Allowed

Sri Balakrishna v. the Branch Manager

Karnataka HC27 Jun 2023MFA/5925/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against the dismissal of a compensation claim under the Motor Vehicles Act. It held that ESI Act bars (Sections 53 and 61) do not apply to injuries sustained in a road traffic accident having no connection with employment, distinguishing S.G. Pandu. The case was remanded for quantum of compensation.

What did the court decide?

The impugned judgment and award were set aside. The matter is remanded to the Tribunal for fresh consideration to determine compensation, including quantum, upon finding that ESI benefits were not ava

Sri Balakrishna Vs the Branch Manager — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:22298 MFA No. 5925 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF JUNE, 2023 R BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 5925 OF 2012 (MV-I)

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BETWEEN:

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SRI. BALAKRISHNA S/O. NARASHIMHAREDDY, AGED 26 YEARS, R/A NO.80/A, HONNENAHALLI, SINGANAYAKANA HALLI POST, RAJANUKUNTE, BENGALURU.

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…APPELLANT

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(BY SMT. GAYATHRI RAVISHANKAR, ADVOCATE)

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AND:

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Digitally signed by PAVITHRA B Location: HIGH COURT OF KARNATAKA

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THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., NO.2-B, REGIONAL OFFICE, UNITY BUILDING ANNEXE, MISSION ROAD, BANGALORE – 560 027.

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SRI. SUBRAMANYAM. S A-1, VIJAY VILLA, NO.25, 1^ST CROSS STREET, AMARAVATHI NAGAR, ARUMBAKKAM, CHENNAI – 600 160. …RESPONDENTS

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(BY SRI. LAKSHMI NARASAPPA, ADVOCATE FOR SRI. A.M. VENKATESH ADVOCATE FOR R1 THROUGH VIDEO CONFERENCE; R2 – SERVED)

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NC: 2023:KHC:22298 MFA No. 5925 of 2012

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.2.2012 PASSED IN MVC NO.8965/2010 ON THE FILE OF I ADDITIONAL SMALL CAUSES JUDGE & MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION IN TIME.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the claimant under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), for setting aside the Judgment and Award passed in MVC No.8965/2010 dated 17.02.2012 by the I Additional SCJ and MACT, Bengaluru.

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2. Brief facts of the case are as under:

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The appellant-claimant sustained injuries in the road traffic accident that occurred on 07.11.2010 at 3.00 p.m., near Aadiganahalli cross, Bangalore-Bagepalli road while the driver of Car bearing Reg.No.TN-02-AK-6584 drove the same in a rash and negligent manner and dashed the motor cycle ridden by the claimant. The claimant sustained grievous injuries and eight fractures and sustained

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permanent disability of 27% to the whole body as per the evidence of the doctor-PW2. The claimant was an employee working in the factory and was contributing Rs.122/- per month as ESI contribution. The Tribunal, on the assumption that the claimant might have got reimbursed medical expenses and hospital charges, by availing benefit under Employees’ State Insurance Corporation Act, 1948 (ESI Act for brevity) in the ESI hospital, dismissed the claim petition by following Judgment of this Court in the case of S.G.PANDU vs. UNITED

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INDIA INSURANCE COMPANY LTD. (AIR 2009 KAR 33) and also as per Sections 53 and 61 of the ESI Act, as there is a bar to file a claim petition under the M.V.Act. Thus, by these reasons, the claim petition filed by the claimant was dismissed.

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Heard the learned counsel for the parties and perused the records.

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NC: 2023:KHC:22298 MFA No. 5925 of 2012

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SUBMISSION OF COUNSEL FOR CLAIMANT:

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Learned counsel for the appellant/claimant

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submitted that the reasoning given by the Tribunal in dismissing the claim petition is not correct, as the claimant

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has not sustained injuries as employment injuries, but he had sustained injuries in the road traffic accident as he was hit by the car somewhere else in the public place which is not premises located in factory/company of the claimant in which he was working. Therefore, the present case is not that the claimant had sustained employment injuries, rather, he had sustained injuries in the road traffic accident. Therefore, just because the claimant was working in the factory and was contributing towards ESI is not a ground to say that Sections 53 and 61 of the ESI Act create a bar to entertain a claim petition under Section 166 of the M.V.Act. It is further submitted that the Judgment relied on by the Tribunal in S.G.Pandu’s case supra, is not applicable as the present case is having different set of facts and circumstances. Therefore, learned counsel for the

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appellant submitted that the Tribunal is not correct in dismissing the claim petition and prays to allow the appeal holding that the claim petition is maintainable under Section 166 of the M.V.Act.

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SUBMISSION OF COUNSEL FOR INSURANCE

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COMPANY:

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On the other hand, learned counsel for the respondent No.1/Insurance Company submitted that the claimant is a beneficiary of ESI and contributing to ESI as stated above and company had also contributed. Therefore, the Tribunal is correct in holding that the claim petition filed under Section 166 of the M.V.Act is not maintainable, by following the Judgment of this Court in S.G.Pandu’s case supra. Therefore, submitted that Sections 53 and 61 of the ESI Act creates bar to make claim. Hence, the Tribunal is correct in dismissing the claim petition. Therefore, prayed for dismissing the appeal.

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NC: 2023:KHC:22298 MFA No. 5925 of 2012

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POINT FOR CONSIDERATION:

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Upon hearing the respective arguments of respective learned counsel, the point that arises for my consideration is:

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“Whether, under the facts and circumstances involved in the case, if any person, even though beneficiary under Employees’ State Insurance Act, 1948, sustained injuries or death occurred in the road traffic accident other than the place of factory premises/industrial premises, not having any connection with employment and thus, the injury is not employment injury or death is not in connection with work and out of employment, thus, Sections 53 and 61 of Employees’ State Insurance Corporation Act, 1948 creates bar to claim under provisions of Motor Vehicles Act, 1988 where injury or death is occurred in road traffic accident?”

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REASONS/ANALYSIS

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Section 53 of ESI Act, reads thus:

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"BAR AGAINST RECEIVING OR RECOVERY OF COMPENSATION OR DAMAGES UNDER ANY OTHER LAW. —

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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 24 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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(Emphasis Supplied by me)

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Section 61 of ESI Act, reads thus:

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"BAR OF BENEFITS UNDER OTHER ENACTMENTS.

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When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment."

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The scheme of ESI Act, 1948, has introduced Health Insurance for Industrial Workers. In order to provide certain benefits to employees in the case of sickness, matrimony and employment injury, the enactment like ESI Act was introduced. Therefore, in order to comply with the provisions of ESI Act, any injury, death or any other health issues, are related to health, must be in connection with employment injury or death, shall be out of and in the course of employment.

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What is 'employment injury', is described in subSection (2) of Section 2 of the ESI Act, which reads as follows:

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“Employment injury” means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;

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Upon dissecting Section 53 of the ESI Act, two key factors governing the said section is, 'employment injury' and 'insured person'. In the present case, the insured person is not employee, but sustained injury in road traffic accident. Section 53 of the ESI Act creates a bar, where an employee, i.e., insured person, sustains employment injury, if he is entitled for compensation or damages under the Employees’ Compensation Act, 1923 or any other law for time being in force, relate to availing of compensation, in the course of employment injury, creates bar to make a claim application under Section 166 of M.V. Act, when the person is entitled to any of the benefit under ESI Act, then creates bar to make claim application under the provisions of MV Act. Therefore, both these Sections, i.e., Section 53 and Section 61 of the ESI Act, are defined by key words, 'employment injury’ and 'insured person'.

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Therefore, precisely, as per Section 61 of ESI Act, where a person is entitled to take benefit of ESI Act, sustains injury out of and in the course of employment,

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then it creates bar to receive any similar benefits under other Laws. In this case, the claimant is an employee in some firm / establishment or industry or factory, sustained injuries in the road traffic accident somewhere in the road not having any connection with the work or employment and not in the factory premises in which he was engaged and the accident has not occurred in the factory premises, thus if injuries or death is caused in the road traffic accident, then these provisions of Sections 53 and 61 of ESI Act do not apply to create bar to make claim under Section 166 of the MV Act.

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Basically, the road traffic accident is a motor vehicle accident. If any injury or death is not related to employment or out of or in the course of employment, then the injured or dependent can make claim under the provisions of MV Act. As per Section 53 of the ESI Act, where an employment injury or death is occurred is entitled for taking benefit under Workmen's Compensation Act, then Section 53 of ESI Act creates bar to make claim.

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Upon considering the facts, circumstances and evidence on record, it is proved that the claimant had sustained injuries in the road traffic accident, when the claimant was riding his motor cycle and dashed by car at Aadignahalli Village Cross, Bangalore-Bagepalli Road, which is having no connection with the employment or the factory premises or industry and injuries sustained by the claimant is also not out of and in the course of employment, therefore, under these facts, circumstances and evidence on record, which clearly reveal that in this case the claimant may be employee working in some other company/industry or factory, having benefit of ESI, that does not create bar to make claim application under the provisions of MV Act.

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The Tribunal relied on the judgment of this Court in the case of S.G.PANDU, supra, the facts of that case are that the claimant was working in milk dairy and while working in the dairy premises as security guard in the said dairy and counting the milk cans, he was dashed by

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another vehicle. Therefore, in the said case, the claimant was an employee who sustained 'employment injuries' out of and in the course of employment. Therefore, under those circumstances, it was held that except invoking ESI Act for compensation other laws cannot be invoked.

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In the above said judgment, this Court by relying on various judgments of this Court and Hon'ble Supreme Court, wherein the facts are that the claimant had sustained injuries out of and in the course of employment. Those injuries sustained are 'employment injuries' or death during the course of employment. Under those circumstances, it was held that as per Sections 53 and 61 of ESI Act, making claim under either law, is barred. Therefore, the facts, circumstances and evidence on record, in the above said case and also under cases referred in the impugned judgment, are entirely different from the present case.

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In the present case, the injuries sustained by the claimant are not 'employment injuries' and the claimant has

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not sustained injuries out of and in the course of employment, so as to attract the provisions of ESI Act, as stated under Section 53 of ESI Act. Therefore, just because the claimant is a beneficiary under ESI Act and sustained injuries somewhere else, having no connection with the employment and suffered injuries in road traffic accident, then Sections 53 and 61 of ESI Act do not create bar to make claim under Section 166 of the MV Act.

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The Tribunal while applying the principles of law laid down in S.G.PANDU's case, has not appreciated the facts, circumstances and evidence on record, therefore, erroneous Judgment and Award came to be passed under this proposition of law.

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In the present case, the Tribunal has completely swayed away from the fact that the claimant produced salary certificate, which shows that the claimant was contributing some amount towards ESI and thus, wrongly held that the claim petition under Section 166 of ESI Act is

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not maintainable. Further, the Tribunal has not appreciated the evidence on record whether the claimant had sustained 'employment injuries' or injuries suffered in the road traffic accident. Much less, the Tribunal has not appreciated evidence on record whether injuries sustained by the claimant is having any remote connection of 'employment injuries'. But the injuries sustained by the claimant is having no connection at all to employment.

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Therefore, in a case of injuries sustained in a road traffic accident, having no connection with the employment or work and the person has not sustained injuries out of and in the course of employment, more over, injuries sustained are in road traffic accident simplicitor, therefore, Sections 53 and 61 of the ESI Act do not create bar to agitate claim invoking jurisdiction of the Tribunal under MV Act. For these differences in the facts and circumstances and evidence in the aforesaid cases and in the present case, the above stated cases are not applicable to the present case.

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In S.G.Pandu’s case supra and also the cases

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referred in the said Judgment, factual matrix are that the injured had sustained employment injuries and injured is an insured person. Therefore, even though the injured person sustained injuries in the motor vehicle accident, but the facts involved in the above said case are that the injured/insured person has sustained employment injuries. Therefore, it was held in these cases that Sections 53 and 61 of the ESI Act ousts jurisdiction of the claims Tribunal under the M.V.Act. But in the present case, the fact is that the injured claimed even though is a beneficiary under the M.V.Act and categorized as an insured person, he had not sustained employment injuries. The claimant simply had sustained injuries in the road traffic accident arising out of use of motor vehicles. Therefore, the claimant is an employee in the factory and is an insured person under the M.V.Act. The claim made by the claimant is not barred under Sections 53 and 61 of the ESI Act. Therefore, for the aforesaid reasons, the above cited Judgment placed by the counsel for Insurance Company and the cases referred in

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NC: 2023:KHC:22298 MFA No. 5925 of 2012

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the said Judgments are not applicable to the facts and circumstances involved in the present case.

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More over, there is no evidence on record to show whether the claimant has taken benefit of ESI or not. But the Tribunal has assumed itself that the claimant has received benefits from ESI Hospital and at the same time observed that the claimant has not produced any medical bills. Therefore, while answering the point for consideration as stated above, in this case, an employee may be beneficiary under ESI Act and sustained injuries or death occurred in the road traffic accident, not having any connection with work or employment and not out of or in the course of employment, then the claim under Section 166 MV Act is maintainable, hence, answered point for consideration in Negative.

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But, regarding quantification of the

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compensation to be determined by the Tribunal is concerned, the matter requires to be remanded to the Tribunal for re-consideration. The claimant has filed

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application under Order 41 Rule 27 of CPC along with certificate issued by the Corporation to the effect that the claimant has not availed any reimbursement of medical expenses. Therefore, upon disputed facts, how much percentage of disability is suffered by the claimant, whether such disability affects the future income or earning capacity

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of the claimant and so on, all these disputed facts need consideration and the matter requires to be remanded to the Tribunal for fresh consideration on all these aspects of the matter on merits of the case, on quantification of compensation.

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Accordingly, application filed by the claimant under Order 41 Rule 27 of CPC, is allowed for the purpose of consideration whether medical reimbursement under ESI Act are made or not. Therefore, for determining the compensation as per law by the Tribunal, the case is remanded to the Tribunal by holding that the claim petition filed under Section 166 of MV Act is maintainable under the facts, circumstances and evidence of the case.

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NC: 2023:KHC:22298 MFA No. 5925 of 2012

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Hence, I proceed to pass the following :

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ORDER

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(1) The appeal is allowed.

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(2) The Judgment and award dated 17.02.2012 passed by the MACT, Court of Small Causes, Bangalore (SCCH -11) in MVC No. 8965/2010, is set aside.

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(3) The matter is remanded to the Tribunal for fresh consideration in accordance with law on determination of compensation.

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(4) All contentions are kept open.

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(5) Both the parties are reserved liberty to adduce any further evidence either oral or documentary or both, if they are so advised.

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(6) Since the matter is old one of the year 2010, the parties are directed to be present before the Tribunal on 07.08.2023 without expecting notice from the Tribunal.

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NC: 2023:KHC:22298 MFA No. 5925 of 2012

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(7) The Tribunal shall dispose of the case within four months from the date of appearance of the parties, i.e., 07.08.2023.

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(8) Registry is directed to transmit the TCR to the jurisdictional Tribunal forthwith.

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Sd/JUDGE

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BNV-P-5/VK-P-6 TO END List No.: 1 Sl No.: 16

Sri Balakrishna v. the Branch Manager

Case brief

What is this about?

What did the court decide?

Sri Balakrishna v. the Branch Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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