JUDGMENT :

1. Heard Mr. Lal Mani Singh, learned counsel for the appellants and Mr. Bijai Prakash Tiwari, learned counsel for the respondent.

2. By way of this appeal, the appellants have challenged the judgment and award dated 21.6.2001 passed by Workmen's Compensation Commissioner/ Additional District Magistrate (City) Kanpur Nagar in Case No. 4 of 1996.

3. This Court while admitting the appeal did not frame any substantial questions of law and, therefore, questions of law framed by the appellants are required to be decided as per the said questions of law framed herein below:-

(i) Whether the bar under Section 53 and 61 of Employees State Insurance Act, 1948 is applicable upon the impugned proceedings because the opposite party is getting pension and had already received compensation as per the Rules?

(ii) Whether in view of Section 53 and 51 of the Employees State Insurance Act, 1948 impugned proceedings were maintainable or the same are barred under Section 53 and 61 of the Act?

(iii) Whether Section 53 of the Employees State Insurance Act, 1948 itself entitles an employee who has suffered alleged employment injury from receiving or recovering the compensation and damages under the Workmen's Compensation Act or any other law for the time being imposed or otherwise?

4. The brief facts of the case culled out from the record are that the claimants had preferred a claim petition under the provisions of Employees’ Compensation Act 1923 (hereinafter referred to as Act, 1923) against the appellants herein. The claimant was a Class-IV employee. The appellants are the owner of the Tenari New Light Teners. On 19.6.1995 when the claimant was on duty, at that time, at about 1:25 PM his left hand (upper limb) came in the machine and his index finger alongwith thumb and other parts got crushed and they had to be amputed, which resulted in total partial disablement to the claimant. The claimant was rushed to the hospital and from 19.6.1995 till 16.8.1995 he was under treatment (i.e. about two months).

5. The respondents refused to engage claimant into service after the accident, and therefore, the notice was given to the appellants to pay compensation despite the notice, no amount was paid rather the claimant was summoned and was humiliated by appellants. The notice was given to the appellants herein, who filed its reply on 30.1.1999 and denied the entire incident and submitted that claimant was not employed by them as a machine man and that the accident if at all had occurred was because of the negligence of claimant. It is stated that the claimant did not report for duty his name was deleted from the list. Even before the said reply, Mohd. Azmal was made a party who also filed his reply of denial and denied the employment. The Workmen Commissioner framed several issues. The stand of the appellants was that the claimant was removed after following the procedure.

6. The issue no.1 has rightly been decided by the Commissioner and it is a question of fact. As far as issue no.2 is concerned, as to whether the appellants had paid any amount to the claimant or not just because the ESI has made certain payments would it permit the appellants herein not to pay any amount. While deciding the issue for compensation, which is a question of fact. The questions is whether this Court can entertain this appeal under Section 30 of the Act on the questions of facts.

7. Learned counsel for the appellants has contended that Employees State Insurance Act 1948 has granted him pension. The judgment according to the counsel for appellants is silent and has not discussed this aspect. Learned counsel for the appellants has relied on the judgment of Hon'ble Apex Court in the case of Western India Plywood Ltd. Vs. Shri P. Ashokan dated 19.9.1997 and contended that the said judgment is relied on so as to contend that once the employee has received disablement benefit under the Employees State Insurance Act, 1948 he would not be entitled to any amount under the Employees' Co