IMPORTANT POINT
Even though the Employees State Insurance Act is a beneficial legislation the Legislature had thought it fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustained by him is an employment injury.

Headnote:TORTS-Employees State Insurance Act, 1948-Sections 2(8) and 53-Employment injury-Bar against receiving or recovering of compensation on damages under any other law-Use of expression or otherwise in Secion 53-Meaning -Legislature prohibits an insured person from receiving or recovering compensation under any other law, including Torts.
       Held : Section 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen s Compensation Act or any other law for the time being in force or otherwise. The use of the expression "or otherwise" would clearly indicate that this section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the Legislature had thought it fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustained by him is an employment injury. (Para 10)
       (ii) Civil Procedure Code, 1908-Order 33 Rule 1-Employment injury -Compensation claim filed under Employees State Insurance Act-Disabled benefit of Rs. 260/- p.m. ordered to be paid to respondent-Petition under Order 33 Rule 1 CPC seeking permission of Court to allow him to file a suit for compensation for injuries sustained-Whether maintainable ?-(No)-Claim of damages being barred u/s 53 ESI Act-Trial Court was right in dismissing the application under Order 33 Rule 1 CPC-Incorrect decision on a point of law of the High Court has to be corrected under Art. 136 of Constitution of India-Maintainability of claims against third party-Not decided.
       Held : The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalamma s case (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 53 of the ESI Act, the trial Court was right in dismissing the application under Order 33 Rule 1 of the Code of Civil Procedure. (Para 11)

JUDGMENT

Kirpal, J.-The sole question which arises for consideration in this appeal is whether the respondent, who is an employee of the appellant, can claim damages from the appellant on account of the injury suffered by him during the course of employment when he has already received the benefit under the provisions of the Employees State Insurance Act 1948 (hereinafter referred to as the ESI Act ).

2. Briefly stated the facts are that the appellant is a company owning and operating a plywood factory. The respondent, who was working with the company,met with an accident when he was feeding the DAP compound into the roller mill by pushing it with his own hand. As a result of this accident one of his hands was amputated. Notwithstanding this accident, the appellant allowed the respondent to continue in its service without any reduction in remuneration.

3. The ESI Act was applicable to the employees of the appellant company, including the respondent. After the aforesaid accident a claim was made thereunder and as a result thereof the disabled benefit of Rs. 260/- per month on account of permanent/partial disablement was ordered to be paid to the respondent. This decision of the Employees State Insurance Corporation to pay the said amount was not challenged. It is the case of the appellant that besides this benefit under the ESI Act, the medical expenses for the treatment of the respondent were also borne by it and in fact the said respondent received the best medical treatment available in that area.

4. While still in service the respondent filed OP No. 108 of 1981 in the Court of Subordinate Judge, Tellicherry, under Order 33 Rule 1 of the Code of Civil Procedure, seeking permission of the court to allow him to file a suit against the appellant herein for Rs. 1,50,000/- as compensation for the injuries sustained by him on account of the aforesaid accident which had taken place in April, 1980. This application was opposed by the appellant herein, inter alia, on the ground that it was liable to be dismissed under Order 33 Rule 5(d) and (f) of the Code of Civil Procedure, in view of the provisions of Section 53 of the ESI Act, which barred the receiving or recovery of any compensation or damages by an employee under any law other than the Employees State Insurance Act. This contention of the appellant was upheld and the Subordinate Court dismissed the said application of the respondent.

5. The respondent thereafter filed an appeal before the High Court of Kerala. A Division Bench of the High Court doubted the correctness of an earlier Bench decision on the same question and, consequently, the case was referred to a Full Bench. The Full Bench consisting of three learned Judges held that the provisions of Section 53 and 61 of the ESI Act did not bar an action by an injured employee under tort for compensation against the employer. It accordingly allowed the appeal and directed the application of the respondent under Order 33 Rule 1 to be decided by the trial court on merits and in accordance with law. Hence this appeal by special leave.

6. It was submitted by Mr. A.S. Nambiar, learned senior counsel for the appellant, that the Employees State Insurance Act is a self contained code and the insured employees, like the respondent, are entitled to the benefit in case of injury suffered under the provisions of the ESI Act and such employees in the case of an employment injury are debarred from making any claim under any other act or law. In this connection our attention was drawn to the relevant provisions of the ESI Act. Mr. Manoj Swarup, learned counsel for the respondent, on the other hand, submitted that Section 53 should be construed in such a way that an aggrieved employee is able to receive adequate compensation on account of the injury which is sustained by him. It was contended that the amount which was paid under the ESI Act could not be regarded as an adequate measure of damages suffered by the respondent and, therefore, Section 5

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1997 Supreme(SC) 1255

Cases Referred (2)