The Manager, Vs Kalimuthu

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COURT OF JUDICATURE AT MADRAS

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DATED : 18.09 .2013

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CORAM :

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THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI

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Civil Miscellaneous Appeal No.2016 of 2010 and M.P.No.1 of 2010

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The Manager
Kannan Jubilee Coffee Company
325, Viswanathapuram
Thudiyalur
Coimbatore – 641 034 ... Appellant/Respondent
vs
1. Kalimuthu
2. Rani
3. The Deputy Director,
Employees' State Insurance Corporation
Sub Regional Office, Coimbatore
1897, Trichy Road,
Panchdeep Complex
Ramanathapuram
Coimbatore – 641 045
(R.3 impleaded as per order dated 18.7.12
in MP.No.1 of 2012 in CMA No.2016 of 2010
.... Respondents/Petitioners

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Civil Miscellaneous Appeal filed to set aside the order of the Commissioner for Workmen's Compensation/Deputy Commissioner of Labour, Coimbatore dated 9.6.2010 passed in WC No.92 of 2009 and allow the appeal.

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JUDGMENT

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Civil Miscellaneous Appeal filed to set aside the order of the Commissioner for Workmen's Compensation/Deputy Commissioner of Labour, Coimbatore dated 9.6.2010 passed in WC No.92 of 2009 and allow the appeal.

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The respondents 1 and 2 filed a claim petition before the Deputy Commissioner of Labour, Coimbatore, claiming compensation for the death of their son Babu, employed under the appellant, stating that he died in the course of the employment.

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The appellant, who are the dealers in coffee and tea products, resisted the claim stating that the deceased is not a workman and the accident has not occurred during such employment.

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The following issues were framed during the disposal of the claim petition.

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ii) Whether the employment of K. Babu involved in sales promotion and collection of money from the customers of the appellant would fall within the scope of any of the enumerated employment in terms of Schedule II of the WC Act?

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(iv) Whether the accident caused to the employee K. Babu at 11.30 PM on 28.3.2008 was in the course of and out of the employment with the appellant?

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After an enquiry, the Deputy Commissioner of Labour found that the deceased was a workman and the accident had occurred during the course of his employment and awarded a sum of Rs.3,25,376/- as compensation to be payable by the appellant.

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Aggrieved by the same, the appellant has preferred the present appeal on the ground that the deceased was not a workman within the meaning of Sec.2(1)(n) of Workmen Compensation Act (hereinafter referred as WC Act) and raised substantial questions of law which are dealt below.

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However pending appeal, the appellant filed an application to implead the Deputy Director of Employees State Insurance Corporation as a party on the ground that there was a contribution demanded by the Corporation which was also paid; therefore, the deceased is covered under the Employees State insurance Act (hereinafter referred as ESI Act) and the ESI Corporation is to meet the claim, as the claim under WC Act is barred when an employee is covered under the ESI Act. The third respondent is also impleaded as a party.

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The substantial questions that arise in this appeal are as follows:

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The appellant is a Company dealing in coffee and tea products. They supply coffee and tea products to the customers through various branches. The deceased K.Babu was in charge of Mettupalayam branch. He was provided with a vehicle, bearing Registration No.TN–38-ADD9194, for supply and collection. He used to sell coffee and tea products and collect the sale proceeds on behalf of the appellant. According to the appellants, the deceased was only a salesman.

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According to the claimants, on 28.3.2008, while the deceased was returning home after his work in the vehicle provided by the appellant, he met with an accident. He sustained grievous injuries and was admitted in the hospital and subsequently died on 2.4.2008.

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According to the appellants, the deceased was only a salesman and not a workman and his working hours are between 9.00 a.m and 8.00 p.m. On the night of 28.3.2008, after the duty hours, the deceased had taken the vehicle without permission and that too for his personal use and met with an accident. First of all, he was not a workman under the Act and secondly the accident had not occurred during the course of his employment.

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As stated above the Commissioner decided against the appellant.

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The claim petition was filed on 30.9.2009 and the award was passed on 9.6.2010. The appeal was preferred on 26.7.2010.

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On 26.6.2012, a show cause was issued by ESI Corporation, claiming contribution for the period from April 2007 to April 2012. During this period the said Babu was shown as an employee under the Insurance No.5604619251. The contribution was also paid by the appellant. After having contributed to cover the employees under the ESI Act, the appellant has now raised a plea that the claim under WC Act is not maintainable and the ESI Corporation is liable to meet the claim.

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Reiterating the said argument, Mr.K. Ravindran, learned counsel for the appellant referred to Sec.53 of the ESI Act which reads as follows:

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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 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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The learned counsel pointed out that when there is a bar against receiving any compensation under the workmen compensation Act, this court has to set aside the order against the appellant and direct the claimants to work out the remedy under ESI Act.

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The learned counsel pointed out that when there is a special enactment to cover the employees and when contribution has also been made, the benefit under the ESI Act alone can be claimed for the death of an employee.

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The learned counsel relied on a decision reported in 2003 LLR 227 (M/s Bharagath Engineering vs R. Ranganayaki and another) and 2010 2 LLN 54 (National Insurance Company, Ltd vs Hamida Khatoon and others)

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In both the cases, the Hon'ble Supreme Court has held that

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“IMPORTANT POINT

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A person who is an employee of the employer covered by ESI Act, 1948 is an “insured person” within the meaning of section 2(14) of ESIC Act, the date of registration and payment of contribution is really not very material. Hence,

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the ESI Corporation will be liable to pay compensation to the dependants of the deceased, dying because of injury arising out of and during the course of employment”.

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The learned counsel further pointed out that the Apex Court has held that the benefits which an employee can get under ESI Act is more substantial than the benefits under the Workmen Compensation Act. The learned counsel further pointed out that when the appellant has made contribution towards the insured person under the ESI Act, they should not also be made liable to pay compensation under WC Act.

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Mr.P. Valliappan learned counsel for the claimants would submit that the accident had occurred on 28.3.2008 and a claim was made in the year 2009 and the appellant has not whispered anything about the coverage under the ESI Act. The award has been passed on 2010. Only in 2012, the appellant has come forward with this plea and the poor claimants should not be left in lurch under a technical plea.

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Mr.G. Bharadwaj, the learned counsel who appeared for the ESI Corporation would contend that the appellant establishment comes within the purview of ESI Act and therefore, there was a demand for contribution and the contribution was paid only in the year 2012. The learned counsel pointed out that there was no claim made for the insured before the ESI Corporation.

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Heard and perused the materials available on record.

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The object of ESI Act is very clear. The enactment is a social security legislation that provides for certain benefits to the employees in case of sickness or employment injury.

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The scheme of the Act is to create an insurance fund which will be mainly derived from the contributions from the employers and the workmen. The insured workman will be entitled to various medical benefits and also for a compensation for an employment injury and in case of death during the course of employment, the dependants are entitled to benefits.

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An employee is defined under Sec.2(9) of the Act. Under sec.38 of the Act all the employees in factories or establishment to which the act applies shall be insured.

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As stated earlier, the contribution will be under Sec.39 of the Act from the employer and the employee. The benefits of an insured person are defined under Sec.46 of the Act. Sec.52 deals with dependant's benefits, if an insured person dies as a result of an employment injury. Under this section, the dependant's benefit shall be payable by the Corporation.

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Rule 58 of the Employment State Insurance Central Rules, lays down the procedure for dependants' benefits. Under sub clause (2) of the said Rules, the daily rate of the dependants benefits shall be 90% of the standard benefit rate in the contribution period corresponding to the benefit period in which the employment injury occurs. A funeral expenses of Rs.10,000/- is also provided.

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The standard benefit rate under the Rule is given under a tabular column. Therefore, according to clause 2 to sub Rule 58 , the dependants benefit shall be 90% of the standard benefit rate. For e.g., if a person's daily wage is between Rs.96/- and Rs.106/- the standard benefit rate is Rs.48/- and the dependants benefit will be 90% of 48/-. i.e., Rs.43.20. In a case of a death of an insured, leaving behind parents, the benefit shall be for life but at an amount equivalent to 3/10^th of the full rate. Full rate is the dependants benefit rate, as calculated under sub clause 2 to Rule 58.

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The above said benefit is available for an insured person who dies in the course of employment.

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Coming to the bar under Sec.53 of the ESI Act, it is well settled that an insured person or his dependants shall not be entitled to receive or recover from the employer any compensation or damages under the WC Act.

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2003 LLR 227 (M/s Bharagath Engineering vs R. Ranganayaki and another) cited supra, is a case where an employee lost his life during the course of his employment and the dependants filed claim petition under the WC Act. However, the employer questioned the maintainability as it was barred under Sec.53 of the ESI Act. The stand was accepted by the Deputy Commissioner of labour, who held that the deceased was an insured person under the ESI Act. However, in the appeal, High Court set aside that order holding that Sec.53 has no application. It was noticed by the High Court that the registration for the purpose of Insurance was granted subsequent to the death of the employee. However, the Hon'ble Supreme Court held that merely because the contribution had not been paid by the time the employee died does not affect the liability of the Corporation and referred to sec 2(14) of the ESI Act where the express for an insured person “is or was an employee in respect of whom contributions “are or were payable” “. The Apex Court relied on a decision reported in 1998 (9) SCC 74 (Employees State Insurance Corporation vs Harrisons Malayalam Ltd) and observed:

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“the date of payment of contribution is really not material”

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The Hon'ble Supreme Court has also referred to Rule 58(2)(b) (ii) which deals with dependants' benefits.

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In a subsequent judgment reported in 2010 2 LLN 54 (National Insurance Company, Ltd vs Hamida Khatoon and others) the same Bench

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held “the benefits under ESI Act is more substantial than the benefit under the Workmen compensation Act” and directed the parties to work out their remedy under ESI Act.

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The facts of the above judgement squarely applies to the case on hand. The claimants cannot be found fault with for making a claim under WC Act as there was no contribution under the ESI Act either at the time of death or at the time of making the claim. Only in 2012 the Corporation has demanded a contribution for the employees during 2007 and 2008 and subsequently upto 2012 and the clever appellant has also utilised the opportunity and paid the contribution. Under the provisions of the Act the poor claimants have to wait for the ESI Corporation to distribute the dependants benefit.

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The Apex court has referred Rule 58(2)(ii) which deals with a person who sustained employment injury before the expiry of the first wage period in the contribution period, the full rate will be 40% more than the standard benefit rate. However, under (i) of Rule 58(2) where a person sustained employment injury after the expiry of the first wage period 90% of his average daily wage provided the periodical monthly payment shall not be less than Rs.1200/-. However, sub clause(2) would state that the daily rate of dependants' benefits shall be 90% of the standard benefits rate.

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If the standard benefit rate as enumerated under Rule 54 is to be applied, it will be too minimal. If the dependants benefit rate is to be calculated as 90% of the average daily wage, then it will be beneficial to the claimant.

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In any event, having made a demand in the year 2012, for a contribution for the employees during the period 2007 and 2008, the deceased is covered as an insured person under Sec.2(14) of the ESI Act and Sec.53 of the Act bars the claimant to receive any benefit from the employer under WC Act.

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An attempt was made by the learned counsel for the claimant stating that the appellant/employer may be directed to pay the award amount and later recover the same from the ESI Corporation. However, there is no provision under the ESI Act to pay such lumpsum amount.

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In any event, if the benefit is 90% of the daily wage of the deceased, to be payable to the parents, till their life time along with funeral expenses of Rs.10,000/-, it is a much more beneficial scheme than the compensation under WC Act. The Corporation has to calculate 90% of the daily wage of the deceased from April 2007.

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It is proved that the deceased was earning Rs.100/- per day and Rs.3000/-per month and 90% of which works out to Rs.2,700/-per month. So far accrued benefit will be 2,700 x 72 months (i.e., from

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April 2007 to April 2013) which comes to Rs.1,94,400/-.

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Apart from this lumpsum amount, the periodical monthly payment will be payable to the dependants from May 2013 onwards at the rate they are entitled to as per the provision.

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As stated earlier, when the third respondent has demanded and obtained such contribution for the insured person, they are liable to pay the dependants benefits.

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Since the first substantial question of law is answered in favour of the appellant, the second substantial question of law namely whether the deceased is the work man under WC Act does not arise and answered accordingly.

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In the result, the civil miscellaneous appeal is allowed and the award passed by the Commissioner for Workmen's Compensation/Deputy Commissioner of Labour, Coimbatore dated 9.6.2010 passed in WC No.92 of 2009 is set aside.

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The third respondent ESI Corporation is directed to distribute the dependants the benefits as stated above immediately without waiting for the claimants to file any formal claim application and other procedures to be followed by the ESI Corporation. The Corporation shall meet without any delay or demur the compensation as the claimants are waiting for the same for the last six years due to the loss of their only son in an employment injury. No costs. Consequently, connected MP is closed.

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After pronouncing the Judgment, the learned counsel for the ESI Corporation submitted that straight away, compensation cannot be granted as procedures and formalities have to be followed and find out whether the claimants are still entitled to their benefits. However, this Court has already held that the claimants are entitled for such benefits and with a view to compensate the claimants without any delay, the above said direction is granted.

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This Court is not inclined to change the direction stated above. However, a months time is granted for the third respondent/ESI Corporation to disburse the benefits. The amount already been deposited by the appellants is directed to be repaid to the appellants by filing necessary application before the Commissioner.

Sd/-

Asst. Registrar.

/true copy/

Sub Asst. Registrar.

https://hcservices.ecourts.gov.in/hcservices/

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To

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The Commissioner for Workmen's Compensation/ Deputy Commissioner of Labour, Coimbatore

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2.The Section officer,VR section, High Court, Madras.

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1 CC To M/s T.S.Gopalan & co Advocate SR NO.49301
1 CC To Mr.P. Valliappan Advocate SR NO.49548
1 CC To Mr.G. Bharadwaj Advocate SR NO.49393
C.M.A.No.2016 of 2010
jrg (co)
gkg/3.10

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The Manager, v. Kalimuthu

Case brief

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The Manager, v. Kalimuthu

Case brief

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