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PETITIONER: MR. A. TREHAN

       Vs.

RESPONDENT: M/S. ASSOCIATED ELECTRICALAGENCIES AND ANR.

DATE OF JUDGMENT:       10/05/1996

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) AGRAWAL, S.C. (J)

CITATION:  1996 AIR 1990            1996 SCC  (4) 255  JT 1996 (5)   648        1996 SCALE  (4)469

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      This appeal by special leave is against the judgment of the Bombay  High Court in Appeal No. 676 of 1993 whereby the order passed  by a learned Single Judge of the High Court in Writ Petition  No. 1406  of 1993  and also  the order  dated April  29,   1993  passed   by  Commissioner  for  Workmen’s Compensation, Bombay have been set aside and the application filed by the appellant for compensation has been dismissed.      The appellant  was  employed  by  Respondent  No.1  for carrying out  repairs of  television sets.  On July 17, 1987 while he  was repairing  a television  set a component of it burst and  that caused  an injury  to his  face. As a result thereof he lost vision of his left eye.      The appellant  being an  employee  and  insured  person under the  Employment State Insurance Act, 1948 (hereinafter referred to as the ‘ESI Act’) and as the injury sustained by him was an employment injury, became entitled to the benefit of Section  46(c) of  the ESI  Act. Therefore, he approached the ESI  Corporation and the Corporation granted the benefit available to him under the ESI Act.      Thereafter in  September 1991  he served  a  notice  on Respondent No.1  demanding Rs. 7 lakhs as compensation. This was followed  by Application No. 108/C-18 of 1992 before the Commissioner  for   Workmen’s  Compensation,   Bombay  under Section  22(2)  of  the  Workmen’s  Compensation  Act,  1923 wherein he claimed compensation of Rs.1,06,785 with penalty, penal interest and costs. In that proceeding Respondent No.1 raised  an   objection  regarding   maintainability  of  the application under  the Workmen’s  Compensation Act by filing an application  Exhibit C-5.  The objection was that in view of the  bar created by Section 53 of the ESI Act, it was not open to the appellant to recover any compensation or damages under the Workmen’s Compensation Act for the said employment injury. It  was overruled by the Commissioner, following the

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Full Bench  decision of  the Kerala  High Court in P. Asokan vs. Western  Indian Plywoods Ltd., Cannanore AIR 1987 Kerala 103, on the ground that ESI Act being a welfare legislation, the Parliament  could not  have intended  to  create  a  bar against the workmen from claiming more advantageous benefits under  the   Workmen’s  Compensation  Act.  Respondent  No.1 thereupon approached  the Bombay  High  Court  by  way  writ petition being  Writ Petition  No. 1406  of 1993.  A learned Single Judge  of that  High Court  dismissed it summarily on the ground that Respondent No.1 had an alternative remedy by way of  first appeal  under  Section  30  of  the  Workmen’s Compensation Act.      Respondent No.1  preferred an  appeal to  the same High Court. It  was heard  by a  Division Bench  along with other appeals wherein  validity of  Section 53  of the ESI Act was challenged on  the ground that it was beyond the legislative competence of  the Parliament  and  was  also  violative  of Article 14  of the  Constitution. The Division Bench did not find any  substance in  the said  challenge and  upheld  the validity of  Section 53. It further held that in view of the bar created  by Section  53 the  application  filed  by  the appellant under  the  Workmen’s  Compensation  Act  was  not maintainable. It, therefore, allowed the appeal.      The only  contention raised  by the learned counsel for the  appellant   before  us   was  that  as  the  claim  for compensation made  by  the  appellant  under  the  Workmen’s Compensation Act was de hors the contract of service and was based on  the law  of torts the bar created by Section 53 of the ESI  Act was  not at  all applicable; and therefore, the High Court  committed an error in dismissing the appellant’s application on  the ground  that it was barred by Section 53 of the  ESI Act.  In support  of this contention the learned counsel heavily  relied upon  the following observation made by K.  Ramaswamy J. in Regional  Director E.S.I. Corporation and Anr. vs. Francis De Costa and Anr. 1992 (3) SCR 23:           "The general  law of  tort  or           special law  in Motor Vehicles           Act  or  Workman  Compensation           Act may  provide a  remedy for           damages.   The   coverage   of           insurance under  the Act in an           insured   employment   is   in           addition   to   but   not   in           substitution  of   the   above           remedies and  cannot  on  that           account  be   denied  to   the           employee."      The decision  in Asokan’s  case (supra)  has also  been relied upon.      The ESI Act was enacted with an object of introducing a scheme of  health  insurance  for  industrial  workers.  The scheme envisaged  by it is one of compulsory State Insurance providing for  certain benefits  in the  event of  sickness, maternity and employment injury to workmen employed in or in connection with  the work  in factories  other than seasonal factories. The  ESI Act  which has  replaced  the  Workmen’s Compensation Act,  1923 in  the  fields  where  it  is  made applicable is far more wider than the Workmen’s Compensation Act and  enlarges the  scope  of  compensation.  Section  38 provides that  all employees  in factories or establishments to which  the ESI Act applies shall be insured in the manner provided it.  Under Section  39 the  employer is  also  made liable  to   pay  contribution.   Section  42  provides  for circumstances under  which the  employee need  not  pay  his contribution. Section 46 provides for the benefits which the

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insured persons,  their dependents and the persons mentioned therein shall  be entitled to get on happening of the events mentioned  therein.  Sections  5 (e  certain fictions in.  favour of  the employee  so as  to have  wider coverage for him. In case of an employment injury Section 46 provides periodical  payments to him or to his dependents in case of  his death.  Employment injury is defined by Section 2(8) to  mean 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. Section     2(9)      defines      employee to mean any person  employed  for wages in or  in connection with the work of a factory or establishment to which the ESI Act applies.  It  includes  other  persons  but  it  is  not necessary to  refer to  that part of the definition. Insured person is  defined by  Section 2(14) to mean a person who is or was  an employee  in respect of whom contributions are or were payable  under the  Act and  who is  by reason thereof, entitled to any of the benefits provided by the ESI Act. The Second Schedule to the ESI Act specifies the injuries deemed to  result  in  permanent  total  disablement  or  permanent partial  disablement.   Rule  54  of  the  Employees’  State Insurance (Central)  Rules, 1950  provides the daily rate of benefit which the employee would get if an employment injury is  suffered  by  him.  Rule  57  provides  for  disablement benefits. Rule  58 provides for dependent’s benefits in case the injured person dies as a result of an employment injury. Rule 60  provides for the medical benefits to insured person who ceases  to be  in an  insured employment  on account  of permanent disablement.  Other benefits are also conferred by the ESI  Act and  the Rules but it is not necessary to refer to them  for deciding  the point  which arises in this case. Two other provisions in the ESI Act to which it is necessary to refer  are Sections 53 and 61. The present Section 53 was substituted  by   Act  No.  44  of  1960  with  effect  from 28.1.1968. Section  61 has  been there  in the  Act since it came into  force. It provides that when a person is entitled to any  of the benefits provided by the ESI Act he shall not be entitled to receive any similar benefits admissible under the provisions  of any  other enactment.  Thus, by  enacting Section  61  the  Legislature  has  created  a  bar  against receiving similar  benefits under  other enactments. Section 53 before its amendment read as under:           "53.      Disablement      and           dependent’s benefits:- When an           insured  person   is  or   his           dependents  are   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           otherwise, in  respect  of  an           employment injury sustained by           the  insured   person  as   an           employee under  this Act, then           the following provisions shall           apply, namely :-           (1) The  insured person shall,           in lieu  of such  compensation           or   damages,    receive   the           disablement  benefit  provided

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         by  this   Act,  (but  subject           otherwise  to  the  conditions           specified  in   the  Workmen’s           Compensation Act,  1923)  from           the Corporation  and not  from           any employer or other person.           (ii) .... .... ....           (iii) .... .... ....           ( iv ) .... .... ....           (v) Save  as modified  by this,           Act   the    obligations   and           liabilities  imposed   on   an           employer  by   the   Workmen’s           Compensation Act,  1923, shall           continue to apply to him."      Experience of  the administration  of the  ESI Act  had disclosed certain  difficulties  in  its  working.  It  was, therefore,  further   amended  in  1966.  Along  with  other amendments made  in the  ESI Act the Legislature substituted present Section 53 which read as under:           "Section   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."      The Workmen’s  Compensation  Act  was  enacted  by  the Legislature in  1923 with  a view to provide for the payment by  certain   classes  of   employers   to   their   workmen compensation for injury by accident. Section 3(1) of the Act provides that if personal injury is caused to a workman by  accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance  with the  provisions contained  in that  Act. Under Section  2 (l)(c)  the word compensation is defined to mean compensation as provided for by the Act. The definition of the workman under the Act is as under:           "   "workman" means any person           (other  than  a  person  whose           employment  is   of  a  casual           nature  and  who  is  employed           otherwise   than    for    the           purposes  of   the  employer’s           trade or business) who is           (i) .... .... ....           (ii)  employed   in  any  such           capacity as  is  specified  in           Schedule   II,   whether   the           contract  of   employment  was           made  before   or  after   the           passing  of   this   Act   and           whether   such   contract   is           expressed or  implied, oral or

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         in  writing;   but  does   not           include any  person working in           the capacity  of a  member  of           the Armed Forces of the Union;           and any reference to a workman           who has  been  injured  shall,           where  the   workman  is  dead           includes a  reference  to  his           dependants or any of them."      A comparison of the relevant provisions of the two Acts makes it  clear that  both the Acts provide for compensation to a  workman/employee for  personal injury caused to him by accident arising out of and in the course of his employment. The ESI  is a later Act and has a wider coverage. It is more comprehensive. It  also provides  for more compensation than what a  workman would  get under  the Workmen’s Compensation Act. The  benefits which  an employee  can get under the ESI Act are  more substantial than the benefits which he can get under   the    Workmen’s   Compensation    Act.   The   only disadvantage, if  at all it can be called a disadvantage, is that he  will get  compensation under  the ESI Act by way of periodical payments  and not  in a  lump sum  as  under  the Workmen’s Compensation Act. If the Legislature in its wisdom thought it  better to provide for periodical payments rather than lump  sum compensation  its wisdom  cannot be  doubted. Even if  it is  assured that  the workmen had a better right under the  Workman’s Compensation  Act in this behalf it was open to  the Legislature  to take away or modify that right. While enacting  the ESI Act the intention of the Legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident  arising  out  of  and  in  the  course  of  his employment.      In this 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 be seen from the  use of the words  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" 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 an unequivocal. when such a bar is created in clear an express terms  it would neither be permissible nor proper to infer a  different intention  by referring  to the  previous history of the legislation . That would amount to by-passing 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 construing 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  in view the bar created by Section 53 the application for compensation filed by the  appellant under  the Workmen’s  Compensation Act was not maintainable.      The observations made in Francis De Costa (supra) by K. Ramaswamy, J. were made in a different context. In that case the question  which had arisen for consideration was whether the injury  caused by  an accident on a public road while an employee was  on his way to join duty can be held as arising out of or in the course of his employment within the meaning

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of Section  2(8) of  the ESI Act. Moreover, in that case the Court was not examining the bar created by Section 53 of the ESI Act.      In Asokan’s  case (supra)  the Full Bench of the Kerala High Court  was called  upon to consider whether an employee who had  received benefit  under the  ESI Act  and wanted to file a  suit in  a civil  court in  forma pauperis  could be permitted to  file such a suit in view of the bar created by Section 53  of the  ESI Act.  The Kerala  High  Court  after referring to  the history  and development of labour welfare legislation held  that Section  53 and Section 61 of the ESI Act do  not bar an action founded upon the law of torts. The reason given  by the  Kerala High Court for taking that view is that  the dominant  idea of  the ESI  Act was  to  confer benefits on  the workmen  and not  reduce or restrict a pre- existing liability of the employer and that if Section 53 is interpreted or  construed as  creating a  bar from  claiming compensation in  respect of  a tortious  act of the employer under other  provisions of  law then  that would  amount  to depriving an  employee the  benefit of  higher  compensation only for  the reason  that he  is an  employee under the ESI Act. According to the Kerala High Court Parliament could not have  intended   "such  an   operation  to  operate  on  the employees, when  it enacted  the Employees’  State Insurance Act". We  cannot agree  with some  of  the  assumptions  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.  Again, that  was not  a case where a question whether an employee and an insured person under the ESI Act can again claim the compensation under the Workmen’s Compensation  Act  had  arisen  for  consideration  We  are, therefore, of the opinion that neither the observations made by K.  Ramaswamy, J.  in Francis  De Costa  (supra) nor  the decision in  P. Asokan’s  case (supra) can be of any help to the appellant.      The  Madras   High  Court  in  Mangalamma  vs.  Express Newspapers Ltd. AIR 1982 Madras 223, Karnataka High Court in K.S. Vasantha vs. Karnataka State Road Transport Corporation 1982 FIR  (Vol.60)  p.118  and  Smt.  Annapura  vs.  General Manager, Karnataka  Stats Transport Corporation (1984 Labour and Industrial Cases 1335) have considered the effect of the bar created by Section 53 of the ESI Act with respect to the claim for compensation made under the Motor Vehicles Act for injuries received  because of an accident arising out of and in the  course of employment. In our opinion, the view taken by those  High Courts  with respect to the object of Section 53 of  the ESI  Act and the nature and the effect of the bar created by it appears to be correct.      In the result, this fails and is dismissed. NO order as to coats.