BSSt^S^, ^~~s FIVE RUgEcS ^f c^r BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) .SQ^ /2010 ' mv!»h't3^ M.A.fC I N0 /2010 APPELLANTS 1: Ashok.Yadav, S/o Late Dhannu Yadav, aged about 45 years, ?: ^^...-•'2: Smt. Lata Bai Yadav, W/oShri Ashok Yadav, aged about 43 years, ^- VA( >.--'^.,^\Jla'X\j7 Both are resident of Chuna Bhatti, -S-- ^ .•••^ ^ Gudhiyai-i, near New Over Bridge, Raipur, i>" ..••'''/<7)1^ Tehsil & District-Raipur (C.G.) fi«";- ^-•-y ^'" VERSUS RESPONDENTS^-A Shakur Mohammed, S/o Mohd. Vakil, aged abouf 36 years, R/o Ekta Nagar, Sector-11, Zone-2, Khursipar, Bhilai, District-Durg ..... OWNER, CRANE NO.CG-04/DB-2458 Mahamaya Steel Industries, Divisional Office of Rajesh Steels Limited, Plot No.B- 89, Sector-(C.»)fUrla, Raipur, Tehsil & District-Raipur (C.G.) ..... OWNER, CRANE NO.CG-04/DB-2458 3. National Insurance Company Limited, Divisional' Officer, Raipur, Mobin Mahal, IInd Floor, G.E.Road, Raipur (C.G.) ... INSURER, CRANE NO.CG-04/DB-2458 A: MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 ^ >^^.\' k^1 <a Res.No.4 <b ^ >r, ^T Employees state Insurance Corporation ^^x *^"- ^- ~v> C.V .Jc^',^::^'*' ] ^^^^M^... ^<o Through its-Regional Coinmissioner House No. 18 Choubey Colony Raipur (C.G) ^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Misc. Appeal (Cl No. 806 of 2010 Appellants Ashok Yadav and another Vs Respondents Shakur Mohammed and others Present: Mr. Raghvendra Pradhan, Advocate for the appellants. Mr. Manish Upadhyay, Advocate for respondent No.2. Mr. Dashrath Gupta, Advocate for respondent No.3. Mr. S.P. Kale, Advocate for respondent No.4. ORDER (Oral) (8th November, 2011) Per I.M. Quddusi. J; 01. This appeal has been filed by the appellants/claimants under Section 173 of the Motor Vehicles Act, 1988 against the award dated 2.2.2010 passed by the First Additional Motor Accident Claims Tribunal, Raipur (in short "the Tribunal") in Claim Case No.67/09 whereby claim petition of the appellants/claimants has been dismissed. 02. Brief facts of the case, as per averments made in the claim petition, are that Pawan Yadav was working as helper in , Mahamaya Steel Industries Sarora (Urla). On 28.2.2009 respondent No.1, driving the crane, which was at the relevant time owned by respondent No.2 and insured with respondent Np.3, in a rash and negligent manner, caused accident, as a result of which Pawan Yadav was crushed under the wheel of the crane and died on the spot. 03) At the time of accident, the deceased was a bachelor of 19 years and was earning Rs.4000/- per month by working as helper in the crane. In addition to this, he was also earning Rs.2000/- per month by running a betel shop. The appellants/claimants, who /:^°%. f! ^ i^^ I. ^*^^^ s 2- are parents of the deceased, were dependent upon the deceased. Therefore, they filed a claim petition under Sections 166 & 140 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs.22,00,000/- under various heads. 04. However, learned Tribunal, after hearing counsel for the parties, after close scrutiny of the evidence led before it by the parties, by the impugned award dismissed the claim petition as being not maintainable. 05. We have heard learned counsel for the parties, perused the material on record, including the impugned award. 06. The claim petition has been dismissed on the ground of maintainability as the claimants were getting monthly pension under the Employees' State Insurance Act @ Rs.500/- each. Though there is restrictions under Sections 53 and 61 of the Employees' State Insurance Act (in short "ESI Act") that an insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's 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 ESI Act and there is a bar of getting similar benefits, but it is to be noticed that under the Act, 1988, any person, irrespective of the fact whether he was an employee or not, can file a claim , petition if the death is due to accident arising out of and use of motor vehicle. Therefore, in making claim under the Act, 1988, the restrictions imposed in Sections 53 and 61 of the ESI Act would not be a bar. However, the claims Tribunal should have taken into consideration the pensjon or any other benefits being received by the claimants, while considering the loss of dependency and calculating the compensation. 07. The Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Hamida Khatoon and others, (2009) 13 SCC 36'?, in para-6, has observed thus: 6. In A Trehan v. Associated Electrical Agencies [1996(4) SCC 255] it was observed as follows: (SCC pp. 257-60, paras 8-13) "8. The ESI Act was enacted with an object of introducing a scheme of health insurance for industrial workers. The scheme envisaged by it is one of compulsory State insurance providing for certain benefits in the event of sickness, maternity and employment injury to workmen employed in or in connection with the work in factories other than seasonal factories. The ESI Act which has replaced the Workmen's Compensation Act, 1923 in the fields where it is made applicable is far more wider than the Workmen's Compensation Act and enlarges the scope of compensation. Section 38 provides that all employees in factories or establishments to which the ESI Act applies shall be insured in the manner provided in it. Under Section 39 the employer is also made liable to pay contribution. Section 42 provides for circumstances under which the employee need not pay his contribution. Section 46 provides for the benefits which the insured persons, their dependants and the persons mentioned therein shall be entitled to get on happening of the events mentioned therein. Sections 51-A to 51-D create certain fictions in favour of the employee so as to have wider coverage for him. In case of an employment injury Section 46 provides periodical payments to him or to his dependants in case of his death. Employment injury is defined by Section 2(8) to mean a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India. Section 2(9) defines employee to mean any person employed for wages in or in connection with the work of a factory or establishment to which the ESI Act applies. It includes other persons but'it is not necessary to refer to that part of the definition. Insured person is defined by Section 2(14) to mean a person who is or was an employee in respect of whom contributions are or were payable under the Act and who is by reason thereof, entitled to any of the benefits provided by the ESI Act. The Second Schedule to the ESI Act specifies the ^ injuries deemed to result in permanent total disablement or permanent partial disablement. Rule 54 of the Employees' State Insurance (Central) Rules, 1950 provides the daily rate of benefit which the employee would get if an employment injury is suffered by him. Rule 57 provides for disablement benefits. Rule 58 providesfor dependant's benefits in case the injured person dies as a result of an employment injury. Rule 60 provides for the medical benefits to an insured person who ceases to be in an insured employment on account of permanent disablement. Other benefits are also conferred by the ESI Act and the Rules but it is not necessary to refer to them for deciding the point which arises in this case. Two other provisions in the ESI Act to which it is necessary to refer are Sections 53 and 61. The present Section 53 was substituted by Act No. 44 of 1966 with effect from 28-1-1968. Section 61 has been there in the Act since it came into force. It provides that when a person is entitled to any of the benefits provided by the ESI Act he shall not be entitled to receive any similar benefits admissible under the provisions of any other enactment. Thus, by enacting Section 61 the legislature has created a bar against receiving similar benefits under other enactments. Section 53 before its amendment read as under: '53. Disablement and dependant's benefits.-\Nhen an insured person is or his dependants are entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act, then the following provisions shall apply, namely- (i) The insured person shall, in lieu of such compensation or damages, receive the disablement benefit provided by this Act, (but subject otherwise to the conditions specified in the Workmen's Compensation Act, 1923) from the Corporation and not from any employer or other person. (ii)-(iv) 5^ (v) Save as modified by this Act, the obligations and liabilities imposed on an employer by the Workmen's Compensation Act, 1923, shall continue to apply to him.' 9. Experience of the administration of the ESI Act had disclosed certain difficulties in its working. It was, therefore, further amended in 1966. Along with other amendments made in the ESI Act the legislature substituted present Section 53 which read as under: '53. Bar against receiving or recovery of compensation or damages under any other law.-An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of1923) or any other law for the time being in foree or otherwise, in respect of an employment injury sustained bythe insured person as an employee underthisAct' 10. The Workmen's Compensation Act was enacted by the legislature in 1923 with a view to provide for the payment by certain classes of employers to their workmen compensation for injury by accident. Section 3(1) of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions contained in that Act. Under Section 2(1 )(c) the word compensation is defined to mean compensation as provided for by the Act. The definition of the workman under the Act is as under: '2. (1)(n) 'workman' means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business who is- (i) (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not ^c c ^ include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependants oranyofthem.' 11. A comparison of the relevant provisions of the two Acts makes it clear that both the Acts provide for compensation to a workman/employee for personal injury caused to him by 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 ES1 Act by way of periodical payments and not in a 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 lump sum compensation its wisdom cannot be doubted. Even if it is assumed that the workman had a better right under the Workmen's Compensation Act in this behalf it was open to the legislature to take away or modify that right. While enacting the ESI Act the intention of the legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident arising out of and in the course of his employment. 12. In this background and context we have to consider the effect of the bar created by 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 can be seen from the use of the words shall not be entitled to receive or recover, 'whether frorri 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), br any other law for the time being in force or -? .^1 08. 09) 10) 11) otherwise'. The words 'employed by the legislature' are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision. In view ofthe clear language ofthe section we find no justification in interpreting or construing it as not taking away the right of the workman who is an insured persori 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. 13. The observations made in Francis De Costa by K. Ramaswamy, J. were made in a different context. In that case the question which had arisen for consideration was whether the injury caused by an accident on a public road while an employee was on his way to join duty can be held as arising out of or in the course of his employment within the meaning of Section 2(8) of the ESI Act. Moreover, in that case the Court was not examining the bar created by Section 53 ofthe ESI Act." However, the Hon'ble Supreme Court in para-8 of the cited judgment has directed the MACT concerned to work out the entitlement of the claimants by takingnote of Section 53 of the ESI Act, which shows that intention of the Hon'ble Apex Court was to direct the Tribunal concerned to calculate the compensation under the Act, 1988 by taking note of Section 53 oftheESIAct. In view of the above, we are of the opinion that it is a fit case to remit the matter back to the Tribunal to decide the matter afresh. In the result, the appeal is allowed in part. The impugned award is set aside and the matter is 'remitted back to the Tribunal to decide the claim case afresh in the light of observations made above. The Tribunal may also consider the provisions of Section 147 of the Act, 1988 to decide the liability part. Needless to mention that the parties shall be allowed to amend the pleadings, addyce further evidence, file documents or get the % documents verified etc., and thereafter decision shall be taken afresh. 12) The parties shall appear before the Claims Tribunal on 14 December, 2011. The LCR shall be sent back to the claims Tribunal without further delay. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge itK.