Western
India Plywood Ltd. Vs. Shri. P. Ashokan [1997] INSC 745 (19 September 1997)
S.B.
MAJMUDAR, B.N. KIRPAL
ACT:
HEADNOTE:
THE
19TH DAY OF SEPTEMBER, 1997 Present:
Hon'ble
Mr. Justice S.B. Majmudar Hon'ble Mr. Justice B.N. Kirpal A.S. Nambiar, Sr. Adv.,
Ms. Shanta Vasudevan and P.K. Manohar, Adv. with for the Appellant Manoj Swarup,
Ms. Lalita Kohli, Adv, for M/S. Manoj Swarup & Co., Adv. for the
Respondent.
The
following Judgement of the Court was delivered.
KIRPAL,
J.
The
sole question which arises for consideration in this appeal is whether the
respondent, who is an employee of the appellant, can claim damages from the
appellant on account of the injury suffered by him during the course of
employment when he was already received the benefit under the provision of the
Employees State Insurance Act 1948(herein after referred to as the 'ESI Act'.
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
the accident, the appellant allowed the respondent to continue in its service
without any reduction in remuneration.
The
ESI Act was applicable to the employee of the appellant company, including the
respondent. After the aforesaid accident a claim was maid 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 received the
best medical treatment available in that area.
While
still in service the respondent filed OP No. 108 of 1981 in the Court of
Subordinate Judge, Teilicherry, 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 a 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 provision 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.
The respondent
thereafter field an appeal before the high Court of Kerala. A division Bench of
the High Court doubted the correctness of an earlier Bench the correctness of an
Decision on the same question and, consequently, the case was referred to a
full Bench. The Full Bench consisting of three learned judges held that the
provisions of Section 53 and 61 of 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 trial court on merits
Order 33 Rule 1 to be decided by trial court on merits and in accordance with
law. Hence this appeal by special leave.
It was
submitted by Mr. Nambiar, learned senior counsel for the appellant, that the
Employees State Insurance Act is a self contained code and the insured
Employees, like the respondent, are entitled to the benefit in case of injury
suffered under the provisions of the ESI Act and such employees in the case of
an Employment injury are debarred from making any claim under any other act or
law. In this connection our attention was drawn to the relevant provisions of
the ESI Act. Mr. Manoj Swarup, learned counsel for the respondent, on the other
hand, submitted that Section 53 should be constructed in such away that an
aggrieved employee is able to receive adequate compensation on account of the
injury which is sub stained by him. It was contended that the amount which was
paid under the ESI Act could be regarded as an adequate measure of damages
suffered by the respondent and, therefore, Section 53 should not be constructed
in such a way as to prevent an employee from bringing about an action in tort.
In the
alternative it was submitted that this court, in exercise of its jurisdiction
under Article 136 of the constitution, should not interfere in the present
case.
There
are only three provisions of the ESI which are relevant for the present case .
Section 2(8) defines the term 'employment injury' and reads as follows:
"Employment
injury" means perennial injury to an occupational disease arising out of
and in the course of his Employment, being an insurable employment whether the
accident occurs or the occupational diseases is contracted within or outside
the territorial limits of India.
The
two other sections with which we are concerned in this case are Sections 53 and
61 which are follows:
"53.
Bar against receiving or recovery of compensation on damages under any other
law:- An insured person or his depends shall not be entitled to receive or recovery
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)
of 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.
61. bar
of benefits under other enactments:- 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." The
aforesaid provisions have been construed by different courts including this
Court. Mr. Nambiar first relied upon the decision of the Karnataka High Court
in K.S. Corporation [(1982) 60 FJR 118] wherein it was held, while constructing
Section 53 of the ESI Act, that where workmen travelling to work on a transport
provided by the employer had suffered injury by an accident caused to the
vehicle, it amounted to employment injury and Section 53 was a bar to any claim
by the insured under any other law or the Workmen's Compensation Act, 1923.
Their remedy, it was held, was only to claim compensation or damages from the
Employees State Insurance Corporation. To the same effect is the judgement or
the Madras High Court in the case of [AIR 1982 madras 223]. While constricting
Section 53 the Madras High Court held that the object of Section 53 of the Act
was to save the employer from facing more than one claim General Manager,
Karnataka State Road Transport Corporation, Bangalore and Ors. [1984 lab. I.C. Journal 1355] a Division Bench of the
Karnataka high Court followed its earlier judgement and reiterated that Section
53 created a bar to the recovery of Compensation under any other law in cases
where the insured person had received an employment injury Mr. Swarup, however,
relied on the decision in the case [Air 1972 Mysore 255]. It was held by the Mysore
High Court that the right to sue under the Motor Vehicles Act originates from
the substantive law, namely, the law of tort. This law was not an enactment
and, consequently, the provisions of Section 61 of the ESI Act could not
prohibit an employee from making a claim under section 110 of the Motor Vehicle
Act claiming damages on account of injuries suffered in an accident. Through
the observations in the said judgement do support the submission of Mr. Swarup
but the High Court did not consider in that case the applicability and effect
of Section 53, with which are concerned here.
The
position with regard to the claim of an employees against his employer on his
suffering an employment injury now stands settled with the decision of this
Court in A.
SCC
255]. In that case Trehan, who was an employee of the Respondent, received
injuries on his face while he was carrying out repairs of a television in the
course of his employment as a result of which he lost vision in the left eye.
After receiving the benefit from the Employees' State Insurance Corporation
under the ESI Act he served a notice on the respondent demanding Rs. 7 lacs as
compensation of Rs. 1,06,785/-. The employer objected to the maintainable of
the same and relied upon Section 53 of the ESI Act. The Commissioner overruled
the employer's objection and followed the judgement of the Full Bench of the Kerala
High Court in the present case and observed that ESI being a welfare
legislation, the Parliament could not have intended to create a bar against the
workmen claiming more advantageous benefit under the Workmen's Compensation
Act. The single judge of the High court dismissed the writ petition filed by
the employer but the Division Bench, in appeal, held that in view of the bar
created by Section 53, the application for compensation filed by Trehan was not
maintainable. The Court analysed the provisions of Section 53 of the Act and
observed at page 260 as follows:
"
In the 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 seen from the use of the word's shall not be
entitled to receive or recover, "wheather from the employer of the insured
person or from 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 and unequivocal. When such a bar is created in
clear and express terms it would neither be permissible nor proper to inter 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. In view of the clear language of the section we find no
justification in interpreting or constructing 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 the view of the bar created by
Section 53 of the application for compensation filed by the appellant under the
Workmen's Compensation Act was not maintainable." The judgement under appeal
in the present case of the Full bench of the Kerala High Court was considered
and it was observed that "we cannot agree with some of the assumption and
observations made by the Kerala High Court.
Moreover,
the Kerala High Court has taken that view without referring to and considering
the effect of the clear and express words used in that section." In view
of the aforesaid observations in Trehan's case, with which we respectfully agrees,
it is clear that the respondent could not make a claim for damages. Section 53
disentitles an employee who wads suffered an employment injury from receiving
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 status but the workings 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 throught 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 substained by
him is an employment injury.
The
ESI Act has been enacted to provide certain benefits to the 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 claim by the employer 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 Mangalamma's 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 ESI Act, the trial court was right in dismissing the application
under Order 33 Rule 1 of the Code Of Civil Procedure.
The
provision in law being clear and concluded by the decision of this Court in Trehan's
case (supra) we see no justification for the Court not exercising its
jurisdiction counsel. The incorrect decision on a point of law of the High
Court has to be corrected.
During
the course of hearing it had been argued that Section 53 should not be
constructed in such away that an insured person cannot rise a claim against a
third party in the event of his suffering an employment injury. It was
submitted that though qua the employer only one remedy may available, namely,
under the ESI Act but as far as third persons are concerned Section 53 cannot
taken up as a defence to an action in tort in a claim being made for damages
because the ESI Act creates certain rights as a result of the employment qua
the employer and has no application as far as third parties are concerned. In
this 'employment injury' in Section 53 relates to a claim which is relatable to
the employment of the insured person with his employer.
In our
opinion, though there is considerable force in the said submission but it is
not necessary for the decision of the present case the claim which was sought
to be made was not against the third party but against the third party but
against the employer itself. Perhaps this question may require considerable in
an appropriate case.
For
the aforesaid reasons this appeal is allowed. The judgement of the High Court
is set aside that of the trial court dismissing the respondent's application
under Order 33 Rule 1 of the Code of Civil Procedure is restored. There will be
no order as to costs.
Back