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Judgment
S.N. Satyanarayana, J.—Claimant in MVC. No. 5923/2010 on the file of MACT, Bengaluru has come up in this appeal impugning the judgment and award dated 13.10.2011 so far as it pertains to dismissing his claim petition filed seeking compensation for the injuries suffered in the road traffic accident.
Brief facts leading to this appeal are as under:
The claimant is a Mason by profession. While walking by the side of NH-4, Bengaluru-Tumkur Road near Jas Tollgate he was hit by driver of lorry bearing registration No. HR 55 G 1992. It is stated that immediately after the accident he was taken to Harsh hospital for first aid treatment and subsequently taken to ESI Hospital, Rajajinagar and since the injuries suffered by him were grievous in nature, he was referred to BGS Hospital by ESI Hospital for managing the injured claimant in ICU where he was inpatient for a period of 13 days i.e., from 5.6.2008 to 18.6.2010. Thereafter it is stated that he was shifted back to ESI Hospital for palliative treatment where he continued to be inpatient till 24.7.2010.
Subsequently the claim petition is filed by him seeking compensation for the injuries suffered in the said accident. The claim petition is filed against the owner and the insurer of the lorry which caused the accident. It is seen that in the proceedings before the Tribunal, the insurer - first respondent denied the accident, denied the injuries and denied their liability to pay compensation. However, they stated that in the event the accident and the injuries are proved, the liability will be subject to the policy conditions. With these pleadings, the following issues were framed:
"1. Whether the petitioner proves that on 5.6.2010 at about 2.30 p.m. when he was walking by the road side on N.H. 4 near Jas Tollgate cautiously the driver of the trailer-lorry bearing No. HR 55 G 1992 came at high speed and in a rash or negligent manner and dashed against the petitioner as a result he fell down and sustained grievous injuries?
Whether the petitioner is entitled to compensation? If so, to what extent and from whom?
What order or award?"
Parties were called upon to adduce evidence. Claimant in support of his pleadings, adduced evidence as P.W. 1 and adduced evidence of one more person by name Sandeep Chandra who is the Medical Record Keeper of BGS Hospital, who produced the medical records on the summons issued by the Tribunal for production of documents. Further the claimant also examined the doctor who treated him in ESI Hospital namely Dr. N. Lakshminarayana as P.W. 3.
It is the grievance of the appellant that when P.W. 3 was cross examined by counsel appearing for the first respondent, a question was posed as to "whether the claimant has taken treatment as a patient covered under the ESI scheme?". It was answered in the affirmative. It was also stated that under the scheme if the ESI hospital is not having facility to provide specialized treatment, there is a tie-up between ESI hospital and BGS Hospital to refer the patient for treatment to BGS Hospital for which ESI shall pay charges. Basing this as a ground, claim of the petitioner - claimant was opposed by taking defence stating that his claim is hit by Sections 53 and 61 of the Employees'' State Insurance Act, 1948 (''ESI Act'' for brevity). In support of that they also relied upon two judgments, one rendered by Apex Court in the matter of A. Trehan Vs. M/s. Associated Electrical Agencies and another, and another rendered by co-ordinate Bench of this Court in the case of United India Insurance Co. Ltd. Vs. K.N. Thipperudraiah and Others, . Following the aforesaid two judgments, the court below proceeded to accept the arguments of the first respondent and dismissed the claim petition. Being aggrieved by the same, claimant has come up in this appeal.
Heard the learned counsel for the appellant as well as the counsel for contesting respondent - insurer. On going through the judgment impugned, it is seen that serious error is committed by the Tribunal in considering the issue before deciding as to whether the claimant is specifically excluded under the provisions of Sections 53 and 61 of ESI Act to file the claim petition seeking compensation for the injuries suffered in the road traffic accident dated 5.6.2010, merely on the basis of certain statement made by P.W. 3 - Doctor who is said to have treated the claimant during the period when he has taken treatment in ESI hospital under ESI scheme. The court below has presumed that the claim petition itself is not maintainable which appears to be erroneous for the following reasons:
Sections 53 and 61 of the ESI Act reads as under:
Bar against receiving or recovery of 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 24 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.
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.
Sections 53 and 61 of the ESI Act clearly deal with the exclusion of right to file claim petition by persons who have suffered employment injuries as injured person as an employee under the aforesaid Act and also with reference to the benefits which they cannot seek under any other provision except under ESI Act, 1948.
In the instant case, admittedly injuries suffered by the claimant is not in the course of employment and it is also not in the capacity of workman of any nature who is covered under the ESI scheme. In the case on hand, the fact disclose that wife of claimant is an employee of private company which is covered under the ESI Scheme. Under the said scheme, it is not only the wife of the claimant but the entire family is covered. With the help of such coverage, it is seen that the claimant has got himself admitted in ESI hospital and got treated under the said scheme. However, the same cannot be considered as a claim made under the provisions of Section 53 of the ESI Act for the injuries suffered during the employment. As could be seen in the present set of facts, at the relevant time of accident, the claimant was walking on NH-4 as pedestrian and during that time he was hit by a lorry belonging to second respondent and insured with the first respondent. The accident and the injuries suffered cannot be considered as employment injuries and as such right of claimant to seek compensation from the tortfeasor cannot be denied merely because under ESI scheme, his wife is entitled to seek the benefit of free treatment for herself and family members.
The court below has committed a grave error in rejecting the entire claim. Utmost, what the court would have considered is while awarding compensation for pain and suffering, amenities and loss of income due to disability and other heads should not have considered providing compensation under medical expenses inasmuch as claimant has taken benefit of free treatment under ESI Scheme for which his family was entitled. In that view of the matter, a serious error is committed by the Tribunal in following the aforesaid two judgments which has no bearing on facts of the case on hand. In fact in the matter of A. Trehan decided by the Apex Court in A. Trehan Vs. M/s. Associated Electrical Agencies and another, , the injuries suffered by the claimant is an employment injury for which he was seeking compensation under Section 166 of the M.V. Act. Similarly, is the situation in the matter of United India Insurance Co. Ltd. Vs. K.N. Thipperudraiah, it is decided by the co-ordinate Bench of this Court in ILR 1997 KAR 292.
Therefore under the facts and circumstances, the claim of the appellant herein is not comparable to the said judgments and since they are filed by the claimant seeking compensation for the injuries suffered in the course of their employment. In that view of the matter, this Court feel that the judgment and award passed by the Court of MACT, Bengaluru in MVC. No. 5923/10 is required to be set aside.
In this proceeding, it is seen that since the Tribunal has taken the view that claim petition itself is not maintainable though it has framed issue Nos. 1 and 2 to consider the compensation to which the claimant is entitled to in the said proceedings has not given any finding on that. In the absence of any finding, this Court cannot by itself take up the claim petition to assess the same independently. Hence, while setting aside the judgment and award dated 13.10.2011, this matter is remanded to the court below for giving its finding on issue No. 2 since issue No. 1 regarding accident and injury already being answered in the affirmative, what is required to be done by the court below is considering awarding of compensation by assessing the pleadings and evidence available on record and considering issue No. 2.
Therefore the court below shall hear the parties and so far as awarding compensation by considering issue No. 2 and decide the same within sixty days from the date fixed for rehearing this matter. For the sake of convenience it is made clear that remanded matter shall be taken up for consideration on 28.9.2015 on which day the claimant and the contesting respondent - insurer shall appear before the court below through respective counsel without waiting for further notice from the court below. The Tribunal shall hear and dispose of MVC. No. 5923/10 by answering issue No. 2 by awarding reasonable compensation on the basis of the material available on record, within sixty days therefrom.
Accordingly, the appeal is allowed and remanded.