Western India Plywood Ltd. Vs. Shri P. Ashokan
EmailAppeal: Civil Appeal No.1404 OF 1988.
(From the Judgment and Order dated 22.12.86 of the Kerala High
Court in C.M.A.No.184 of 1983)
(From the Judgment and Order dated 22.12.86 of the Kerala High
Court in C.M.A.No.184 of 1983)
Petitioner: Western India Plywood Ltd.
Respondent: Shri P. Ashokan
Apeal: Civil Appeal No.1404 OF 1988.
(From the Judgment and Order dated 22.12.86 of the Kerala High
Court in C.M.A.No.184 of 1983)
(From the Judgment and Order dated 22.12.86 of the Kerala High
Court in C.M.A.No.184 of 1983)
Judges: S.B. MAJMUDAR & B.N. KIRPAL, JJ.
Date of Judgment: Sep 19, 1997
Appearances:
A.S.Nambiar, Sr.Advocate, Ms.Shanta Vasudevan and P.K.Manohar, Advocates with him for the Appellant.
Manoj Swarup, Ms.Lalita Kohli, Advocates for M/s. Manoj Swarup & Co., Advocates for the Respondent.
Head Note:
SERVICE AND LABOUR LAW
Employee State Insurance Act
Section 53, 61 – read with Order 33 Rule 1 of Civil Procedure Code Compensation for employment injury where compensation alrea-dy granted where compensation already granted under ESI Act – Held claims of employees against employer were meant to be gov-erned by ESI Act alone and claim of employee against his employer for employment injury in addition to Compensation granted under ESI Act is barred under Section 53 of ESI Act and trial Court was right in dismissing application under order 33 Rule 1 of Civil Procedure – Order of High Court set aside.
Held:
In view of the aforesaid observations in Trehan’s case, with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Section 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen’s Compensa-tion Act or any other law for the time being in force or other-wise. The use of the expression “or otherwise” would clearly indicate that this section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the Legisla-ture had thought it fit to prohibit an insured person from re-ceiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sus-tained by him is an employment injury.(Para 13)
The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalamma’s case (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 53 of the ESI Act, the trial court was right in dismissing the application under Order 33 Rule 1 of the Code of Civil Procedure. The position in law being clear and concluded by the decision of this Court in Tre-han’s case (supra) we see no justification for the Court not exercising its jurisdiction under Article 136, as was contended by the respondent’s counsel. The incorrect decision on a point of law of the High Court has to be corrected.
In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case to decide this issue finally because in the instant case the claim which was sought to be made was not against the third party but against the employer itself. Perhaps this ques-tion may require consideration in an appropriate case.(Para 14, 15 & 17)
Cases Reffered:
1. A. Trehan Vs. Associated Electrical Agencies and Anr. JT 1996(5) SC 648 = ((1996) 4 SCC 255).(Para 11)
2. K.S. Vasantha and Ors. v. Karnataka State Road Transport Corporation ( (1982) 60 FJR 118 ) (Para 9)
3. Mangalamma and Ors. v. Express Newspapers Ltd. and Anr. ( AIR 1982 Madras 223 ).(Para 9)
4. Hindustan Aeronautics Ltd. Vs. P. Venu Perumal and Anr. ( AIR 1972 Mysore 255 ).(Para 10)
2. K.S. Vasantha and Ors. v. Karnataka State Road Transport Corporation ( (1982) 60 FJR 118 ) (Para 9)
3. Mangalamma and Ors. v. Express Newspapers Ltd. and Anr. ( AIR 1982 Madras 223 ).(Para 9)
4. Hindustan Aeronautics Ltd. Vs. P. Venu Perumal and Anr. ( AIR 1972 Mysore 255 ).(Para 10)
JUDGEMENT:
KIRPAL, J.:
1. The sole question which arises for consideration in this appeal is whether the respondent, who is an employee of the appellant, can claim damages from the appellant on account of the injury suffered by him during the course of employment when he has already received the benefit under the provisions of the Employees State Insurance Act 1948 (hereinafter referred to as the ‘ESI Act’).
2. Briefly stated the facts are that the appellant is a company owning and operating a plywood factory. The respondent, who was working with the company, met with an accident when he
was feed-ing the DAP compound into the roller mill by pushing it with his own hand. As a result of this accident one of his hands was amputated. Notwithstanding this accident, the appellant allowed the respondent to continue in its service without any reduction in remuneration.
3. The ESI Act was applicable to the employees of the appellant company, including the respondent. After the aforesaid accident a claim was made thereunder and as a result thereof the disabled benefit of Rs.260/- per month on account of permanent/partial disablement was ordered to be paid to the respondent. This decision of the Employees State Insurance Corporation to pay the said amount was not challenged. It is the case of the appellant that besides this benefit under the ESI Act, the medical expenses for the treatment of the respondent were also borne by it and in fact the said respondent received the best medical treatment available in that area.
4. While still in service the respondent filed OP No.108 of 1981 in the court of Subordinate Judge, Tellicherry, under Order 33 Rule 1 of the Code of Civil Procedure, seeking permission of the court to allow him to file a suit against the appellant herein for Rs.1,50,000/- as compensation for the injuries sus-tained by him on account of the aforesaid accident which had taken place in April, 1980. This application was opposed by the appellant herein, inter alia, on the ground that it was liable to be dismissed under Order 33 Rule 5 (d) and (f) of the Code of Civil Procedure, in view of the provisions of Section 53 of the ESI Act, which barred the receiving or recovery of any compensa-tion or damages by an employee under any law other than the Employees State Insurance Act. This contention of the appellant was upheld and the Subordinate Court dismissed the said applica-tion of the respondent.
5. The respondent thereafter filed an appeal before the High Court of Kerala. A Division Bench of the High Court doubted the correctness of an earlier Bench decision on the same question and, consequently, the case was referred to a Full Bench. The Full Bench consisting of three learned judges held that the provisions of Section 53 and 61 of the ESI Act did not bar an action by an injured employee under tort for compensation against the employer. It accordingly allowed the appeal and directed the application of the respondent under Order 33 Rule 1 to be decided by the trial court on merits and in accordance with law. Hence this appeal by special leave.
6. It was submitted by Mr. A.S. Nambiar, learned senior counsel for the appellant, that the Employees State Insurance Act is a self contained code and the insured employees, like the respond-ent, are entitled to the benefit in case of injury suffered under the provisions of the ESI Act and such employees in the case of an employment injury are debarred from making any claim under any other act or law. In this connection our attention was drawn to the relevant provisions of the ESI Act. Mr. Manoj Swarup, learned counsel for the respondent, on the other hand, submitted that Section 53 should be construed in such a way that an ag-grieved employee is able to receive adequate compensation on account of the injury which is sustained by him. It was contend-ed that the amount which was paid under the ESI Act could not be regarded as an adequate measure of damages suffered by the re-spondent and, therefore, Section 53 should not be construed in such a way as to prevent an employee from bringing about an action in tort. In the alternative it was submitted that this Court, in exercise of its jurisdiction under Article 136 of the Constitution, should not interfere in the present case.
7. There are only three provisions of the ESI Act which are relevant for the present case. Section 2 (8) defines the term ’employment injury’ and reads as follows:
“’employment injury’ means a perennial injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employ-ment whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.”
8.The two other sections with which we are concerned in this case are Sections 53 and 61 which are as follows:
“53. Bar against receiving or recovery of compensation on damag-es 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 of an employment injury sustained by the insured person as an employee under this Act.
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.”
9. The aforesaid provisions have been construed by different courts including this Court. Mr. Nambiar first relied upon the decision of the Karnataka High Court in K.S. Vasantha and Ors. v. Karnataka State Road Transport Corporation ( (1982) 60 FJR 118 ) wherein it was held, while construing Section 53 of the ESI Act, that where workmen travelling to work on a transport provided by the employer had suffered injury by an accident caused to the vehicle, it amounted to employment injury and that Section 53 was a bar to any claim by the insured under any other law or the Workmen’s Compensation Act, 1923. Their remedy, it was held, was only to claim compensation or damages from the Employees State Insurance Corporation. To the same effect is the judgment or the Madras High Court in the case of Mangalamma and Ors. v. Express Newspapers Ltd. and Anr. ( AIR 1982 Madras 223 ). While constru-ing Section 53 the Madras High Court held that the object of Section 53 of the Act was to save the employer from facing more than one claim in relation to the same accident. In Annapurna and Ors. v. General Manager, Karnataka Road Transport Corporation, Bangalore and Ors. ( 1984 Lab.I.C 1355 ) a Division Bench of the Karnataka High Court followed its judgments and reiterated Section 53 created a bar to the recovery of compensation under law in cases where the insured person had received an employment injury.
10. Mr. Swarup, however, relied on the decision in the case of Hindustan Aeronautics Ltd. Vs. P. Venu Perumal and Anr. ( AIR 1972 Mysore 255 ). It was held by the Mysore High Court that the right to sue under the Motor Vehicles Act originates from the substantive law, namely, the law of tort. This law was not an enactment and, consequently, the provisions of Section 61 of the ESI Act could not prohibit an employee from making a claim under Section 110 of the Motor Vehicles Act claiming damages on account of injuries suffered in an accident. Though the observations in the said judgment do support the submission of Mr. Swarup but the High Court did not consider in that case the applicability and effect of Section 53, with which we are concerned here.
11. The position with regard to the claim of an employee against his employer on his suffering an employment injury now stands settled with the decision of this Court in A. Trehan Vs. Asso-ciated Electrical Agencies and Anr. JT 1996(5) SC 648 = ((1996) 4 SCC 255). In that case Trehan, who was an employee of the re-spondent, received injuries on his face while he was carrying out repairs of a television in the course of his employment as a result of which he lost vision in the left eye. After receiving the benefit from the Employees’ State Insurance Corporation under the ESI Act he served a notice on the respondent demanding Rs.7 lacs as compensation. Thereafter he filed an application under the Workmen’s Compensation Act claiming compensation of Rs.1,06,785/-. The employer objected to the maintainability of the same and relied upon Section 53 of the ESI Act. The Commis-sioner overruled the employer’s objection and followed the judg-ment of the Full Bench of the Kerala High Court in the present case and observed that ESI being a welfare legislation, the Parliament could not have intended to create a bar against the workmen claiming more advantageous benefit under the Workmen’s Compensation Act. The single judge of the High Court dismissed the writ petition filed by the employer but the Division Bench, in appeal, held that in view of the bar created by Section 53, the application for compensation filed by Trehan was not main-tainable. This Court analysed the provisions of Section 53 of the ESI Act and observed at page 260 as follows:
” 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 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 Compensation Act, 1923 (8 of 1923), 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 permis-sible 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. In view of the clear language of the section we find no jus-tification in interpreting or construing it as not taking away the right of the workman who is an insured person and an em-ployee under the ESI Act to claim compensation under the Work-men’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 ap-pellant under the Workmen’s Compensation Act was not maintain-able.”
12. The judgment under appeal in the present case of the Full Bench of the Kerala High Court was considered and it was ob-served that “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 consider-ing the effect of the clear and express words used in that sec-tion.”
13. In view of the aforesaid observations in Trehan’s case, with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Section 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen’s Compensa-tion Act or any other law for the time being in force or other-wise. The use of the expression “or otherwise” would clearly indicate that this section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the Legisla-ture had thought it fit to prohibit an insured person from re-ceiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sus-tained by him is an employment injury.
14. The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalamma’s case (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 53 of the ESI Act, the trial court was right in dismissing the application under Order 33 Rule 1 of the Code of Civil Procedure.
15. The position in law being clear and concluded by the deci-sion of this Court in Trehan’s case (supra) we see no justifica-tion for the Court not exercising its jurisdiction under Article 136, as was contended by the respondent’s counsel. The incorrect decision on a point of law of the High Court has to be corrected.
16. During the course of hearing it had been argued that Section 53 should not be construed in such a way that an insured person cannot raise a claim against athird party in the event of his suffering an employment injury. It was submitted that though qua the employer only one remedy may be available, namely, under the ESI Act but as far as third persons are concerned Section 53 cannot be taken up as a defence to an action in tort in a claim being made for damages because the ESI Act creates certain rights as a result of the employment qua the employer and has no appli-cation as far as third parties are concerned. In this connection it was submitted that the use of the words ’employment injury’ in Section 53 relates to a claim which is relatable to the employ-ment of the insured person with his employer.
17. In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case to decide this issue finally because in the instant case the claim which was sought to be made was not against the third party but against the employer itself. Perhaps this ques-tion may require consideration in an appropriate case.
18. For the aforesaid reasons this appeal is allowed. The judgment of the High Court is set aside and that of the trial court dismissing the respondent’s application under Order 33 Rule 1 of the Code of Civil Procedure is restored. There will be no order as to costs.
1. The sole question which arises for consideration in this appeal is whether the respondent, who is an employee of the appellant, can claim damages from the appellant on account of the injury suffered by him during the course of employment when he has already received the benefit under the provisions of the Employees State Insurance Act 1948 (hereinafter referred to as the ‘ESI Act’).
2. Briefly stated the facts are that the appellant is a company owning and operating a plywood factory. The respondent, who was working with the company, met with an accident when he
was feed-ing the DAP compound into the roller mill by pushing it with his own hand. As a result of this accident one of his hands was amputated. Notwithstanding this accident, the appellant allowed the respondent to continue in its service without any reduction in remuneration.
3. The ESI Act was applicable to the employees of the appellant company, including the respondent. After the aforesaid accident a claim was made thereunder and as a result thereof the disabled benefit of Rs.260/- per month on account of permanent/partial disablement was ordered to be paid to the respondent. This decision of the Employees State Insurance Corporation to pay the said amount was not challenged. It is the case of the appellant that besides this benefit under the ESI Act, the medical expenses for the treatment of the respondent were also borne by it and in fact the said respondent received the best medical treatment available in that area.
4. While still in service the respondent filed OP No.108 of 1981 in the court of Subordinate Judge, Tellicherry, under Order 33 Rule 1 of the Code of Civil Procedure, seeking permission of the court to allow him to file a suit against the appellant herein for Rs.1,50,000/- as compensation for the injuries sus-tained by him on account of the aforesaid accident which had taken place in April, 1980. This application was opposed by the appellant herein, inter alia, on the ground that it was liable to be dismissed under Order 33 Rule 5 (d) and (f) of the Code of Civil Procedure, in view of the provisions of Section 53 of the ESI Act, which barred the receiving or recovery of any compensa-tion or damages by an employee under any law other than the Employees State Insurance Act. This contention of the appellant was upheld and the Subordinate Court dismissed the said applica-tion of the respondent.
5. The respondent thereafter filed an appeal before the High Court of Kerala. A Division Bench of the High Court doubted the correctness of an earlier Bench decision on the same question and, consequently, the case was referred to a Full Bench. The Full Bench consisting of three learned judges held that the provisions of Section 53 and 61 of the ESI Act did not bar an action by an injured employee under tort for compensation against the employer. It accordingly allowed the appeal and directed the application of the respondent under Order 33 Rule 1 to be decided by the trial court on merits and in accordance with law. Hence this appeal by special leave.
6. It was submitted by Mr. A.S. Nambiar, learned senior counsel for the appellant, that the Employees State Insurance Act is a self contained code and the insured employees, like the respond-ent, are entitled to the benefit in case of injury suffered under the provisions of the ESI Act and such employees in the case of an employment injury are debarred from making any claim under any other act or law. In this connection our attention was drawn to the relevant provisions of the ESI Act. Mr. Manoj Swarup, learned counsel for the respondent, on the other hand, submitted that Section 53 should be construed in such a way that an ag-grieved employee is able to receive adequate compensation on account of the injury which is sustained by him. It was contend-ed that the amount which was paid under the ESI Act could not be regarded as an adequate measure of damages suffered by the re-spondent and, therefore, Section 53 should not be construed in such a way as to prevent an employee from bringing about an action in tort. In the alternative it was submitted that this Court, in exercise of its jurisdiction under Article 136 of the Constitution, should not interfere in the present case.
7. There are only three provisions of the ESI Act which are relevant for the present case. Section 2 (8) defines the term ’employment injury’ and reads as follows:
“’employment injury’ means a perennial injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employ-ment whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.”
8.The two other sections with which we are concerned in this case are Sections 53 and 61 which are as follows:
“53. Bar against receiving or recovery of compensation on damag-es 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 of an employment injury sustained by the insured person as an employee under this Act.
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.”
9. The aforesaid provisions have been construed by different courts including this Court. Mr. Nambiar first relied upon the decision of the Karnataka High Court in K.S. Vasantha and Ors. v. Karnataka State Road Transport Corporation ( (1982) 60 FJR 118 ) wherein it was held, while construing Section 53 of the ESI Act, that where workmen travelling to work on a transport provided by the employer had suffered injury by an accident caused to the vehicle, it amounted to employment injury and that Section 53 was a bar to any claim by the insured under any other law or the Workmen’s Compensation Act, 1923. Their remedy, it was held, was only to claim compensation or damages from the Employees State Insurance Corporation. To the same effect is the judgment or the Madras High Court in the case of Mangalamma and Ors. v. Express Newspapers Ltd. and Anr. ( AIR 1982 Madras 223 ). While constru-ing Section 53 the Madras High Court held that the object of Section 53 of the Act was to save the employer from facing more than one claim in relation to the same accident. In Annapurna and Ors. v. General Manager, Karnataka Road Transport Corporation, Bangalore and Ors. ( 1984 Lab.I.C 1355 ) a Division Bench of the Karnataka High Court followed its judgments and reiterated Section 53 created a bar to the recovery of compensation under law in cases where the insured person had received an employment injury.
10. Mr. Swarup, however, relied on the decision in the case of Hindustan Aeronautics Ltd. Vs. P. Venu Perumal and Anr. ( AIR 1972 Mysore 255 ). It was held by the Mysore High Court that the right to sue under the Motor Vehicles Act originates from the substantive law, namely, the law of tort. This law was not an enactment and, consequently, the provisions of Section 61 of the ESI Act could not prohibit an employee from making a claim under Section 110 of the Motor Vehicles Act claiming damages on account of injuries suffered in an accident. Though the observations in the said judgment do support the submission of Mr. Swarup but the High Court did not consider in that case the applicability and effect of Section 53, with which we are concerned here.
11. The position with regard to the claim of an employee against his employer on his suffering an employment injury now stands settled with the decision of this Court in A. Trehan Vs. Asso-ciated Electrical Agencies and Anr. JT 1996(5) SC 648 = ((1996) 4 SCC 255). In that case Trehan, who was an employee of the re-spondent, received injuries on his face while he was carrying out repairs of a television in the course of his employment as a result of which he lost vision in the left eye. After receiving the benefit from the Employees’ State Insurance Corporation under the ESI Act he served a notice on the respondent demanding Rs.7 lacs as compensation. Thereafter he filed an application under the Workmen’s Compensation Act claiming compensation of Rs.1,06,785/-. The employer objected to the maintainability of the same and relied upon Section 53 of the ESI Act. The Commis-sioner overruled the employer’s objection and followed the judg-ment of the Full Bench of the Kerala High Court in the present case and observed that ESI being a welfare legislation, the Parliament could not have intended to create a bar against the workmen claiming more advantageous benefit under the Workmen’s Compensation Act. The single judge of the High Court dismissed the writ petition filed by the employer but the Division Bench, in appeal, held that in view of the bar created by Section 53, the application for compensation filed by Trehan was not main-tainable. This Court analysed the provisions of Section 53 of the ESI Act and observed at page 260 as follows:
” 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 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 Compensation Act, 1923 (8 of 1923), 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 permis-sible 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. In view of the clear language of the section we find no jus-tification in interpreting or construing it as not taking away the right of the workman who is an insured person and an em-ployee under the ESI Act to claim compensation under the Work-men’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 ap-pellant under the Workmen’s Compensation Act was not maintain-able.”
12. The judgment under appeal in the present case of the Full Bench of the Kerala High Court was considered and it was ob-served that “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 consider-ing the effect of the clear and express words used in that sec-tion.”
13. In view of the aforesaid observations in Trehan’s case, with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Section 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen’s Compensa-tion Act or any other law for the time being in force or other-wise. The use of the expression “or otherwise” would clearly indicate that this section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the Legisla-ture had thought it fit to prohibit an insured person from re-ceiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sus-tained by him is an employment injury.
14. The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalamma’s case (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 53 of the ESI Act, the trial court was right in dismissing the application under Order 33 Rule 1 of the Code of Civil Procedure.
15. The position in law being clear and concluded by the deci-sion of this Court in Trehan’s case (supra) we see no justifica-tion for the Court not exercising its jurisdiction under Article 136, as was contended by the respondent’s counsel. The incorrect decision on a point of law of the High Court has to be corrected.
16. During the course of hearing it had been argued that Section 53 should not be construed in such a way that an insured person cannot raise a claim against athird party in the event of his suffering an employment injury. It was submitted that though qua the employer only one remedy may be available, namely, under the ESI Act but as far as third persons are concerned Section 53 cannot be taken up as a defence to an action in tort in a claim being made for damages because the ESI Act creates certain rights as a result of the employment qua the employer and has no appli-cation as far as third parties are concerned. In this connection it was submitted that the use of the words ’employment injury’ in Section 53 relates to a claim which is relatable to the employ-ment of the insured person with his employer.
17. In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case to decide this issue finally because in the instant case the claim which was sought to be made was not against the third party but against the employer itself. Perhaps this ques-tion may require consideration in an appropriate case.
18. For the aforesaid reasons this appeal is allowed. The judgment of the High Court is set aside and that of the trial court dismissing the respondent’s application under Order 33 Rule 1 of the Code of Civil Procedure is restored. There will be no order as to costs.
