Delhi High Court
United India Insurance Co.Ltd vs Meenakshi & Ors on 21 November, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21.11.2014
+ MAC.APP.1062/2014
UNITED INDIA INSURANCE CO.LTD. ..... Appellant
Through: Mr.Sankar N.Sinha, Adv.
versus
MEENAKSHI & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(Oral)
1. The present appeal is filed seeking to impugn the Award dated
7.10.2014. The Claim Petition was filed on account of vital injuries suffered
by late Shri Rajesh Kumar in a road traffic accident on 21.1.2014. The
deceased on the said date at 9.30 PM was taking his motorcycle from the
parking of Lajpat Rai Market in front of Jain Mandir. When he took a turn
towards ISBT after red light a DTC bus driven by respondent No.2 came at a
very high speed and hit the motorcycle. As a result the deceased fell down
on the road and the tyre of the bus crushed his head and he died on the spot.
2. Based on the evidence on record the Tribunal concluded that the
accident took place due to the rash and negligent driving of respondent
No.2.
3. On compensation the Tribunal awarded a total compensation of
Rs.30,01,456/-. Loss of dependency of Rs.27,66,456/- was awarded.
Rs.25,000/- for funeral charges, Rs.1,00,000/- towards loss of consortium,
Rs.1,00,000/- towards loss of care and guidance for minor children and
Rs.10,000/- for loss of estate.
4. The Tribunal rejected the contention of the appellant company that the
deceased cannot get compensation as he is covered under The Employees'
State Insurance Act, 1948 (hereinafter referred to as the ESI Act).
5. Learned counsel appearing for the appellants have relied upon AIR
2009 SC 2599, National Insurance Company Limited vs.Hamida Khatoon
to contend that the present appeal is barred in view of the said judgment read
with section 53 of the ESI Act and the appropriate forum for adjudication of
the claim would be the ESI Act.
6. Section 53 of the ESI Act reads as follows:-
"[53. 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 employee under
this Act.]"
7. Hence, section 53 is applicable when the workman suffers an
employment injury. An employment injury is defined under section 2(8) of
the Act which reads as follows:-
[2(8)""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 ;]
8. Para 12 of National Insurance Company Limited vs.Hamida
Khatoon (supra) reads as under:-
"12. When considered in the background of statutory
provisions, noted above, the payment or non-payment of
contributions and action or non-action prior to or subsequent
to the date of accident is really inconsequential. The deceased
employee was clearly an "insured person", as defined in the
Act. As the deceased employee has suffered an employment
injury as defined under Section 2(8) of the Act and there is
no dispute that he was in employment of the employer, by
operation of Section 53 of the Act, proceedings under the
Compensation Act were excluded statutorily. The High Court
was not justified in holding otherwise. We find that the
Corporation has filed an affidavit indicating that the benefits
under the Act shall be extended to the persons entitled under
the Act. The benefits shall be worked out by the Corporation
and shall be extended to the eligible persons."
9. A reading of section 53 and section 2(8) of the above judgment shows
that for application of section 53 the employee has to suffer an employment
injury.
10. In the present case there is no averment even in the appeal or any
averment made before the Tribunal to show that the deceased had suffered
an employment injury. Clearly the provisions of ESI Act would not be
applicable to the facts and circumstances of the present case.
11. This Court in Oriental Insurance Limited vs. Sanjay Kumar Singh,
MANU/DE/2767/2013 in paragraph 7 held as follows:-
"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."
12. Hence, this Court has already held that where the deceased has not
suffered an employment injury section 53 of the ESI Act would not come
into play.
13. Even otherwise I cannot help noticing that in National Insurance
Company vs. Hamida Khatoon (supra) the Supreme Court while allowing
the appeal had held that the entitlement of the employee concerned in those
facts would be done by the M.V. Act by taking note of this fact.
14. Other than this there were no submissions made regarding any other
aspect. I have seen the judgment of the Tribunal and find it in order.
15. There is no merit in the appeal and the same is dismissed.
(JAYANT NATH, J.)
JUDGE
NOVEMBER 21, 2014
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