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IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
Employees State Insurance Corporation, ESIC Bhavan..... Appellant.
Versus
Smt. Sayeeda Khatoon Danawalla and others..... Respondents.
First Appeal No. 542 of 1983, decided on 14-7-1994.
Advocates appeared:
R.M. Jaykar i/b M.V. Jaykar Co., for the appellant.
A.M. Vernekar, for the respondent.
Held, the doctrine of notional extension was applicable the facts of this case. The deceased was standing in a bus queue waiting for the bus of the employer provided through the contractor for purpose of reaching the factory and the deceased was to travel. The doctrine of national extension cannot be placed in straight jacket. It is merely a matter of sound common sense as to when and where and to what extent the said doctrine can be applied. Having regard to the facts of this case as found by the trial Court, I hold that the deceased died as a result of employment injury within meaning of Section 2 (8) of the Act.
Section 2 (8)-Notional extension-Doctrine of-Its applicability.
Held, the doctrine of notional extension was applicable to the facts of this case. The deceased was standing in a bus queue waiting for the bus of the employer provided thorough the contractor for purposes of reaching the factory and the deceased was run over by the bus by which he was to travel. The doctrine of notional extension cannot be placed in straight jacket. It is merely a matter of sound common sense as to when and where and to what extent the said doctrine can be applied. Having regard to the facts of this case as found by the trial Court, it is held that the deceased died as a result of employment injury within meaning of Section 2 (8) of the Act.
Section 51-Statutory benefits payable under-When can be claimed ? Held, if an insured person of his defendants are entitled to receive or recover certain amounts from his employer or the Corporation, the insured person or his defendants may not be entitled to receive or recover compensation or damages under any other Act. It is nowhere laid down in the Act that if an insured person or his dependants recover or realize any amount by way of compensation or damages from the transport company or the insurance company under the Motor Vehicles Act, 1939, such insured person shall not be entitled of claim the statutory benefits payable under Section 52 of the Act. The appellant Corporation is under a statutory obligation to make the necessary payment under Section 52 of the Act if the conditions prescribed by the said section are satisfied. The appellant Corporation is not obsolved from making the payment of the amounts payable und" Section 52 of the Act merely because the respondents have recovered or realised compensation or damages from some one else under some other Act. For the purpose of appreciating this aspect of the controversy, a reference in the passing may be made to the provisions contained in Section 110-AA of Motor Vehicles Act 1939 incorporated in the said Act by Act 56 of 1962.
Thus, the said section requires the workman to exercise an option for claiming compensation under Motor Vehicles Act, 1939 or under the Workmens Compensation Act, 1923. The said section in terms provides that if the workman is entitled to recover compensation under both the Acts, the workman shall not resort to double recovery and the workman or his dependants shall have to exercise an option in this behalf for making a claim for compensation either under the Motor Vehicles Act or under the Workmens Compensation Act, 1923. In the Employees State Insurance Act, 1948, there is no such provision. The Court has no power to legislate. It is not possible to hold that the appellant Corporation is absolved from its obligation to make payment of "dependants benefits" in accordance with Section 52 (1) of the Act read with First Schedule thereto merely been use the respondents have recovered the above referred amount of compensation in the proceedings initiated by them before the Motor Accident Claims Tribunal. Sections 53 and 51 of the Act do not affect the statutory liability of the appellant to make payment to dependants of deceased.
Sections 52 (1), 53. 61 and 75-Motor Vehicles Act, 1939, Section 110-A -Double compensation-Prohibited by Section 110-A, Motor Vehicles Act but not Employees Slate Insurance Act-Sections 53 and 61 of the Act, 1948 not effect statutory liability of appellant to make payment to dependents of deceased.
Held, if an insured person or his dependants are entitled to receive or recover certain amounts from his employer or the Corporation, the insured person or his dependants may not be entitled to receive or recover compensation or damages under any other Act. It is nowhere laid down in the Act that if an insured person or his dependants recover or realise amount by way of compensation or damages from the transport company or the Insurance Company under the Motor Vehicles Act, 1939. Such insured person shall not be entitled to claim the stability benefit payable under Section 52 of the Act. The appellant Corporation is under a statutory obligation to make the necessary payment under Section 52 of the Act if the conditions prescribed by the said section are satisfied. The appellant Corporation is not absolved from making the payment of the amounts payable under Section 52 of the Act merely because the respondents have recovered or realised compensation of damages from someone else under some other Act. For the purpose of appreciating this aspect of the Controversy, a reference in the passing may be made to the provisions contained in Section 110-AA of Motor Vehicles Act, 1939 incorporated in the said Act by Act 56 of 1969. Thus, the said section requires the workman to exercise an option for claiming compensation under Motor Vehicles Act, 1939 or under the Workmens Compensation Act, 1923. The said section in terms provides that if the workman is entitled to recover compensation under both the Acts, the workman shall not resort to double recovery and the workman or his dependants shall have to exercise an option in this behalf for making a claim for compensation either under the Motor Vehicles Act or under the Workmens Compensation Act, 1923. In the Employees State Insurance Act, 1948, there is no such provision. The Court has no power to legislate. It is not possible to hold that the appellant Corporation is absolved from its obligation to make payment of dependants benefits in accordance with Section 52 (1) of the Act read with first schedule thereto merely because the respondents have recovered the above referred amount of compensation in the proceedings initiated by the before the Motor Accident Claims Tribunal. Sections 53 and 61 of the Act do not affect the statutory liability of the appellant to make payment to dependants of deceased.
Section 82 (2)-High Court-Appeal to-It can be only if a substantial question of law involved.
Section 110-A.
See Employees State Insurance Act, 1948-Sections 52(1), 53, 61 and 75.
2. One Mr. M.A. Danawala (the insured person) was employed at the time of his death in Kandivali factory of Mahindra and Mahindra Limited which was duly covered under the provisions of the Employees State Insurance Act, 1948. Mr. M.A. Danawala is hereinafter referred to as the deceased. While the deceased was standing in the queue waiting for the bus provided by his employers through the contractors for joining duty the deceased was run over by the bus. The deceased thus met with an accident. The deceased died. The deceased was under an obligation to travel by the above referred bus in view of the arrangements having been made by his employers for the employees to pick up the employees through the contractors concerned.
3. As result of the said accident, the deceased died on 11th August, 1976. On 5th November, 1976, the applicants being the dependents of the deceased made an application to the appellant Corporation for the "dependants benefits" claimable under section 52 of the Act read with First Schedule thereto. On 29th October 1977, the Corporation rejected the claim of the applicants. On 25th March, 1980, the original applicants made the above referred application as contemplated under section 75 of the Act for a direction to the Corporation to pay to the original applicants "the dependents benefits" as contemplated under section 52 of the Act. By the impugned order dated 27th July 1982, the Employees Insurance Corporation granted the said application.
4. Before I discuss the contentions urged at the Bar on behalf of the appellant, it is necessary to state that the applicants had also made a claim against the employers contractors and New India Assurance Company Limited for compensation before the Motor Accident Claims Tribunal. On 26th February, 1980, a settlement award was made in the said proceeding before the Motor Accident Claims Tribunal whereunder a sum of Rs. 42,500/- was paid as compensation to the applicants. The said award was made by the Motor Accident Claims Tribunal against the transport company as well as against the New India Assurance Company Limited. In all probability, the New India Assurance Company Limited must have paid the said amount to the applicants.
5. It was contended on behalf of the appellant Corporation before the Employees Insurance Court that the above referred application made by the dependents of the deceased was barred by law of limitation. I do not appreciate raising of such technical contentions by a Corporation constituted for fulfilling of constitutional goals. But that apart, there is no merit in this contention. It is not disputed that the Court has power to condone alleged delay, if any in filing of the application for dependants benefit by the dependants of the deceased. The learned Counsel has submitted that the original applicants ought to have preferred the application before the Employees Insurance Court within three years from the date of the accident. The learned Counsel for the respondents points out that the said application was made within three years from the date of rejection of the application for benefits by the appellant. The respondents point out that the Corporation rejected the claim of the applicants for the first time on 29th October 1977. It is not necessary to decide this controversy in this case although the respondents appear to be right in their contention urged at the Bar. I have no hesitation in condoning the
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