Madras High Court
The Manager vs Savithramma on 8 January, 2024
C.M.A.No.3654 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K.RAJASEKAR
Civil Miscellaneous Appeal No.3654 of 2021
and
Cross Objection SR.No.21688 of 2022
and
Civil Miscellaneous Petition No.21467 of 2021
C.M.A.No.3654 of 2021:
The Manager,
The Oriental Insurance Co., Ltd.,
No.1, Shankar House, 3rd Floor, RMV Extension,
Mekhri Circle, Banglore – 560080
Karnataka ... Appellant/1st respondent
Vs.
1. Savithramma
2. Gunashekar
3. Manjunatha
4. Kokila ... Respondents/Petitioners
5. The Director/Insurance Medical Officer,
Employee State Insurance Corporation Limited,
Rajaji Nagar, Bangalore 560010
Karnataka
6. The Director, Ceratizit India Round Tool Solutions Pvt., Ltd.,
Plot No.12-A, Vommasandra Industrial Area,
Attibele Hobli, Anekal Taluk,
Bengaluru District – 560090
Karnataka. ... Respondents/Respondents
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C.M.A.No.3654 of 2021
Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and decree dated
15.04.2021 made in M.C.O.P.No.123 of 2019 on the file of the Motor
Accidents Claims Tribunal, Additional District Court, Hosur.
For Appellant : Mr. M. Krishnamoorthy
For R1 to R4 : Mr. R. Chandrashekar
For R5 & R6 : Given up
Cross Objection SR. No:21688 of 2022:
1. Savithramma
2. Gunashekar
3. Manjunatha
4. Kokila ... Cross objectors/Respondents
vs.
1. The Manager,
The Oriental Insurance Co., Ltd.,
No.1, Shankar House, 3rd Floor, RMV Extension,
Mekhri Circle, Banglore – 560080
Karnataka ... Appellant/1st respondent
2. The Director/Insurance Medical Officer,
Employee State Insurance Corporation Limited,
Rajaji Nagar, Bangalore 560010
Karnataka.
3. The Director, Ceratizit India Round Tool Solutions Pvt., Ltd.,
Plot No.12-A, Vommasandra Industrial Area,
Attibele Hobli, Anekal Taluk,
Bengaluru District – 560090
Karnataka. ... Respondents/Respondents
Cross Objection filed under Order 41 Rule 22 read with Section
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C.M.A.No.3654 of 2021
151 of the Code of Civil Procedure, 1908, against the Judgment and decree
dated 15.04.2021 made in M.C.O.P.No.123 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Court, Hosur.
For Cross Objectors : Mr. R. Chandrashekar
For R1 : Mr. M. Krishnamoorthy
COMMON JUDGMENT
This Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the compensation awarded to the claimants and
against the direction to indemnify the third respondent, who is the employer
of the deceased namely Aravind Babu S/o. Gunasekaran and the claimants
have filed Cross Ojection against the awarded passed in M.C.O.P.No. 123 of
2019, dated 15.04.2021, on the file of the Motor Accidents Claims Tribunal,
Additional District Judge, Hosur.
2. The parties are referred to hereunder according to their
litigative status and ranking before the Tribunal.
3. The deceased Aravind Babu was employed under the third
respondent (Director of Company) and was working as a driver. He was
returning to his home after finishing his work at the early morning on
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04.02.2017 at about 1.15 a.m., by riding his two-wheeler bearing
Registration No.KA 51 EF 3094 belongs to his Company. While he reached
near Attibele toll gate on the Bangalore to Hosur Highways, an unknown
vehicle hit on the two-wheeler, which resulted in causing severe injuries to
him. Immediately he was shifted to various hospitals and after taking
treatment, he succumbed. The parents, brother and sister of the deceased
have approached the Claims Tribunal seeking compensation for a sum of
Rs.1,75,00,000/- by invoking Section 166 of the Motor Vehicles Act.
4. The first respondent and third respondent are the owner of the
two-wheeler in which, the deceased has travelled. The second respondent is
the Employees State Insurance Corporation. The first respondent has filed
counter and contended that the deceased was riding the two-wheeler belongs
to his Company hence he steps into the shoes of the owner of the vehicle.
There is no coverage for any employee under the Insurance Policy hence the
claimants are not entitled to claim compensation on no fault liability. Since
the claim petition has been filed under Section 166 of the Motor Vehicles
Act, which is based on the fault liability, in this case, the tortfeasor is an
unknown person, the claimants are entitled to get compensation only by
invoking the provisions of hit and run case provided under the Motor
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Vehicles Act. Apart from that, the deceased is also covered under the
Employees State Insurance Act and as per Section 53 of the Employees State
Insurance Act, the dependents of the deceased are not entitled to claim
compensation either under Workmen Compensation Act or under any other
law for the time being in-force. Hence this petition is not maintainable.
5. The learned counsel for the claimants has submitted that since
the deceased in this case, is a workmen of the third respondent Company, he
died during the course of his employment, under the Workmen
Compensation Act, the dependents are entitled to get compensation. The
learned counsel further submitted that under Section 167 of the Motor
Vehicles Act gives option to the dependents of the deceased to invoke the
provisions of the Workmen Compensation Act or the Motor Vehicles Act to
claim compensation. He further submitted that under the Employees State
Insurance Act, only the medical expenses incurred would be awarded as
compensation and the compensation awarded under the head loss of income
is concerned, there is no compensation payable.
6. No one appeared for ESI Corporation before this Court in this
appeal.
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7. I have considered the rival submissions made on both sides and
also perused the records.
8. Section 53 of the Employees' State Insurance Act, 1948 reads as
follows:
“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 daages under the
Workmens' 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”.
9. Section 53 of the Employees' State Insurance Act, 1948 cited
above is creating a bar against receiving or recovery of compensation or
damages under any other law including the Workmen Compensation Act.
However, the third respondent – the employer has filed his counter and
submitted that the deceased was permitted to use the two-wheeler of the
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Company and he succumbed during the course of his employment. He has
also covered under the medical health insurance policy produced by the
United India Insurance Company Limited. He has also entitled to get benefit
under the EPF and ESI Act. Section 46 of the Employees' State Insurance
Act, 1948, list out the benefits to be paid to the injured persons including the
dependents which reads as follows:
“Section 46 in the Employees' State Insurance Act,1948
Benefits
(1) Subject to the provisions of this Act, the insured
persons, their dependants or the persons hereinafter
mentioned, as the case may be, shall be entitled to the
following benefits, namely:
(a) periodical payments to any insured person in
case of his sickness certified by a duly appointed
medical practioner or by any other person possessing
such qualifications and experience as the Corporation
may, by regulations, specify in this behalf (hereinafter
referred to as sickness benefit);
(b) periodical payments to an insured woman in
case of confinement or miscarriage or sickness arising
out of pregnancy, confinement, premature birth of child
or miscarriage, such woman being certified to be eligible
for such payments by an authority specified in this
behalf by the regulations (hereinafter referred to as
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maternity benefit);
(c) periodical payments to an insured person
suffering from disablement as a result of an employment
injury sustained as an employee under this Act and
certified to be eligible for such payments by an authority
specified in this behalf by the regulations (hereinafter
referred to as disablement benefit);
(d) periodical payments to such dependants of an
insured person who dies as a result of an employment
injury sustained as an employee under this Act, as are
entitled to compensation under this Act (hereinafter
referred to as dependants' benefit);
(e) medical treatment for and attendance on
insured persons (hereinafter referred to as medical
benefit); and
(f) payment to the eldest surviving member of the
family of an insured person who has died, towards the
expenditure on the funeral of the deceased insured
person, or, where the insured person did not have a
family or was not living with his family at the time of his
death, to the person who actually incurs the expenditure
on the funeral of the deceased insured person (to be
known as funeral expenses):
Provided that the amount of such payent shall not
exceed such aount as may be prescribed by the Central
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Government and the claim for such payment shall be
made within three months of the death of the insured
person or within such extended period as the
Corporation or any officer or authority authorised by it
in this behalf may allow.
(2) The Corporation may, at the request of the
appropriate Government, and subject to such conditions
as may be laid down in the regulations, extend the
medical benefits to the family of an insured person.”
10. Further Section 52 of the Employees' State Insurance Act, 1948
deals with the dependents benefits and the manner in which it has to be paid
is given below.
52.Dependant's benefit
(1)If an insured person dies as a result of an
employment injury sustained as an employee
under this Act (whether or not he was in receipt
of any periodical payment for temporary
disablement in respect of the injury) dependant's
benefit shall be payable at such rates and for
such period and subject to such conditions as
may be prescribed by the Central Government to
his dependants specified in 3 sub-clause (i), sub-
clause (ia) and sub-clause (ii) of clause (6A) of
section2.
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(2)In case the insured person dies without leaving
behind him the dependants as aforesaid, the
dependant's benefit shall be paid to the other
dependants of the deceased at such rates and for
such period and subject to such conditions as
may be prescribed by the Central Government.
11. Section 52 of the Employees' State Insurance Act, 1948 cited
above was not taken into consideration by the Tribunal. This Court is of the
view that there is a bar for awarding compensation more particularly, under
the Workmen Compensation Act, as stated above. The Tribunal has
awarded compensation by invoking the Workmen Compensation Act is not
proper hence the same is not sustainable. Further, in this case, it is an
admitted case of the claimants that the tortfeasor in this case is an unknown
vehicle, since the compensation awarded under Section 166 of the Motor
Vehicles Act, based on the fault liability, in the absence of tortfeasor, the
insurance company is not liable to pay the compensation. Hence, under
Section 166 of the Motor Vehicles Act, no compensation shall be payable to
the claimants herein. Even if this Court considered that the deceased in this
case, steps into the shoes of the owner of the vehicle, he is entitled to get
Rs.1,00,000/- as compensation. But admittedly, in this case, the deceased
herein has not steps into the shoes of the owner of the vehicle, since he is an
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employee of the third respondent Company. However, admittedly he
sustained injury only during the course of his employment, hence this Court
is of the view that he is entitled to get compensation only under the ESI Act
which provides separate Scheme for getting compensation.
12. As far as the contention of the claimants that the claimants are
also covered by the insurance policy is not applicable to the facts of the case
since he has driven the vehicle only as an employee and he has been covered
under the ESI Act, the compensation could not be awarded under the
Workmen Compensation Act as stated supra. However, the claimants are
entitled to make appropriate petition before the appropriate Authority under
the ESI Act to get the benefits available under the ESI Act. The delay if any
happened due to the filing of this Claim Petition and Appeal shall be taken
as a valid ground for claiming compensation before the appropriate
Authority.
13. With these observations the Civil Miscellaneous Appeal filed by
the Insurance Company is allowed. The compensation amount if any already
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deposited by the insurance company is permitted to withdraw the same. On
filing of claim petition or appropriate petition before the second respondent,
the second respondent is directed to consider the same and pass Orders on
merits and he shall not dispute the claim on the ground that the claim has
been made belatedly without considering the limitation. The second
respondent is directed to consider the claim if any made before him
independently without influenced by the observation made by this Court
with regard to the merits of the petition.
14. Accordingly, the Civil Miscellaneous Appeal filed by the
Insurance Company is allowed. The Cross Objection filed by the claimants
is dismissed. There shall be no order as to costs in the present appeal.
Consequently, the connected miscellaneous petition stands closed.
08.01.2024
ssi
Index:Yes
Speaking Order:Yes
Neutral Citation Case: Yes
To:
1. The Additional District Judge,
Motor Accidents Claims Tribunal,
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Hosur.
2. The Section Officer,
V.R.Section,
High Court,
Chennai.
K.RAJASEKAR,J.
ssi
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08.01.2024
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