FA/53/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 53 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = CHHAGANBHAI NATHABHAI PARMAR Versus GANESH OIL MILL & 1 ========================================= = Appearance : MR HA RAICHURA for Appellant MR UTPAL M PANCHAL for Appellant MR RAJNI H MEHTA for Respondents No.1 - 2. ========================================= = CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/05/2008 ORAL JUDGMENT [1] By way of present appeal, the appellant has challenged the judgment and award dated19.11.1986 passed by Civil FA/53/1987 2/5 JUDGMENT Judge (S.D.) and Commissioner for Workmen Compensation, Junagadh in Workmen's Compensation Case No.50 of 1985, whereby the said case was rejected. [2] The facts in brief, as emerging from the record, are as under; [2.1] The appellant, original plaintiff, had filed the said case being Workmen's Compensation Case No.50 of 1985 before the Court of Commissioner for Workmen's Compensation at Junagadh against the respondents, original opponents, praying for recovery of compensation of RS.24,000/- and penalty thereof as well as costs from the respondents, original opponents on account of permanent total disablement. In the said case, respondents filed their replies and prayed for the dismissal of the case with costs. [2.2] The trial Court, after considering the entire evidence on record, rejected the case of the appellant – plaintiff vide the impugned judgment and award. Hence this appeal. [3] Heard learned advocates appearing on behalf of the respective parties. FA/53/1987 3/5 JUDGMENT [4] Learned counsel for the appellant has submitted that his right to approach the authority under the E.S.I. Act may not be affected, if the appeal is dismissed. [5] It is the case of the appellant that the Court below has misdirected himself on a question of law. The Court below has considered Section 53 of the Employee State Insurance Act, but has not considered the head note of this section. It is the case of the appellant that the Court below has erred in holding that if any employee is protected under E.S.I. Act, he can not choose any other provisions for obtaining compensation. It is the case of the appellant that the Court below has erred in holding that the appellant is bound to follow E.S.I. Act and it is not open for him to select when he is eligible for obtaining compensation from two or more sources. It is also the case of the appellant that the Court has erred in holding that he has no jurisdiction under Section 53 of E.S.I. Act. The Court below has held that Section 53 of the said Act has no application where the appellant has not taken or claimed any compensation under that Act. In view of the aforesaid facts of the case, the appellant, therefore, has submitted that the the present appeal FA/53/1987 4/5 JUDGMENT is required to be allowed and the judgment and award passed by the trial Court is required to be quashed and set aside with costs. [6] While considering the claim of the appellant, the trial Court has framed the issue No.1 and given answer in the affirmative which reads as under. “Whether the applicant is barred under the provision of Section 53 of the Employees' State Insurance Act, 1948 on the ground that applicant was a protected servant under E.S.I. Act.? [7] The finding of the Competent Authority is that applicant is holding card under E.S.I. Scheme and opponent No.1 is already covered under the E.S.I. Scheme and, therefore, the said Court has no jurisdiction under Section 53 of the Act. [8] In that view of the matter, the Court below rejected the application. The reasoning given by the trial Court is just and proper and no sufficient cause is made out to interfere with. [9] For the foregoing reasons, the present appeal stands dismissed. It will be open for the appellant to prefer under E.S.I. Act of that Court. FA/53/1987 5/5 JUDGMENT [K. S. JHAVERI,J.] vijay