( 1 ) THE present appeal is directed against the Order dated 19th August, 1996 passed by Shri Shiv Lal Singh, Commissioner Workman s Compensation.

( 2 ) THE brief facts of the case are that the respondent was employed with M/s Durga Steel, appellant herein as a machineman on a monthly salary of Rs. 900. 00. On 17th August, 1992 while he was on duty he sustained injury in his right leg and his leg is completely paralysed and thereby he lost his 100% earning capacity. He is unable to walk or uplift the load and is also unable to do the same work on machine by standing. The respondent was aged about 22 years. He was admitted to ESI Hospital and then he was shifted to Irwin Hospital (Lok Nayak Jai Prakash Narain Hospital ). He sent demand notice to the Management but no amount has been paid as compensation. The appellant Management failed to appear before the Commissioner and they were proceeded against ex-parte on 23rd December, 1993 which order was set aside on 18th May, 1994 and the appellant was permitted to file written statement. The following issues were framed on the pleadings of the parties:- 1. Whether the claim is not maintainable in view of the preliminary objections? 2. Whether the workman is covered under ESIC or not? 3. What amount of compensation the workman is entitled? 4. Relief.

( 3 ) THE respondent workman was partly cross-examined on 31st May, 1995 but the Management was not again represented and as a consequence was proceeded ex-parte on 16th October, 1995.

( 4 ) THE appellant admitted that the respondent workman was employed with them and suffered injuries while he was on duty. However, it was stated that the appellant was registered with the ESI Corporation and the workman could claim compensation from the Authority under Employees State Insurance Act. On the other hand the respondent placed on record a letter dated 4th August, 1993 issued by the ESIC wherein it was specifically written that the case of the workman had not been accepted by the ESI. As a consequence thereto the award in the sum of Rs. 1,10,685. 00 was made. The operative portion of the order passed by the Commissioner reads as follows:- "considering the entire facts and circumstances of the case and the age of the workman i. e. 22 years I hold that the workman has proved that he has lost 100% of the earning capacity. Thus I hold that the Issue No. 3 is decided in favour of the workman in the manner that the workman has lost 100% of his earning capacity and is entitled to compensation accordingly as under:- 221. 37 X 100 X 500 = Rs. 1,10,685. 00. 100 Since the management has neither paid any compensation nor deposited in the Court inspite of having the knowledge of the accident and further after receiving the notice, the workman is held to be entitled for penalty compensation of 50% of the principal amount alongwith interest @ 6% p. a. from the date of accident till the date of actual payment. The management is directed to deposit the aforesaid amount in this Court within 30 days from the date of issue of this order failing which the said amount will become recoverable as arrears of land revenue. "

( 5 ) THE present appeal has been filed against the award as referred to above. The learned counsel for the appellant has argued that the matter is squarely covered by the judgment of the Supreme Court reported as A. Trehan Vs. Associated Electrical Agencies and another (1996) 89 Factories Journal Reports 1 (S. C.) wherein it has been held that the workman who is covered under the Employees State Insurance Act is barred from claiming compensation under the Workmen s Compensation Act. Section 53 of this Act has been cited to reiterate this proposition. The question now arises as to whether the above provision will deprive the respondent workman to claim compensation from the appellant in the facts and circumstances of the present case. This provision reads as follows:- "[53. Bar against receiving or recovery of compensation or damag