Madras High Court
The New India Assurance Co. Ltd vs S.Govindaraj on 15 June, 2012
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.06.2012 CORAM THE HON'BLE MR.JUSTICE P.DEVADASS C.M.A.No.3025 of 2007 The New India Assurance Co. Ltd., Motor Third party Claim Cell, No.45,Moore Street, Chennai-600 001. ... Appellant Vs. 1.S.Govindaraj 2.S.Mohammed ... Respondents PRAYER: Appeal against the judgment and decree dated 02.03.2007 made in MCOP No.24 of 2004 on the file of the Motor Accidents Claims Tribunal (Subordinate Court), Thiruvallur. For Appellant : Mr.M.B.Gopalan For 1st Respondent : Mr.R.Neelakandan R-2 Exparte J U D G M E N T
The appellant, New India Assurance Co. Ltd., disputing its liability to pay the award amount directed this appeal.
2. On 05.12.2003, at about 7 p.m., on the Tiruttani Tirupathi Road, near Dharanivaragapuram Village, the first respondent came driven his bicycle along the road. At that time, the motorcycle belonging to the second respondent, insured with the appellant came driven in a rash and negligent manner hit on the Cyclist. In this accident, the first respondent sustained multiple grievous injuries. He sustained fracture in his left knee and also further injuries on various parts of his body. Immediately, he was taken to the Government General Hospital, Chennai. He was hospitalised for three days (see Ex.P2-discharge summary). Since he is a workman in S.L.V. Spinning Mills, Nagari, in Chittoor District, in Andhra Pradesh, he took voluntary discharge from the said Hospital and admitted himself in the E.S.I. Hospital, Ayanawaram, Chennai. There he was treated an inpatient from 09.12.2003 to 26.06.2004 (see Ex.P4-discharge summary). As against the rider of the motorcycle, Ex.P1-FIR has been registered. On evidence, it was found that it is because of the rash and negligent driving of the driver of the 2nd respondent's motorcycle, the accident had taken place.
3. At the time of accident, the 1st respondent(P.W.1) was 47 years old. PW2-Dr.Thiyagarajan examined him, perused his treatment records, X-ray and noted fracture of two bones in his left leg, there was malunion of Tibia bone, because of that P.W.1 could not bend his left leg and experiences difficulty while walking and needs crutches to walk. In the circumstances, P.W.2 determined his disability at 60% (see Ex.P11-disability certificate). However, the Tribunal assessed his disability at 55%. Considering all the above aspects, the Tribunal awarded him Rs.55,000/- towards disability, Rs.3,000/- towards transportation charges, Rs.6,000/- towards nutritious food expenses, Rs.1,000/- towards medical expenses and Rs.10,000/- for pain and suffering and Rs.25,000/- for loss of future earning and loss of amenities of life. Thus, totally awarded him Rs.1,00,000/-. Since at the time of accident there was insurance coverage for the offending vehicle with the appellant, the Tribunal directed the appellant to pay the compensation amount to the first respondent.
4. The learned counsel for the appellant contends that the first respondent is a workman, took treatment in E.S.I. Hospital, Ayanavaram, Chennai. So, his claim petition under the Motor Vehicles Act, 1988 (shortly, hereinafter M.V.Act) is barred under Section 53 of the Employees' State Insurance Act, 1948(shortly, hereinafter E.S.I.Act). Thus, the Claims Tribunal has no jurisdiction to entertain the claim petition. So, it is to be dismissed. Further, the Tribunal also awarded him excessive compensation.
5. On the other hand, the learned counsel for the first respondent would submit that personal injury was caused to the first respondent. It did not arose out of and in the course of his employment. He did not sustain employment injury. He had sustained only motor injury. Because he is a workman he got himself treated in the hospital maintained by E.S.I. Corporation. He did not receive any compensation from the E.S.I. Corporation. A tortious act has been committed by the driver of 2nd respondent. For which, the first respondent can claim compensation from the Tribunal constituted under the M.V. Act. Section 53 of the E.S.I. Act is not a bar for this. As insurer of the 2nd respondent, the appellant is bound to pay the compensation amount to him. He sustained grievous injury and he is also suffering from continued disability. However, under all heads only less compensation has been awarded.
6. I have given my anxious consideration to the rival submissions.
7. The contentions are two fold, first one relates to the jurisdiction of the Motor Accident Claims Tribunal and the second one relates to the quantum of compensation. We shall see them one by one.
8. The E.S.I. Act provides some sort of insurance coverage to the employed persons in the establishments, factories, to which the Act has been extended. As per Section 38 of the Act, all employees covered under the Act shall be insured and contribution also has been collected from the employer. Section 46 of the Act provides various benefits such as maternity benefit, sickness benefit, disablement benefit, dependent benefit to the insured persons and their dependents for employment injury and certain occupational diseases sustained by the insured employees (See Section 2(9), S.2(14) and 49 to 52). The E.S.I. Corporation is bound to provide them compensation for employment injuries and occupation diseases as envisaged under the Act.
9. The aggrieved persons, both employee and the employer, can go to the Employee's State Insurance Court constituted under Section 74 of the E.S.I. Act. But, an employer shall not be vexed twice by paying compensation under the E.S.I. Act and also under the Workmen Compensation Act 1923, Motor Vehicles Act, 1988 and under General Law of Torts. So, certain in-built provision has been incorporated in the E.S.I. Act itself ousting the jurisdiction of other Tribunals, Civil Courts and Quasi- Judicial Authorities to deal with cases of employment injury and occupational diseases caused to insured employees.
10. To untie the tangle posed by either side, namely, whether the Claims Tribunal constituted under the Motor Vehicles Act or the E.S.I. Corporation has jurisdiction to deal with the claim of the first respondent, it becomes necessary to note Section 2(8), 53 and 61 of the E.S.I. Act. They runs as follows:-
"2(8) 'employment injury' means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or out side 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.
"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."
11. To apply the bar created in Section 53 of the E.S.I. Act., the person must be a workman, insured person under the E.S.I. Act. He should have sustained injury, contacted occupational disease or lost his life due to such injury or disease and they must have 'arose out of and in the course of his employment'. Such injury is statutorily known as employment injury. It need not be occasioned to him only inside the factory premises. By "notional extension of employer's premises theory" even if such injury is sustained by him outside his factory premises, outside his working hours, it may become employment injury provided it arose out of and in the course of his employment. There must be some connection, nexus between the circumstances under which such injury was sustained by him and his employment/job. It depends on the facts and circumstances of each case.
12. An employment injury is different from a 'Motor injury'. An insured person may sustain injury in the course of and out of his employment. He may also sustain injury not in the course of and out of his employment. He may sustain injury by reason of negligent driving of a vehicle in the public road by a person. He may sustain injury even in a bus belonging to his employer, in which, he had travelled not as a workman, travelled not in connection with his employment, but as an ordinary passenger like others. Such injury will not be an employment injury.
13. For claiming compensation/benefits for the employment injury sustained by him, the insured workman must avail of the remedies/benefits available to him under the E.S.I. Act. For such injury, he cannot seek compensation from a Claims Tribunal constituted under the Motor Vehicles Act, from the Commissioner under the Workmen's Compensation Act,1923 or from a Civil Court under the General Law of Torts. Section 53 of the E.S.I. Act will be a bar for him to avail the remedies provided under other enactments and other laws other than the remedies provided under the E.S.I. Act.
14 Section 53 of the E.S.I. Act., mentions "under any other law for the time being in force." So, Section 53 bars claiming compensation not only under specified enactment, namely, Workmen's Compensation Act,1923. It also bars remedy under any other law. It includes General Law of Torts also.
15. Section 61 bars claiming of compensation for employment injury under the provisions of any other enactment other than the E.S.I. Act. Section 61 mentions enacted laws, while Section 53 speaks about a particular enacted law, namely, Workmen's Compensation Act, 1923 and also other laws, namely, uncodified law, namely, Common Law. Reading Sections 53 and 61 of the E.S.I. Act together we see that they bars claiming of compensation for employment injury not only under enacted Laws but also under unenacted, uncodified General Laws also.
16. In MANGALAMMA Vs. EXPRESS NEWSPAPERS LTD., (1982 ACJ (supp) 203(Madras) and NATIONAL INSURANCE CO. LTD Vs. P.SARASWATHI MOHAN, (1982 ACJ (supp) 249 (Madras), it was held that the employee after receiving benefits for employment injury under the E.S.I. Act., cannot again claim compensation from a Tribunal constituted under the M.V.Act.
17. This Court again reiterated the above view in V.THANGAPPAN Vs. TAMIL NADU INDUSTRIAL INSURANCE CORPORATION [1993 ACJ 1276].
18. In A.TREHAN Vs. ASSOCIATED ELECTRICAL AGENCIES AND ANOTHER, (1996 (4) SCC 255), the Hon'ble Supreme Court specifically dealt with Section 53 of the E.S.I. Act and held that the insured person, who sustain employment injury or his dependents in case he dies due to an employment injury has to avail of the benefits provided under E.S.I. Act and Section 53 of the E.S.I. Act bars claiming further benefit under any other enactment and laws.
19. In P.ASHOKAN Vs WESTERN INDIA PLYWOOD LTD (AIR 1987 KER 103) a Full Bench of the Kerala High Court noting that the E.S.I. Act is a piece of welfare legislation, Parliament could not have intended to create a bar against the workmen from claiming more advantageous benefit under the Workmen's Compensation Act,1923 held that besides getting benefits under the E.S.I. Act,1948 the affected workmen can claim compensation under the Workmen's Compensation Act also.
20. However, the Hon'ble Supreme Court in WESTERN INDIA PLYWOOD LTD Vs. P.ASHOKAN, (1997 (7) SCC 638), referring to Sections 53 and 61 of the E.S.I. Act and also A.TREHAN (supra) held that once the benefit is claimed under the E.S.I. Act, sections 53 and 61 of the E.S.I. Act will bar claiming further compensation under other enacted and unenacted laws and thus overruled the Full Bench decision of the Kerala High Court in P.ASHOKAN(supra).
21. In K.HAMZA AND ANOTHER Vs. M/S.EMTICI ENGINEERING LTD, ENNORE THERMAL POWER STATION, MADRAS, [2000(II) M.L.J.151], the dependents of deceased workman, who was an insured person covered under the E.S.I. Act, when lost his life due to an employment injury, when sought for compensation before the Commissioner under the Workmen's Compensation Act, 1923, this Court held as under:-
"Suffice to say that Secs.53 and 61 of the Employees' State Insurance Act, 1948 specifically bar any claim to be made under the provisions of the Workmen's Compensation Act, 1923. In the face of such explicit and clear statutory mandate, it is not possible to give a 'liberal' interpretation which would be clearly opposed to the statute."
22. Thus, from the above, it is clear that only when the workman sustained employment injury, that is to say, an injury sustained by him in the course of and out of his employment the bar under Section 53 of the E.S.I. Act will apply to claim compensation under the Motor Vehicles Act, or under other enactment or under any other law including the Law of Torts.
23. Keeping the above position of law in our view let us approach the case at our hand.
24. On 05.12.2003, at about 7 p.m., 1st respondent while he was proceeding on the Tiruttani Tirupathi Road, sustained multiple injuries. There is no evidence that at that time he sustained injury while he was doing his employer's work or did some thing in connection with his job. There is no evidence that he sustained injury out of and in the course of his employment. So, he did not sustain an employment injury. He sustained only motor injury. There is no evidence that he had received any monetary benefit or compensation for the injuries sustained by him from the E.S.I. Corporation. His mere taking of treatment in the E.S.I. Hospital will not be his receiving of disablement benefit under the E.S.I. Act. In the circumstances, the bar under Section 53 of E.S.I. Act will not be applicable to him to claim compensation from the Claims Tribunal under M.V. Act for the motor injury sustained by him due to a tortious act committed by the driver of the second respondent.
25. The first respondent sustained multiple grievous injuries. P.W.2 Dr.Thiyagarajan assessed his disability at 60%. However, in the facts and circumstances, the Tribunal determined it at 55% and granted him Rs.55,000/-towards disability compensation. The claimant was hospitalized in two hospitals and he was inpatient from 05.12.2003 till 26.02.2004. He was granted Rs.3,000/- towards transportation charges, Rs.1,000/- towards medical expenses and Rs.6,000/- towards nutritious food expenses and under all other heads, he was granted Rs.25,000/- . The accident was of the year,2003. The Tribunal totally awarded him Rs.1,00,000/-. In the facts and circumstances, it is neither low nor high, it is a just and reasonable compensation awarded to him by the Tribunal. The appellant as insurer of the second respondent is liable to pay the compensation amount to the first respondent.
26. In the result, this appeal is dismissed. The award of the Tribunal is upheld. The appellant shall deposit the entire compensation amount within four weeks from the date of receipt of a copy of this judgment. On such deposit, the first respondent is permitted to withdraw the entire compensation amount. No costs.
rrg To:
The Motor Accidents Claims Tribunal (Subordinate Judge), Thiruvallur