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2024 Supreme(Online)(KER) 16812
HIGH COURT OF KERALA
MARY JOSEPH, J
REJI.M.V – Appellant
Versus
ANIL – Respondent
MACA 2863/2022
The ESI Act does not bar claims for compensation under the M.V. Act when the tortfeasor is a third party unrelated to the claimant's employment.
Headnote:(A) Workmen’s Compensation Act, 1923 - Sections 53 and 61 - Employees’ State Insurance Act, 1948 - Sections 53 and 61 - Claim for compensation under the M.V. Act not barred by ESI Act when the tortfeasor is a third party unrelated to employment - Claimant entitled to compensation for permanent disability and medical expenses despite receiving benefits under ESI Act. (Paras 12-36)
(B) Compensation - The Tribunal awarded inadequate compensation for loss of amenities and future treatment expenses, requiring modification and enhancement by the Court. (Paras 38-41)
Facts of the case:
The petitioner was injured in a motor accident while employed and received benefits under ESI Act. He claimed compensation under the M.V. Act, which the insurer contested, arguing that ESI benefits barred the claim.
Findings of Court:
The Court held that the claim under the M.V. Act was maintainable as the tortfeasor was not the employer.
Issues: Whether ESI Act bars compensation under the M.V. Act and whether the compensation awarded was adequate.
Ratio Decidendi: The Court ruled that the ESI Act's provisions do not bar claims against third-party tortfeasors and that the claimant is entitled to just compensation under the M.V. Act.
Result: MACA No.2863/2022 is allowed in part; MACA No.3759/2022 is dismissed.
JUDGMENT
Petitioner in O.P(M.V) No.967/2018 on the files of Motor Accidents Claims Tribunal, Muvattupuzha (for short, ‘the Tribunal’) has filed M.A.C.A No.2863/2022 and the insurer of the offending vehicle who was made liable by the impugned award to pay the compensation in favour of the petitioner has filed M.A.C.A No.3759/2022. The insurer was the 2nd respondent before the Tribunal.
2. Sri.George A Cherian, the learned Senior counsel for the appellant/insurer contended that the petitioner having been paid permanent disablement benefit at the rate of 90% of his wages in the form of monthly payment for whole life, is not entitled to receive or recover any compensation under the Workmen’s Compensation Act, 1923 (for short, ‘W.C.Act’) or any other law for the time being in force or otherwise in respect of an employment injury sustained by him. The learned counsel rested his contention on Sections 53 and 61 of Employees’ State Insurance Act, 1948 (for short, ‘the ESI Act’) which provides that the petitioner shall not be entitled to receive any similar benefit under the provisions of any other enactment. Thus the award to the extent it grants `25.35 lakhs as compensation towards permanent disability and medical expenses was sought to be set aside.
3. The Manager of ESI, Perumbavoor branch was examined as RW1. According to him, the petitioner had raised a claim before them in respect of the motor accident met with by him on 16.05.2018 and a sum of `2,38,160/- was given to him as temporary disablement benefit for a period from 21.05.2018 till 21.08.2019. According to him, the amount was arrived at by taking `520/- per day and that was awarded as salary for the period of leave availed by him following the motor accident. According to him, thus 90% of his salary was given towards temporary disablement benefit. According to him, since the Medical Board has assessed his disability as 100% on 26.11.2020, petitioner will get `520/- per day till his death and also periodical enhancement as determined by the Government. He had produced the pension register alongwith the attested copy of the extract of it’s relevant part showing payment of benefits as above and on verification with the original, it was marked in evidence as Ext.X . Letters dated 11.11.2019 and 06.01.2021 issued by the Medical Board assessing the disability of the petitioner respectively as 60% and 100% were also marked in evidence as Exts.X and X . According 2 3 to him, the contribution is required to be paid by the petitioner towards ESI for getting future treatment expenses and that is not necessary for getting pension. In cross examination, it was clarified that petitioner is entitled to get ESI benefits on account of the contribution he had made to the ESI during his employment and those who did not pay the contribution will not get the benefits. The witness has also said that there is no bar for getting any other benefits and clarified that the petitioner will not get benefits under the W.C. Act. It was also clarified from the witness that normally 5 to 7% increase would be given as benefits and that the petitioner who had met with the motor accident in the year 2018 was not granted any hike in benefits at any time during four years therefrom.
4. The learned counsel for the claimant urged on the contrary that benefits the petitioner has been granted from the ESI Corporation has nothing to do with the compensation he is entitled to get under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the M.V Act’). According to him, the person responsible to pay the compensation under of the M. V Act is a third party, in no way related to him with reference to his employment at the relevant time and therefore they cannot seek for exemption from payment of compensation, which they are bound to pay under the certificate of insurance issued by them in favour of the owner of the vehicle, in return for payment of premium to cover the risk, the vehicle is liable to meet during
