Appeal against dismissal of compensation claim for death in road accident. Court held that Section 53 of ESI Act bars other claims if deceased was covered, regardless of benefit availing. Appeal dismissed with liberty to approach ESI forum.
Appeal dismissed; liberty granted to approach appropriate forum for compensation.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:29737 MFA No. 3796 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
R
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 3796 OF 2017 (WC)
BETWEEN:
SMT. PUTTAMMA, W/O. LATE SHIVAPPA, AGE ABOUT 57 YEARS, OCC: HOUSE WIFE, R/AT: BILLENAHALLI VILLAGE, MALLENAHALLI POST, DUDDA HOBLI, MANDYA DISTRICT - 573 118.
…APPELLANT
(BY SRI SURESH M LATUR, ADVOCATE)
AND:
Digitally signed by T S NAGARATHNA Location: High Court of Karnataka
M/S. VRL LOGISTICS LTD., CORPORATE OFFICES, GIRIRAJ ANNEX, CIRCUITE HOUSE ROAD, HUBLI, DHARWAD DISTRICT - 580 001.
…RESPONDENTS
(BY SRI ARAVIND M NEGLUR, ADVOCATE FOR R1; SRI S.V HEGDE MULKHAND, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 30(1)(A) OF W.C. ACT, AGAINST THE JUDGMENT AND AWARD DATED 17.09.2016 PASSED IN ECA NO.82/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM MADYA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the petitioner/appellant herein is directed against and the judgment and award dated 17-09-2016 in ECA No.82/2014 passed by the learned I Additional Senior Civil Judge and CJM, Mandya, whereby the claim petition filed by the petitioner on account of the death of her son Prakash, came to be dismissed.
Prakash, filed a claim petition before the Tribunal contending that her son was an employee under the first respondent, working as a driver in the bus bearing Reg.No.KA.25-B-7026, receiving a salary of Rs.15,000/-
per month and was aged about 41 years. It was further contended that on 7-7-2013, her son Prakash was driving the bus to go to Hyderabad from Bengaluru in the early
hours on 8-7-2013 at about 5.30 a.m. and when he was over a flyover bridge at NH 44 Kurnool town, he had hit a lorry bearing Reg.No.AP.21.X-0969 that was going in front of the bus on the rear side of the lorry. On account of the accident, the driver who had sustained grievous injuries had succumbed to the same. A case came to be registered in Cr.No.229/2013 for the offence punishable under Section 337 and 304A of IPC. It was further contended that her son Prakash died on account of the accident during the course of his employment with the first respondent. Second respondent is the insurer and the contract of insurance was in force as on the date of the accident and therefore, respondents are liable to pay the compensation.
NC: 2023:KHC:29737 MFA No. 3796 of 2017
written statement contending that the bus was not insured as on the date of the accident and the said accident was on account of the negligence on the part of the deceased himself and therefore, petitioner was not entitled to any compensation and sought permission to contest the
petition on all other grounds available to the owner and driver of the vehicle. Further, it was contended that no notice was received by it regarding the accident and therefore, sought to dismiss the petition against it.
framed appropriate issues and petitioner was examined as PW1 and Exs.P1 to P11 were marked. No oral or documentary evidence are adduced and produced by the respondents.
the petitioner has approached this Court in appeal raising the following substantial question of law:
Whether the Tribunal is justified in dismissing the claim petition only on the ground that the deceased was insured under ESI Act?
NC: 2023:KHC:29737 MFA No. 3796 of 2017
contended that the impugned judgment is incorrect since it did not consider that the appellant has not received any compensation under the provisions of the ESI Act. He submits that, the fact that respondent No.1 had insured the deceased under the ESI Act, is not proved. Simply, it was stated in the written statement that the deceased was covered under the Employees State Insurance Act and the Code Number allotted to him was '58580020620121006' and therefore, in view of the provisions of Sections 53 and 61 of Employees State
Insurance Act, the petition under the Workmens' Compensation Act or the Employees Compensation Act was barred is not sustainable under law. He also contend that the petitioner has not received any compensation from the employer or by the ESI Corporation and therefore, the impugned judgment is liable to be set aside.
1) New India Assurance Co. Ltd., V/s. Ravula Shanker and another1 ;
2) Rajasthan State Road Transport Corporation V/s. Ramesh Singh and Others2 ;
3) H.G. Mahesh V/s. Smt. Honnamma And Another3 ; and.
4) Western India Plywood Ltd., V/s. Ashokan4 .
the very fact that the deceased was covered under the
1 2021 ACJ 250 (Telangana, Hyderabad)
2 2005 ACJ 919 (Rajasthan)
3 ILR 1999 KAR 1548 (KAR)
4 1997 ACJ 1281 (S.C.)
ESI Act, forbids any claim under the Employees Compensation Act. This aspect was considered by the Tribunal and it has rightly come to the conclusion that the petition is not maintainable.
counsel appearing for respondent No.1 has filed a memo stating that it has informed the ESI Corporation about the death of the driver of the vehicle- Prakash along with necessary documents. Therefore, the learned counsel for the respondent No.2 contend that the petitioner should have approached the ESI Corporation for compensation and the present petition is not maintainable under law.
5 ILR 1982 Karnataka 380
6 1984 ACJ 238
Trehan vs. Associated Electrical Agencies and
another7 .
7 1996(4) SCC 255
compensation even though the ESI facility was invoked by the employee? In the communication by the respondent No.1 to the ESI authorities, the particulars of the accident, driving licence, salary of the deceased, police papers regarding death were clearly informed.
The decision in the case of Rajasthan State Road
Transport Corporation Vs. Ramesh Singh and others
- Supra, rendered by Rajasthan High Court held that, "there is no bar for claiming compensation under the M.V. Act, when the benefits were not claimed under the ESI Act." Similar view is also expressed by a Single Bench of this Court in the case of H.G. Mahesh vs. Smt. Honnamma and another referred supra. The learned
NC: 2023:KHC:29737 MFA No. 3796 of 2017
Single Judge has relied on the decision in the case of Western India Plywood Limited Vs. Ashokan of the Supreme Court to hold that "only when the benefit is received under the ESI Act, a claim under the provisions of M.V. Act is barred" . In the said case (Western India Plywood Limited), in para 13 and 14 it was observed as below:
"13. In view of the aforesaid observations in Trehan's case, 1996 ACJ 853 (SC), with which we respectfully agrees, it is clear that the respondent could not make a claim for damages. Section 53 disentitles an employee who was 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 statue but the wording of the section is such that an insured person would not be entitled to make a claim in Tort which has the force of law under the E.S.I. Act. Even though the E.S.I. 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 had been sustained by him is an employment injury.
precisely for this reason that the Madras High Court in Mangalam's case, 1982 ACJ (Supp) 203 (Madras), had observed that the object of Section 53 of the E.S.I. 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 under Section 53 of the E.S.I. Act, the trial court was right in dismissing the application under Order 33 Rule 1 of the Code Of Civil Procedure."
(Emphasis by me)
of A. Trehan Vs. Associated Electrical Agencies and
another which also considered the decision in the case of Western India Plywood Ltd., Vs. Ashokan referred
supra. In para 12, it was held as below:
"12. 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 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.
NC: 2023:KHC:29737 MFA No. 3796 of 2017
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 of the bar created by Section 53 the application for compensation filed by the appellant under the Workmen's Compensation Act was not maintainable."
(Emphasis by me)
and others Vs. KSRT Corporation and others (supra)
it was held as below:
"The object which the legislature had in view while enacting Section 53 of the Employees' State Insurance Act is to see that the insured person or his dependants, who are entitled to the benefits under the Act, can only approach the Corporation under the Act in respect of any employment injury sustained by the insured person and not seek relief or reliefs like compensation or damages either under the Workmen's Compensation Act or any other law for the time being in force or otherwise, as otherwise the employer was likely to face double jeopardy. If that is so, the contention that Section 53 of the Act is analogous to the provisions of Section 61 of the Act and therefore, there is no bar for the claimants to seek compensation or damages under the general law of Torts is not tenable."
and others (Supra) was reiterated by a Division Bench of
this Court in the case of Annapurna and others Vs.
NC: 2023:KHC:29737 MFA No. 3796 of 2017
General Manager KSRTC and others (Supra) and it
was held in para 8 as below:
"8. Hence, benefits to the dependents are contemplated only when the person dies as a result of employment injury. Therefore, by necessary implication, it is clear that S. 53 of the Act comes in when a person claims damages on account of employment injury or when his dependents claim benefits as a result of death of an employee as a result of employment injury. That is the view taken by this Court in K.S. Vasantha v. K.S.R.T.C. wherein it is ruled that reading of S. 2(8) along with S. 51 (c) of the Act, the injuries sustained and the death of the two persons was nothing but employment injury and that the remedy open to the injured and the LRs. of the deceased was to approach the ESI Corporation constituted under the E.S.I. Act and not the Tribunal constituted under the Motor Vehicles Act or under any other law for the time being in force including common law right under the Law of Torts. It is further held that the other remedies are barred under Section 53 of the E.S.I. Act. That being so, it is obvious that the final decision of the Tribunal has to be upheld."
conclusively establish that the question whether the benefit was received under the ESI Act or not would not be relevant . By virtue of Section 53 of the ESI Act, the claim
that could be made under any other provisions is barred. Therefore, the only remedy available for the petitioner was to approach the ESI Corporation. The petitioner did not have the choice either to approach the Tribunal under the
NC: 2023:KHC:29737 MFA No. 3796 of 2017
MV Act, or Employees Compensation Act, when the facility under ESI Act was availed by the deceased when he was employed by the respondent No.1. The question is not whether the petitioner had received the benefits or not? , but the question is, whether the deceased was covered under the provisions of ESI Act or not? Therefore, when the deceased was covered under the provisions of ESI Act,
the petition under any other Law of Torts was not maintainable. It is relevant to note that there are divergent opinion by other High Courts and one of the Single bench decision of this Court. When the law is clearly stated in the case of K .S. Vasantha and others Vs. KSRT Corporation and in the case of Annapurna
and others Vs. General Manager, KSRTC and others, this Court cannot be persuaded to follow the decision in the case of H.G. Mahesh vs. Honnamma and another. Therefore, I am unable accept the arguments put forth by the learned counsel for the appellant. Hence, the appeal is bereft of any merits. It is to be noted that the appellant/petitioner cannot be deprived of the benefits for
NC: 2023:KHC:29737 MFA No. 3796 of 2017
wrongly choosing the Forum. Hence, liberty has to be reserved to her to approach the appropriate forum. Hence, the following:
ORDER
The appeal is dismissed.
The appellant is at liberty to approach the appropriate forum seeking compensation, in which case, the delay on account of prosecuting the present proceeding shall not come in the way.
Sd/JUDGE
tsn* List No.: 1 Sl No.: 14
2 issues framed by the court
Whether the Tribunal was justified in dismissing the claim petition on the ground that the deceased was insured under the ESI Act.
Whether the claim under Workmen's Compensation Act is barred merely because the employee was covered under the ESI Act, irrespective of whether benefits were availed.
Colour shows how this judgement treated each authority
New India Assurance Co. Ltd. v. Ravula Shanker and anotherExplained¶18
2021 ACJ 250 (Telangana, Hyderabad)
Rajasthan State Road Transport Corporation v. Ramesh Singh and OthersExplained¶81
2005 ACJ 919 (Rajasthan)
H.G. Mahesh v. Smt. Honnamma and anotherDistinguished¶84
ILR 1999 KAR 1548 (KAR) · Who else cites this
Western India Plywood Ltd. v. AshokanExplained¶84
1997 ACJ 1281 (S.C.)
A. Trehan vs. Associated Electrical Agencies and anotherApplied¶97
1996(4) SCC 255 · Who else cites this
K.S. Vasantha and others Vs. KSRT Corporation and othersFollowed¶102
ILR 1982 Karnataka 380 · Who else cites this
Annapurna and others Vs. General Manager, KSRTC and othersFollowed¶110
1984 ACJ 238
3 provisions across 2 enactments
Smt. Puttamma
The Managing Director, M/S. VRL Logistics Ltd.
The Divisional Manager, M/S. The New India Assurance Co. Ltd.
C M Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
