THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.170 OF 2011 DATED:02.08.2011 JUDGMENT: This appeal is directed against the order, dated 03.07.2010, in W.C.No.66 of 2009 on the file of the learned Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-II, Hyderabad, wherein the claim of the 1st respondent herein for compensation under the provisions of the Workmen’s Compensation Act, was allowed awarding Rs.3,06,088/- with interest @ 12% p.a. 2. Heard both sides. Perused the record. 3. It is not disputed that the 1st respondent was employed under the 2nd respondent-employer and that he sustained employment injury while on duty as driver in Swaraj Mazda van bearing No.AP 10Y 1684 during the course of employment on 10.11.2008. The 2nd respondent herein-employer and the appellant herein- insurer both filed counters before the learned Commissioner opposing the claim, inter alia, on the ground that in view of the bar contained under Section 53 of the Employees’ State Insurance Act, 1948 (for brevity, ‘the Act’), the application for compensation before the learned Commissioner is not maintainable. The learned Commissioner, however, ignored the said contention on the ground that the employer did not appear and cross- examine the applicant, and allowed the claim, awarding the amount of Rs.3,06,088/-. 4. The main contention raised by the appellant-insurer is that in view of the bar contained under Section 53 of the Act, the application for compensation is not maintainable before the learned Commissioner of Workmen’s Compensation Act. 5. Section 53 of the Act states as follows: “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 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”. 6. A plain reading of the above provision would show that an insured person or his dependant is barred from receiving either from the employer or any other person any compensation or damages under the Act or any other law for the time being in force in respect of the employment injury sustained by him. 7. In a decision reported in A.TREHAN v. M/S ASSOCIATED ELECTRICAL AGENCIES AND ANOTHER[1], the apex Court held as follows: “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 ESI 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 assured that the workmen had a better right under the Workman'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. 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 an unequivocal. when such a bar is created in clear an 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 by-passing 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 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 the bar created by Section 53 the application for compensation filed by the appellant under the Workmen's Compensation Act was not maintainable. 8. I n WESTERN INDIA PLYWOOD LTD. V. P. ASHOKAN, [2], the apex Court reiterated the position, following the decision in Trehan’s case (1st cited supra) in the following terms: “Section 53 disentitles an employee, who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen’s Compensation Act or any other law for the time being in force or otherwise. The use of the expression “or otherwise” would clearly indicate that this Section is not limited to ousting the relief claimed only under any statute but the wordings of the Section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is 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 sustained by him is an employment injury”. “The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. Therefore, the Madras High Court in Mangalamma case rightly observed that the object of S.53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. Therefore, the claim of the respondent for damages being barred under S.53 of the ESI Act, the trial Court was right in dismissing the application under Order 33 Rule 1 of the Code of Civil Procedure”. 9. This Court in C.M.A.No.3268 of 2002 by order, dated 26.08.2007, in similar circumstances, dismissed the appeal filed by the claimant and confirmed the order of dismissal of the claim passed by the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Kurnool, following the decision of the apex Court in WESTERN INDIA PLYWOOD LTD’s case ( 2nd cited supra). 10. In view of the statutory bar contained under Section 53 of the Act, which disentitles the insured workman from receiving or recovering compensation for the employment injury from the employer or any other person under the Workmen’s Compensation Act or any other law for the time being in force and in view of the principles laid down in the above decisions, it is held that the claim application filed by the 1st respondent herein before the learned Commissioner of Workmen’s Compensation, Hyderabad, is unsustainable. 11. In response to the notice issued by this Court, the E.S.I. authorities of E.S.I. local office, Kompally submitted a report, dated 28.06.2011, stating that the 1st respondent herein is an employee of the 2nd respondent and he suffered employment injury in the course of the employment and his case was admitted as employment injury after investigation, but he has not yet turned up with a valid claim. It is therefore open to the 1st respondent herein-workman to approach the concerned authorities under the Act and seek payment of compensation payable under the provisions of the Act. On such a claim being made by the 1st respondent, the concerned authorities under the Act shall endeavour to dispose of the same at an early date, preferably within a period of six months from the date of receiving the claim application. The impugned order is therefore held unsustainable, and the same is accordingly set aside. 12. In the result, the appeal is disposed of with the liberty to the 1st respondent, as stated above. _______________________ G.V.SEETHAPATHY, J 02nd August, 2011 Note: 1. Copy of the order to be marked to the concerned E.S.I authorities. 2. Furnish C.C. of the order within one week. B/o Tsy [1] AIR 1996 SC 1990 [2] (1997) 7 SCC 638