D.G. Deshpande, J.
1. Heard Advocate for the Appellants and the Respondent No. 1.
2. This is an appeal filed against the order of the MACT, Mumbai, dated 8.10.1996 by which the appellants was directed to pay Rs. 70,000/- inclusive of Rs. 12,000/- payable under Section 140 of the Motor Vehicles Act to the Respondent No. 1 who was claimant before the Tribunal.
3. Undisputed facts in this case were that the respondent No. 1 was employed as a packer with M/s. Hybo Hindusthan. The employer had engaged bus bearing No. MMK-7039 owned by Mr. Harry V. Desilva and insured with the present appellants. The insurance policy was valid on the date of the accident. The accident occurred on 3.5.1991 at about 6.40 p.m. when the respondent No. 1 left factory of the employer and came on MIDC Road.
4. Now, at this juncture, it had to be noted that the initial case set out by the respondent No. 1 was improved by her when she was recalled after her cross examination was over. Earlier her stand was that the bus of the employer was meant to carry herself and the other employees from their respective places of residence to the place of employment and ferry them back after the work was over from the place of employment to their respective residences or the pre-arranged and pre-determined place in that regard. It was her initial case that after the work was over on that day i.e. on 3.5.1991 along with other employees she came to the spot from where she was to be picked up and while she was standing there the bus went into reverse and caused injury to her.
5. This story initially set out by Respondent No. 1 was changed by her when she was recalled for evidence after cross examination was over and she stated that:
'Five-six employees were with me who wanted to catch the said Bus. An employee of our factory can travel by the said Bus or by any other conveyance. I wanted to go to other place along with my friends and as such I did not enter the said bus. All my other employees entered the said bus. However I did not enter the said bus and I was standing on the road.'
6. This application for compensation under the Motor Vehicles Act was opposed by the Appellants - Insurance Company and one of their contention was that this was an employment injury and therefore the Tribunal had no jurisdiction to entertain the dispute or give any finding and the appellants should have moved the Authorities under the E.S.I. Act, 1948. The Tribunal disregarded this objection of the appellants and accepted the case of the respondent No. 1 inspite of the fact that there was a total improvement in her case, and awarded compensation of Rs. 70,000/-, and therefore this appeal.
7. Counsel for the appellant urged that if an injury suffered by the employee is an employment injury as defined in Section 2 Sub-section (8) of the E.S.I. Act, 1948, then there was a clear bar under Section 53 against receiving or recovering compensation or damages under any other law. He pointed out from the evidence of the respondent No. 1 that Respondent No. 1 has received from the employer benefit under the E.S.I. Act, and, the admission to that regard was 'I had to take leave from 4.5.1991 to 15.7.1991. I got this medical leave paid from E.S.I.S.'. She then produced a ZEROX copy of the ESIC to the Company. It was marked as Exhibit '2' and then she admitted that she has not received anything except the leave salary from E.S.I.C. or from her company.
8. Counsel for the appellants therefore strenuously urged that, firstly, if the respondent No. 1 has received compensation under E.S.I.C. Act, then by virtue of Section 53 she was not entitled to any compensation, and secondly, he contended that looking to the manner and the nature and the circumstances in which the respondent No. 1 got injury it was undoubtedly an injury as defined in Section 2(8) of E.S.I.C. Act and therefore the Tribunal had no jurisdiction to entertain and decide this dispute. He contended that at the most the Tribunal could have come to the conclusion that whether respondent No. 1 received injury and in what manner, whether the Tribunal had any jurisdiction to decide, whether it was an employment injury or whether it was not an employment injury.
9. Counsel for the respondent No. 1 tried to contend that the injury suffered by the respondent No. 1 was not at all an employment injury. He relied upon different authorities in this regard. He laid emphasis in this regard on the judgment of the Supreme Court reported in : (1997)ILLJ34SC Employees' State Insurance Corporation v. Francis De Costa. In that case an injury was sustained by the employee while he was an his way to the factory where he was employed. Accident took place one kilometre away from the place of employment. It was a claim made under the ESI Act, 1948, and looking therefore to the fact that the accident has taken place not in the vehicle supplied or provided by the employer but while employee was travelling by vehicle, and, also looking to the fact that the accident took place 1 kilometre away from the place of employment and there was no nexus or connection with if the accident arising out of employment, the Supreme Court came to the conclusion that in the circumstances it could not be said that it was an employment injury. Counsel for the respondent No. 1 wants to apply the same analogy to the facts of the case, and, therefore, he contended that even if it is accepted for the time being that whatever was stated by the respondent No. 1 earlier i.e. before her improvement of the case after recall, is true, that she had not entered the bus at the relevant time she was standing there, and, according to him it was not at all an employment injury.
10. Counsel for the respondent No. 1 also relied upon the judgment of the Orissa High Court reported in : AIR1995Ori38 United India Insurance Co. Ltd. v. Susila Panigrahy and Ors. in order to show whether in a given case the victim could be called a passenger. Reliance was placed by the counsel for the respondent No. 1 on the judgment reported in : (2004)IILLJ395AP Pauline Decruse and Ors. v. M.F. Katha Singh and Ors.
11. In the case of Orissa High Court, referred to above, deceased was waiting for a bus but before he could actually board it the vehicle hit him as a result of which he had fell down and sustained injuries and subsequently breathed his lost. Claim petition came to be filed under the Motor Vehicles Act. The question was whether the deceased was a passenger or third party. Therefore looking to the facts that deceased had not actually boarded the vehicle, the High court concluded that the deceased was a third party and not a passenger. Counsel for the respondent No. 1 on the basis of the judgment, tried to contend that the respondent No. 1 was not sitting in the bus therefore she could not be considered as a passenger. But, however, he emphasised on the fact that the respondent No. 1 was hit while she was outside the bus. By this he wanted to emphasis that there was no connection between the injury and her employment and therefore according to him this was not an employment injury.
12. Counsel for the respondent also relied upon the judgment of Andhra Pradesh High Court reported in : (2004)IILLJ395AP , referred to above. In that case a person by name Earnest Cyril Decruse died in motor accident. The accident occurred while the deceased was travelling in a van of his employer and he met with an accident while he was proceeding from the office to the factory on a public road, far away from the factory as well as office, and, therefore, Andhra Pradesh High Court while considering the provisions of Section 166 of the Motor Vehicles Act and Section 53 of The Employees State Insurance Act, 1948 held that since the injury did not occur during the course of employment or while he was attending to work, the bar under Section 53 cannot apply and therefore the petition made by the claimants under Section 166 was maintainable.
13. As against this, counsel for the appellant drew my attention to the newly amended Section 51C, and according to him Section 51(C) clearly lays down that if an accident occurs while travelling in employers transport, it will be deemed to arise out of and in the course of the employment. Section 51(C) reads as under:
'Accidents happening while travelling in employer's transport. - (1) An accident happening while an insured person is, with the express or implied permission of his employer, travelling as a passenger by any vehicle to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicles be deemed to arise out of and in the course of his employment, if -
(a) the accident would have been deemed so to have arisen had he been under such obligation; and
(b) at the time of the accident, the vehicle-
(i) is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer, and
(ii) is not being operated in the ordinary course of public transport service.
(2) In this section 'Vehicle' includes vessel and an aircraft.
14. Counsel for the Appellants contended that earlier these benefits under the ESI Act were stretched to those persons who were travelling by the vehicle provided by the employer on a notion or notional nexus between the employment, but that has been now specifically brought into effect by introduction of Section 51(C). Therefore, according to him, when admittedly the respondent No. 1 was using the vehicle supplied by the owner she had come to the work place by the vehicles so supplied and she had gone to the spot where the vehicle was to take her and left her at her place of destination after the employment hours were over. It was a clear cut case that the accident had occurred as contemplated by Section 51(C) and as contemplated by Section 2 Sub-section 8 i.e. employment injury. In addition, counsel for the appellants also drew my attention to three judgments one judgment of Supreme Court reported in : AIR1995Ori38 United India Insurance Co. Ltd. v. Susila Panigrahy and Ors., and two judgments of the Bombay High Court reported in : (1995)ILLJ368Bom Associated Electrical Agencies v. Commissioner for Workmen's Compensation and Judge, 3rd Labour Court, Bombay and Anr., and, : (1995)ILLJ173Bom Employees' State Insurance Corporation v. Sayeed Khatoon Danawala and Ors.
15. In the Supreme Court case, provisions of ESI Act and Workmen's Compensation Act were involved. The appellant was employed by the respondent No. 1 for carrying out repairs of T.V. sets. On 17.7.1987 while repairing TV set, a component of it burst causing injuries to his face. The appellant was an employee and person insured under ESI Act and therefore he became entitled to benefits under Section 46(1)(c) of ESI Act, which were ultimately granted to him under the said Act. Then thereafter he moved an application before the Commissioner of Workmen's Compensation under Section 22(2) of the Workmen's Compensation Act, claiming Rs. 1 lac. This application was opposed on the ground of maintainability under the Workmen's Compensation Act and on the basis of Section 53 of ESI Act and this objection was over ruled by the Commissioner. The Corporation approached Bombay High Court, but it was dismissed. After the single Judge of the High Court dismissed the appeal of ESIC, matter was taken to the Division Bench wherein validity of Section 53 was challenged but the Division Bench did not find any substance in the challenge and upheld the validity and also held that bar created by Section 53 was absolute and application filed by the Workmen under the Workmen's Compensation Act was not maintainable and therefore the matter went to the Supreme Court. The Supreme Court after considering the circumstances and the relevant provisions and particularly Section 53 held in paragraph 12 that:
'The bar is absolute as can be seen from the use of the words 'shall not be entitled to receive or recover, 'whether from the employer of the insured person or from any other person', 'any compensation or damages'.'
The Supreme Court further held that the words 'employed by the legislature' are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision of the Act. The Supreme Court ultimately dismissed the Appeal, therefore on the basis of the judgment of the Supreme court, the counsel for the appellants contended that when the respondent No. 1 in her cross examination admitted that she had received leave salary benefits under the ESI Act, and when she had produced documents in that regard bar under Section 53 was directly applicable and the impugned order was liable to be set aside.
16. Since the judgment of the Bombay High Court is upheld by the Supreme Court, it is necessary to consider the same again. Mr. Singh also relied upon judgment of this Court reported in : (1995)ILLJ173Bom Employees' State Insurance Corporation v. Sayeeda Khatoon Danawala and Ors. It was a case under the ESI Act and in that case one Mr. M. (SIC) Danawala insured person was employed at the time of his death in Kandivli factory of Mahindra and Mahindra Ltd. which was duly covered under the provisions of the Employees' State Insurance Act, 1948, while he was so standing in the queue waiting for the bus provided by his employers through the contractors for joining duty, the deceased was run over by the bus and he died in the accident. It was the same bus by which he was to travel. In this background of the matter, this Court held that it was an employment injury.
17. Therefore, considering different authorities cited by the counsel for the appellants and the respondent No. 1, this is a clear cut case of an employment injury. The judgment of the Supreme Court relied upon by the counsel for the respondent No. 1 i.e. judgment reported in : (1997)ILLJ34SC has no application because the facts of the present case are totally different. In the case before the Supreme court, the accident occurred away from the place of the employment while the deceased was travelling by his own vehicle. May be that vehicle was purchased by from out of the loan given by his employer. In the instant case the respondent No. 1 came to the place of employment by the bus provided by the employer, and after working hours were over, she went to the place outside the factory to go by some bus provided by the employer to take her back either to her residence or to pick up point near her residence. Considering Section 51(C) and one judgment of the Bombay High Court relied upon by Mr. Singh, it is a clear cut case of employment injury and therefore the contention of the counsel for the appellants that Tribunal had no jurisdiction is required to be accepted.
18. Secondly, also when the respondent No. 1 had received compensation under the ESI Act then she cannot claim any other benefit under the Motor Vehicles Act. Both these important aspects of the matter going to the root of the case were either ignored by the Tribunal or were not properly considered and therefore the Tribunal came to a wrong conclusion. The conclusions are perverse and against the provisions of law, they are required to be set aside.
19. In the result, the appeal is allowed. Impugned Order and judgment is set aside and quashed. Application filed by the Respondent No. 1 is dismissed. However, in the circumstances, there shall be no order as to costs. The monies which have been deposited by the appellants shall be refunded to them and if they are invested along with the interest. If they have been received by the respondent No. 1, she will return them within eight weeks from today, otherwise she will be liable to pay interest at the rate of 6% per annum.