Point of Law : Death of the victim by electrocution – Award of compensation - Admittedly, it will not come under the purview of ’self-inflicted injury’.

JUDGMENT :

The fourth defendant came up against the decree and judgment of the trial court on account of the death of the victim by electrocution. The trial court awarded an amount of Rs.10,00,000/-to the legal heirs of the victim, the plaintiffs.

2. The decree and judgment of the trial court is brought under challenge based on the bar under Section 75(3) of The Employees' State Insurance Act, 1948 (in short, the ESI Act) and also on the ground of estoppel and res judicata as the present suit is the third attempt after exhausting remedy before the Workmen's Compensation Commissioner and the Human Rights Commission. It was dismissed for want of jurisdiction and on the ground of bar under Section 75(3) of the ESI Act. An application submitted before the ESI officer was also ended in dismissal on the ground that the petitioners will not come under the purview of benefit that can be granted under the ESI Act. It is thereafter the present suit was filed for getting compensation on account of the death of victim.

3. The maintainability of the suit was raised as a preliminary objection based on the bar under Section 75(3) of the ESI Act and advanced a case that the remedy lies with the ESI Court constituted under the Act. The trial court instead of adjudicating the said objection as a preliminary issue, proceeded with the suit on the ground that the question of bar under the provision is a mixed question of law and fact and requires adjudication at the final stage. Aggrieved by the said order, the fourth defendant came up in C.R.P.No.649/2014 before this Court. Though the order of the trial court was initially set aside by order dated 03/02/2015, later on, it was recalled in R.P.No.477/2015 by order dated 09/06/2015 and the CRP was ultimately dismissed with a direction to the trial court to proceed with the suit in accordance with the law. Subsequently, C.R.P.No.196/2016 was filed by the fourth defendant so as to get clarification as to whether the incident involves 'employment injury' as defined under the ESI Act. The abovesaid petition was also dismissed in view of the earlier order passed in R.P.No.477/2015 in C.R.P.No.649/2014. Thereon, the fourth defendant participated in the trial of the suit which has resulted in the impugned decree and judgment against the fourth defendant.

4. By relying on the decision rendered by the Apex Court in Mumbai International Airport (P) Ltd. v. Golden Chariot Airport and Another [(2010) 10 SCC 422] and a Division Bench of this Court in Raghavan Nair v. Appu Kidavu (1979 KLT 458), it was submitted that when there is a selection/election of a particular forum/court having jurisdiction over the matter, estoppel by conduct and also estoppel as embodied under Section 35 of the Transfer of Property Act would come into play and the person who had selected/elected the particular forum or the court to redress his grievance will stand estopped from agitating the very same issue in any other forum having jurisdiction over the matter. It is further submitted that since there is a selection of forum having jurisdiction over the matter on earlier two occasions, that is, Workmen's Compensation Commissioner and Human Rights Commissioner besides the ESI Officer, the plaintiffs are estopped from bringing up a suit of this nature based on the very same cause of action and the subject. The said contention cannot be sustained on the reason that selection of forum for redressing the grievance will not come under the purview of doctrine of election or Section 35 of the Transfer of Property Act. The doctrine of election as embodied under Section 35 of T.P.Act would come into play where a person professes to transfer a property which he has no right to transfer and part of same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent it and in the latter case, he shall relinquish all such benefits so conferred with all its legal consequences, then such b