NATIONAL INSURANCE COMPANY LTD.versusHAMIDA KHATOON AND ORS.

                        [2009] 8 S.C.R. 248


A            NATIONAL INSURANCE COMPANY LTD. ..
                                 v.
                 HAMIDA KHATOON AND ORS.
                 (Civil Appeal No. 3324 of 2009)

                           MAY 6, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

       Motor Vehicles Act, 1988 - s. 173 - Motor accident -
C Resulting in death - Claim for compensation - Award by
  Motor Accident Claims Tribunal - Appeal by insurer
  contending that application for claim being u/s 173, not
  maintainable in view of s.53 of Employees States Insurance
  Act, 1948 - Appeal dismissed by High Court - On appeal,
D Held: Entitlement to the claim to be worked out by the Tribunal
  by taking note of s. 53 - Employees States Insurance Act,
  1948 - s. 53.

      Regional Director, ES/ Corporation and Anr. v. Francis ,
  De Costa and Anr. 1993 Suppl.(4) SCC 100; A. Trehan v.
E Associated Electrical Agenc-ies 1996(4) SCC 255 and
  Bharagath Engg. v. R. Rangamayaki 2003"(2)SCC 138, relied
  on.

                        Case Law Reference:
F
        1993 Suppl.(4) sec 100 Relied on              Para 6

        1996(4) sec 255               Relied on       Para 7

        2003(2) sec 138               Relied on       Para 8

G       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3324 of 2009.

      From the Judgment & Order dated 28.10.2002 of the High
  Court of Judicature at Allahabad in FAFO No. 2019 of 2002.
H                              248
                 NATIONAL INSURANCE COMPANY LTD. v. HAMIDA 249
     -.:                     KHATOON AND ORS.
                      Atul Nanda, R. Hakeem, Sanjay Bhardwaj and P.N. Puri            A
                for the Appellants.

                    K. Radhakrishnan, B. Sunita Rao, Sunita Sharma, S.N.
                Terdol and Sushma Suri for the Respondents.

                     The Judgment of the Court was delivered by                       B

                     DR. ARIJIT PASAYAT, J. 1. Leave granted.

                      2. Challenge in this appeal is to the judgment of the
                Division Bench of the Allahabad High Court dismissing the
                                                                                      c
                appeal filed by the present appellant (hereinafter referred to as
                the 'insurer').

                    3. Factual position which is almost undisputed is
                essentially as follows:
                                                                                      D
                    An appeal was filed questioning the correctness of the
                Award made by the Motor Accident Claims Tribunal,
                Saharanpur (hereinafter referred to as the 'MACT') wherein a
                sum of Rs.1,20,000/- was awarded as compensation.
                                                                                      E
                     The claim petition was filed on the basis that op 1.5.1991
                while Abdul Hamid (hereinafter referred to as the 'deceased')
                was traveling by Matador No. URF-9761 from Saharanpur to
                Sarsawa, a truck bearing registration No.PIJ-5166 belonging
                to Border Security Force (in short the 'BSF') dashed against
                the said vehicle resulting in serious injuries on the body of the     F
                deceased. He succumbed to the injuries at the SOB Hospital
                Saharanpur. The appellant-insurer contested the claim petition
                inter alia taking the stand that the compensation as claimed
'~              was high and exorbitant. The MACT held that the accident
           -;   occurred due to rash and negligent driving of the driver of the       G
                truck and awarded Rs.1,20,000/- as compensation.

                      In appeal the stand of the appellant was that the application
                filed by the claimant- respondent under Section 173 of the
                Motor Vehicles Act, 1988 (in short the ·Act') was not                 H
    250       SUPREME COURT REPORTS                [2009] 8 S.C.R.
                                                                            ~

A maintainable in view of Section 53 of the Employees State
  Insurance Act, 1948 (in short the "ESI Act'). The High Court did
  not accept the stand primarily on the ground that no such plea
  was taken specifically in the written statement. It was also held
  that as regards applicability of Section 53 of the Act certain
B factual aspects were to be considered. The appeal was
  accordingly dismissed.

        4. Learned counsel for the appellant submitted that true
    scope and. ambit of Section 53 of the ESI Act has not been
    kept in view.
c
        5. Learned counsel for the respondent on the other hand
    supported the judgment.

      6. It is to be noticed that in Regional Director, ES/
D Corporation & Anr. v. Francis De Costa and Anr. [1993
                                                                       ..
  Suppl.(4) sec 100] at para 44 it was observed as follows:

                44. The next contention that the Motor Vehicles Act
          provides the remedy for damages for an accident resulting
          in death of an injured person and that, therefore, the
E         remedy under the Act cannot be availed of lacks force or
          substance. The general law of tort or special law in Motor
          Vehicles Act or Workmen's Compensation Act may
          provide a remedy for damages. The coverage of insurance
          under the Act in an insured employment is in addition to
F         but not in substitution of the above remedies and cannot
          on that account be denied to the employee. In K. Bharathi
          Dev v. G.l.C.I [AIR 1988 AP 361] the contention that the
          deceased contracted life insurance and due to death in air
          accident the appellant received compensation and the
G         same would be set off and no double advantage of
                                                                       >-
          damages under carriage by Air Act be given was
          negatived.

       7. In A Trehan v. Associated Electrical Agencies [1996(4)
H
    sec 255] it was observed as follows:
NATIONAL INSURANCE COMPANY LTD. v. HAMIDA 251
  KHATOON AND ORS. [DR. ARIJIT PASAYAT, J.]
     "The ESI Act was enacted with an object of introducing a       A
    scheme of health insurance for industrial workers. The
    scheme envisaged by it is one of compulsory State
    insurance providing for certain benefits in the event of
    sickness, maternity and employment injury to workmen
    employed in or in connection with the work in factories other   B
    than seasonal factories. The ESI Act which has replaced
    the Workmen's Compensation Act, 1923 in the fields
    where it is made applicable is far more wider than the
    Workmen's Compensation Act and enlarges the scope of
    compensation. Section 38 provides that all employees in         c
   factories or establishments to which the ESI Act applies
   shall be insured in the manner provided in it. Under Section
   39 the employer is also made liable to pay contribution.
   Section 42 provides for circumstances under which the
   employee need not pay his contribution. Section 46               D
   provides for the benefits which the insured persons, their
   dependants and the persons mentioned therein shall be
   entitled to get on happening of the events mentioned
   therein. Sections 51-A to 51-D create certain fictions in
   favour of the employee so as to have wider coverage for          E
   him. In case of an employment injury Section 46 provides
   periodical payments to him or to his dependants in case
  of his death. Employment injury is defined by Section 2(8)
  to mean 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                  F
  employment, whether the accident occurs or the
  occupational disease is contracted within or outside the
  territorial limits of India. Section 2(9) defines employee to
  mean any person employed for wages in or in connection
  with the work of a factory or establishment to which the. ESI     G
  Act applies. It includes other persons but it is not necessary
  to refer to that part of the definition. Insured person is
  defined by Section 2(14) to mean a person who is or was
  an employee in respect of whom contributions are or were
  payable under the Act and who is by reason thereof,               H
    252       SUPREME COURT REPORTS                  (2009] 8 S.C.R.


A         entitled to any of the benefits provided by the ESI Act. The
          Second Schedule to the ESI Act specifies the injuries
          deemed to result in permanent total disablement or
          permanent partial disablement. Rule 54 of the Employees'
          State Insurance (Central) Rules, 1950 provides othe daily
B         rate of benefit which the employee would get if an
          employment injury is suffered by him. Rule 57 provides for
          disablement benefits. Rule 58 provides for dependant's
          benefits in case the injured person dies as a result of an
          employment injury. Rule 60 provides for the medical
c         benefits to an insured person who ceases to be in an
          insured employment on account of permanent
          disablement. Other benefits are also conferred by the ESI
          Act and the Rules but it is not necessary to refer to them
          for deciding the point which arises in this case. Two other
          provisions in the ESI Act to which it is necessary to refer
D
          are Sections 53 and 61. The present Section 53 was
          substituted by Act No. 44 of 1966 with effect from 28-1-
          1968. Section 61 has been there in the Act since it came
          into force. It provides that when a person is entitled to any
          of the benefits provided by the ESI Act he shall not be
E         entitled to receive any similar benefits admissible under
          the provisions of any other enactment. Thus, by enacting
          Section 61 the legislature has created a bar against
          receiving similar benefits under other enactments. Section
          53 before its amendment read as under:
F
                "53. Disablement and dependant's benefits.--When
          an insured person is or his dependants are entitled to
          receive or recover, whether from the employer of the
          insured person or from any other person, any
G         compensation or damages under the Workmen's
          Compensation Act, 1923, or otherwise, in respect of an
          employment injury sustained by the insured person as an
          employee under this Act, then the following provisions shall
          apply, namely-
H
     NATIONAL INSURANCE COMPANY LTD. v. HAMIDA 253
       KHATOON AND ORS. [DR. ARIJIT PASAYAT, J.]
                (i) The insured person shall, in lieu of such              A
                compensation or damages, receive the
                disablement benefit provided by this Act, (but
              , subject otherwise to the conditions specified in the
                Workmen's Compensation Act, 1923) from the
                Corporation and not from any employer or other             B
                person.

              · (li)-(iv)          *                 *                *


               (v) Save as modified by this Act the obligations and        C
               liabilities Imposed on an employer by the
               Workmen's Compensation Act, 1923, shall
               continue to apply to him."

       9. Experience of the administration of the ESI Act had              o
       disclosed certain difficulties in its working. It was, therefore,
       further amended in 1966. Along with other amendments
       made Din the ESI Act the legislature substituted present
       Section 53 which read as under:

              "53. Bar against receiving or recovery of E
              compensation or damages under any other law. -
              An insured person or his dependants 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 F
              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."                                 G
.,
      10. The Workmen's Compensation Act was enacted by the ,
      legislature in 1923 with a view to provide for the payment
      by. certain classes of employers to their workmen
      compensation for injury by accident. Section 3(1) of the H .
    254       SUPREME COURT REPORTS                 [2009] 8 S.C.R.


A         Act provides that if personal injury is caused to a workman
          by accident arising out of and in the course of his
          employment, his employer shall be liable to pay
          compensation in accordance with the provisions contained
          in that Act. Under Section 2(1 )(c) the word compensation
B         is defined to mean compensation as provided for by the
          Act. The definition of the workman under the Act is as
          under:

                 "2. (1)(n) ·workman' means any person (other than
                 a person whose employment is of a casual nature
c                and who is employed otherwise than for the
                 purposes of the employer's trade or business) who
                 is--

                 (i)   *           *                *
D
                 (ii) employed in any such capacity as is specified
                 in Schedule 11,

          whether the contract of employment was made before or
          after the passing of this Act and whether such contract is
E         expressed or implied, oral or in writing; but does not
          include any person working in the capacity of a member
          of the Armed Forces of the Union; and any reference to a
          workman who has been injured shall, where the workman
          is dead includes a reference to his dependants or any of
F         them."

          11. A comparison of the relevant provisions 'of the two Acts
          makes it clear that both the Acts provide for compensation
          to a workman/employee for personal injury caused to him
G         by accident arising out of and in the course of his
          employment. The ESI is a later Act and has a wider
          coverage. It is more comprehensive. It also provides for
          more compensation than what a workman would get under
          the Workmen's Compensation Act. The benefits which an
          employee can get ::Junder the ESI Act are more substantial
H
    NATIONAL INSURANCE COMPANY LTD. v. HAMIDA 255
      KHATOON AND ORS. [DR. ARIJIT PASAYAT, J.]
      than the benefits which he can get under the Workmen's           A
      Compensation Act. The only disadvantage, if at all it can
      be called a disadvantage, is that he will get compensation
      under the ESI Act by way of periodical payments and not
      in a lump sum as under the Workmen's Compensation
      Act. If the legislature in its wisdom thought it better to       B
      provide for periodical payments rather than lump sum
      compensation its wisdom cannot be doubted. Even if it is
      assumed that the workman had a better right under the
      Workmen's Compensation Act in this behalf it was open
      to the legislature to take away or modify that right. While      c
      enacting the ESI Act the intention of the legislature could
      not have been to create another remedy and a forum for
      claiming compensation for an injury received by the
      employee by accident arising out of and in the course of
      his employment.
                                                                       D
       12. In this background and context we have to consider the
       effect of the bar created by Section 53 of the ESI Act. Bar
       is against receiving or recovering any compensation or
       damages under the Workmen's Compensation Act or any
      other law for the time being in force or otherwise in respect    E
      of an employment injury. 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" and "under the Workmen's                F
      Compensation Act, 1923 (8of1923), or any other law for
      the time being in force or otherwise". 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      G
      referring to the previous history of the legislation. That
      would amount to bypassing the bar and defeating the
      object of the provision. In view of the clear language of the
      section we find no justification in interpreting or construing
      it as not taking away the right of the workman who is an         H
    256       SUPREME COURT REPORTS                    [2009] 8 S.C.R.

A         insured person and an employee under the ESI Act to
          claim compensation under the Workmen's Compensation
          Act. We are of the opinion that the High Court was right in
          holding that in view of the bar created by Section 53 the
          application for compensation filed by the appellant under
B         the Workmen's Compensation Act was not maintainable.

          13. The observations made in Francis De Costa2 by K.
          Ramaswamy, J. were made i.n a different context. In that
          case the question which had arisen for consideration was
          whether the injury caused by an accident on a public road
c         while an employee was on his way to join duty can be held
          as arising out of or in the course of his employment within
          the meaning of Section 2(8) of the ESI Act. Moreover, in
          that case the Court was not examining the bar created by
          Section 53 of the ESI Act."                                         I.
D
        8. In Bharagath Engg. v. R. Rangamayaki [2003(2) SCC
    138) it was held as follows:

          8. Section 2(14) of the Act, which is the pivotal provision,
          reads as follows:
E
                 "'Insured person' means a person who is or was an
                 employee in respect of whom contributions are or
                                                                            -..
                 were payable under this Act and who is, by reason
                 thereof, entitled to any of the benefits provided by
F                this Act."

          9. It is to be noted that the crucial expression in Section
          2(14) of the Act is "are or were payable". It is the obligation
          of the employer to pay the contribution from the date the
G
          Act applies to the factory or the establishment. In ES/
          Corpn. v. Harrison Malayalam (P) Ltd. [1993(4) SCC 361]
          the stand of the employer that employees are not traceable
          or that there is dispute about their whereabouts does not
          do away with the employer's obligation to pay the
          contribution. In ES/ Corpn. v. Hotel Kalpaka International
H
     NATIONAL INSURANCE COMPANY LTD. v. HAMIDA 257
       KHATOON AND ORS. [DR. ARIJIT PASAYAT, J.)
       [1993 (2) sec 9) it was held that the employer cannot be      A
       heard to contend that since he had not deducted the
       employee's contribution on the wages of the employees
       or that the business had been closed, he could not be
       made liable. The said view was reiterated in ES/ Corpn.
       v. Harrisons Malayalam Ltd (1998(9) SCC 74] That being        B
       the position, the date of payment of contribution is really
       not very material. In fact, Section 38 of the Act casts a
       statutory obligation on the employer to insure its
       employees. That being a statutory obligation, the date of
       commencement has to be from the date of employment            c
       of the employee concerned.

       10. The scheme of the Act, the Rules and the Regulations
       clearly spell out that the insurance covered under the Act
       is distinct and different from the contract of insurance in
       general. Under the Act, the contributions go into a fund D
       under Section 26 for disbursal of benefits in case of
       accident, disablement, sickness, maternity etc. The
       contribution required to be made is not paid back even if
       an employee does not avail any benefit. It is to be noted
       that under Regulation 17-A, if medical care is needed E
       before the issuance of temporary identification certificate,
       the employer is required to issue a certificate of
       employment so that the employee can avail the facilities
       available. "Wage period", "benefit period" and
       "contribution period" are defined in Section 2(23) of the F
       Act, Rule 2(1-C) and Rule 2(2-A) of the Rules. Rule
       58(2)(b) is a very significant provision. For a person who
       becomes an employee for the first time within the meaning
       of the Act, the contribution period under Regulation 4
       commences from the date of such employment from the G
       contribution period current on that day and the
       corresponding benefit period shall commence on the expiry
       of the period of nine months from the date of such
       employment. In cases where employment injuries result in
.,     death before the commencement of the first benefit H
      258       SUPREME COURT REPORTS                   [2009] 8 S.C.R.


 A          period, Rule 58(2)(b)(ii) provides the method of
            computation of dependant's benefits. It provides for
            computation of dependant's benefits in the case of an
            employee dying as a result of employment injuries
            sustained before the first benefit period and before the
 B          expiry of the first wage period.

            11. Rule 58(2)(b)(ii), insofar as it is relevant, reads as
            follows:

                   "58. Dependant's benefits. --
 c
                   (1)   *            *                *

                   2(b) Where an employment injury occurs before the
                   commencement of the first benefit period in respect
                   of a person, the daily rate of dependant's benefit
 D                 shall be-

                   (i)   *            *                *

                   (ii) where a person sustains employment injury
. E                before the expiry of the first wage period in the
                   contribution period in which the injury occurs, the
                   rate, forty per cent more than the standard benefit
                   rate, rounded to the next higher multiple of five paise
                   corresponding to the group in which wages actually
                   earned or which would have been earned had he
 F
                   worked for a full day on the date of accident fall."

            12. When considered in the background of statutory
            provisions, noted above, the payment or non-payment of
            contributions and action or non-action prior to or
 G          subsequent to the date of accident is really
            inconsequential. The deceased employee was clearly an
            "insured person", as defined in the Act. As the deceased
            employee has suffered an employment injury as defined
            under Section 2(8) of the Act and there is no dispute that
 H          he was in employment of the employer, by operation of
    NATIONAL INSURANCE COMPANY LTD. v. HAMIDA 259
      KHATOON AND ORS. [DR. ARIJIT PASAYAT, J.J


-       Section 53 of the Act , proceedings under the
        Compensation Act were excluded statutorily. The High
        Court was not justified in holding otherwise. We find that
                                                                      A



        the Corporation has filed an affidavit indicating that the
        benefits under the Act shall be extended to the persons
        entitled under the Act. The benefits shall be worked out by   B
        the Corporation and shall be extended to the eligible
        persons."

        9 .. Above being the position in law, the appeal deserves
    to be allowed. The entitlement shall be worked out by the         C
    concerned MACT by taking note of Section 53 of the Act.

    K.K.T.                                       Appeal allowed.