Andhra Pradesh High Court - Amravati
New India Assurance Company Limited, vs Sarika Pydiraju on 28 January, 2025
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
+ M.A.C.M.A.NO: 350/2024
% Dated: 28.01.2025
# New India Assurance Company Ltd. ...... Appellant
and
$ Sarika Pydiraju and 5 others ..... Respondents
! Counsel for the Appellant : Sri Naresh Byrapaneni,
Standing Counsel
^ Counsel for the Respondents 1 to 4/
Claimants : Ms.P.Anuradha
<GIST :
>HEAD NOTE :
?Cases referred :
1
(2023 ACJ 1223)
2
(2017) 16 SCC 680
3
1993 Supp.(4) Scc 100 (2 JJ.)
4
(1996)6 SCC 1(3 JJ.)
5
1997(7) SCC 638
6
1996(4) SCC 255.
7
Air 1982 Madras 223
8
2023 ACJ 1655
9
2009(13) SCC 361(SC)
10.
(1982) 60 FJR 118 (Kant)
11
1984 ACJ 238
12
2020(6) ALD 611
13
MACMA No.1834/2012 decided on 16.06.2014
14
AIR 2012 SUPREME COURT 945
15
(2003) 7 SCC 484
16
2022 SCC OnLine SC 1683
17
AIR 2017 SC 5157
18
(2018) 18 SCC 130
19
(2021) 11 SCC 780
20
2024 SCC OnLine SC 1901.
21
2015) 1 SCC 539
22
(2021) 6 SCC 188
23
(2021) 2 SCC 166
24(
2020) 4 SCC 228
2
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
M.A.C.M.A.NO: 350/2024
Between:
New India Assurance Company Ltd ... Appellant
and
Sarika Pydiraju and 5 others ..... Respondents
DATE OF ORDER PRONOUNCED: 28.01.2025
(per Hon‟ble Sri Justice Ravi Nath Tilhari)
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their Lordship wishes Yes/No
to see the fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
_______________________
CHALLA GUNARANJAN, J
3
4
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
M.A.C.M.A.NO: 350/2024
JUDGMENT:(per Hon‟ble Sri Justice Ravi Nath Tilhari) Heard Sri Naresh Byrapaneni, learned counsel for the appellant-insurance company and Ms.P.Anuradha, learned counsel for the respondents 1 to 4/claimants.
2. The New India Assurance Company Limited is the appellant in the present appeal under Section 173 of the Motor Vehicles Act, 1988(in short „the M.V.Act‟). The appellant is challenging the award dated 05.02.2024 in M.V.O.P.No.455 of 2018 (in short „MVOP‟) passed by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Visakhapatnam(in short „the Tribunal‟). The Tribunal allowed the MVOP.
Facts:
3. The respondents 1 to 4/claimants herein filed M.V.O.P under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of the death of late Sarika Narasinga Rao in the motor accident dated 12.01.2018 at about 6.45 a.m. caused by the rash and negligent driving of the offending vehicle 5 bearing No.AP 25 W 9929 by its driver, the 5th respondent herein; owned by the 6th respondent herein and insured with the present appellant, who was the 3rd respondent in the claim petition.
4. The claim petition was filed by four claimants including the widow, who died during pendency of the claim petition.
5. The owner and the driver of the offending vehicle remained ex parte before the Tribunal.
6. The insurance company filed counter, inter alia denying the averments of the claim petition and submitting that the claimants be put to strict proof of their case. It pleaded that the claimants were not entitled for the compensation nor for the interest.
7. The insurance company filed additional counter, pleading that the dependents of the deceased received benefits under the Employees‟ State Insurance Act, 1948 (in short „E.S.I.Act‟). So,the claimants were not entitled for any compensation under the M.V.Act in view of Section 53 of the E.S.I Act.The insurance company was therefore not liable to pay any compensation.
8. The Tribunal framed the following issues:
" 1. Whether the deceased Sarika Narasinga Rao died in road accident on 12.01.2018 at about 06.45 hours at Convent Junction, Visakhapatnam due to rash and 6 negligent driving of the vehicle bearing No. AP 25 W 9929 for which 1st respondent is the driver, the 2nd respondent is the owner and the 3rdrespondent is the Insurer?
2. Whether the petitioners 1 to 4 are entitled for compensation from the respondents for the death of Sarika Narasinga Rao? if so, to what amount and from which of the respondents?
3. To what relief? "
Finding of the Tribunal:
9. The claimants examined the daughter of the deceased as PW.1 andCh.Govind, eye witness of the accident, as PW.2 andM.Praveen Kumar, the H.R.Manager ofM/s.Sravan Shipping Service Private Limited, Visakhapatnam, as PW.3. The documentsExs.A1 to A6; X1 and X2 were marked on their behalf.
10. The insurance company examined Rufus Clement Kondru,as RW.1 and Panda Raghunadh, as RW.2 and marked the documents as Ex.B1 and Exs.X3 to X6.
11. The Tribunal, on consideration of the evidence, oral and documentary, recorded finding on issue No.1, that the driver of the offending vehicle, AP 25W 9929, driving the vehicle in rash and negligent manner, caused the accident in which the deceased received multiple injuries and died.
7
12. On the aspect of the claimants entitled or not for compensation under the M.V.Act in view of Section 53 of the E.S.I.Act, the Tribunal applied the judgment in Divisional Manager, National Insurance Company Ltd., v. Anushaya1 of the High Court of Orissa at Cuttack, and held that Section 53 of the E.S.I. Act was no bar to file a claim petition under Section 166 of the M.V.Act.
13. On issue No.2, the Tribunal determined, in total, a compensation of Rs.29,28,750/- with interest at 6% p.a. from the date of the claim petition till its deposit. The respondents 1 to 3 in the claim petition were, jointly and severally, held liable to pay the compensation amount. The Tribunal determined the monthly income of the deceased at Rs.19,000/- and Rs.2,28,000/-as annual. It deducted 1/4th of the income, towards personal and living expenses of the deceased. The contribution of the deceased towards his family, came to Rs.1,71,000/-. The age of the deceased was determined about 49 years.The Tribunal awarded addition of 25% of the established income towards future prospects. It applied the multiplier of „13‟. It awarded an amount of Rs.1,20,000/-(3x Rs.40,000/-) towards loss of consortium, for 1 (2023 ACJ 1223) 8 three(3) claimants and an amount of Rs.15,000/- each under the heads of loss of estate and for funeral expenses respectively. Submission of appellant's counsel:
14. Sri Naresh Byrapaneni, learned counsel for the appellant, argued that Section 53 of the E.S.I.Act bars against receiving or recovery of compensation or damages under any other law from the employer of the 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. He submitted that the expression „any other law for the time being in force‟ would also include the Motor Vehicles Act, 1988. Consequently, the claim petition under Section 166 of the Motor Vehicles Act,was not maintainable and the Tribunal had no jurisdiction to award the compensation.
15. Sri Naresh Byrapaneni, learned counsel for the appellant, next submitted that the Tribunal ought to have deducted 1/3rd towards personal and living expenses of the deceased. Initially there were four(4) claimants but one of them, the widow,having died during pendency of the claim petition, the number of claimants was reduced to „3‟. So,only 3 claimants were surviving 9 on the date of passing of the awardand only they should have been considered as dependents, for deducting 1/3rdinstead of 1/4th .
Submission of counsel for the claimants/respondents 1 to 4:
16. Ms.P.Anuradha, learned counsel for the respondents 1 to 4/claimants, submitted that Section 53 of the E.S.I. Act does not bar filing of the claim petition or award of the compensation under the M.V.Act. Any other law for the time being in force in Section 53 of the E.S.I. Act would not include the M.V.Act. She placed reliance on the judgment of the High Court of Orissa,in Anushaya (supra).
17. Ms.P.Anuradha, learned counsel for the respondents 1 to 4/claimants, next submitted that the claimants are entitled for just and fair compensation. The Tribunal, in view of the 4 claimants, rightly deducted 1/4th towards personal and living expenses of the deceased. However, while granting the amount under the conventional head, „for loss of consortium‟, it awarded only to the surviving three(3)claimants, whereas it should have been to all the four(4) claimants. She submitted that the amount under the conventional heads is also not as per the law laid down by the 10 Hon‟ble Apex Court inNational Insurance company limited v. Pranay Sethi2. Lastly, she submitted that the interest @6% p.a. is on the lower side, which deserves to be enhanced to @ 9% p.a.
18. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
Points for determination:
19. The following points arise for our consideration and determination:
1. Whether the award of compensation under the Motor Vehicles Act is barred in view of Sections 53 and 61 of the Employees‟ State Insurance Act, 1948?
2. Whether the award of the Motor Accidents Claims Tribunal, is without jurisdiction?
3. Whether the amount of compensation awarded is just and fair or it deserves modification in the light of the submissions advanced to represent just and fair compensation?2
(2017) 16 SCC 680 11
4. What rate of interest should be awarded, on the compensation amount i.e. @6% p.a or @9% p.a? Consideration:
Point Nos.1 and 2:
20. We would first refer to the legal provisions of Employees‟ State Insurance Act, 1948 and the Motor Vehicles Act, 1988.
21. Sections 2(8), 53 and 61 of the Employees‟ State Insurance Act, 1948, deserve to be reproduced as under:
"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-
...
...
...
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;"
"53. Bar against receiving or recovery of compensation or damages under any other law.
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 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."12
"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."
22. Section 53 of the E.S.I.Act provides for the bar against receiving or recovery of compensation or damages under any other law. As per this section, 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 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 E.S.I.Act. Section 53 specifically deals for the bar thereunder in respect of an „an employment injury‟. The „employment injury‟ means as defined under Section 2(8), 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. The „employment injury‟, is therefore a personal injury to an employee caused by accident or an occupational disease 13 arising out of and in the course of the employment of the employer. If the injury sustained is not an „employment injury‟ within the meaning of Section 2(8) of the E.S.I.Act, the bar under Section 53 of the ESI Act shall not be attracted.
23. For the same reasons as aforesaid, the provisions of Section 61 of the E.S.I.Act shall also not be applicable and would not be attracted, if the injury is not an employment injury.
24. Sections 165, 166 and 167 of the Motor Vehicles Act, 1988, are also reproduced as under:
"165. Claims Tribunals.--(1) A State Government may, by notification in the Official Gazette,constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation.--For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 1401[and section 163A].
(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he--
(a) is, or has been, a Judge of a High Court, or 14
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a Judge of a High Court1[or as a District Judge].
(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them."
"166. Application for compensation.--(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives ofthe deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any suchapplication for compensation, the application shall be made on behalf of or for the benefit of all the legalrepresentatives of the deceased and the legal representatives who have not so joined, shall be impleadedas respondents to the application. [Provided further that where a person accepts compensation under section 164 in accordance with the procedure provided under section 149, his claims petition before the Claims Tribunal shall lapse] [(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to theClaims Tribunal having jurisdiction over the area in which the accident occurred or to the ClaimsTribunal within the local limits of whose jurisdiction the claimant resides or carries on business or withinthe local limits of whose jurisdiction the defendant resides, and shall be in such form and contain suchparticulars as may be prescribed:
1.[ * * * *] (3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident.15
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under [section 159] as an application for compensation under this Act.] (5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident irrespective of whether the cause of death is relatable to or had any nexus with the injury or not."
"S.167. Option regarding claims for compensation in certain cases.--Notwithstanding anythingcontained in the Workmen‟s Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury to,any person gives rise to a claim for compensation under this Act and also under the Workmen‟sCompensation Act, 1923, the person entitled to compensation may without prejudice to the provisions ofChapter X claim such compensation under either of those Acts but not under both."
25. The Motor Vehicles Act provides for compensation, in respect of an injury or death caused due to motor accident. Section 167 provides option regarding claims for compensation in certain cases. According to this Section where the death of, or bodily injury to, any person gives rise to a claim for compensation under the M.V.Act and also under the Workmen‟s Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both the Acts.
26. In the present case, the accident was caused by the offending motor vehicle and in this respect, there is no dispute. The only submission advanced is that the claim could not be 16 maintained under the M.V.Act in view of bar of Section 53 of the E.S.I.Act.
PRECEDENTS:
27. We would consider some precedents on Section 53 of the ESI Act and its effect on claim petitions under M.V.Act.
28. In Regional Director, E.S.I.Corporation and another v. Francis De Costa and another 3 , the employee met with an accident while he was on the way to his place of employment. His claim for disablement benefit was allowed by the court and the appeal was dismissed by the Kerala High Court. The matter reached the Hon‟ble Apex Court. There, being difference of opinion between the two Honourable Judges of the Bench, the matter was placed before the Larger Bench. The dispute was whether the injury amounted to employment injury under Section 2(8), so as to enable the employee to claim benefit under the E.S.I.Act.
29. The Larger Bench of the Hon‟ble Apex Court in Francis De Costa4 observed that a road accident may happen anywhere at any time. But such accident could not be said to have arisen out 3 1993 Supp.(4) Scc 100 (2 JJ.) 4 (1996)6 SCC 1(3 JJ.) 17 of employment, unless it could be shown that the employee was doing something incidental to his employment. The Hon‟ble Apex Court observed that, in the context of Section 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 could not be said to have its origin in his employment in the factory. The Hon‟ble Apex Court, recorded that in that case, the employee was not obliged to travel in any particular way under the terms of employment nor it could be said that he was travelling in a transport provided by the employer and held that it could not be said that the injury suffered by the workman, one kilometer away from the factory, while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.
30. Paras 5 to 8, 16 and 27 to 29 of Francis De Costa(supra-4) are reproduced 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" with in the meaning of Section 2(8), so as to enable the respondent to claim benefit under the Act. The definition given to "employment injury" in sub-section (8) of Section 2 envisages a personal injury to an employee caused by an accident or an occupational disease 18 "arising out of and in the course of his employment", Therefore, the employee, in the order to succeed in this case, will have to prove that the injury that he had suffered arose out of and was in the course of his employment. Both the condition 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 any where 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 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 Comprehensive Dictionary- lnternational Edition-1984). In the context of Section 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 Pty. Ltd. v. James, 67 C.L.R 496, where construing the phrase "out or the employment", Starke, 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 Section 2(8) of the Act. The 19 words "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-section(8) of Section 2 is "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 Seventh Edition). The dictionary meaning indicates that the accident must take place within or during the period or 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 course of employment. If employment begins from the moment the employee sets from his house for the factory, then even if the employee stumbles and falls down at the door-step 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."
xxxxxxxxxxxxxxxx "16. But in the case before us, the facts are entirely different. The employee was not obliged to travel in any particular way under the terms of employment nor can it be said that he was travelling in a transport provided by the employer."
xxxxxxxxxxxxxxxx "27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.
28. In the case of Dover Navigation Company Limited v. Isabella Craig(1940 A.C 190), it was observed by Lord Wright that-
20
"Nothing could be simpler than the words" arising out of and in the course of the employment." It is clear that there are two condition to be fulfilled. What arise "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 causality. Not every accident which occur 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."
29. Although the facts of this case are quite dissimilar, the principle laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident,(2) the accident had a causal connection with the employment and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any causal connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment."
31. In Western India Plywood Ltd. v. P.Ashokan 5 , the Western India Pvt. Ltd was a company owning and operating a plywood factory. The respondent was working with the company and met with an accident. As a result, one of his hands was amputated. He was allowed to continue in service without any reduction in remuneration. The E.S.I Act was applicable. After the accident, he made a claim, which was allowed by the E.S.I Corporation. The same was not challenged by the employer. 5 1997(7) SCC 638 21 Besides, the benefits under the E.S.I. Act, some other benefits were also received by him from the employer. However, he filed O.P.No.108/1981 in the court of the Subordinate Judge under Order 33 Rule 1 of the Code of Civil Procedure (in short „C.P.C‟), seeking permission of the court to allow him to file a suit against the employer for compensation of Rs.1,50,000/-. The application was dismissed under Order 33 Rule 5(d) and (f) C.P.C, in view of Section 53 of E.S.I Act. The appeal was filed before the High Court of Kerala. The matter was referred to the Full Bench, which answered that, the provisions of Sections 53 and 61 of the E.S.I Act did not bar an action by an injured employee under tort for compensation against the employer. The appeal was allowed by the High Court.The matter approached the Hon‟ble Apex Court.
32. The question was whetheran employee of Western India Pvt. Ltd, could claim damages from the employer on account of the injury suffered by him during the course of employment when he had already received the benefit under the E.S.I.Act.
33. The Hon‟ble Apex court in Western India Plywood Ltd(supra), observed that the position with regard to the claim of an employee against his employer on his suffering an employment 22 injury stood settled in A.Trehan v. Associated Electrical Agencies6.The Hon‟ble Apex Court also expressed its agreement with the view taken in A.Trehan(supra) and held that the respondent could not make a claim for damages. Section 53 of the E.S.I Act disentitled an employee, suffering an employment injury, from receiving or recovering compensation or damages under the Workmen‟s Compensation Act(W.C.Act) or any other law for the time being in force or otherwise. The use of the expression „or otherwise‟ clearly indicated that Section 53 of the E.S.I Act was not limited to ousting the relief claimed only under any statute, but,the wordings of the section were such that an injured person would not be entitled to make a claim in torts which had force of law under the E.S.I Act. Even though the E.S.I Act was a beneficial legislation, the legislature had thought it fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including torts, in cases where the injury that had been sustained by him was an „employment injury‟. It was observed that the claims by the employees against the employer where the relationship of the employer and employee existed, were meant tobe governed by 6 1996(4) SCC 255.
23the E.S.I Act alone. The Hon‟ble Apex Court quoted with approval the judgment of the Madras High Court in Mangalamma v. Express Newspapers Ltd.7, in which it was observed and held that the object of Section 53 of the E.S.I Act was, to save the employer from facing more than one claim in relation to the same accident. The Apex Court observed that the same was the correct reading of Section 53 of the E.S.I.Act.The claim of the employee for damages was thus held to be barred by Section 53 of the E.S.I Act and the order of the trial court in dismissing the application under Order 33 Rule 1 C.P.C. was upheld by the Apex Court.
34. In Western India Plywood Ltd. (supra), an argument was however raised that, Section 53 of the E.S.I Actshould not be construed in such a way that an insured person could not raise a claim against a third party in the event of his suffering an employment injury. There, it was submitted that though qua the employer only one remedy might be available, namely under the E.S.I Act, but as far as third persons were concerned, Section 53 could not be taken up as a defence to an action in tort in a claim being made for damages, because the E.S.I Act created certain rights, as a result of the employment qua the employer and had no 7 Aair 1982 Madras 223 24 application as far as the third parties were concerned. It was submitted that the use of the words "employment injury" in Section 53 related to a claim, which was relatable to the employment of the insured person with his employer. The Hon‟ble Apex Court opined that there was considerable force in that submission but observed that it was not necessary for the decision of that case to decide that issue finally because in that case the claim which was sought to be made was not against the third party but was against the employer itself. The question was leftunanswered, observing that the question may require consideration in an appropriate case.
35. Paras 14 and 15 of Western India Plywood Ltd. (supra) read as under:
"14. During the course of hearing it had been argued that Section 53 should not be constructed in such away that an insured person cannot rise a claim against a third party in the event of his suffering an employment injury. It was submitted that though qua the employer only one remedy may available, namely, under the ESI Act but as far as third persons are concerned Section 53 cannot taken up as a defence to an action in tort in a claim being made for damages because the ESI Act creates certain rights as a result of the employment qua the employer and has no application as far as third parties are concerned. In this 'employment injury' in Section 53 relates to a claim which is relatable to the employment of the insured person with his employer.25
15. In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case the claim which was sought to be made was not against the third party but against the third party but against the employer itself. Perhaps this question may require considerable in an appropriate case. "
36. In Rajkumar Agrawal v. Vehicle Tata Venture No.UP 70 BM-1600 Commercial Auto Sales Private Limited8, the question was with respect to the applicability of Sections 53 and 61 of the ESI Act. That matter had approached the Hon‟ble Apex Court, from the High Court of Judicature at Allahabad, arising out of the judgment/award of the Motor Accident Claims Tribunal, which accepted the claim of the claimants and awarded compensation against the employer/owner of the vehicle in which the deceased was travelling at the time of accident. The Hon‟ble Apex Court referred the judgments in Western India Plywood Ltd (supra-3), National Insurance Company Limited v. Hamida Khatoon9as also Regional Director, E.S.I.Corporation and another v. Francis De Costa and another(supra). The Hon‟ble Apex Court observed that, there was no authoritative pronouncement on the subject as to whether the insurance amount paid under the ESI Act was similar „benefits‟ as the compensation which was claimed 8 2023 ACJ 1655 9 2009(13) SCC 361(SC) 26 in a case where there was a motor vehicle accident and claims subsisted so as to bar the same. It was also contended that since the Motor Vehicles Act, 1988 was a subsequent Act and the provisions in Sections 163(A) and 167 begin with a non-obstante clause, the bar should not operate against the insured employee under the E.S.I.Act to claim compensation under the Motor Vehicles Act. Rajkumar Agrawal (supra) has been referred to the Larger Bench for authoritative pronouncement.
37. In A.Trehan (supra), the employee therein while carrying out the repairs of Television, sustained injury on his face due to burst of a component. The employee was an insured person under the ESI Act and the injury sustained was also an employment injury. He was entitled to the benefits under Section 46(1)(c) of the ESI Act. He approached the ESI Corporation, which granted the benefit available to him under the ESI Act. Additionally, he served a notice on the employer demanding compensation followed by filing a case under the Workmen‟s Compensation Act, 1923 (W.C.Act), claiming compensation with penalty, penal interest and costs. In those proceedings objection was raised regarding maintainability of the application under the W.C.Act, in view of bar of Section 53 27 of the ESI Act. In that context, considering the provisions of the ESI Act and W.C.Act, the Hon‟ble Apex Court held that both the Acts provided for compensation to a workman/employee for personal injury caused to him by accident arising out of and in the course of his employment. It was held that in view of the bar created by Section 53 of the ESI Act, the application for compensation under the W.C.Act was not maintainable. The bar was absolute.
38. A.Trehan(supra) is a case considering the bar of Section 53 of the ESI Act in relation to the claim under Workmen‟s Compensation Act, which Acts were on the same subject.
39. In A. Trehan (supra) in para 15, the Hon‟ble Apex Court observed that the Madras High Court in Mangalam v. Express Newpapers Ltd., Karnataka High Court in K. S. Vasantha v. Karnataka SRTC10 and Annapurna v. G. M., Karnataka SRTC11, considered the effect of the bar created by Section 53 of the ESI Act with respect to the claim for compensation made under the Motor Vehicles Act, and the same appeared to be the correct view. Para 15 reads as under:
10
(1982) 60 FJR 118 (Kant) 11 1984 ACJ 238 28 "The Madras High Court in Mangalamma vs. Express Newspapers Ltd. AIR 1982 Madras 223, Karnataka High Court in K.S. Vasantha vs. Karnataka State Road Transport Corporation 1982 FIR (Vol.60) p.118 and Smt. Annapura vs. General Manager, Karnataka Stats Transport Corporation (1984 Labour and Industrial Cases 1335) have considered the effect of the bar created by Section 53 of the ESI Act with respect to the claim for compensation made under the Motor Vehicles Act for injuries received because of an accident arising out of and in the course of employment. In our opinion, the view taken by those High Courts with respect to the object of Section 53 of the ESI Act and the nature and the effect of the bar created by it appears to be correct."
40. In Mangalam (supra), the employee suffered „employment injury‟ not at the public place, but within the premises of the work place. In K. S. Vasantha (supra), there was employment injury. So it was held that the claim under the Motor Vehicles Act was barred by Section 53 of ESI Act. In Annapurna (supra), also there was injury in the course of employment. The injury was termed as „employment injury‟.
41. Western India Plywood Ltd(supra)was a case of claiming damages from the same employer. The employee had suffered employment injury and had already received the benefit under the E.S.I Act. He also filed case under Order 33 Rule 1 C.P.C against the employer. There, the compensation was being claimed in tort 29 against the employer. So, it was held to be barred by Section 53 of the ESI Act, which was held attracted for the use of the expression „or otherwise‟ which was interpreted also to bar the claim against the employer, in torts, having the force of law under the ESI Act.
42. In Anushaya(supra), the High Court of Orissa at Cuttack, held that it would be harsh to send the victim of a motor vehicular accident or his dependents to the Employees State Insurance Court only for the reason that the deceased was an insured person under the ESI Act and not under any other suitable forum even if the cause of injury is completely unconnected to the nature of employment. When the accident is purely a motor vehicular accident arising by use of a motor vehicle and is completely unconnected to the nature of the employment of the injured, the claim for compensation under Section 166 of the Motor Vehicles Act would definitely be maintainable. It was further observed and held that the restriction under the ESI Act was never meant to prohibit the victim of the accident to get the benefits suitable under any other law. The object of creating the bar for compensation under other enactments was for the benefit of the employer that 30 no one should get compensation twice from the same employer for the same cause.
43. Paragraph Nos. 24 to 27 of Anushaya(supra) read as under:
"24. Switching back to the facts of the present case, as stated earlier, this is a case for compensation under Section 166 of the MV Act. Admittedly the deceased was on leave on the date of accident and the cause of accident was due to negligent driving of the driver of the offending vehicle. In the instant case the accident has no connection with the employment of the deceased either directly or incidentally. So as per the language employed in Section 53 and 61 of the ESI Act read with the definitions prescribed under Section 2(8) and 2(14), it implies that if the cause of accident is unrelated to the employment of the injured or the deceased, then the bar will not be applicable. The prohibition under the ESI Act is not in respect of any injury sustained by the insured person irrespective of its connection to his employment. In a case of compensation either under the ESI Act or EC Act or under the MV Act, all such laws, which are beneficial legislations, are to be interpreted to the benefit of the victim of accident. The Supreme Court in the case of Bharat Singh Vs-Management of New Tuberculosis Center(MANU/SC/0322/1986: (1986)2 scc 614 has taken the view that, welfare legislation should be given a purposive interpretation safeguarding the rights of the have-nots rather than giving a literal construction and in case of doubt the interpretation in favour of the worker should be preferred. It would not be proper to say that all such injuries, which are not connected to the employment, are arising out of or in course of his employment to attract the beneficial provisions of the ESI Act.
25. In the context of compensation, two foremost conditions sine qua non for getting benefits under the ESI Act are, first, the injured must be an insured person and secondly, the injury must be an 'employment injury'. Employment injury includes such incidental injury arising out of and in course of his employment. The interpretation cannot be stretched to the extent that whatever injury sustained by an insured employee at wherever place unconnected to his employment would attract the bar under the ESI Act against the claim of compensation before any other 31 forum. The restriction is never meant to prohibit the victim of accident to get benefits suitably under any other law. The object of creating the bar for compensation under other enactments is for the purpose that the employee should not be compensated twice. It is in the benefit of the employer that no one should get compensation twice from the same employer for the same cause. Therefore, when the accident is purely a motor vehicular accident arises by use of a motor vehicle and is completely unconnected to the nature of the employment of the injured, the claim for compensation under Section 166 of the MV Act is definitely maintainable. In such case, the bar prescribed under the ESI Act is not attracted.
26. As stated earlier, the statutes like the ESI Act, EC Act and MV Act, which are containing beneficial provisions for the poor victim, are to be interpreted for the benefit of the poor victim. It would be harsh to send the victim of a motor vehicular accident or his dependents to the ESI court only for the reason that he is/was an insured person under the ESI Act and not under any other suitable forum even if the cause of injury is completely unconnected to the nature of employment.
27. In view of the discussions made above it is held that the claim application in the instant case by the claimants under Section 166 is maintainable and the contention of the insurer to the contrary is rejected."
44. In New India Assurance Co. Ltd. v. Ravula Shanker 12, the insurer failed to establish that the accident occurred during the course of employment and therefore the injury suffered was „an employment injury‟, as defined under Section 2(8) of the E.S.I.Act. The application under Section 166 of the M.V.Act was held maintainable which did not attract the bar of Section 53 of the E.S.I.Act.
12 2020(6) ALD 611 32
45. In Ravula Shanker (supra), an unreported judgment of the High Court of Andhra Pradesh in Oriental Insurance Company Ltd., v. G.Nagaraj13, was also referred, observing that,it was held that, the claim under the Motor Vehicles Act was maintainable though the injured/deceased was covered under the E.S.I.Act. The bar under Section 53 of the E.S.I.Act could apply only if the claimants had received compensation in respect of an „employment injury‟ as defined under the E.S.I.Act.
46. Thus, in our considered view, in order to attract the E.S.I.Act, it is to be proved that (i) there was an accident, (ii) the accident had a causal connection with the employment and (iii) the accident must have been suffered in the course of employment. There should be an „employment injury‟ as defined under Section 2(8) of the E.S.I.Act. If there is no such „employment injury‟, Section 53 of the E.S.I.Act, would not be attracted. The employee, if meets in a road accident, while going to the place of his employment or coming therefrom, such an accident cannot be said to be arising out of the employment and so, not an „employment injury‟, unless it could be shown that the employee was obliged to travel in any particular way under the 13 MACMA No.1834/2012 decided on 16.06.2014 33 terms of the employment or if he was travelling in a transport provided by the employer in connection with his employment for some employment work.
Analysis in facts of present case:
47. Now coming to the facts of the present case, we have to determine if the injury sustained by the deceased, was an „employment injury‟ covered under Section 2(8) of the ESI Act.
48. In the present case, the deceased was going to duty from his home at Vizianagaram to attend the duty at Visakhapatnam. While the deceased reached Convent Junction, near railway station, Visakhapatnam, the driver of the offending vehicle drove the same in a rash and negligent manner and dashed against the deceased. Thereby, he sustained multiple injuries and later on died. The case of the insurance company, as set up before the Tribunal on this aspect is not contrary to the case of the claimants.
49. So, the deceased was not travelling in any transport provided by the employer. There is also no pleading or evidence, referred before us that for such travelling the deceased was under
any obligation to travel in a particular way. The proximity of time of accident, the place of accident to that of the work place, has 34 also not been referred to us, so as to submit that such travelling was in the course of employment of the deceased. So, in the present case, it cannot be said that the injury suffered by the deceased and his death, was during the course of his employment. It would, therefore, not come under the purview of „employment injury‟ to attract the bar of Section 53 of the E.S.I Act.
50. The claim petition under the Motor Vehicles Act was maintainable and the Tribunal had the jurisdiction to grant the compensation under the M.V.Act.
51. We are of the view that the bar under Section 53 of the E.S.I.Act would not be attracted also in those cases, where the compensation is being claimed because of the injury sustained or the death caused, if the liability, for such claim arises under the tort against a third person but not against the employer. In other words, more than one claim, under different Acts i.e. E.S.I and M.V.Act, cannot be made against the employer. The employer cannot be vexed twice for compensation under two or more Acts. If it is a case of „employment injury‟, ESI Act would be applicable, if the similar benefit is available under the ESI Act, against the employer. Remedy cannot be taken, 35 additionally under the other Act or even in tort against the employer.
52. The submission of the learned counsel for the appellant that the compensation cannot be claimed against „any other person‟, as, the same expression has been used under Section 53 of the ESI Act and consequently it cannot be claimed against the insurance company/appellant, the insurer of the offending vehicle under the M.V.Act, has no merit. In our considered view, the expression „any other person‟ in Section 53 of the ESI Act, would not include any person wholly unconnected with the employment or/and the employer of the injured/deceased. This expression has to be read, along with the expression „the employer‟ of the insured person/deceased, as used in Section 53 of the ESI Act. This expression „any other person‟ cannot include the owner, driver and insurer of the offending vehicle causing the accident, wholly un-connected with the employment, employment injury and the employer of the employee. The liability of the owner and the insurer under the M.V.Act, being a third person, is independent of the ESI Act. The application under the M.V.Act under Section 166 of the 36 M.V.Act would not attract the bar of Section 53 of the ESI Act, in the facts of the present case.
53. From the aforesaid, we are of the considered view that,
i) If the injury is an „employment injury‟, the injured person or the dependants of the deceased, cannot have recourse to the provisions of the Motor Vehicles Act, for the accident caused by use of the Motor Vehicle, against the employer.
ii) If the injury is not an employment injury, Section 53 or/and Section 61 of the ESI Act would not bar the application under the Motor Vehicles Act for compensation against owner/insurer of the offending motor vehicle.
iii) In the present case, the injury sustained by the employee and the death was caused due to use of the Motor Vehicle, wholly unconnected to his employment. It was not an employment injury. The bar of Section 53 of ESI Act was not attracted.
iv) The application under the Motor Vehicles Act was maintainable and the Tribunal had the jurisdiction to award compensation.
37
54. We do not find force in the submission of the learned counsel for the appellant that the claim petition under Section 166 of the M.V. Act was not maintainable and that it was barred by Section 53 of the E.S.I Act.
POINTS 3 AND 4:
JUST AND FAIR COMPENSATION:
55. So far as the point on the amount of compensation is concerned, the claimants are entitled for just and fair compensation. It is well settled in law that the claimants are entitled for just and reasonable compensation, which should neither be a bonanza nor a pittance. Effort must be made to determine the just compensation. In New India Assurance Co. Ltd vs Yogesh Devi & Ors,14 the Hon'ble Apex Court held that the claimants are entitled for just and reasonable compensation in a motor vehicles accident claims. It referred to the case of State of Haryana and another V. Jasbir Kaur and others,15 wherein it was held that "compensation must be "just", and it cannot be a bonanza: nor a source of profit; but the same should not be a pittance." 14 AIR 2012 SUPREME COURT 945 15 (2003) 7 SCC 484 38
56. The Hon‟ble Supreme Court in Anjali and Others Vs Lokendra Rathod and Others16 while referring to Sarla Verma (Supra) observed that, "10. The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of „just and fair‟ compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of „just compensation‟ which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., this Court has laid down as under:
"16. ..."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
57. The amount under the conventional head as granted by the Tribunal is not as per the law in National Insurance Co., Limited vs. Pranay Sethi 17 , but is on the lower side. There were four claimants at the time of institution of the claim petition. They all would be entitled for the amount under the conventional heads @ Rs.48,400/- towards the loss of consortium, the Tribunal awarded @ Rs.40,000/- each, only to the claimants 2,3 and 4.We are of the 16 2022 SCC OnLine SC 1683 17 AIR 2017 SC 5157 39 view that the 1st claimant being alive on the date of filing of the claim petition, the amount for loss of consortium should also have been awarded for 1st claimant.
v) Thus, as per the judgments in Pranay Sethi(supra), Magma National Insurance Company Limited vs Nanu Ram @ Chuhru Ram and Ors., 18 Smt. Anjali (supra), United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Ors., 19 and Rojalini Nayak and Others vs Ajit Sahoo and Others 20 we award the enhanced amounts under the Conventional Heads of Loss of Consortium, Loss of Estate and Funeral Expenses, as Rs. 48,400/- (per claimant), Rs. 18,150/- and Rs. 18,150/- respectively as was awarded in Rojalini (Supra).
62 The amount of just and fair compensation would come to as follows:
S. Head Compensation Awarded
No.
1. Net Annual Income Rs. 19,000/- x 12 = Rs.
2,28,000/-
18
(2018) 18 SCC 130
19
(2021) 11 SCC 780
20
2024 SCC OnLine SC 1901.
40
2. Future Prospects Rs. 57,000/-
(at the age of 49 years) (i.e., 25% of the income)
Total (i.e., 1+2) = Rs.
2,85,000/-
3. Deduction towards Rs. 71,250/-
personal expenditure
(i.e.1/4th)
4. Total Annual loss Rs. 2,13,750/-
5. Multiplier of 13 for the age 13x 2,13,750/- = Rs.
of 49 years i.e. 27,78,750/-
6. Conventional Heads:
i) Loss of Rs. 1,93,600/-
Consortium
(Rs. 48,400/- x 4)
ii) Loss of Estate Rs. 18,150/-
iii) Funeral Rs. 18,150/-
expenses
7. Total Compensation Rs. 30,08,650/-
41
63 The Tribunal granted interest at the rate of @ 6% p.a. In
Kumari Kiran vs. Sajjan Singh and others,21 the Hon‟ble Apex Court set aside the judgment of the Tribunal therein awarding interest @ 6% as also the judgment of the High Court awarding interest @7.5% and awarded interest @ 9% p.a. from the date of the claim petition. In Rahul Sharma & Another vs. National Insurance Company Limited and Others 22 , in Kirthi and another vs. Oriental Insurance Company Limited, 23 and in Smt. Anjali(supra), the Hon‟ble Apex Court while referring to Malarvizhi & Ors. Vs. United India Insurance Co. Ltd. & Ors.24, allowed interest @ 9% p.a. from the date of claim petition. 64 Accordingly, on the aforesaid amount of compensation, the claimants are granted interest @ 9 % p.a. from the date of the claim petition till realisation.
65 We are conscious of the fact of the payment of amount under some benefit under the ESI Act to the
claimants/respondents 1 to 4 by the employer, but, the same cannot enure to the benefit of the owner and insurer of the 21 (2015) 1 SCC 539 22 (2021) 6 SCC 188 23 (2021) 2 SCC 166 24 (2020) 4 SCC 228 42 offending vehicle. They cannot claim that, because the employer has already paid some benefit and therefore the insurance company of the offending vehicle would not be liable or would be liable only to the extent after adjusting the amount of compensation or benefit granted under the ESI Act. That is a matter between the employer and the claimants/respondents 1 to 4. So, even if some payment towards some benefits under the ESI Act has been made to the respondents 1 to 4/ claimants, the said amount, the appellant/insurance company cannot claim to be adjusted against the compensation amount as awarded by the Tribunal under the MV Act, against the insurance company.
RESULT:
66 In the Result,
i) The appeal is dismissed with costs throughout in favour of the respondents 1 to 4/claimants;
ii) The claimants/respondent Nos.1 to 4 are granted enhanced compensation of Rs.30,08,650/- instead of Rs.29,28,750/- as just and fair compensation, with interest @ 9% per annum thereon from the date of claim petition till realization; 43
iii) The appellant shall deposit the amount, adjusting the amount already deposited if any, before the Tribunal within one month, failing which the amount shall be recovered as per law;
iv) On such deposit being made, the claimants shall be entitled to withdraw the same in the proportion as per the award.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
____________________ RAVI NATH TILHARI, J _______________________ CHALLA GUNARANJAN, J Date: 28.01.2025 Note:
L.R.Copy to be marked.
B/o.
Pab 44 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MACMA No.350/2024 Date:- 28.01.2025 Pab 45