Case: Western India Plywood Ltd Vs. Shri. P. Ashokan

2. Briefly stated, the facts are that the appellant is a company owning and operating a plywood factory. The respondent, who was working with the company, met with an accident, when he was feeding the DAP compound into the roller mill by pushing it with his own hand. As a result of this accident one of his hands was amputated. Notwithstanding this accident, the appellant allowed the respondent to continue in its service without any reduction in remuneration.3. The ESI Act was applicable to the employees of the appellant company, including the respondent. After the aforesaid accident, a claim was made thereunder and as a result thereof the disabled benefit of Rs. 260/- per month on account of permanent/partial disablement was ordered to be paid to the respondent. This decision of the Employees State Insurance Corporation to pay the said amount was not challenged. It is the case of the appellant that besides this benefit under the ESI Act, the medical expenses for the treatment of the respondent were also borne by it and in fact the said respondent received the best medical treatment available in that area.4. While still in service the respondent filed OP No. 108 of 1981 in the Court of Subordinate Judge, Tellicherry, under Order 33 Rule 1 of the Code of Civil Procedure, seeking permission of the Court to allow him to file a suit against the appellant herein for Rs. 1,50,000/- as compensation for the injuries sustained by him on account of the aforesaid accident which had taken place in April, 1980. This application was opposed by the appellant herein, inter alia, on the ground that it was liable to be dismissed under Order 33 Rule 5 (d) and (f) of the Code of Civil Procedure, in view of the provisions of Section 53 of the ESI Act, which barred the receiving or recovery of any compensation or damages by an employee under any law other than the Employees State Insurance Act. This contention of the appellant was upheld and the Subordinate Court dismissed the said application of the respondent.5. The respondent thereafter filed an appeal before the High Court of Kerala. A Division Bench of the High Court doubted the correctness of an earlier Bench decision on the same question and, consequently, the case was referred to a Full Bench. The Full Bench consisting of three learned judge held that the provisions of Sections 53 and 61 of the ESI Act did not bar an action by an injured employee under tort for compensation against the employer. It accordingly allowed the appeal and directed the application of the respondent under Order 33 Rule 1 to be decided by the trial Court on merits and in accordance with law. Hence this appeal by special leave.

Reasoning:
10. In view of the aforesaid observations in Trehans case, with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Sections 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmens 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 if fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustained by him is an employment injury.11. 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. It is precisely for this reason that the Madras High Court in Mangalammas case (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 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.12. The position in law being clear and concluded by the decision of this Court in Trehans case (supra) we see no justification for the Court not exercising its jurisdiction under Article 136, as was contended by the respondents counsel. The incorrect decision on a point of law of the High Court has to be corrected.In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case to decide this issue finally because in the instant case the claim which was sought to be made was not against the third party but against the employer itself. Perhaps this question may require consideration in an appropriate case.