Monday, March 16, 2009
ESI Act does not bar compensation claim
Scaria Meledum
THIRUVANATHAPURAM: The Employees State Insurance Act (ESI Act) is meant to provide for certain benefits to the employees in case of sickness, maternity and “employment injury”.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.If the employment is insurable under the Act it does not matter whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India. A person who sustains temporary disablement for not less than three days (excluding the day of accident), is entitled to periodical payment at such rates and for such period and subject to such conditions prescribed by the Central Government.
Similarly, a person who sustains permanent disablement, whether total or partial, is entitled to periodical payment in a similar fashion.These are called disablement benefits.The question is whether a person who has suffered a personal injury in a motor accident “arising out of and in the course of his employment”, and is receiving disablement benefits under the ESI Act can make a further claim for compensation under the Motor Vehicles Act for the injury he has suffered.Under Section 166 of the Motor Vehicles Act, a person who has sustained bodily injury out of an accident arising out of the use of motor vehicle can claim compensation.In cases where death has resulted from the accident all or any of the legal representatives of the deceased can claim compensation for the death.This crucial question arose because Section 53 of the ESI Act imposes a bar against receiving compensation or damages under any other law. The Section provides that an insured person (an employee covered under the ESI Act) 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 or “any other law for the time being in force” in respect of an `employment injury’ sustained by the employee insured under the ESI Act.If one goes by the Supreme Court verdict in the Western India Plywoods case, he is not entitled to claim compensation under the Motor Vehicles Act for the injury suffered by him. In that case, the employee, Ashokan, after claiming and obtaining benefits under the ESI Act, had staked claim for compensation by filing a suit against his own employer. Hence, it was held that an employee who has already enjoyed benefit under the ESI Act could not stake claim for compensation against the employer as he is barred by Section 53 of the ESI Act.But, this is not the case if the claim for compensation is against a stranger to the contract of employment, according to a Division Bench of the Kerala High Court consisting of Justice R Basant and Justice C T Ravikumar.A claim for compensation in tort against a stranger can co-exist with a claim for benefits under the ESI Act. The expression “any other person” in Section 53 of the ESI Act does not take in a stranger who by his negligence caused the accident. The expression takes within its weep only such other person who is sought to be made liable under or on the basis of the contract of employment to compensate the employee for the employment injury suffered by him.If an injury is suffered in a motor accident and such injury is also an employment injury the Section 53 does not bar the claim in tort under Section 166 of the Motor Vehicles Act against a stranger or tort-feasor; but it bars the claim against the employer under any other law, including the Motor Vehicles Act.The insurance coverage under the ESI Act is in addition to and not in substitution of the other remedies against a stranger (to the contract of employment), the Bench ruled.
Courtesy : Indian Express
Similarly, a person who sustains permanent disablement, whether total or partial, is entitled to periodical payment in a similar fashion.These are called disablement benefits.The question is whether a person who has suffered a personal injury in a motor accident “arising out of and in the course of his employment”, and is receiving disablement benefits under the ESI Act can make a further claim for compensation under the Motor Vehicles Act for the injury he has suffered.Under Section 166 of the Motor Vehicles Act, a person who has sustained bodily injury out of an accident arising out of the use of motor vehicle can claim compensation.In cases where death has resulted from the accident all or any of the legal representatives of the deceased can claim compensation for the death.This crucial question arose because Section 53 of the ESI Act imposes a bar against receiving compensation or damages under any other law. The Section provides that an insured person (an employee covered under the ESI Act) 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 or “any other law for the time being in force” in respect of an `employment injury’ sustained by the employee insured under the ESI Act.If one goes by the Supreme Court verdict in the Western India Plywoods case, he is not entitled to claim compensation under the Motor Vehicles Act for the injury suffered by him. In that case, the employee, Ashokan, after claiming and obtaining benefits under the ESI Act, had staked claim for compensation by filing a suit against his own employer. Hence, it was held that an employee who has already enjoyed benefit under the ESI Act could not stake claim for compensation against the employer as he is barred by Section 53 of the ESI Act.But, this is not the case if the claim for compensation is against a stranger to the contract of employment, according to a Division Bench of the Kerala High Court consisting of Justice R Basant and Justice C T Ravikumar.A claim for compensation in tort against a stranger can co-exist with a claim for benefits under the ESI Act. The expression “any other person” in Section 53 of the ESI Act does not take in a stranger who by his negligence caused the accident. The expression takes within its weep only such other person who is sought to be made liable under or on the basis of the contract of employment to compensate the employee for the employment injury suffered by him.If an injury is suffered in a motor accident and such injury is also an employment injury the Section 53 does not bar the claim in tort under Section 166 of the Motor Vehicles Act against a stranger or tort-feasor; but it bars the claim against the employer under any other law, including the Motor Vehicles Act.The insurance coverage under the ESI Act is in addition to and not in substitution of the other remedies against a stranger (to the contract of employment), the Bench ruled.
Courtesy : Indian Express
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