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2020 Supreme(Telangana) 147
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
K. LAKSHMAN, J.
M/s. New India Assurance Company Limited – Appellant
Versus
Ravula Shanker @ Shanker Goud & another - Respondents
M.A.C.M.A. No.236 OF 2016
Decided On : 22-06-2020
Advocate Appeared:
For the Appellant : Ms. P. Satya Manjula
For the Respondent: Mrs. K. Rajitha
Point of Law :
claim laid under MV Act is maintainable though the injured/deceased was covered under ESI Act. In the said judgment, the definition of ‘employment injury’, bar under Section 53 of the ESI Act and also Section 61 of the ESI Act were considered. It was held that bar under Section 53 of the ESI Act would apply only if the claimant has received compensation in respect of an employment injury as defined under the ESI
Headnote:
Motor Vehicles Act, 1988 - Section 166 - Employees State Insurance Act - Sections 2, 53 and 61 - Quantum of Compensation - Accident - Rash and Negligent - Claimed Compensation - Learned counsel for respondent would also contend that appellant did not take any plea in their counter before Tribunal that respondent claimant was covered under ESI Act and that appellant has not filed any document to show claimant has received benefits from ESI Corporation - According to Tribunal has rightly awarded an amount towards compensation to claimant - Tribunal has awarded an towards compensation with proportionate costs and interest annum from petition till date of realization - Tribunal has also fixed the liability jointly and severally on appellant and respondent insurer and owner respectively of lorry bearing registration -
Finding of the Court:
Claimant has specifically contended that he sustained grievous injuries, treated in Kamineni Hospital and underwent surgery to his right leg and it was amputated above knee level. According to him, due to said accident and due to the said amputation he was not in a position to continue his avocation as a driver which he used to do before the accident disability certificate issued by doctor who is a Member of District Medical Board, disability certificate disability of respondent claimant was assessed Nothing contra was elicited from doctor, during cross-examination by appellant -
Result: Appeal shall stand closed.
JUDGMENT :
Feeling aggrieved by the order and decree, dated 27.10.2015, passed in O.P. No.363 of 2013 by the Motor Accidents Claims Tribunal - cum - I Additional District Judge, Nalgonda, the appellant - Insurer preferred the present appeal.
2. Vide the aforesaid order, the Tribunal has awarded an amount of Rs.11,40,840/- towards compensation with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of realization. The Tribunal has also fixed the liability jointly and severally on the appellant and respondent No.2, insurer and owner respectively of lorry bearing registration No. AP 24TB 5238.
3. Respondent No.1 - claimant filed the claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 seeking an amount of Rs.16,00,000/- towards compensation for the injuries sustained by him in a road accident occurred on 10.04.2013.
4. On the analysis of the entire evidence, both oral and documentary, the Tribunal gave a specific finding that the accident was due to rash and negligent driving of the driver of the lorry bearing registration No. AP 24TB 5238. The appellant herein preferred the present appeal disputing both liability and the quantum of compensation. The appellant - Insurer challenged the impugned order mainly on the following two grounds:
(i) Respondent No.1 - claimant - injured is covered under the Employees’ State Insurance Act, 1948 (for short ‘ESI Act’); he has received benefits from the Employees’ State Insurance Corporation and, therefore, he cannot claim benefits from the appellant - Insurer. The appellant also contended that in view of bar under Sections 53 and 61 of the ESI Act, the application filed by respondent No.1 -claimant under Section 166 of the Motor Vehicles Act, 1988 (for short ‘MV Act’) is not maintainable.
(ii) The Tribunal without appreciating the contentions of the appellant - Insurer with regard to the age, monthly earning capacity of respondent No.1 - claimant - injured and also the principle held by the Hon’ble Supreme Court in catena of decisions, erroneously awarded an amount of Rs.11,14,840/- towards compensation to respondent No.1.
With the said contentions, the appellant - Insurer sought to set aside the impugned order.
5. On the other hand, the learned counsel for respondent No.1 - claimant would contend that though respondent No.1 - injured covered under ESI Act, he has not received any benefits from ESI Corporation. The accident in dispute was not occurred during the course of employment and, therefore, it is not an employment injury. As such, the application filed by respondent No.1 - Injured under Section 166 of the MV Act is maintainable.
6. The learned counsel for respondent No.1 would also contend that the appellant did not take any plea in their counter before the Tribunal that respondent No.1 - claimant was covered under ESI Act and that the appellant has not filed any document to show that the claimant has received benefits from ESI Corporation. According to him, the Tribunal has rightly awarded an amount of Rs.11,14,840/- towards compensation to the claimant.
7. With the said contentions, the learned counsel for the claimant prayed for dismissal of the present appeal.
8. In view of the above said rival contentions, the points that arise for consideration in the present appeal are :
(i) Whether the injuries sustained by respondent No.1 - claimant is an employment injuries as defined under Section 2 (8) of the ESI Act?
(ii) Whether the application filed by respondent No.1 - claimant under Section 166 of the MV Act is maintainable in view of bar under Sections 53 and 61 of the ESI Act?
(iii) Whether the compensation of Rs.11,14,840/- awarded by the Tribunal fixing liability on the appellant and respondent No.2 is sustainable, both on facts and in law?
9. As discussed above, on the analysis of the entire evidence, the Tribunal gave a finding that the accident had occurred due to rash and negligent driving of the driver of the said lorry
