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2012 DIGILAW 78 (KAR)

Venkataramanappa v. S. Ananda

2012-01-24

K.BHAKTHAVATSALA, K.GOVINDARAJULU

body2012
Judgment : 1. Learned Counsel appearing for the appellant/claimant submits that the Tribunal erred in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs. 10,00,000/-towards personal injuries sustained by him due to rash and negligent driving of the lorry bearing registration No. CAW-765, from the driver, owner and insurer of the lorry. He submits that at the time of accident, the claimant was not discharging his duties as a Security Guard and hence he was not entitled to claim compensation from the ESI Corporation. He was cited the following decisions: (i) 2010 ACJ 662 (KURIAKOSE versus SANTHOSH KUMAR) on the point that claim under Motor Vehicles Act is not barred if the injured is getting benefit under the ESI Act; (ii) 2011 ACJ 161 (SMT. SHRIDEVI AND OTHERS versus SMT. He was cited the following decisions: (i) 2010 ACJ 662 (KURIAKOSE versus SANTHOSH KUMAR) on the point that claim under Motor Vehicles Act is not barred if the injured is getting benefit under the ESI Act; (ii) 2011 ACJ 161 (SMT. SHRIDEVI AND OTHERS versus SMT. S. SAROJINI) on the point that though accident had occurred in the course and out of employment, the claimants had not made any claim against the employer, but against the offending lorry and the deceased would be a third party as against the insurer of the offending lorry and prohibition under Section 53 of the ESI Act would come into play only when the compensation was claimed against the employer of the deceased; (iii) 2007 ACJ 83 (SRI CHANDRASHEKAR versus SRI EREGOWDA) on the point when claimant was going on his own bicycle, accident took place on a public road and thus it does not come within the purview of or under the definition of “employment injury” within the provisions of Section 53 of the ESI Act; (iv) 1999 ACJ 1108 (NEW INDIA ASSURANCE COMPANY LIMITED, BANGALORE VERSUS T SURESH AND ANOTHER) on the point that if the claimant had suffered employment injury within the meaning of Section 2(8) of the ESI Act, the claim is not maintainable before the MACT as it is barred under Section 53 and 61 of the ESI Act; (v) 2005 ACJ 1427 (PAULINE DECRUZE AND OTHERS VERSUS M.F. KATHA SINGH AND OTHERS) on the point Section 53 of the ESI Act is applicable to injuries sustained in the course of employment; (vi) 1997 ACJ 1281 (WESTERN INDIA PLYWOOD LIMITED VERSUS P. ASHOKAN) on the point that Section 53 of the ESI Act cannot be taken up as defense to action in tort because ESI Act creates certain doubts as a result of employment and has no application as far as third parties are concerned. 2. On the other hand, learned Counsel for respondent NO.3/Insurance Company submits that under Section 53 of the ESI Act, the claim petition under Section 166 of the Act is barred and the Tribunal has rightly rejected the claim petition and there is no illegality or infirmity in the impugned judgment. He relies upon the following decisions: 1. 1996 (4) SCC 255 A. TREHAN V/S ASSOCIATED ELECTICAL AGENCIES AND ANOTHER 1.) 1997(7) SCC 638 WESTERN INDIA PLYWOOD LTD. He relies upon the following decisions: 1. 1996 (4) SCC 255 A. TREHAN V/S ASSOCIATED ELECTICAL AGENCIES AND ANOTHER 1.) 1997(7) SCC 638 WESTERN INDIA PLYWOOD LTD. V/S P. ASHOKAN 2.) 2010 ACJ 204 S.G. PANDU V/S UNITED INDIA INSURANCE CO.LTD. 4.) TAC 2006(2) BOMB 193 UNITED INDIA INSURANCE CO. LTD. V/S VIJAYA R. BAAIT AND ANOTHER 3. We have perused the LCR. 4. The appellant is hereinafter referred to as ‘the claimant’. 5. In view of the arguments addressed by the learned Counsels for the parties, the following points arise for consideration: (i) Whether the Tribunal is justified in dismissing the claim petition on the ground that it was hit by Section 53 of ESI Act? and (ii) What order? 6. For the purpose of convenience, we proceed to take up point Nos. (i) and (ii) together for consideration. 7. As the claimant received a sum of Rs., 16,293/-by way of cheque from ESIC Hospital towards reimbursement of medical expenses as a member of the ESI, the Tribunal, following the decision reported in 2006(2) TAC BOMBAY 193, held that under Section 53 of the ESI Act, the claim petition was not maintainable. 8. It is the case of the claimant that on 21.7.2005 at about 5.30 a.m. when he was driving Maruthi Alto Car bearing registration No. KA-04-MB 5735 and when he was near Anand Nagar Cross on Bellary Road, due to rash and negligent driving of the lorry bearing registration NO. CAS-765, it came and dashed against the Car and as a result of which he sustained grievous injuries. He was admitted to ESIC Model Hospital at Bangalore. Claim petition was filed under Section 166 of the Motor vehicles Act, 1988 as against the driver, owner and insurer of the lorry seeking compensation of Rs. 10,00,000/-towards personal injuries sustained by him in the motor accident. 9. In support of the case of the claimant, he has got himself examined as P.W1 besides examining Dr. D.N. Lakshminarayana as PW2 and got marked Exs.P1 to P17. Respondents have not adduced any rebuttal evidence. The Tribunal has answered issue No.1 on the point of negligence in the affirmative in favour of the claimant, holding that the accident occurred due to rash and negligent driving of the lorry, but rejected the claim petition as barred under Section 53 of the ESI Act. 10. Respondents have not adduced any rebuttal evidence. The Tribunal has answered issue No.1 on the point of negligence in the affirmative in favour of the claimant, holding that the accident occurred due to rash and negligent driving of the lorry, but rejected the claim petition as barred under Section 53 of the ESI Act. 10. The claimant himself has stated that the ESI Model Hospital at Bangalore, has issued a cheque for Rs. 16,293/-in his favour towards reimbursement of medical expenses. Merely because the claimant has got medical expenses reimbursed, as a member of the ESI Corporation, it cannot be said that the claim petition filed under Section 166 of the Act is barred by Section 53 of the ESI Act. It is useful to excerpt Section 53 of the Act for immediate reference, which reads as under: An insured person or his dependants shall not be entitled of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 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. 11. Admittedly, the claimant was working as a Security Guard for Group 4 Securities Guarding Private Limited. The accident occurred when the claimant was driving a Car and not as a Security Guard. The accident occurred not during the course of employment. In other words, the claimant is entitled to claim compensation from ESI as a member of ESI only when the accident occurs arising out of employment during the course of employment and out of employment. Apart from that the claim petition filed under Section 166 of the Act is not against his employer. In the catena of decisions cited by the learned Counsel for the appellant/claimant, the Apex Court and various other Courts have held that the ESI Act does not bar the right to claim compensation against the third parties. Therefore, the contention of the Insurance Company that claim petition filed under Section 166 of the Act is barred under Section 53 of the ESI Act is without any basis. In other words, Section 53 of the ESI Act relates to the claim, which is relatable to the employment of the insured person with his employment. Therefore, the contention of the Insurance Company that claim petition filed under Section 166 of the Act is barred under Section 53 of the ESI Act is without any basis. In other words, Section 53 of the ESI Act relates to the claim, which is relatable to the employment of the insured person with his employment. All the decisions cited by the learned Counsel for the appellant are applicable on all the fours and support the case of the claimant. 12. The decisions cited by the learned Counsel for respondent No.3/Insurance Company can be distinguished on the basis on the facts of those cases and they are not applicable to the case on hand. For the foregoing reasons, we answer point No. (i) in the negative. 13. In view of dismissal of the claim petition, the Tribunal did not determine the quantum of compensation to which the claimant is entitled. In the interest of speedy disposal, instead of remanding the matter to the Tribunal, we are of the opinion that it is a fit case to determine the compensation to which the claimant is entitled. Hence, we proceed to determine the compensation to which the appellant/claimant is entitled. 14. As per Ex.P7, the claimant has sustained fracture of humerus with radial nerve injury, compressed fracture of upper end of ulna right, lacerated wound over the right forehead, right eyelid and other parts of the body. He was admitted to ESIC Model Hospital at Bangalore and treated as inpatient from 21.7.2005 to 14.12.2005. The claimant was admitted to NIMHANS on 17.2.2006and discharged on 2.3.2006. The ENMG report shows injury to right radial nerve. On 28.2.2006, the claimant underwent wound exploration and external neurolysis of right radial nerve. He has also undergone surgery on account of fracture. The claimant has produced medical bills in all amounting to Rs. 6,661.51 ps. Ex.P13 series are photographs showing the condition of hands, legs and a big operation scar on both the legs and hands. It is the case of the claimant that he was working as a Security Guard for Group 4 Securities Private Limited and drawing salary of Rs. 4,200/-per month. 6,661.51 ps. Ex.P13 series are photographs showing the condition of hands, legs and a big operation scar on both the legs and hands. It is the case of the claimant that he was working as a Security Guard for Group 4 Securities Private Limited and drawing salary of Rs. 4,200/-per month. Keeping in view that the claimant sustained nine injuries, out of them 4 are grievous in nature, and taken treatment as inpatient from 21.7.2005 to 14.12.2005 and from 17.2.2006 to 2.3.2006, the claimant is entitled for compensation towards loss of earning during the period of treatment and rest atleast for 6 months. Since the claimant has got reimbursement of medical expenses to the extent of Rs. 16,293/-from the ESIC, he has not claimed the same. Thus, the claimant is entitled for Rs. 6,661/-towards remaining medical expenses. P.W2/Dr. Lakshminarayana has deposed about the injury sustained and treatment given in the ESI Hospital and NIMHANS. He has deposed that on 19.7.2006, he examined the claimant and noticed restriction of movements of shoulder, elbow and assessed permanent disablement at 60%of the whole body. It is stated that the claimant has to undergo two to three surgery to the upper limb and three surgery to the lower limb. There is no material placed on record to show that the claimant was removed from service after the accident and hence he is not entitled to compensation towards loss of future earnings. But, he is entitled for loss of amenities. Ex.P10 is the pay slip for the month of May 2005. The accident occurred on 21.7.2005. Keeping in view that the claimant was working in Bangalore as a Security Guard, it would meet the ends of justice if his income is fixed at Rs. 4,200/-per month. We are of the opinion that the claimant, as a member of ESI, he is entitled to avail medical treatment of reimbursement of medical expenses from the ESI Corporation. Therefore, we are not awarding any compensation towards future medical expenses. 15. In our view, the claimant is entitled for compensation as under: Pain and sufferings Rs. 40,000.00 Medical Expenses Rs. 6,660.00 Attendant charges Conveyances, special diet Incidental expenses Rs. 20,000.00 Loss of earning during the Period of treatment and rest Rs. 25,200.00 Loss of amenities Rs. 50,000.00 TOTAL Rs. 1,41,860.00 16. Thus, the appellant/claimant is entitled to compensation of Rs. 1,41,860/-along with the costs and interest from the respondents. 40,000.00 Medical Expenses Rs. 6,660.00 Attendant charges Conveyances, special diet Incidental expenses Rs. 20,000.00 Loss of earning during the Period of treatment and rest Rs. 25,200.00 Loss of amenities Rs. 50,000.00 TOTAL Rs. 1,41,860.00 16. Thus, the appellant/claimant is entitled to compensation of Rs. 1,41,860/-along with the costs and interest from the respondents. Accordingly, the points formulated for our consideration are answered in favour of the appellant/claimant. 17. In the result, the Appeal is partly allowed and the impugned judgment and award are set aside. The appellant/claimant is entitled for compensation of Rs. 1,41,860/-along with costs and interest at 6% per annum from the date of petition till realization as against respondent Nos. 1 to 6, whose liability is joint and several. Respondent No.3 – Insurance Company is directed to deposit the compensation amount along with the costs and interest with the Tribunal within three months from today.