JUDGMENT

Chidananda Ullal, J.:—

This is an appeal filed by the Insurance Company to challenge the judgment and award dated 23.12.1993 in MVC No. 978/87 passed by the Motor Accident Claims Tribunal-I, Bangalore City, whereunder as against the claim of Rs. 2,02.000/-, the MACT had awarded a compensation of Rs. 50,000 together with interest at 6% p.a, holding that both the respondent No. 1-owner and the appellant-Insurance Company are jointly and severely liable to compensate the respondent No. 1 claimant.

2. I heard the Learned Counsel for the appellant-Insurance Company, Sri O. Mahesh and the Learned Counsel for the contesting respondent No. 1-claimant, Sri H.N Nanjundaiah. The respondent No. 2-owner having been served with notice by way of substituted service by fixture had remained absent before this Court. I have also perused the case records together with the records of the Tribunal below.

3. The facts relevant for our purpose are as hereunder:—

That the respondent No. 1-claimant left his house in his scooter bearing registration No. MEV 9465 to go to his factory (Mysore Lamp Factory) on 19.3.1987 When he reached the 18th Cross Malleshwaram at 12.30 noon, a Matador Van No. MED 5708 owned by the respondent No. 2, insured with the appellant-Insurance Company came in a high speed and dashed against his scooter. That, because of the said impact, the respondent No. 1-claimant sustained fracture of his left leg and certain other injuries over his body and his scooter was also damaged. That the respondent No. 1-claimant stated to be unconscious and he had taken to Sanjay Gandhi Accident and Rehabilitation Centre, Bangalore, and he was inpatient in the said Centre for a day and thereafter he was an inpatient in St. Philomina Hospital, Bangalore, for a period of 40 days. That, the respondent No. 1-claimant had filed a claim petition before the Motor Accident Claims Tribunal-I, Bangalore City (henceforce in brief as ‘MACT’) claiming compensation of Rs. 2,02,000/- as against the respondent No. 2-owner and the appellant-Insurance Company. That the respondent No. 2-owner remained ex-parte before the MACT and with the result an application before the MACT was filed by the appellant-Insurance Company to contest the claim of the respondent No. 1-claimant on all grounds. It had also filed a detailed objection statement. It appears that the appellant-Insurance Company among other grounds contended that the claim of the respondent No. 1-claimant was not maintainable in view of Sections 53 and 61 of the Employees' State Insurance Act, 1948 (henceforth in brief as ‘ESI ACT’). The respondent No. 1-claimant had examined himself as PW-1, doctor-witness as PW-2 and his employer witness as PW-3 before the MACT. He had also filed in aft 98 documents including chargesheet marked as Ex. P2 filed by the jurisdictional police as against the driver of the Matador van, wound certificate marked as Ex. P7, medical bills and x-rays marked as Exs. P8 to 88 and Ex. P96 and Ex. P97. The leave application and certificates produced by the Insurance Company was marked as Ex. R-1 pertaining to the respondent No. 1-claimant availing leave benefit under the ESI scheme from his employer by the appellant-Insurance Company. Based on the evidence on record both oral and documentary, the MACT had awarded a total compensation of Rs. 50,000/- under different heads and further granted interest at 6% p.a and also fastened the liability both on the respondent No. 2-owner as well as the appellant-Insurance Company. Having been aggrieved thereto, the appellant-Insurance Company is before this Court in filing the instant appeal.

4. The Learned Counsel for the appellant-Insurance Company, Sri O. Mahesh while urging twin grounds made in the appeal memorandum argued that the claim made by the respondent No. 1-claimant before the MACT was totally barred under Section 53 and 61 of the ESI Act and that the fastening of the liability on the appellant-Insurance Company was therefore totally erroneous on the part of the MACT. To elaborate the said ground, Sri Mahesh had taken me through Sections 53 and 61 of the ESI Act. The same reads as hereunder:

“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 employee under this Act.

61. 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.”

5. According to Sri O. Mahesh, the respondent No. 1-claimant was on his way to his factory and as such go to show that he was on duty and that under the national extension of his employment for the purpose of the ‘employment injury’, his duty commences the moment he leaves his house to the place of his work and thus the respondent No. 1-claimant had suffered ‘employment injury’ during the course of his employment. To sustain his argument, he had also cited a Division Bench Ruling of this Court reported in 1982 ACJ 208 (in the case of ESI Corporation v. Rangarao), wherein the Division Bench of this Court held that the employment injury within the meaning of Section 2(8) of the ESI Act includes the accident injury, a worker suffers even when he travels in a public transport vehicle or in omni bus or when he is going on a public road or a private lane. Sri Mahesh had drawn my attention to the specific pleading that was made out in Column No. 10 of the claim petition filed by the respondent No. 1-claimant, wherein it is averred that the respondent No. 1-claimant left the house on his scooter to go to the Mysore Lamp Factory. According to Sri Mahesh, the respondent No. 1-claimant was on his way to his factory to attend to his duty and thus the accident injury suffered by the respondent No. 1-claimant on the fateful day was an ‘employment injury’ within the meaning of Section 2(8) of the ESI Act. It is also his submission that in filing the objection statement by the appellant-Insurance Company before the MACT, it was the specific case of the appellant-Insurance Company too that the respondent No. 1-claimant was not entitled to any compensation under the provision of the Motor Vehicles Act and further that the MACT would not have entertained the claim petition in view of Sections 53 and 61 of the ESI Act. The contention of the Learned Counsel for the appellant-Insurance Company appears to be set out in para 8(a) of the objections statement filed by it before the MACT. To quote the said para 8(a) of the objection statement. The same reads as hereunder:

“The petitioner is not entitled for any compensation under the provisions of the M.V Act. The petitioner is contributor of the employees State Insurance Fund under the provisions of the The Employees State Insurance Act, 1948 and he has availed benefits under the said scheme of the Act in respect of the alleged accident in question. Therefore, the present petition for compensation is not maintainable and the same cannot be entertained in view of the clear provisions of Sections 53 and 61 of the Employees State Insurance Act, 1948 which bar against receiving or recovering of compensation damages and benefits under any other law or under other enactments. For the reasons stated above, the present claim petition is liable to be rejected.”

6. While taking me through the leave application and certificate pertaining to the respondent No. 1-claimant availing the leave benefit marked as Ex. R1, Sri Mahesh also argued that, it is clear therefrom that the respondent No. 1-claimant had availed the ESI benefit. Therefore, according to him, if the ESI benefit is availed either in a big way or small way, it is as good as that the benefit was availed by the respondent No. 1-claimant under the ESI Act. It is further argued by him that the said fact of availing the benefit was with reference to Section 61 of the ESI Act, wherein it has been provided that when a person entitled to any of the benefit provided by the ESI Act, he shall not receive any similar benefit admissible under the provisions of any other enactment. It is therefore submitted by him that the impugned judgment and award passed by the MACT fastening the liability also on the appellant-Insurance Company is totally erroneous, besides being opposed to law. He therefore prayed that the impugned Judgment and award in so far as the same related to the fastening of the liability on the appellant-Insurance Company be set aside. The Learned Counsel for the appellant-Insurance Company in the alternative had also argued that in the event this Court were to uphold the judgment and award passed by the MACT, awarding of Rs. 50,000/- be suitably be modified to the lower side by taking into consideration the nature of injuries the respondent No. 1-claimant suffered in the accident.

7. Per contra, the Learned Counsel for the contesting respondent No. 1, Sri H.N Nanjundaiah argued that there is no substance in the contention of the appellant-Insurance Company that there was claim made by the respondent No. 1-claimant under the ESI Act and as such the claim before the MACT was not maintainable, for, according to him it was not the case of the respondent No. 1-claimant either in the claim petition or in his evidence that the accident injury suffered by him was during the course of his employment. Sri Nanjundiah had also taken me through the averments in the claim petition. While pointedly drawing my attention to what had been averred in column No. 10 of the claim petition, he pointed out that all that what the respondent No. 1-claimant stated in column No. 10 is that he left the house in his scooter to go to the Mysore Lamp Factory and that the said averment was made only to show as to how the claimant was travelling and further as to his destination and nothing beyond. While taking me through what was averred in para 22 of the claim petition, Sri Nanjundaiah pointed out that in no part thereof the respondent No. 1-claimant had stated that during the course of his employment or during the course of his way to the factory to attend to his duty, the accident in question had occurred. According to Sri Nanjundaiah, it is only the appellant-Insurance Company which had pleaded in their objection statement that the accident injuries were suffered by the respondent No. 1-claimant during the course of his employment and at that point of time he was on his way to the factory to attend his duty. In furtherance of his argument in this context, he further argued that the said theory was only traversity of truth and there is no pinch of truth in it. While adverting to Ex. R1, Sri Nanjundaiah argued that the same was applied for by the respondent-claimant only for the limited purpose of availing the leave benefits since he is covered under the ESI Act and that therefore the same could not be relied upon to argue by the otherside to say that the respondent No. 1-claimant had availed ESI benefit having suffered the ‘employment injury’ by the respondent No. 1-claimant within the meaning of Section 2(8) of the ESI Act. Therefore according to him there is no merit in the instant appeal filed by the appellant-Insurance Company. Even on the point of quantum, according to him, there is no merit in the argument of the other side. He therefore prayed that the instant appeal be dismissed with cost.

8. Now the points that arise for my consideration in the facts and circumstances of the case are as follows:

(i) Whether the respondent No. 1-claimant had suffered employment injury within the meaning of Section 2(8) of the ESI Act or not?

(ii) Whether the claim petition filed by the respondent No. 1-claimant before the MACT resulting in passing the impunged judgement and award is maintainable or not?

(iii) Whether the quantum of award passed by the MACT is on the higher side and therefore called for to be interfered with by this court in the instant appeal?

9. Now, I deal with the above three points in the above order.

10. Reg. point Nos. (i) and (ii): The first contention of the appellant-Insurance Company is that the accident injuries suffered by the respondent No. 1-claimant was during the course of the employement. I feel it proper to refer here to Section 2(8) of the act wherein the employment injury is defined. To quote the same, the same reads as hereunder:

“(8) “employement 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, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India”.

11. From the above definition, it is clear that to term an injury as an empoyement injury’ an employee should suffer injury in the accident or by an occupational disease arising out of and in the course of his employment, being an insurable employement. In the instant case in hand, as I see it is not the case of the respondent No. 1-claimant either in his claim petitioner or his evidence before the MACT that he left his house with an intention to attend to his duty and that during such a course of his travel to his factory the accident injuries were suffered by him. Nevertheless, the appellant-Insurance Company had ever made out a case in filing the detailed statement particularly in para 8(9) thereof that the respondent No. 1-claimant was on his way to his factory to attend to his duty and that it is during the course of his travel to his factory the respondent No. 1 claimant suffered the accident injuries. I should point out here that in support of such a contention by the appellant-Insurance Company, it got marked Ex. R-1, what is described therein as ESI leave certificate(certificates are 9 in number) in the cross-examination of PW-3. I have carefully gone through the said documents. In my considered view, the said documents had to be appreciated with reference to the definition of the term ‘employment injury’ as defined under Section 2(8) of the ESI Act. If we carefully examine the definition as defined in Section 2(8) of the ESI Act as to the term ‘employment injury’ it is clear that the accident injuries, the employee or worker should suffer either arising out of and in the course of his employement. In the instant case in hand, it appears to me that there is neither the pleading nor the evidence to hold that accident injuries suffered by the respondent No. 1-claimant were arising out of and in the course of his employment. In the said cicumstances, I find it difficult to accept the argument advanced by the learned counsel for the appellant that the respondent No. 1 claimant suffered the accident injury during the course of employment and that he be debarred from filing claim petition before the MACT in the light of Sections 53 and 61 of the ESI Act. Therefore, I have got no hesitation to reject the said argument advanced by the learned Counsel for the appelant-Insurance Company.

12. That being the position, I am of the view that the accident injury suffered by the respondent No. 1-claimant was in the normal course of event of his journey by his scooter and as such claim for compensation had rightly been filed by him under the Motor Vehicle act. Hence, it is difficult for one to say in the facts and circumstances of the case that during the course of employment the respondent No. 1-claimant suffered the accident injury. Hence I answer point No. 1 in the negative.

13. In view of the above conclusion I reached, the point No. (ii) also stands answered in favour of the respodent No. 1-claimant, for I hold that the claim is maintainable.

14. Reg. point No. (iii): Now I takeup the third point with regard to the quantum. The learned Counsel for the appellant-Insurance Company argued that the award of compensation to the tune of Rs. 50,000/- by the MACT is on the higher side. All that what had been argued in this connection is that the injuries suffered by the respondent No. 1-claimant did not demand the award of Rs. 50,000/- by way of compensation. In the light of the said submission made, I refer here below the different sums, the MACT had awarded under the 5 heads. The MACT had awarded a sum of Rs. 50,000.00 is in para(13) of the impunged judgement and the same shows as hereunder:

1. For shock, pain and loss of amenities .. Rs. 2,000.00 2. For injuries and disability .. Rs. 30,000.00 3. Medical and icidental expenses .. Rs. 10,000.00 4. Repairs for the scooter .. Rs. 3,000.00 5. Loss of income during the period of treatment .. Rs. 5,000.00 Total .. Rs. 50,000.00

According to Sri Mahesh, the award of compensation in all the above heads is on the higher side. But it does appear to be so to me, for it is in the evidence that the respondent-claimant was inpatient in a private hospital i.e St. Philomina Hospital for 43 days and the respondent No. 1-claimant had entered on leave for a period of 5 months. It is therefore obvious that all through he had suffered the pain due to the accident injuries he had suffered. It is also in the evidence that the respondent No. 1-claimant had suffered fracture of left femur.

In the totality of the facts and circumstances of the case, I feel that the global compensation of Rs. 50,000.00 awarded under the 5 different heads as above together with interest at 6% p.a is just and proper and not in any way be called for to be interfered with by this Court in the instant appeal.

The appellant-Insurance company is directed to pay the above sum of compensation together with interest within 8 weeks from today after deducting any sum deposited by it either before this Court or before the MACT below.

The appeal therefore fails and accordingly dismissed. No cost.