wherein the Hon'ble Apex Court has interpreted Sec 53 of ESI Act about its applicability and under what circumstances the said Sec 53 of ESI Act is applicable. The Hon'ble Apex Court in the decision in "A Trehan V. Associated Electrical Agencies, (1996IILLJ721) (SC). Sections 53 and 61 of the Employees' State Insurance Act, 1948 read as follows at Petitioner 725:
"53. Bar against receiving or recovery of compensation or damages under any other law - An insured person or his dependant shall not 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 At, 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.
61. Bar of benefits under other enactments - When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment."
17. The said decision construed the scope of the bar enacted in Section 53 of the Employees' State Insurance Act. That was a case wherein the claimant was the worker himself and the claim petition was in respect of an injury sustained in the course of his employment on account of which he was said to have lost the vision of his left eye. The employee therein was also an insured person under the Employees State Insurance Act and he became entitled to the benefit of Section 46(c) of the said Act. He approached the Employees State Insurance Corporation and obtained the benefit available to him under the Employees State Insurance Act. Thereafter, he served a notice on the Management demanding Rs.7 lacs as compensation and followed the same by filing an application under the provisions of the Workmen's Compensation Act, 1923 claiming Rs.1 lac and odd with penalty, penal interest and costs. It is in such context an objection regarding the maintainability of the application under the Workmen's Compensation Act was taken and the objection was overruled by the authority under the Act applying the decision of a Full Bench of Kerala High Court reported in "P. Ashokan Vs. Western Indian Plywoods Ltd., Cannanore, AIR 1987 Kerala 103". The Management pursued the matter before the High Court of Bombay by means of a writ petition, which was dismissed by the learned single Judge summarily on the ground that the Management had an alternative remedy by way of an appeal under Section 30 of the Workmen's Compensation Act. The Management then preferred an appeal. The Division Bench held that in view of the bar created by Section 53, the application field by the appellant under the Workmen's Compensation Act was not maintainable. The worker pursued the matter before the Apex Court and their Lordships of the Apex Court while overruling the decision of the Full Bench of the Kerala High Court noticed above affirmed the decision of the Division Bench of the Bombay High Court. It was observed by their Lordships of the Apex Court, as here under at Para 725:
"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 accident 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 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 disadvantage, is that he will get compensation under the ESI Act by way of periodical payments and not in lump sum as under the Workmen's Compensation Act. If the Legislature in its wisdom thought it better to provide for periodical payments rather than lumpsum 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 court of his employment.
12. In this background and context, we have to consider the effect of the bar created by Section 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 otherwise in respect of an employment injury. The bar is absolute as an be seen from the use of the 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 (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 by passing 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 compensation 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 compensation filed by the appellant under the Workmen's Compensation Act was not maintainable."
18. The actual consideration undertaken by their Lordships was on the scope, purpose and extent of the bar created under Section 53 of the Employees' State Insurance Act supplemented and supported by the other provisions contained in Section 61 of the very same Act with particular reference to the very purpose and object of those provisions. The relevant portions of the judgments extracted (supra) would make it explicitly clear that the sum and substance of the dictum laid therein is to the extent that Section 53 of the Act disentitles an employee who has suffered an employment injury within the meaning of the Employees' State Insurance Act or his dependents from receiving or recovering compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise and, that the bar so created is clear and express besides being absolute, thereby rendering it neither permissible nor proper for construing it in a different manner, which will have the effect of defeating the object of the provisions as well as the intention of the Legislature to take away the very right under the Workmen's Compensation Act, 1923. In cases where a choice is to be only left with the aggrieved persons or the reliefs which are more than one available to an aggrieved person(s) are permitted or left to be availed of, at their choice and discretion, the parliament was consciously employing different language to indicate such intention of the Legislature without leaving any doubts in this regard. We should not be understood to have relief upon a different provision in a distinct and separate Act to construe the provisions of the Employees' State Insurance Act when we make reference in their connection to the provisions of the Motor Vehicles Act, 1988, only for the limited purpose of pointing out the legislative practice adopted by the Parliament or the Legislature concerned, in this regard when such was the actual or real intention. Section 167 of the Motor Vehicles Act, 1988 providing for option to the claimants/aggrieved persons enacts that notwithstanding anything contained in Workmen's Compensation Act, 1923 where the death or bodily injury to any person gives rise to a claim for compensation under the said Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter 10 of the Motor Vehicles Act, 1988 claim such compensation under either of those Acts, but not under both. Such is not the provisions in this case. That apart, the Employees' State Insurance Act itself indicates an intention of the Parliament to the contrary. Section 53, as it is in force, presently, has been enacted by way of substitution by the Central Act 44 of 1966 with effect from January 28, 1968, for the then existing Section. A careful perusal of the previous Section 53, as it existed prior to its Substitution, would disclose that it not only did not carry such absolute bar but Clause (v) of the previous Section 53 specifically provided that "Save as modified by this Act the obligations and liabilities imposed on an employer by the Workmen's Compensation At, 1923, shall continue to apply to him." The substitution of such a provision by the new Section 53 by enacting a bar in absolute terms in respect of an insured person or from any other person, any compensation or damages under the Workmen's Compensation 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 who is/was an employee under the Employees State Insurance Act must be held to have been deliberate, specific and express, admitting of no room for any controversy or confusion as to the manner or extent of the bar, at any rate in respect of the claims made by such persons from the employer of the insured person, under the Workmen's Compensation Act, 1923. For all the reasons stated above, this court is of the view that the challenge made to the maintainability of the claim in this case, before the authority constituted under the Workmen's Compensation Act is well merited and has to be sustained.
19. The learned counsel for the respondent drawing the attention of this court to Section 53 of the Employees State Insurance Act, contented that it provides a total bar to make a claim under the Workmen's Compensation Act and the claim of the applicant made under the provisions of the Workmen's Compensation Act needs to be rejected. In support of his contention has relied upon the decision of Hon'ble Apex court in the case of "National Insurance Co. Ltd Vs. Hameeda Khatoon & Ors., reported in 2009(10) SRJ 100". I have perused the said citation and it also similar to the citation referred above with regard to scope of Section 53 of ESI Act.
20. The learned counsel for the petitioner contend that since he was not insured by the respondents under ESI scheme and as such after the accident he was not admitted to ESI hospital and later the respondents have got created said documents and hence he would not come within the provisions of the Employees State Insurance Act.
21. The decision of the Hon'ble Supreme Court reported in "2003 1 LLJ 324 in the case of Bharath Engineering Vs. R.Ranganayaki and another" is the straight answer to the said contention raised by the learned counsel for the petitioner. The relevant portion of the said decision of the Hon'ble Supreme Court, in which Section2(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 (AIR1993SC2655: 1993 4SCC361:1994ILLJ12) 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 1993SC1530:19932SCC9:1993ILLJ939) 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 (19989SCC74) 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' as 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 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."
It is held in paragraph 11 of the said decision as fellow: "11.When considered in the back ground 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.
22. In this background and context, this court 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. As per the evidence the petitioner is insured employee of the respondents and it is also evident from the documents produced. Therefore, the petitioner is at liberty and shall be entitled to have recourse, to vindicate his right, to the provisions of the Employees' State Insurance Act before the authorities concerned in the manner known to and in accordance with law. Hence, the petition is not maintainable. Accordingly, Issue No.3 is held in the affirmative.
23. Issue No.4:
As discussed above the petition is hit by Section 53 of Employees State Insurance Act,1948. Therefore the Petitioner is not entitled to the relief of compensation as claimed but he is at liberty to approach the ESI corporation for the relief. Accordingly issue No.4 is answered in the Negative.
24. Issue No.5: Therefore, for the reasons and discussions made above and finding to the above issues, this court/commissioner proceed to pass the following: ORDER The Petition filed by the Petitioner under Section 22 of Employees Compensation Act 1923 is dismissed.
The Petitioner is at liberty to approach the proper authority i.e. ESI Corporation for relief.
The parties are directed to bear their own cost.
Draw Award accordingly.
(Dictated to the stenographer online, revised, corrected and then pronounced in the open court this the 9th day of November 2020) (Miss. B.T.ANNAPOORNESHWARI) XXIII Addl. Small Causes Judge, Bangalore.
ANNEXTURE List of witnesses examined on behalf of the Petitioner:
P.W.1: Sri.Saravana K P.W.2: Smt.Nirmala Kumari List of witnesses examined on behalf of the Respondents: R.W.1: Sri.Madan P.
List of documents marked on behalf of the Petitioner:
Ex.P1 Form No.12 of ESI Corporation (Accident report) Ex.P2 EPehachan Card Ex.P3 Prescriptions of City Hospital Ex.P4 Medical Bills Exs.P5 & P6 Discharge Summaries Ex.P7 Lab reports Ex.P8 Office copy of legal notice Exs.P9 to P13 RPAD receipts 5 in Nos.
Exs.P14
to P18 Acknowledgments 5 in Nos.
Exs.P19
to P20 Reply notice 2 in Nos.
Exs.P21
& P22 RPAD Covers 2 in Nos.
Ex.P23 Authorization letter
Ex.P24 Details of Contribution and benefit payment
contribution received itself is payment
receipt.
Exs.P25
& P26 Two Medical certificates
Ex.P27 Letter issued by ESI hospital to the Manager
Exs.P28
to P31 4 Leave letters
Ex.P32 ESI Extract
List of documents marked on behalf of the Respondents:
Ex.R.1 Certified copy of company Partnership Deed Ex.R.2 Authorization letter Ex.R.3 Coverage letter dated 25.01.2016 Ex.R.4 EPehachan Card Ex.R.5 Accident report Ex.R.6 ESI Contribution chalans Ex.R.7 Document of 30.01.2017 Ex.R.8 Invoices of CT Hospital Exs.R.9 & P10 Discharge summaries Ex.P11 Office copy of legal notice dated 24.05.2017 Ex.P12 Office copy of legal notice dated 10.06.2017 Exs.P13 & P14 RPAD receipts 2 in Nos.
(Miss. B.T.ANNAPOORNESHWARI) XXIII Addl. Small Causes Judge, Bangalore.
09.11.2020 For Judgment Pronounced vide separate judgment with following operative portion:
ORDER The Petition filed by the Petitioner under Section 22 of Employees Compensation Act 1923 is dismissed.
The Petitioner is at liberty to approach the proper authority i.e. ESI Corporation for relief.
The parties are directed to bear their own cost.
Draw Award accordingly.
(Miss. B.T.ANNAPOORNESHWARI) XXI A.C.M.M. & A.S.C.J. Bangalore.
AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXI ACMM : BANGALORE CITY ECA No.71/2017 PETITIONER/S: Sri.Saravana K S/o Kodandarama, Aged about 48 years, 83, 5th Cross, Friends Colony, Andrahalli Main Road, Peenya 2nd Stage, Bangalore - 91.
(By Sri.L. Naveen Kumar, Advocate) V/S RESPONDENT/S 1. M/s PRECISION FAB 162/A, 15th Main, 5th Cross, Industrial Suburb, 2nd stage, Yeshwanthapura, Bangalore - 560 022.
2. Sri. Prakash A Aged 62 years, S/o. Annamalai, 162/A, 15th Main, 5th Cross, Industrial Suburb, 2nd stage, Yeshwanthapura, Bangalore - 560 022.
3. Sri. Manohar A Aged about 55 years, 162/A, 15th Main, 5th Cross,Industrial Suburb, 2nd stage, Yeshwanthapura, Bangalore - 560 022.
4. Sri. Madan P Aged about 29 years, S/o Prakash A, 162/A, 15th Main, 5th Cross, Industrial Suburb, 2nd stage, Yeshwanthapura, Bangalore - 560 022.
(R.1 to R.4 By Sri.Lakshmi Narayan, Advocate/s) WHEREAS, this petition filed on by the Petitioner/s above named U/sec.110A/166 of the M.V.C. Act, praying for the compensation of Rs. (Rupees Only) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Miss. B.T.Annapoorneshwari, XXIII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The Petition filed by the Petitioner under Section 22 of Employees Compensation Act 1923 is dismissed.
The Petitioner is at liberty to approach the proper authority i.e. ESI Corporation for relief.
The parties are directed to bear their own cost.
The Advocate's fee is fixed at Rs.1000/.
Given under my hand and seal of the Court this day of 20120 MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BANGALORE.
By the
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Petitioner/s Respondent
Court fee paid on petition 1000
Court fee paid on Powers 0000
Court fee paid on I.A.
Process
Pleaders Fee
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Total Rs.
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Decree Drafted Scrutinised by MEMBER,
M.A.C.T.METROPOLITAN:
BANGALORE
Decree Clerk SHERISTEDAR