IMPORTANT POINT
Remedies under MV Act and ESI Act are not mutually exclusive.

JUDGMENT

Dr. Arijti Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the Allahabad High Court dismissing the appeal filed by the present appellant (hereinafter referred to as the ‘insurer’).

3. Factual position which is almost undisputed is essentially as follows: An appeal was filed questioning the correctness of the Award made by the Motor Accident Claims Tribunal, Saharanpur (hereinafter referred to as the ‘MACT’) wherein a sum of Rs.1,20,000/- was awarded as compensation. The claim petition was filed on the basis that on 1.5.1991 while Abdul Hamid (hereinafter referred to as the ‘deceased’) was traveling by Matador No. URF-9761 from Saharanpur to Sarsawa, a truck bearing registration No.PIJ-5166 belonging to Border Security Force (in short the ‘BSF’) dashed against the said vehicle resulting in serious injuries on the body of the deceased. He succumbed to the injuries at the SDB Hospital Saharanpur. The appellant-insurer contested the claim petition inter alia taking the stand that the compensation as claimed was high and exorbitant. The MACT held that the accident occurred due to rash and negligent driving of the driver of the truck and awarded Rs.1,20,000/- as compensation. In appeal the stand of the appellant was that the application filed by the claimant- respondent under Section 173 of the Motor Vehicles Act, 1988 (in short the ‘Act’) was not maintainable in view of Section 53 of the Employees State Insurance Act, 1948 (in short the ‘ESI Act’). The High Court did not accept the stand primarily on the ground that no such plea was taken specifically in the written statement. It was also held that as regards applicability of Section 53 of the Act certain factual aspects were to be considered. The appeal was accordingly dismissed.

4. Learned counsel for the appellant submitted that true scope and ambit of Section 53 of the ESI Act has not been kept in view.

5. Learned counsel for the respondent on the other hand supported the judgment.

6. It is to be noticed that in Regional Director, ESI Corporation & Anr. v. Francis De Costa and Anr.1 [1993 Suppl.(4) SCC 100] at para 44 it was observed as follows:

44. The next contention that the Motor Vehicles Act provides the remedy for damages for an accident resulting in death of an injured person and that, therefore, the remedy under the Act cannot be availed of lacks force or substance. The general law of tort or special law in Motor Vehicles Act or Workmen’s 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. In K. Bharathi Dev v. G.I.C.I [AIR 1988 AP 361] the contention that the deceased contracted life insurance and due to death in air accident the appellant received compensation and the same would be set off and no double advantage of damages under carriage by Air Act be given was negatived.

7. In A Trehan v. Associated Electrical Agencies,2 [1996(4) SCC 255] it was observed as follows:

“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 in 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.