Delhi High Court
Dtc & Ors. vs Sarita Seth & Ors. on 27 April, 2009
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No. 149/1991
Judgment reserved on 26.3.2008
Judgment delivered on: 27.4.2009
DTC & Ors. ..... Appellants.
Through: Mr. J N Aggarwal, Adv.
versus
Sarita Seth & Ors.
..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
KAILASH GAMBHIR, J.
1. The present appeal arises out of the award dated 14.3.1991
of the Motor Accident Claims Tribunal whereby the Tribunal
awarded a sum of Rs. 1,56,400/- along with interest @ 12% per
annum to the claimants.
2. The brief conspectus of the facts is as follows:
3. On 16.6.1984 at about 10.00 AM, deceased Parveen Kumar
Seth was riding his two wheeler scooter bearing registration No:
DHV 8976 and was going to Modi Nagar. He was driving the
scooter on his left side when he was hit by bus bearing
registration No: DHP 2914 which came from the side of
Khicharipur border on the national highway, as a result of which
the deceased fell down on the road and was crushed under the
front wheel of the bus. The deceased and his scooter were
dragged upto a considerable distance as a consequence of which
Parveen Kumar Seth died on the spot.
4. A claim petition was filed on 13.7.1984 and an award was
passed on 14.3.1991. Aggrieved with the said award DTC has
filed the present appeal.
5. Mr. J. N. Aggarwal, counsel for the appellant DTC contended
that no appeal was filed by the respondents for enhancement and
the entire compensation amount has been withdrawn by the
claimants. The counsel urged that the respondent no. 1 is getting
pension of Rs. 420/- from ESIC and as per Sections 53 and 61 of
ESIC Act An insured person or his dependents are not entitled to
any compensation under any other law in force when they are
getting benefits under the ESIC Act.
6. Nobody appeared for the respondents.
7. I have heard counsel for the appellant and perused the
record.
8. Section 53 and 61 of the Employees' State Insurance Act,
1948, read as under:
"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
employer 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."
Thus, it is obvious that for the application of section 53, two
conditions are necessary, viz., (i) that the person must have
sustained employment injury and (ii) that he must have been
insured under the Employees' State Insurance Act.
9. What is employment injury is defined under S. 2(8) of the
Employees' State Insurance Act, 1948. It reads :
"`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."
10. A motor accident, when the workman was going on a two
wheeler scooter, cannot be considered as an employment injury.
That being so, it is obvious that Ss. 53 & 61 of the Employees'
State Insurance Act, 1948, would not bar the remedy in this case
under S. 110A of the Motor Vehicles Act, 1939.
11. In view of the foregoing discussion, the appeal is
dismissed.
27th April, 2009 KAILASH GAMBHIR, J.
