C. Tamil Selvi and Others Vs Scorpion Watch and Ward Services (P) Ltd. and Others

D. Hari Paranthaman, J.@mdashIt is the unfortunate case where the husband of the 1st appellant who is the father of the appellants 2 and 3 died in an industrial accident on 14.7.2010, when the deceased was in employment with the 1st respondent/Establishment. The 1st respondent/Establishment is covered under the Employees State Insurance Act. Since the 1st respondent/Establishment is covered under the provisions of Employees State Insurance Act, the claim under the provisions of Workmen''s Compensation Act is barred as per section 53 of the Employees State Insurance Act.

2. Based on such plea of the 1st respondent, the claim preferred by the appellants was rejected by the order dated 2.7.2014 made in W.C. No. 82 of 2011 on the file of the Commissioner for Workmen''s Compensation at Trichy. This appeal is against the aforesaid order.

3. When the matter was listed in the earlier occasions, this Court pointed out that there are judgments of the Apex Court holding that if an establishment is covered under the Employees State Insurance Act, no claim could be made under the Workmen''s Compensation Act due to the bar created by section 53 of the Employees State Insurance Act. The matter was adjourned to look into the judgments. The learned Counsel for the appellant has produced the judgment of the Apex Court in National Insurance Co. Ltd. Vs. Hamida Khatoon and Others, AIR 2009 SC 2599 : (2010) 125 FLR 331 : (2009) 8 JT 504 : (2010) 1 LLJ 323 : (2009) 156 PLR 755 : (2009) 7 SCALE 133 : (2009) 13 SCC 361 : (2010) 1 SCC(L&S) 251 : (2009) 8 SCR 248 : (2009) AIRSCW 4520 : (2009) 6 Supreme 663 and also made submissions.

4. The learned Counsel for the appellants has submitted that section 53 of the Employees State Insurance Act creates a bar for proceeding a claim under the Workmen''s Compensation Act for compensation, in case, the establishment is covered under the Employees State Insurance Act.

5. The Apex Court in National Insurance Co. Ltd. Vs. Hamida Khatoon and Others, AIR 2009 SC 2599 : (2010) 125 FLR 331 : (2009) 8 JT 504 : (2010) 1 LLJ 323 : (2009) 156 PLR 755 : (2009) 7 SCALE 133 : (2009) 13 SCC 361 : (2010) 1 SCC(L&S) 251 : (2009) 8 SCR 248 : (2009) AIRSCW 4520 : (2009) 6 Supreme 663 has held at paragraph 12 that if the Establishment is covered under the Employees State Insurance Act and even if no contribution was paid in respect of the deceased workman by the Establishment, still the deceased person is an insured person, as defined under the Employees State Insurance Act and the Employees State Insurance Corporation alone is liable to pay compensation. In this regard, it is relevant to extract paragraph 12 of the aforesaid order. "When considered in the background of statutory provisions, noted above, the payment or non-payment of contributions and action or non-action prior to or subsequent to the date of accident is really inconsequential. 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 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."

6. Hence, I do not find any infirmity in the order of the Deputy Commissioner of Labour, Trichirappalli. However, as rightly contended by the learned Counsel for the appellants, the appellants have diligently pursued the remedy before the Deputy Commissioner of Labour. Thereafter, they have now preferred this appeal, on the bona fide belief that they have remedy available under the Workmen''s Compensation Act. In the result, the Civil Miscellaneous Appeal is disposed of with liberty to the appellants to approach the concerned authority under the Employees State Insurance Act and when the appellants approach the said authority for the relief of compensation, the concerned authority under the Employees State Insurance Act shall take into account the aforesaid fact and the claim for compensation shall not be rejected on the point of limitation. The appellants/claimants are also directed to approach the concerned authority as expeditiously as possible not later than two moths from the date of receipt of a copy of this order. No costs.