Allowed

Vehicle Tata Venture No. U.P 70 Bm 1600 Commercial Auto Sales Pvt. Ltd. v. Rajkumar Agrawal and 2 Others

Allahabad HC28 Jan 2021FAFO/552/2019

Case brief

AI extract

What is this about?

The appellate court allowed the appeal, reversing the Motor Accident Claims Tribunal. It held that a claim against the employer and owner is not maintainable under Section 166 of the MV Act for an insured employee due to the bar in Section 53 of the ESI Act, distinguishing the facts from Section 53's prohibition claims against third parties.

What did the court decide?

Impugned award set aside; matter remitted for reconsideration; appeal allowed.

Vehicle Tata Venture No. U.P 70 Bm 1600 Commercial… — Motor Accident Claims | Allahabad HC (2021)

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Court No. - 1

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Case :- FIRST APPEAL FROM ORDER No. - 552 of 2019

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Appellant :- Vehicle Tata Venture No. U.P 70 Bm 1600 Commercial Auto Sales Pvt. Ltd.

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Respondent :- Rajkumar Agrawal And 2 Others Counsel for Appellant :- Udayan Nandan,Devaang Savla Counsel for Respondent :- Prabhat Tripathi,Ajay Kumar Srivastava,Manoj Kumar Tewari,Pradyumn Kumar

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Hon'ble Vivek Agarwal,J.

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Heard Sri Devang Savla, learned counsel for the appellant and Sri Ajay Kumar Srivastava, learned counsel for the claimant-respondents.

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This appeal has been filed by the appellant being aggrieved of the judgment and order dated 22.12.2018 passed by the Motor Accident Claims Tribunal in M.A.C.P.. No.201 of 2013; Raj Kumar Agarwal Vs. Vehicle Tata Venture No.UP 70BM1600 Commercial Auto Sales Pvt. Ltd. Under Control (Sanskar Gupta) 18, Kanpur Road, Allahabad.

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This appeal has been filed by the defendant no.1 and the owner of the vehicle, in which, claimant was travelling on 06.06.2011, when he had met with an accident with a tractor coming from the opposite side.

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Learned counsel for the appellant submits that claimant is an employee of the appellant and appellant is covered under the provisions of the Employees State Insurance Act, therefore, appellant is not entitled to file a claim petition under the provisions of Section 166 of the Motor Vehicles Act, 1988 as such claim petition is barred by Section 53 of the Employees State Insurance Act, 1948 (hereinafter referred to as the ESI Act).

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Reliance is placed on the judgment of Division of this Court in case of Smt. Manju Jha and another Vs. Har Govind Singh

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and others passed in F.A.F.O. No.3449 of 2012 on 12.04.2018, wherein, it has been held that "The claims on account of the death of an insured person as an employee are not specifically barred by Section 53 of the ESI Act rather only the claims in respect of an employment injury under other Act are prohibited.

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In view of the aforesaid facts and circumstances, we are of the view that the Tribunal committed error in holding that the claim petition was barred.

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Accordingly, the impugned order dated 06.06.2012 is set aside and the matter is remitted for reconsideration in accordance with the observations made herein above.

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The appeal is allowed." in the light of Section 53 of the ESI Act, which reads as under:--

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"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."

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It provides that insured person or his dependents would not be entitled to any compensation in respect of the employment injury sustained by the insured person as an employee under the Act. The aforesaid provision prohibits payment of compensation or damages to the insured or his dependents under any other law except under the ESI Act.

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The insured person is defined under Section 2(14) of the ESI Act to mean a person who is or was an employee in respect of whom contributions are or were payable under the ESI Act and who is by reason thereof, entitle to any benefit under the Act.

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Thus, for the purpose of any benefit under the ESI Act it has to be proved that in respect of person contributions were being made under the ESI Act. It is only the insured person or his dependents that have been prohibited from claiming compensation or damages under any other law except the ESI

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Act in view of Section 53 of the Act.

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Reliance is also placed on the judgment of Supreme Court in case of National Insurance Co. Ltd Vs. Hamida Khatoon and others; (2009) 13 SCC 361 , wherein, it has been held that if an insured person as defined in the Act suffers an employment injury as defined in Section 2(8) of the ESI Act and there is no dispute that he was in employment of the Employer, by operation of Section 53 of the Act, proceedings under the compensation Act were excluded statutorily. The High Court was not justified in holding otherwise

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On the other hand, learned counsel for the claimantrespondents submits that appeal is not maintainable and Tribunal has rightly allowed him compensation under the facts and circumstances.

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After hearing learned counsel for the parties and going through the records, it is apparent that if claimant would have filed claim against the offending tractor or truck, then position would have been different, but certainly in view of the bar under Section 53 of the ESI Act, claim against the owner and employer of the claimant is not maintainable specifically when claimant-respondent is an employee of the appellant-Company and ESI coverage is available to such employees.

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Therefore, appeal is allowed. Impugned award is set aside.

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Parties to bear their own costs.

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Order Date :- 28.1.2021 Ashutosh

Vehicle Tata Venture No. U.P 70 Bm 1600 Commercial Auto Sales Pvt. Ltd. v. Rajkumar Agrawal and 2 Others

Case brief

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Vehicle Tata Venture No. U.P 70 Bm 1600 Commercial Auto Sales Pvt. Ltd. v. Rajkumar Agrawal and 2 Others

Case brief

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What did the court decide?

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