United India Insurance Co. Ltd. Vs. K.N. Thipperudraiah and ors. - Court Judgment

Excerpt:
(a) employees' state insurance act, 1948 (central act no. 34 of 1948) - sections 2(8) & 51 (c) -- respondents-claimants, travelling in their employer's vehicle meeting with accident & suffering injuries but claiming benefits under -- held, accident caused in the course of employment & injuries 'employment injuries' under. ; (b) -- sections 53 & 61 -- respondents-claimants suffering injuries while travelling in their employer's vehicle in collision with kstdc bus -- respondents having taken benefits under esi act, held, not entitled to lodge a claim under m.v.act.; (c) motor vehicles act, 1939 (central act no. 4 of 1939) section 110(a) -- respondents claiming benefits under esi act, held, barred from maintaining claim petition under -- see sections 53 & 61 of esi act, 1948.; therefore, from the above discussion it is abundantly dear that the injury sustained by the claimants are employment injuries and that they were not only insured under the e.s.i. corpn. but they have also availed the benefits as provided under the act. therefore, they are not entitled to lodge a claim before the motor vehicles tribunal under the m.v. act. - code of civil procedure, 1908. order 24, rule 16 & section 146 :[ajit gunjal, j] proceedings by or against representatives - interpretation of section 146 object and scope held, section 146 was introduced for the first time in the code of civil procedure in the year 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment, and being a beneficent provisions should be construed liberally and so as to advance justice and not in a restricted or technical sense. it is always open for the decree holder including the purchasers to execute the decree. on facts held, it is only during the pendency of the execution proceedings, the first decree holder has parted with the property in question. hence, it is not open for the judgment debtors to contend that the first decree holder, having lost title to the property, cannot join hands with the subsequent purchasers in executing the decree. -- karnataka rent control act, 1961.[k.a. no. 22/1961]. section 21(1)(h): eviction proceeding under revision by tenant against order of eviction - undertaking before revisional court to hand over vacant possession of the premises in question if three years time is granted by the landlord -landlord conceded for granting three years time - failure to vacate the premises as per the undertaking contempt proceedings conviction - execution proceedings - gross abuse of the process of the court by the judgment debtor - held, no litigant is permitted to wriggle out of a situation and a solemn undertaking given to the court by way of an affidavit. the courts cannot brook the attitude of the judgment debtors for violating the solemn undertaking given. a litigant when he given an undertaking is bound by it, in all circumstances. the impunity, with which the judgment debtors have defied the law and the undertaking and have put innumerable in the way of the decree holders in getting the possession, to say the least, should be deprecated. this kind of attitude is required to be curbed at the threshold. notwithstanding the conviction in a contempt proceedings, the judgment debtors are perpetuating their high handedness, to say the least, nothing but gross abuse of the process of the court. petition dismissed with cost of rs. 25,000/-. - if they are not satisfied with the benefits provided to them, the only recourse open to them is to approach the board or the e.m.p. chinnappa, j1. these appeals are preferred by the insurance companies being aggrieved by the judgment and award dated 5.3.90 passed in m.v.c.no. 71/87 and the judgment & award dated 24.11.1988 passed in m.v.c. no. 165/87 by the motor accidents claims tribunal, allowing partly the claim petitions for compensation of the petitioners.2. the facts leading to these appeals are that on 31.8.86 at about 10.30 p.m. one k.n. thipperudraiah and m.r. sathyamurthy who are the employees of karnataka soap and detergent ltd. which comes under the employees state insurance corporation were travelling in a van bearing no. car 3865 belonging to the said employer. when the van reached near the government junior college (ammani college) at chowdaiah road, bus bearing no. caa 918 belonging to karnataka government tourist development corporation collided with the van in which these petitioners were traveling, as a result of which these persons sustained multiple previous injuries including compound fractures. therefore, they lodged claim petitions under section 110-a of the m.v. act claiming compensation, against the karnataka soap & detergent ltd., karnataka govt. insurance department (insurer of van car 3865), karnataka state tourist development corporation (owner of the bus caa 918), united india insurance co. ltd., (insurer of the bus caa 918) and k.l. venakata krishna @ krishna (driver of bus caa 918).3. after enquiry, the tribunal allowed both mvc. 71/87 and 165/ 87. in mvc, 165/87 filed by thipperudraiah the tribunal has held that he is entitled to a compensation of rs. 33,000/- with interest thereon at 9% p.a. from the date of petition till the date of realisation from the respondents 1 to 5 and as far as respondents 2 & 4 are concerned, each is directed to pay 50% of the compensation in favour of the petitioner.4. in mvc 71/87 which was filed by m.r. sathya murthy the tribunal has held that the petitioner therein was entitled to rs. 35,992/ - with interest at 9% p.a. and directed respondents 1 to 4 therein to jointly and severally pay the amount. further respondents 2 & 4 were directed to pay the compensation amount to the extent of 50% each with interest. these orders have been assailed in these appeals.5. as against the award passed in mvc 71/87 i.e. in favour of sathya murthy the k.g.i.d. preferred an appeal in m.f.a. 1338/90 and in m.f.a. 416/96 the united india insurance co. also questioned that award.6. in m.f.a. 715/89 the united india insurance co. has questioned the award of compensation in favour of k.n. thipperudraiah in mvc no. 165/87. it may be mentioned here that neither the owner nor the driver of the bus caa 918 has filed any appeal. similarly, the employer of these claimants has also not preferred any appeal. only the insurance companies have preferred these appeals as stated earlier.7. heard the learned counsel appearing for the respective parties.8. the learned advocates appearing for the appellants have vehemently argued that the claimants viz. sathya murthy and also thipperudraiah being the employees of the karnataka soap & detergent ltd. factory are covered under the employees' state insurance act, 1948 (for short 'the esi act'). they have availed e.s.i. facilities from the factory. therefore, they are not entitled to file applications before the tribunal in view of the bar contained under section 53 & 61 of the esi act. on that ground they submitted that the tribunal should have dismissed their applications.9. the advocates appearing for the claimants however submitted that they are entitled to the compensation payable to them due to the tortious liability of the third party, notwithstanding the fact that they are covered under the esi act10. admittedly these two claimants are the employees of the 2nd respondent. the van bearing no. car 3865 was provided by their employer respondent to go to their house after their work in the factory. these two employees of the 2nd respondent sustained injuries while returning home and it has to be construed that they sustained these injuries during the course of their employment in view of section 51(c) of the e.s.i. act. both the tribunals have held that it is not an employment, injury. this finding is unsustainable. the vehicle in which they were travelling after their factory work is not their own vehicle. on the other hand, the vehicle was provided by the employer. under section 51-c of the act, it is held as follows:'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 vehicle, be deemed to arise out of an 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, &(ii) is not being operated in the ordinary course of public transport service.'under the circumstances, i hold that the injuries sustained by the claimants are only employment injuries as defined under section 2(8) which reads:'employment injury' means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of india;'the finding of the learned tribunals contrary to this cannot be accepted.11. therefore, the next question that arises for consideration is as to whether the claimants have availed the benefits as provided under chapter v of the act.12. sathyamurthy who was examined before the court in mvc 71/87 has stated that he was removed to sanjay gandhi hospital and on the next day he regained consciousness. thereafter, he went to puttur bone setter and took treatment for about 3 months. however, he has stated that he did not get the salary for the said period. he was getting gross salary of rs. 2,000/-. he got esi benefit of rs. 820/ - p.m. he has spent rs. 15,000/- for the treatment both in the sanjay gandhi hospital and puttur bone setter and for conveyance.13. similarly, the claimant in mvc. 165/87 also was examined as p.w.1. he also has stated that he was removed to k.c. general hospital, malleswaram, on the same night. he was shifted to sanjay gandhi hospital for further treatment where he was treated for 21 days as in-patient. according to him, he was earning rs. 300/- to rs. 400/- p.m. which was over time. he was not given incentive for 3 months when he was taking rest at the rate of rs. 100/- p.m. he was getting a salary of rs. 1,000/- p.m. he was also not paid salaryfor 3 months when he did not come for work. during that period he received rs. 400/- p.m. from the esi benefit. according to him, he has spent rs. 10,000/- for medical expenses, conveyance, etc. both of them have admitted in the cross-examination that there is a major esi hospital situated in rajajinagar. all kinds of facilities are available in the said esi hospital for the treatment of such injury. he has stated that because it was a case of accident, he took treatment in sanjay gandhi hospital. these statements made under oath have not been questioned or controverted by the employer. it is not even suggested to the claimants that they have not undergone treatment in sanjay gandhi hospital, nor have they produced any rebuttal evidence. therefore, the fact remains that notwithstanding the fact that all facilities are available in the esi hospital the claimants have undergone treatment in the sanjay gandhi hospital. there also treatment is free. however, from their own admission, it is dear that they have availed all other facilities provided under the esi act. therefore, it is clear that the claimants sustained employment injury and they availed the facilities from the corporation.14. in view of this, the only argument of the appellants is that the claimants are debarred from filing applications under m.v. act in view of sections 53 & 61 of the esi act as they are not entitled to any relief and the tribunals have committed error in granting compensation in favour of the claimants. this argument has been repelled by the claimants and they supported the impugned order on the ground that these injuries are due to tortious act of the drivers of the bus and the van.15. it may be mentioned that the finding of the tribunal that the accident was due to rash and negligent driving of both the vehicles has not been questioned by the respondents therein. hence the finding of the tribunal is final. therefore, it can be safely held that the accident is a tortious liability as these injuries were sustained in the course of employment and therefore, these injuries are employment injuries. with this prelude it is now necessary to consider the bar contained under sections 53 & 61 of the act which has been raised by the appellants, which read as follows:53. 'bar against receiving or recovery of compensation or damages under any other law;an insured person or his dependents 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 under the workmen's compensation act, 1923 (8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this act.') section 61 'bar of benefits under other enactments.- when a person is entitled to any of the benefits provided by this act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.'these objections were raised before the tribunal and the tribunal after relying on the decisions cited before it held that the petition cannot be said to be barred under section 53 of the e.s.i. act when the relief is sought for under the motor vehicles act & it is not confined to employment injury, etc. from a reading of the finding of the learned tribunal it appears that the tribunal has proceeded under the assumption that if the claim is against third party the petition is maintainable. if that is so, no liability should have been fastened on the employer because the employer is contributing the amount to the corporation as provided under the e.s.i. act & the corporation had provided all facilities to the employer. if the employer is not liable, naturally the insurance company where the vehicle was insured also is not liable to indemnify the owner. therefore, that finding of the tribunal is contrary to its own conclusions. it is not the case of the claimants that the benefits received from the corporation are insufficient or that they have not availed any benefit. oh the other hand, they have availed all the benefits as provided under the e.s.i. act. therefore, they cannot claim the additional benefit or in other words the benefit provided under the m.v. act, the e.s.i. act is a self contained act and it is provided for speedy and efficacious remedy to the employees who are covered under the e.s.i. act. if they are not satisfied with the benefits provided to them, the only recourse open to them is to approach the board or the e.s.i. court. in this case, admittedly the claimants have not raised their little finger saying that the benefits provided to them are either inadequate or insufficient. they have also not made out any ground on that aspect. they further did not approach the corporation either by way of a suit or by way of an appeal as provided under the e.s.i. act.therefore, it is clear that though it is employment injury and notwithstanding the fact that they have availed the benefit as provided under the e.s.i. act, they approached the m.a.c.t. under the motor vehicles act, which is barred under sections 53 and 61 of the e.s.i. act. chapter v of the e.s.i. act deals with benefits and section 61 under that chapter is a general clause which prohibits a person from claiming any benefits under any law when he has received any similar benefit admissible under the provisions of any other enactment. chapter vi deals with adjudication of dispute and claims. for this purpose the insurance court also was established and the court has to decide the matters connected with the employees covered under the insurance.16. the learned tribunal has relied on a decision reported in h.a.l. v. p. venu and anr. klj 1971 384 wherein this court has held that though the claim of compensation could be made only under the provisions of chapter viii of the m.v. act, the right to sue is quite a different matter which originates from substantive law, viz. law of torts, which is common law and not an enactment. consequently, section 61 of the e.s.i. act would not bar a claim under section 110-a of the m.v, act. subsequently this court had an occasion to deal with sections 53 & 61 of the e.s.i. act, in a decision reported in vasantha k.s. and ors. v. k.s.r.t.c. 1981 klj 202in that case the bus was taken on contract basis by the n.g.e.f. to facilitate its workmen to reach the factory and to return to their respective places from the factory. as a result of an accident to the bus eight persons were injured and two died and claims were made under section 110-a of the m.v. act by the injured and the representatives of the deceased for compensation, wherein it is held:(1) reading section 2(8) along with section 51c of the esi act, the injuries sustained and the death of the two persons was nothing but employment injury.(2) the remedy open to the injured and the lrs. of the deceased was to approach the esi corporation constituted under the esi act and not the tribunal constituted under the m.v. act or under any other law for the time being in force including common law right under the law of torts.'this decision was subsequently followed by our high court in a decision reported in annapurna and ors. 1984 acj 238 v. k.s.r.t.c. and ors. the question before the court was that the employment injury - death of an employee of the transport corporation by an accident in the depot of the corporation due to careless driving of a bus whether the legal representatives of the deceased can claim compensation under the m.v. act. - held no; section 53 of the e.s.i. act has other remedies.17. therefore, from the above discussion it is abundantly dear that the injury sustained by the claimants are employment injuries and that they were not only insured under the e.s.i. corpn. but they have also availed the benefits as provided under the act. therefore, they are not entitled to lodge a claim before the motor vehicles tribunal under the m.v. act.18. it is vehemently argued by the learned counsel for the respondents that it is a tortious liability. it is no doubt true that the accident occurred on the main road but while they were travelling in the vehicle provided by the employer, that means any injury sustained by them in the motor vehicle accident as detailed above, is an employment injury. under those circumstances, they cannot say that as it is tortious liability they are entitled to the benefit. further, they have also relied on a decision reported in p. asokan v. western india plywoods ltd. m cannanore : (1987)iillj183ker . in that case, the appellant therein suffered an employment injury. he had filed a suit against his employer claiming compensation not based on any enactments. he also filed an application under order 33 rule 5 cpc. the trial court while considering the application under order 33 rule 5 of cpc., held that the suit itself was not maintainable on account of the bar contained under sections 53 and 61 of the e.s.i. act and dismissed the suit. the plaintiff preferred an appeal against that order before the kerala high court and the matter was referred to the full bench. the full bench has held that if the appellant had paid court fee, the court could not have dismissed the suit at the threshold holding that the suit is not maintainable. therefore, the court held that the dismissed order was not sustainable. while allowing that appeal, the full court has held that the scheme of e.s.i. act on a dose analysis, takes care of only such liabilities as are geared to the, employment injury. they did not purport to deal with the tortious liability of an employer. the enactment is not one intended to relieve the employer of the alleged hardship arising out of a multiplicity of liabilities, which is simultaneously a tort under common law and violation of a statutory provision. a different view would produce patently discriminatory results which could hardly be upheld by an alert judicial mind.19. in a. trehan versus associated electrical agencies and anr. : (1996)iillj721sc their lordships of the supreme court have considered section 53 of the e.s.i. act (as amended in 1966) and 2(8) and 15 and held that an application under section 2(22) of workmen's compensation act for compensation in respect of an employment injury filed by an injured person attracted the bar under section 53. in that judgment. their lordships also considered the full bench decision rendered by the kerala high court reported in asokan case referred to supra partly over ruled and partly distinguished. in that connection it is held:'we cannot agree with some of the assumptions and observations made by the kerala high court. moreover, the kerala high court has taken that view without referring to and considering the effect of the clear and express words used in that section. again that was not a case where a question whether an employee and an insured person under the esi act can again claim the compensation under the workmen's compensation act had arisen for consideration. we are, therefore, of the opinion that neither, the observations made by k. ramaswamy, j. in francis de costa nor the decision in p. asokan case can be of any help to the appellant.'their lordships have also considered the judgment rendered by the karnataka high court in k.s. vasantha v. ksrtc and annapurna and ors. v. k.s.r.t.c and ors. which are referred to supra and held that the effect of the bar created by section 53 of the e.s.i. act with respect to the claim for compensation made under the motor vehicles act for injuries received because of an accident arising out of and in the course of employment, that the view taken by this high court with respect to the object of section53 of the e.s.i. act and the nature and effect of the bar created by it appears to be correct. under the circumstances, the contention of the respondents that the claim petitions do not come under the purview of section 53 & 61 of the act is unsustainable.20. in the result therefore, i proceed to pass the following:orderthese three appeals are allowed. the impugned orders are hereby set aside. consequently, the applications filed by the claimants stand dismissed. under the peculiar circumstances of the case, there is no order as to costs.