Bangalore District Court
Before This Tribunal Is vs And Him on 8 August, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 8th day of August, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore
E.C.A.No.39/2015
Mr. B. Basavaraju, ..... PETITIONER
S/o. Boraiah,
Aged about 40 years,
No.5, N. Melanahalli,
Nagaragatta,
Tiptur,
Tumkur - 572 224.
Working at;
BENNET COLEMAN (Times of India)
Flat No.9, 10 and 11,
Bommasandra Industrial Area,
Jigani Link Road,
Bangalore -.
(By Sri. Dharani. P., Adv.,)
V/s
1. Uniq Detective and Security ..... RESPONDENTS
Services Pvt., Ltd.,
No.81A, 2nd Cross,
GKW Layout,
Vijayanagar,
Bangalore - 560 040.
2. Bennet Coleman (Times of India),
Flat No.9, 10 and 11,
2 ECA.NO.39/2015
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Bommasandra Industrial Area,
Jigani Link Road,
Bangalore.
3. Employees State Insurance
Corporation,
Regional Office,
Binnepet,
Bangalore.
(R-1 By Sri. G. Anil Kumar, Adv.,)
(R-2 By Sri. Sandeep. S. Shahapur,
Adv.,)
(R-3 By Sri. K. Krishnappa, Adv.,)
FINDING ON ADDITIONAL ISSUE AND ORDERS ON I.A.NO.VII
The Petitioner has filed the present petition as against the
Respondents No.1 to 4 under Section 22 of the Workmen's
Compensation Act, 1923, praying to grant suitable compensation
with interest at the rate of 12% per annum and costs.
2. Additional Issue framed by this Tribunal is,
"Whether the petition filed by the
Petitioner before this Tribunal is
maintainable?"
3. The Learned Counsel appearing for the Petitioner has
filed I.A.No.VII under Order XXIII Rule 1 of C.P.C. praying to
permit the Petitioner to withdraw the case and to file a fresh case
3 ECA.NO.39/2015
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in the jurisdictional Authority with leave to take back the
documents.
4. The Learned Counsel appearing for the Petitioner has
filed the memorandum of facts annexed with this application.
5. The Learned Counsel appearing for the Petitioner in
the memorandum of facts annexed to this application has stated
that, the Respondent No.3 has filed a memo of deposit of some
amount (temporary disablement benefit) to the Petitioner, which
shows that, by filing a further application in the jurisdictional
Authority and the Petitioner was sustained grievous injury and
underwent operation for fixation of implants and in view of that,
he required for surgery for removal of implant and other
accidental expenses and therefore, to permit the Petitioner to
withdraw the case with leave to file a fresh case and also prayed to
return the documents to furnish in the present case.
6. The Petitioner has filed the present petition as against
the Respondents No.1 and 2 under Section 22 of Workmen
Compensation Act, 1923, claiming compensation with interest at
the rate of 12% p.a., and costs, based on the grounds that, he was
appointed as a Security in the Office of the Respondents No.1 and
2 and he was a ranking of Team Member (Security Guard) from
past 6 years and was getting a salary of Rupees 12,650/- p.m.,
and as usually, the Respondent No.1 deployed him for working at
place of the Respondent No.2, wherein, he was working as a
Security Guard from past three years and on 07.12.2014 at about
4 ECA.NO.39/2015
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01.10 p.m., in the premises of the Respondent No.2, one 4 wheeler
vehicle, i.e., calling a 4th lift, drove by its driver suddenly took the
reverse and dashed against the heaped reels, then, the big reels
fell down and ran over on him and in this impact, he was
sustained severe injury to left leg and other parts of the body and
the said incident occurred during the course of employment in the
premises of the Respondent No.2 and he was working in a ranking
of Team member (Security Guard) and thus, there was an
employer and employee relationship between both the
Respondents and him.
7. It is contended by the Respondent No.3 in its
objections that, the Petitioner is an IP under the ESI Act and the
Respondents No.1 and 2 are covered under the ESI Act and the
Petitioner has approached the ESI Dispensary, Bommasandra, for
receiving medical treatment/certificate and ESI Branch Office,
Magadi Road for receiving cash benefit of Rupees 23,911/- for the
period 07.11.2014 to 09.03.2015 and the cash benefit of Rupees
23,911/- has already been credited to his Bank account
No.5332500101104301 maintained at Karnataka Bank,
Nonavinakere Branch, Tumkur District and therefore, the say of
the Petitioner that, he did not take any facility from ESI
Corporation is false. It has further contended that, if the Petitioner
is having any other grievances, he is at liberty to approach the
Employees' Insurance Court established under the ESI Act, 1948,
for the purpose of adjudicating the disputes as provided for under
Section 75 of the ESI Act. In this regard, the Respondent No.3 has
5 ECA.NO.39/2015
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produced true copies of Letter dated 11.03.2015 issued by the
Medical Reference ESI Corporation to the Manager, Branch office,
Magadi Road, Medical Certificate dated 20.11.2014 issued by
SAKRA world Hospital, Form 7 (Intermediate Certificate dated
01.12.2014) issued by ESI Dispensary, Bommasandra, Form - 11
(Special Intermediate Certificate dated 08.12.2014 issued by ESI
Dispensary, Bommasandra, Form - 8 (Special Intermediate
Certificate dated 06.01.2015) issued by ESI Dispensary,
Bommasandra, Form - 8 (Special Intermediate Certificate dated
05.02.2015) issued by ESI Dispensary, Bommasandra, Form - 7
(Final Certificate dated 09.03.2015) issued by ESI Dispensary,
Bommasandra, Bank Passbook of Petitioner, Letter dated
11.03.2015 addressed to the Manager, ESI Branch office, Magadi
Road, by the Petitioner.
8. On perusal of the said contentions taken by the
Respondent No.3, it prima-facie appears that, before filing the
present petition, the Petitioner had approached the ESI
Corporation and received cash benefit of Rupees 23,911/- and the
Petitioner has obtained ESI medical certificate, cash benefits
facility from ESI Corporation.
9. It is also contended by the Respondent No.3 that, the
petition is barred from approaching this Hon'ble Court under
Section 75(3) of the ESI Act, 1948 and hence, this Hon'ble Court
has no jurisdiction to adjudicate this matter and hence, the
Petitioner is barred from approaching this Hon'ble Court under
Section 75(3) of the ESI Act, 1948.
6 ECA.NO.39/2015
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10. On perusal of the contentions taken by the Petitioner
in the present application and the Respondent No.3 in the written
statement, it clearly goes to show that, both the Petitioner and the
Respondents No.2 and 3 have admitted about the very
maintainability of the present petition filed by the Petitioner as
against them on the grounds of jurisdiction of this Tribunal to
adjudicate the present petition.
11. Further, Section 51 of the Employees State Insurance
Act, 1948, reads thus;
Section 51. Disablement benefit -
Subject to the provisions of this Act -
a) a person who sustains temporary
disablement for not less than three days
(excluding the day of accident), shall be
entitled to periodical payment at such
rates and for such periods and subject to
such conditions as may be prescribed by
the Central Government)
b) a person who sustains permanent
disablement, whether total or partial,
shall be entitled to periodical payment (at
such rates and for such periods and
subject to such conditions as may be
prescribed by the Central Government)
7 ECA.NO.39/2015
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12. From this, it is made crystal clear that, the Petitioner
has benefit under Section 51 of the Employees State Insurance
Act, 1948 to claim compensation from the Respondents. Instead of
claiming compensation under Section 51 of the Employees State
Insurance Act, 1948, the Petitioner has filed the present petition
as against the Respondents under Section 22 of the Workmen
Compensation Act, 1923. Therefore, the present petition filed by
the Petitioner as against the Respondents claiming compensation
is not maintainable.
13. Further, there is a clear bar in claiming compensation
by the Petitioner under the provisions of the Workmen
Compensation Act, 1923, as per Section 53 and 61 of the
Employees State Insurance Act, 1948, the Petitioner is not entitled
to receive or recover any compensation from his employer, when
he was registered under the Employees State Insurance. In this
regard, Section 53 and Section 61 of the Employees State
Insurance Act, 1948 reads thus;
Section 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
8 ECA.NO.39/2015
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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.
Section 61. Bar of benefits under
other enactments - When a person is
entitle 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.
14. From the said provisions of Section 53 and 61 of the
Employees State Insurance Act, 1948, it is made crystal clear that,
the Petitioner, as an insured person shall not entitle to receive or
recover from his employer any compensation or damages under
the Workmen Compensation Act, 1923 or any other law for the
time being in force in respect of any injuries sustained by him
during the course of employment and when he is entitled for the
benefits under the Employees State Insurance Act, 1948, he is not
entitled to receive any similar benefits admissible in the provisions
of any other enactments.
15. From the above said discussion, it is made crystal clear
that, at the time of incident, the Petitioner was registered under
the Employees State Insurance with Insurance covered under the
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ESI Act and during the course of employment under the
Respondents No.1 and 2, he had sustained grievous injuries and
he has already obtained medical benefits from ESI Corporation
and as such, the remedy available to the Petitioner to claim
further compensation or benefit under the Employees State
Insurance Act, 1948 as per Section 51 of the said Act and not
under Section 22 of the Workmen Compensation Act, 1923 and
the present petition filed by the Petitioner as against the
Respondents claiming compensation in respect of the said
incident is clearly barred as per Section 53 and 61 of the said
Employees State Insurance Act, 1948. Therefore, the present
petition filed by the Petitioner as against the Respondents is not
maintainable before this Tribunal under the Workmen
Compensation Act, 1923. Hence, there are merits in the
application filed by the Learned Counsel appearing for the
Petitioner for withdrawal of the present petition with a liberty to
file a fresh petition before the Competent Authority on the same
cause of action and as such, it is liable to be allowed. Hence, the
present petition filed by the Petitioner is liable to be rejected as
withdrawn. In view of the said reasons, Additional Issue is
answered in the Negative and accordingly, I proceed to pass of the
following;
ORDER
The petition filed by the Petitioner under Section 22 of the Workmen Compensation Act, 1923, as against the 10 ECA.NO.39/2015 (SCCH-7) Respondents No.1 to 3 is hereby rejected as withdrawn.
I.A.No.VII filed by the Petitioner under Order XXIII Rule 1 of CPC is hereby allowed.
The Petitioner is hereby permitted to withdraw the present petition with a liberty to file a fresh petition before the jurisdictional competent Authority based on the same cause of action in accordance with law.
Office is hereby directed to return all the original documents to the Petitioner or his Learned Counsel.
No order as to costs.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 8th day of August, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.