IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.406 of 2000 (O&M) Date of decision:01.10.2010 New India Assurance Company Limited ....Appellant versus Siri Krishan and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Inderjit Sharma, Advocate, and Mr. Pradeep Bedi, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The Insurance Company challenges the award on the ground that the petition itself was not maintainable. The claimant was an injured person in a motor accident and having regard to the fact that it was an employment injury, he had claimed the benefit under a claim of insurance under the Employees' State Insurance Act. The Tribunal, while considering the objection of the insurer regarding non-maintainability of the petition in terms of Section 53 of the ESI Act, held that the bar will operate for securing award only under the Workmen's Compensation Act and not when the provisions of the MV Act are invoked. Section 53 of FAO No.406 of 2000 (O&M) - 2 - the ESI Act reads thus, “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.”(underlining mine) 2. The object of the section is that the employer is not foisted with more than one claim for the same accident and once the claim has had the benefit under the ESI Act, a separate claim under the MV Act shall not be permitted. There has been a preponderance of case law from literally from High Courts of India to the same effect. (Kindly see, Mangalamma Versus Express Newspapers Limited-AIR 1982 Mad 223; Ganpat Pratap Bhogle Versus H.L.Roche-1994 AccCJ 1101 (Bom); United India Insurance Company Limited Versus K.N. Thipperudraiah-1997 (1) AccCC 627 (Karn); United India Insurance Company Limited Versus Vijaya R.Baait-2007 ACJ 463 (Bom); Oriental Insurance Company Limited Versus Mohan Kumar-2007 ACJ 420 (Raj.); Pauline Decriye Versus M.F. Yata Singh-2005 ACJ 1427 (AP), In this case, admittedly the accident taken place in the course of his employment. 3. The pursuit under MV Act is barred by virtue of provision FAO No.406 of 2000 (O&M) - 3 - of Section 53 and the claimants could not have been duplicated the claim before the Tribunal also, without forsaking the benefit under the ESI Act. This issue is now squarely answered by the Hon'ble Supreme Court in National Insurance Company Limited Versus Hamida Khatoon-(2009) 13 SCC 361. The Hon'ble Supreme Court has ruled: “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 from the employer of the insured person or from any other person', 'any compensation or damages' and 'under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise'. The words 'employed by the legislature' are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision. In view of the clear language of the section we find no justification in interpreting or construing it as not taking away the right of the workman who is an insured person FAO No.406 of 2000 (O&M) - 4 - 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.” The only difference appears to be that in the case before the Hon'ble Supreme Court, the claimant obtained compensation under the MV Act and in the appeal under Section 173 of the MV Act, it was contended that the claim was not maintainable in view of Section 53 of the ESI Act. It is not clear from the facts whether such a defence was taken for the first time in appeal or the bar under Section 53 was taken even before the Tribunal. The High Court held that there was no bar but the appeal preferred by the insurer was allowed, setting aside the order of the High Court. The parting words in the judgment were: “Above being the position of law, the appeal deserves to be allowed. The entitlement shall be worked out by MACT concerned by taking note of Section 53 of the Act.” When the appeal was allowed, the last sentence that talks about 'entitlement' in the context of Section 53 of the Act, I would understand as creating a situation of non-entitlement. 4. Under the circumstances, the award of the Tribunal is set aside and the appeal is allowed. (K.KANNAN) JUDGE 01.10.2010 sanjeev