Delhi High Court
Oriental Insurance Co Ltd. vs Sanjay Kumar Singh & Ors. on 1 August, 2013
Author: Suresh Kait
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:1st August, 2013
+ MAC.APP. 189/2012
ORIENTAL INSURANCE CO LTD. ..... Appellant
Through: Mr.Tarkeshwar Nath, Advocate.
Versus
SANJAY KUMAR SINGH & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
MAC.APP. 189/2012
1. The present appeal has been preferred against the impugned award
dated 20.12.2011, whereby the learned Tribunal has granted a compensation
to the tune of Rs.1,87,500/- in favour of the respondent/claimant.
2. Vide the present appeal, the appellant/Insurance Company has raised
only one ground that the learned Tribunal has failed to appreciate Section 53
of The Employees' State Insurance Act, 1948 (for short 'ESI Act') bars
receiving of compensation or damages under any other law including Motor
Vehicles Act, 1988.
3. Learned counsel appearing on behalf of the appellant/Insurance
Company has argued that the respondent/claimant had already received a
sum of Rs.23,026/- from ESIC, therefore, Section 53 of ESI Act came into
play and bars the compensation granted under any other law for the time
being in force or otherwise in respect of an employment injury.
4. In support of his contention, learned counsel has relied upon a case of
National Insurance Company Ltd. Vs. Hamida Khatoon & Ors., 2009 (3)
TAC 25 (SC), before the learned Tribunal and before this Court as well. He
submits that in view of Section 53 ESI Act, the respondent/claimant is not
entitled to even a single penny as compensation under the Motor Vehicles
Act, 1988 or any other Act, if he has taken any of the benefit under ESI.
5. Learned counsel further submitted that at the time of the accident, the
injured was employed as a Machine Operator and was earning Rs.3,500/- per
month. He received injuries due to which he suffered permanent disability
of 10% as has been proved by the disability certificate Ex.PW4/A. On the
date of recording the testimony, i.e., 01.02.2011, he was doing a private
service and was getting a salary of Rs.5,850/- per month.
6. He also submitted that as per the testimony of the claimant and other
witnesses, it is established that the claimant had got reimbursement of
Rs.5,612/- plus Rs.9,000/- from his employer and a sum of Rs.,23,026/-
from ESIC. In view of the above, the learned Tribunal has erred in granting
compensation in favour of the respondent/claimant.
7. The claim petition was filed before ld. Tribunal under Sections 166 &
140 of the Motor Vehicles Act, 1988. As claimed by the
respondent/claimant that on 06.12.2004, the claimant / injured was waiting
with his friend at 'T' point, Mayapuri Road on Pankha Road when the
offending Bus No.DL-1PB-4647 being driven by its driver in a rash and
negligent manner came at a high speed and after taking a sharp left turn, hit
the respondent/claimant. As an impact thereof, he fell down and both his
legs were crushed under the wheel of the bus. He was a young man of about
27 years and was working as a Machine Operator and earning Rs.3,500/- per
month. He remained hospitalized for about four months and had
incurred/expenses of about Rs.40,000/- towards his treatment.
8. In view of the discussion in Para above, it is clear that the present case
comes under the Motor Vehicles Act, 1988. The respondent/injured had not
received injuries on account of his employment. In other way, the injuries
sustained by him cannot be termed as 'employment injury'. Bar of Section
53 ESI Act applies only in respect of employment injuries sustained by the
insured person as an employee under the ESI Act.
9. For the convenience, Section 53 ESI Act is reproduced as under:-
"[53. Bar against receiving or recovery of compensation or
damages under any other law.- 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 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.]"
10. On perusal of the aforesaid Section, it is clear that the injuries are
covered under this Section only, if the same are sustained during the course
of employment. Hence, the present case does not fall under that category as
there is nothing on record, whatsoever, for reaching to the conclusion that
the injuries suffered by the respondent/claimant were employment injuries.
11. On perusal of the judgment in case of Hamida Khatoon (Supra)
relied upon by the learned counsel for the appellant/Insurance Company,
nowhere it is observed that claim petition filed under the Motor Vehicles
Act, 1988 will not be maintainable, if any of the benefit is taken under the
ESI Act.
12. Above being the position, if the amount spent on medicines and
treatment is reimbursed by the employer and that has been deducted from
the compensation awarded under the Motor Vehicles Act, therefore, I do not
find any discrepancy thereto.
13. In view of the aforesaid discussions, ESI Act is not applicable in the
facts and circumstances of the present case as the amount received by the
respondent/injured, i.e., Rs.23,026/- got reimbursed from his employer has
already been deducted by the learned Tribunal.
14. Therefore, I do not find any discrepancy in the impugned order dated
20.12.2011 passed by the learned Tribunal.
15. In view of the above, the appeal is dismissed.
16. Vide order dated 22.02.2012, this court stayed the impugned award
dated 20.12.2011, subject to deposit of the award amount along with up-to-
date interest with Registrar General of this Court. Since the appeal filed by
the Insurance Company has been dismissed, therefore, Registrar General of
this Court is directed to release the compensation amount in favour of the
respondent / claimant on taking steps.
17. Consequently, the statutory amount shall be released in favour of the
appellant/Insurance Company.
CM No. 3244/2012
With the disposal of the appeal itself, this application has become
infructuous. The same is disposed of accordingly.
SURESH KAIT, J.
AUGUST 01, 2013
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