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1996(4) Supreme 289
SUPREME COURT OF INDIA
S.C. Agrawal and G.T. Nanavati, JJ.
A. Trehan -Appellant
versus
M/s Associated Electrical Agencies and Anr. -Respondents
Civil Appeal No. 1919 of 1996
Decided on 10-5-1996
Held : 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 assumed that the workmen had a better right under the Workmen 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. (Para 9)
Further held : 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. (Para 10)
JUDGMENT
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.
2. 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.
3. 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.
4. 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 Full Bench decision of the Kerala High Court in P. Asokan v. Western Indian Plywoods Ltd., Cannanore1, 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.
5. 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.
6. 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. v. Francis De Costa and Anr.2 :
"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 insu
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