Page 1

C.A.8155/14

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8155 OF 2014

Dhropadabai and Others Appellant(s)

Versus

M/s. Technocraft Toolings Respondent(s)

J U D G M E N T

Dipak Misra, J.

The present appeal, by special leave, is directed  against the judgment and order dated 16th July, 2012, passed  by the High Court of Bombay Bench at Aurangabad in First  Appeal No.462 of 2011, whereby the High Court has allowed the  appeal and set aside the award passed by the Commissioner  under the Workmen's Compensation Act, 1923, (for short, 'the  1923 Act').

The facts which are requisite to be stated are that

Page 2

C.A.8155/14 2

the appellants, the legal heirs of Ambadas Lahane, filed an  application  for  grant  of  compensation  under  the  1923  Act  before the labour Court, Maharashtra at Aurangabad, forming  the subject matter of Application No.51 of 2006.  It was  asserted  in  the  application  that  the  appellant  No.1,  Dhropadabai, is the wife and the other respondents were minor  children of the deceased-employee, who had suffered a chest  pain at the work place about 8.30 a.m. on 2nd April, 2005.  He was immediately taken to the Medical College Hospital,  Ghati, Aurangabad, where he was declared dead.  After the  death  took  place,  the  appellant  No.1  approached  the  authorities  of  the  respondent-employer  for  grant  of  compensation.  As the same was not granted, she along with  her children, was compelled to move the labour Court.

Before  the  labour  Court,  the  employer,  the  respondent herein, took two fold stand, namely, (i) that the  legal heirs of the deceased-employee were not entitled to get  any compensation under the 1923 Act as the deceased-employee  was an insured person under the Employees' State Insurance  Act, 1948 (for short, 'the 1948 Act'), and (ii) the accident  did not occur during course of his employment as the death  took place due to coronary disorder, which has nothing to do  with the work place.  The labour Court framed two principal  issues,  namely,  whether  the  accident  had  occurred  during

Page 3

C.A.8155/14 3

course of employment of the deceased-employee, and whether  the  legal  heirs  were  entitled  for  grant  of  compensation  amounting to Rs.3 lacs along with 50% penalty and interest at  the rate of 18% per annum on the total amount of compensation  from the date of accident till realization of compensation  amount as per law.

The labour Court considering the material brought on  record and the decision of this Court in  Jyothi Ademma vs.  Plant Engineer, Nellore & Another  1  , came to hold that the  deceased-employee  had  died  in  course  of  employment  while  remaining on duty with the respondent-employer. Thereafter,  it referred to the applicability of the 1923 Act in the  backdrop of Section 53 of the 1948 Act and came to hold that  there was no justification to deny the compensation under the  1923 Act solely because the employee was an insured person  under the 1948 Act.  Being of this view, the labour Court  directed that a sum of Rs.4,07,700/- shall be awarded towards  the payment of compensation on the death of deceased Ambadas  Lahane to his legal heirs.  It also stipulated that if the  employer failed to pay such compensation within a stipulated  period, that is, one month, it will be open to the legal  heirs of the deceased-employee to file an application under  Section 4(a) of the 1923 Act.

1(2006) 5 SCC 513

Page 4

C.A.8155/14 4

Being grieved by the aforesaid award, the employer  moved the High Court and reiterated both the contentions.  The High Court analyzing the evidence on record and the stand  put forth by the employer affirmed the view expressed by the  labour Court that the deceased was an employee under the  respondent-firm  and  he  has  breathed  his  last  during  the  course of employment.  As far as the applicability of the  1923 Act is concerned, the learned Single Judge opined on the  basis of the decision rendered by this Court in A. Trehan vs.  Associated Electrical Agencies and Another  2   that the legal  heirs would not be entitled to get compensation under the  1923 Act as he was an insured person.

We  have  heard  Mr.  Sandeep  Singh  Tiwari,  learned  counsel  for  the  appellants  and  Mr.  Shashibhushan  P.  Adgaonkar, learned counsel for the respondent.

The status of the employee and the factum of his  breathing last during the course of employment, cannot be  called in question as it hinges on the facts and we find that  the approach of the labour Court, as well as of the High  Court on this score is absolutely infallible.   Therefore,  the only question that remains for consideration is whether  the High Court is justified in denying the benefit under the  

2(1996) 4 SCC 255

Page 5

C.A.8155/14 5

1923 Act.  In this context, we may refer to Section 53 of the  1948 Act, which reads as under:

“53. Bar  against  receiving  or  recovery  of  compensation or damages 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 respect  of  an  employment  injury  sustained  by  the  insured  person  as  an  employment  injury  sustained  by  the  insured  person  as  an  employee under this Act.”  

The aforesaid provision came to be interpreted by a  two-Judge Bench in A. Trehan's case, wherein the Court after  reproducing  the  said  provision  and  taking  note  of  the  definition of workman as provided under Section 2(1)(n) of  the 1923 Act, came to hold as follows:

“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 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 under the  ESI  Act  are  more  substantial  than  the  benefits which he can get under the Workmen’s  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

Page 6

C.A.8155/14 6

Compensation Act. If the Legislature in its  wisdom  thought  it  better  to  provide  for  periodical  payments  rather  than  lump  sum  compensation  its  wisdom  cannot  be  doubted.  Even if it is assured that the workmen had a  better right under the Workman’s Compensation  Act  in  this  behalf  it  was  open  to  the  Legislature  to  take  away  or  modify  that  right.  While  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.”

Be it noted, the Court distinguished the decision  rendered in  Regional Director, ESI Corporation vs.  Francis  De Costa  3  , and overruled the Full Bench decision of the High  Court of Kerala in  P. Asokan vs. Western Indian Plywoods  Ltd., Cannanore  4  .

In  Bharagath  Engineering vs.  R.  Ranganayaki  and  Another  5  , a two-Judge Bench has ruled thus:

“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  he  was  in  employment  of  the  employer,  by  operation  of  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  the  Corporation  has  filed  an  affidavit  indicating that the benefits under the Act  

3(1993) Supp. 4 SCC 100

4 AIR 1987 Kerala 103

5(2003) 2 SCC 138

Page 7

C.A.8155/14 7

shall  be  extended  to  the  persons  entitled  under the Act. The benefits shall be worked  out by the Corporation and shall be extended  to the eligible persons.”  

In  National  Insurance  Company  Ltd. vs.  Hamida  Khatoon and Others  6  , reference has been made to A. Trehan's  case, as well as  Bharagath Engineering's (supra) and as it  appears to us, the later Bench has concurred with the view  expressed in the earlier case.

The aforesaid authorities make it eminently clear  that once an employee is an “insured person” under Section  2(14) of the 1948 Act, neither he nor his dependents would be  entitled to get any compensation or damages from the employer  under the 1923 Act.  We are obliged to hold so as the plain  language used in the Act clearly conveys so.  Therefore, we  do not find any flaw in the view expressed by the High Court.  At this juncture, we may state that while this Court granted  leave on 22nd February, 2014, had directed the respondent to  deposit Rs.4 lacs in the Registry of this court within four  weeks and permitted the appellants to withdraw the said sum  on furnishing a personal bond.  We have been apprised that  the amount has been deposited by the employer and also has  been withdrawn by the legal heirs of the deceased employee.  Though the respondent is getting the benefits under the 1948  Act, yet we do not intend that the amount that has already  

6(2009) 13 SCC 361

Page 8

C.A.8155/14 8

been withdrawn by the legal heirs of the deceased-employee,  should be recovered by the employer by way of deducting the  periodical sum that is paid to the family members of the  deceased employee.  We have passed this order as we are  compelled to feel that the cause of justice should be best  sub-served  as  the  appellants  have  been  fighting  the  litigation since a decade.   

Consequently,  the  appeal,  being  devoid  of  merit,  stands dismissed.  However, there shall be no order as to  costs.

....................J. [Dipak Misra]

....................J. [Prafulla C. Pant]

New Delhi March 19, 2015.