MACA Nos. 2863 of 2022 & 3759 of 2022

## **`2IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 MACA NO. 2863 OF 2022 ``` ## **`AGAINST THE AWARD DATED 30.05.2022 IN O.P(MV) NO.967 OF 2018 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA APPELLANT/PETITIONER:`** ``` REJI.M.V, AGED 50 YEARS, S/O VARGHESE,100% DISABLED REPRESENTED BY HIS WIFE AS NEXT FRIEND JINCY, W/O REJI, MANGALATHU HOUSE, KINGINIMATTOM.P.O, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN – 682 308 ``` ``` BY ADVS. A.R.NIMOD M.A.AUGUSTINE ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1ANIL, S/O GANGADHARAN, EDAKKUDIYIL HOUSE, MEKKADAMPU KARA, VALAKOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN – 686 661 ``` ``` 2NEW INDIA ASSURANCE COMPANY LIMITED, TB JUNCTION, MUVATTUPUZHA, ERNAKULAM-686 661. REPRESENTED BY BRANCH MANAGER, ``` ``` BY ADVS. GEORGE A.CHERIAN GEORGE CHERIAN (SR.)(G-81) K.JACOB MATHEW(J-481) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP ``` ``` FOR HEARING ON 30.11.2023, ALONG WITH MACA.3759/2022, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING: ``` 2 MACA Nos. 2863 of 2022 & 3759 of 2022 ## **`THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 MACA NO. 3759 OF 2022 ``` ``` AGAINST THE AWARD DATED 30.05.2022 IN O.P(MV) NO.967 OF 2018 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA APPELLANT/2ND RESPONDENT: ``` ``` THE NEW INDIA ASSURANCE CO.LTD., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN -686 661, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM- 682 011 ``` ``` BY ADVS. GEORGE A.CHERIAN JACOB MATHEW KAITHALIL GEORGE CHERIAN (SR.) ``` ## **`RESPONDENT/PETITIONER:`** ``` REJI.M.V, AGED 50 YEARS, S/O VARGHESE, MENTALLY DISABLED, REP. BY HIS WIFE AS NEXT FRIEND JINCY, W/O REJI, MANGALATHU HOUSE, KINGINIMATTOM.P.O., AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN – 682 308 BY ADVS. A.R.NIMOD M.A.AUGUSTINE(K/000511/2005) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 30.11.2023, ALONG WITH MACA.2863/2022, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING: ``` 3 MACA Nos. 2863 of 2022 & 3759 of 2022 ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - ----------M.A.C.A. Nos. 2863 and 3759 of 2022 - - - - - - - - - - - - - - - - - - - - - - ----------Dated this the 18[th] day of March, 2024 ## **JUDGMENT** Petitioner in O.P(M.V) No.967/2018 on the files of Motor Accidents Claims Tribunal, Muvattupuzha (for short, ‘the Tribunal’) has filed M.A.C.A No.2863/2022 and the insurer of the offending vehicle who was made liable by the impugned award to pay the compensation in favour of the petitioner has filed M.A.C.A No.3759/2022. The insurer was the 2[nd] respondent before the Tribunal. 2. Sri.George A Cherian, the learned Senior counsel for the appellant/insurer contended that the petitioner having been paid permanent disablement benefit at the rate of 90% of his wages in the form of monthly payment for whole life, is not entitled to receive or recover any compensation under the Workmen’s Compensation Act, 1923 (for short, ‘W.C.Act’) or any other law for the time being in 4 ## MACA Nos. 2863 of 2022 & 3759 of 2022 force or otherwise in respect of an employment injury sustained by him. The learned counsel rested his contention on Sections 53 and 61 of Employees’ State Insurance Act, 1948 (for short, ‘the ESI Act’) which provides that the petitioner shall not be entitled to receive any similar benefit under the provisions of any other enactment. Thus the award to the extent it grants `25.35 lakhs as compensation towards permanent disability and medical expenses was sought to be set aside. 3. The Manager of ESI, Perumbavoor branch was examined as RW1. According to him, the petitioner had raised a claim before them in respect of the motor accident met with by him on 16.05.2018 and a sum of `2,38,160/was given to him as temporary disablement benefit for a period from 21.05.2018 till 21.08.2019. According to him, the amount was arrived at by taking `520/- per day and that was awarded as salary for the period of leave availed by him following the motor accident. According to him, thus 5 MACA Nos. 2863 of 2022 & 3759 of 2022 90% of his salary was given towards temporary disablement benefit. According to him, since the Medical Board has assessed his disability as 100% on 26.11.2020, petitioner will get `520/- per day till his death and also periodical enhancement as determined by the Government. He had produced the pension register alongwith the attested copy of the extract of it’s relevant part showing payment of benefits as above and on verification with the original, it was marked in evidence as Ext.X1. Letters dated 11.11.2019 and 06.01.2021 issued by the Medical Board assessing the disability of the petitioner respectively as 60% and 100% were also marked in evidence as Exts.X2 and X3. According to him, the contribution is required to be paid by the petitioner towards ESI for getting future treatment expenses and that is not necessary for getting pension. In cross examination, it was clarified that petitioner is entitled to get ESI benefits on account of the contribution he had made to the ESI during his employment and those who did not pay 6 ## MACA Nos. 2863 of 2022 & 3759 of 2022 the contribution will not get the benefits. The witness has also said that there is no bar for getting any other benefits and clarified that the petitioner will not get benefits under the W.C. Act. It was also clarified from the witness that normally 5 to 7% increase would be given as benefits and that the petitioner who had met with the motor accident in the year 2018 was not granted any hike in benefits at any time during four years therefrom. 4. The learned counsel for the claimant urged on the contrary that benefits the petitioner has been granted from the ESI Corporation has nothing to do with the compensation he is entitled to get under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the M.V Act’). According to him, the person responsible to pay the compensation under Section 166 of the M. V Act is a third party, in no way related to him with reference to his employment at the relevant time and therefore they cannot seek for exemption from payment of compensation, which 7 ## MACA Nos. 2863 of 2022 & 3759 of 2022 they are bound to pay under the certificate of insurance issued by them in favour of the owner of the vehicle, in return for payment of premium to cover the risk, the vehicle is liable to meet during it’s use on the road. According to him, the bar under Sections 53 and 61 of the ESI Act will not be applicable to grant of compensation envisaged under the M.V Act. 5. According to him, the contribution that the petitioner had made to the ESI, during his tenure as an employee under Crust N Crumb Food Innovations India Ltd, Nellad, made him entitled to get the benefits. According to him, the arguments advanced by the learned counsel for the insurer is only to be discarded being devoid of merits and the appeal filed as M.A.C.A No.3759/2022 is only to be dismissed. The learned counsel has also relied on decisions of various High Courts and Apex Court to fortify his arguments. 8 MACA Nos. 2863 of 2022 & 3759 of 2022 6. M.A.C.A No.2863/2022 was filed by the petitioner in O.P(M.V) No.967/2018 seeking enhancement of compensation. According to the learned counsel, the petitioner met with the motor accident at the age of 46 years and while working as an operator in Crust N Crumb Food Innovations India Ltd, Nellad for a monthly salary of `20,000/-. 7. According to him, the Tribunal failed to compensate him reasonably for his loss of earnings on account of the motor accident and the treatment availed by him following that. According to him, the Tribunal ought to have awarded compensation under that head at least for one year. 8. The grievance projected further was against the monthly income fixed by the Tribunal as `13,000/-. According to him, the petitioner had marked the salary certificate issued by his employer in his favour and also the statement of accounts from his bank, marked in evidence as 9 ## MACA Nos. 2863 of 2022 & 3759 of 2022 Exts.A13 and A14. From Ext.A13 the basic salary of the petitioner at the relevant time of the motor accident was established as `13,650/-. According to the learned counsel the Tribunal failed to give due weightage to those documents while fixing the monthly income. The learned counsel canvassed for fixation of a better sum as monthly income of the petitioner on the basis of the dictum in **Minu** **Rout and Another Vs. Satya Pradyumna Mohapatra and Others** [2013 (10) SCC 695]. 9. The learned counsel pointed out further that the compensation stood awarded by the Tribunal towards pain and sufferings, loss of amenities and reduced loss of earning capacity are inadequate. According to him, petitioner was totally disabled and therefore, the Tribunal ought to have applied its mind to the requirement of a bystander for him throughout his life and awarded just and reasonable compensation. According to him, the Tribunal ought to have taken judicial notice of the factum that the petitioner 10 MACA Nos. 2863 of 2022 & 3759 of 2022 has no chance for any improvement in his physical condition and therefore, requires the support of medication and bystander all throughout his life. According to him, the Tribunal ought to have awarded reasonable amount towards future treatment expenses. 10. The learned counsel for the respondent/insurer contended on the contrary that the compensation stood awarded by the Tribunal under all heads being just and reasonable interference and modification sought by way of enhancement is only to be discarded. According to him, the monthly income being reasonably fixed, there is no need to enhance it further. The learned counsel seeks for interference only to the extent grounds are taken in M.A.C.A No.3759/2022 filed by it and canvassed for maintaining the award in all other respects. 11. From the above discussion, it is incumbent on this Court to adjudicate two points. 11 MACA Nos. 2863 of 2022 & 3759 of 2022 (1) Whether the compensation stood awarded towards permanent disability and medical expenses needs to be discarded in view of the bar under Section 53 and 61 of the ESI Act. (2) Whether modification of compensation sought by way of enhancement is warranted or not? 12. The bar under Sections 53 and 61 ESI Act were projected against grant of compensation towards permanent disability and treatment expenses. 13. An understanding about the legal position applicable being appropriate in the context, the relevant provisions are extracted hereunder for convenient reference and discussion. ## “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 12 MACA Nos. 2863 of 2022 & 3759 of 2022 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.” 14. The learned counsel for the appellant/petitioner has also relied on the order of the Apex Court in Civil Appeal No.494/2022 to substantiate his argument. In the said appeal, a judgment passed by the High Court of Judicature at Allahabad in the first appeal filed as 552/2019 was under challenge. The appeal was filed against a judgment and order passed by Motor Accidents Claims Tribunal on 22[nd] December, 2018. The Tribunal had accepted the claims raised by the appellant before it and awarded compensation 13 MACA Nos. 2863 of 2022 & 3759 of 2022 and in the appeal filed against, by the employer/owner of the vehicle in which he was travelling at the relevant time, contention raised was that the claim was not maintainable in view of the bar under Section 53 of the ESI Act. The High Court held the claim as not maintainable in view of the bar provided under Section 53 of the ESI Act. The appeal was thus dismissed for that reason, against which appeal on hand was filed by the petitioner. While addressing the court, the learned counsel for the appellant made a reference to Section 61 of the ESI Act and contended that Section 53 is not a bar in a claim made by the insured employee either under Section 163(A) or Section 160 of the M.V Act. 15. It was contended furthermore that, if the true purport of Sections 53 and 61 of the ESI Act is taken note of cumulatively, the bar is applicable only if a similar benefit is taken by a workman. It was urged that in the case under consideration, a similar benefit cannot be said to have been given to the workman. The appellant had undergone 14 MACA Nos. 2863 of 2022 & 3759 of 2022 amputation of his lower limb and the benefit paid to him in terms of Section 46 of ESI Act, is only a periodical payment from the insurance amount, which includes his contribution and not as compensation. 16. The learned counsel for the respondents has relied on the judgment of the Apex Court in **Western India Plywood Ltd Vs. P.Ashokan** [(1997) 7 SCC 638] to contend that in view of the decision laid by a Division Bench after taking note of Sections 53, 61 and 2(8) of ESI Act, that the bar would apply. The decision of a Bench of coequal strength in **National Insurance Company Ltd Vs. Hamida Khatoon and others** [(2009) 13 SCC 361] has also been referred to during the course of the argument, to contend that the bar would apply. In **Regional Director of E.S.I Corporation and Another Vs. Francis De Costa and Another** [(1993) supp. (4) SCC 100] it was held on the contrary, that no authoritative pronouncement with reference to Section 61 ESI Act was made as to whether the 15 ## MACA Nos. 2863 of 2022 & 3759 of 2022 insurance amount paid under the ESI Act is a “similar benefit” as the compensation payable under Section 166 M.V Act and that the claim subsists so as to bar the same. The Apex Court also opined in the case that an authoritative pronouncement by a Larger Bench is required in the matter and directed the Registry to place the matter before the Hon’ble Chief Justice of India so as to refer it to a Bench of an appropriate strength for arriving at an authoritative pronouncement in that regard. 17. The learned counsel for the appellant thus contended that since the question regarding the bar under Sections 53 and 61 of the Act have already been referred to a Larger Bench for consideration, this Court cannot adjudicate the issue. 18. The decision in **P.Ashokan** supra has been relied on by the learned counsel for the appellant to contend that the Apex Court has held as early as in the year 1997 itself that the bar of jurisdiction under Section 53 ESI Act is 16 ## MACA Nos. 2863 of 2022 & 3759 of 2022 applicable in the matter of receiving or recovering compensation or damages by an insured person under any other law including torts, where the injury had been sustained by him during employment and thus canvassed for declining compensation under the M.V Act in favour of the respondent in M.A.C.A No.3759/2022 (appellant in M.A.C.A No.2836/2022). 19. Several decisions of various High Courts and the Apex Court have also been relied on by the learned counsel for the respondent in M.A.C.A No.3759/2022 to substantiate his contention that the bar under Sections 53 and 61 would not operate to defeat the claim for compensation raised by an injured in a motor accident against the insurer of the offending vehicle which caused the motor accident and when the motor accident is not related to the employment of the injured in any manner. 20. **Hukum Singh Vs. Narayan Singh and Others** [2002 ACJ 2109] is a case decided by a Division Bench of 17 ## MACA Nos. 2863 of 2022 & 3759 of 2022 Indore Bench of the High Court of Madhya Pradesh, where the argument of the respondent on bar against the claim in an appeal filed by an injured, who was in a private employment covered under the ESI Act and also received benefits under that Act, was rejected holding that the injuries suffered by him were not resulted from his employment. 21. As far as the factual situation in the above case is considered, an employee in a company insured under the ESI Act sustained injuries in a motor accident when a bus belonging to respondent No.2, insured with respondent No.3 and driven by the 1[st] respondent hit the bicycle pedaled by him. He being covered under the ESI Act, `840/- was paid monthly by the ESI Corporation in his favour. While calculating compensation in his claim petition, the Tribunal deducted that amount from `969/- which was his pay. When the appeal filed against was considered relying on a Full Bench decision of Madhya Pradesh High Court, it was held 18 MACA Nos. 2863 of 2022 & 3759 of 2022 that the Tribunal committed an error in deducting the benefit granted under the ESI Act from his monthly income for calculating compensation payable under the M.V.Act. The Full Bench has held that if the claimant was paid by the Insurance Company under a contract in which premium was collected from him, that amount is not liable to be deducted from the damages payable, as it was payable on the basis of the contribution made by the appellant employee. It was pointed out that benefit of the premium paid by him to the insurer cannot be given to the tortfeasor. 22. Though a challenge was also raised in **Hukum Singh** supra against the jurisdiction of the Tribunal in entertaining a claim petition under Section 166 M.V.Act in view of the bar under Section 53 ESI Act, for the reason that it was not raised by the respondent/insurer in the written statement filed before the Tribunal, the court took a view that it cannot be raised in an appeal first in point of time. The court held further: 19 MACA Nos. 2863 of 2022 & 3759 of 2022 “Even otherwise the contention deserves to be rejected in view of decisions of this Court in **Rajkumari Nigam and Another V. Ashok and Others** [(1998 (1) ACJ 961 (MP)] and **Madhya Pradesh Road Transport Corporation V. Praveer Kumar Bhatnagar** [1994 (1) ACJ 579 (MP)] since, the injuries suffered by the appellant were not employment injuries”. 23. In **Venkataramanappa V. S.Ananda [2013 ACJ 1581]** relied on by the learned counsel, a claim petition filed by an injured in a motor accident under Section 166 M.V.Act seeking compensation from the driver, the owner and the insurer of a lorry that caused personal injuries on him was dismissed by the Tribunal and in the appeal preferred by him against the order of dismissal, a Division Bench of the High Court of Karnataka found that the Tribunal is erred. 24. The contention raised by the insurer in the case was that for receipt by the injured of a cheque for `16,293/issued in his favour towards reimbursement of medical expenses, a claim petition filed under Section 166 M.V. Act 20 ## MACA Nos. 2863 of 2022 & 3759 of 2022 is not maintainable in view of the bar under Section 53 of ESI Act. The contention was repelled by the court and held that the claimant is entitled to get compensation under Section 166 M.V. Act. Thus compensation was calculated and given to him. 25. In the case referred to, the claimant/injured was a security guard working under Group 4 Securities Guarding Pvt.Ltd and was also a member of ESI. The motor accident was occurred when the claimant was driving a car and not while doing the work as a security guard under his employer. Or in other words, the accident was not occurred during the course of his employment or has not arisen out of his employment. Claim petition was not filed against his employer. Therefore, it was observed that ESI Act does not bar the right to claim compensation against third parties and held that the contention taken by the insurer that claim petition filed under Section 166 M.V. Act is barred under 21 ## MACA Nos. 2863 of 2022 & 3759 of 2022 Section 63 of the ESI Act is untenable, being devoid of any basis. 26. In **Kuriakose v. Santhosh Kumar** [ **2010 ACJ 662]** a Division Bench of this Court had occasion to delve on the issue in question and held:- if an injury is suffered in a motor accident and such injury is also an employment injury, Section 53 ESI Act does not bar a claim in tort under Section 166 M.V. Act, following the decision of the Apex Court in **Regional Director Employees State Insurance Corporation V. Francis De Costa [** 1992 ACJ 636 (SC)]. 27. In the above case claim was raised against a stranger to the contract of employment for compensation alleging his negligence as the cause of the motor accident and not for compensation for an employment injury. The court held in the case: “We accept that a claim for compensation in tort against a stranger can co-exist with a claim for benefits under the ESI Act. The use of the words “any person” in Section 53 of the ESI Act cannot take within its sweep the claim in tort 22 MACA Nos. 2863 of 2022 & 3759 of 2022 against a stranger/tortfeasor under Section 166 of the MV Act for compensation for the loss suffered in a motor accident caused by negligence.” ## `28` **`.`** In **Oriental Insurance Co.Ltd. V. Mohan** **Kumar and Others [2007 ACJ 420]** a Single Bench of the High Court of Rajasthan has considered the applicability of the bar under Sections 53 and 61 of ESI Act against receiving compensation under any other law and held that it would operate only against a person who seeks compensation from his employer under any other enactment and does not operate as a bar for receiving compensation on account of tortious act of the third persons. The court held further that the driver, the owner and the insurer of the truck representing an entirely different set of tortfeasors cannot claim immunity from their liability with reference to the ESI Act. 29. In **Tata AIG General Insurance Co.Ltd** . **V. Ram Avtar and Others [2019 ACJ 210]** while considering the 23 MACA Nos. 2863 of 2022 & 3759 of 2022 applicability of the bar under Section 53 of the ESI Act against a claim for compensation under Section 166 of the M.V. Act, the court held that the bar will not be applicable. The dictum laid down by the court reads: “Section 53 does not apply where recipient of benefit is not covered by the definition of ‘employee' and person liable to make payment is not covered as 'employer’ under the ESI Act; claimant is stranger to insurance company and there is no employee-employer relationship between them; bar is applicable when the claim is for death of or injury to an employee in the course of his employment; mere road accident cannot be said to have its origin in the employment of the deceased; insurance company did not plead or prove that injury was caused during the performance of job requirement of the deceased or injury was sustained by him in an accident which has reasonable and incidental connection to his employment or that benefits received by claimant under ESI Act are similar to benefits available to him under MV Act; section 53 only bars receipt of compensation from employer or any other person under any other labour law which might be providing compensation for the employees; no commonality between the benefits available under 24 ## MACA Nos. 2863 of 2022 & 3759 of 2022 both statutes and they are different; section 167 of MV Act shows that legislature never considered compensation available under ESI Act to be comparable to or in exclusion of compensation available under MV Act; neither section 166 of MV Act has created any bar against filing of a claim petition by such a person nor has this been provided as a defence under section 149 of MV Act.” 30. In **New India Assurance Company Ltd. V. Ravula Shanker** [2020 ICO 4366], a Single Bench of the High Court of Telangana while considering the maintainability of a claim petition under Section 166 M.V. Act in the backdrop of the bar under the ESI Act held that in a case where the accident was occurred during the course of employment of the claimant and the injury suffered is an employment injury, the application filed by the injured/claimant under Section 166 M.V. Act seeking compensation from the insurer of the vehicle for the injuries sustained by him in the said accident is maintainable. 25 MACA Nos. 2863 of 2022 & 3759 of 2022 31. From the discussion made as above, it follows that a claim by an employee under both Acts will not be maintainable only when the claims for compensation under both Acts are filed against the employer of the injured or in other words, when the person liable to pay compensation under the ESI Act and the tortfeasor of the motor accident is none other than the employer of the injured. Whereas when the injured has suffered injury in a motor accident during the course of his employment or arising out of his employment under an employer covered within the purview of ESI Act and the tortfeasor being the owner of the vehicle that caused the injuries as well as his employer and the vehicle was insured by him as contemplated under Sections 53 and 61 of the ESI Act, he will not be entitled to get compensation separately under the M.V. Act, if it was established that he had already availed the benefits pertaining to his employment injury from the employer. The claim under Section 166 M.V. Act being against the employer 26 MACA Nos. 2863 of 2022 & 3759 of 2022 in his capacity as the owner of the vehicle, it will not sustain. 32. In the case on hand the petitioner at the relevant time of the motor accident was working as an Operator at Crust N Crumb Food Innovations India Ltd., which is a company registered under the ESI Act. From the version of RW1, it was established that the petitioner was granted `520/- towards disablement benefits and `2,38,160/- as reimbursement of the medical expenses stood established by Exts.X1 to X3, by the ESI Corporation from the contribution made by himself as well as his employer. He sustained serious injuries when a motorcycle bearing Registration No.KL-6E-6570 ridden by him through KochiMadura N.H., was hit by an autorickshaw bearing Reg. No.KL-17-H-5934 at about 8:00 a.m on 16.05.2018. The motor accident was allegedly occurred due to the rash and negligent driving of the autorickshaw by it’s driver, who was arrayed as the 1[st] respondent in the claim petition filed as 27 MACA Nos. 2863 of 2022 & 3759 of 2022 O.P.(MV) No.967/2018. He was also it’s registered owner and it was insured with the 2[nd ] respondent. Contention was not taken by the 2[nd] respondent in the written statement filed before the Tribunal that the autorickshaw responsible for causing the motor accident was in no way related to his employment or that the employer of the petitioner himself was the insured of the vehicle liable to pay compensation under the M.V. Act. True that the petitioner had availed employment injury benefits from his employer since his employer company comes within the purview of the ESI Act and he also contributes to the Corporation as an employee. But, the offending vehicle in no way is established as related to the employer or to say more precisely, the employer was neither the the driver nor the owner of the vehicle involved in the motor accident, nor its insurer, the claim petition seeking compensation under Section 166 M.V. Act will not be barred under Sections 53 and 61 of the ESI Act. 28 MACA Nos. 2863 of 2022 & 3759 of 2022 33. The learned counsel urged furthermore that the petitioner having been paid the treatment expenses and the disability compensation by the ESI Corporation, the Tribunal is unjustified in awarding compensation further under those heads. According to him, it would be as if awarding compensation twice for a single cause. 34. In the light of the discussions made hereinabove based on the decisions relied on by the respective counsel, this Court has no hesitation to hold that the claim petition filed under Section 166 of the MV Act is maintainable and the petitioner is entitled to get just and reasonable compensation as envisaged under the M.V.Act. 35. Whether the bar under Section 61 of the ESI Act would be applicable in the factual situation is also to be discussed in the context. The question stood referred to and sought to be answered can be distinguished in the manner that in the matter referred to, the liability of a person as employer under the ESI Act, as well as a tortfeasor under 29 MACA Nos. 2863 of 2022 & 3759 of 2022 the M.V. Act is to be adjudicated. Whether the person being the employer of the injured can be mulcted with liability in claims raised under the above two Acts in respect of the permanent disablement suffered by him in the motor accident and the expenses incurred for treatment for the injuries sustained in the motor accident. Or in other words, whether the employer of the injured can be made liable to pay compensation twice for the same cause of action. 36. In the case on hand, that question does not arise for consideration, since the employer of the injured will in no manner be responsible to pay the compensation under the M.V. Act. The driver, the owner or the insurer of the offending vehicle were in no way related to him by way of his employment at the relevant time and therefore they are only third parties. This Court has no hesitation to hold that the petitioner is entitled to get the compensation stood awarded by the Tribunal towards permanent disablement 30 MACA Nos. 2863 of 2022 & 3759 of 2022 and treatment expenses. The appeal filed by the insurer is only to fail for the reasons. 37. In the appeal filed by the claimant as MACA No.2863 of 2022, it was contended that the Tribunal failed to award compensation for loss of earning. A perusal of the impugned award would justify the contention taken by the claimant in the above appeal. The Tribunal had taken 100% as the permanent disability of the petitioner on the basis of the assessment made by the Medical Board of Udyogamandal after examination of him on 26.11.2020. That has been mentioned in a letter issued from the Branch Office of Employees’ State Insurance Office, Sub-region, Ernakulam on 06.01.2021 to the claimant and marked in evidence as Ext.X3. Law is settled by the Hon’ble Apex Court that when 100% disability is taken into account for calculation of compensation, the claimant will not be entitled to get compensation for loss of earning. Therefore, this court 31 MACA Nos. 2863 of 2022 & 3759 of 2022 is declined to award any sum as compensation towards loss of earning in favour of the claimant. 38. Modification of compensation is also sought by the claimant under the head transportation expenses, extra nourishment and past and future bystander expenses. It is noticed from the impugned award that the Tribunal has awarded `20,000/-, `50,000/- and `10,00,000/- respectively as compensation under the heads of compensation referred to above. As revealed from the documentary medical evidence on record, the claimant was undergoing treatment almost for 1 year. For the purpose of treatment, he was also found travelled to and fro hospital several times. He being permanently disabled on account of the injuries sustained in the motor accident, there is every scope for him to attend the hospital for treatment in the years ahead also. The Tribunal has awarded only `20,000/- as compensation towards transportation expenses, which in the view of this Court is too meagre and inadequate and therefore, 32 MACA Nos. 2863 of 2022 & 3759 of 2022 `60,000/- is awarded additionally. The Tribunal failed to award any sum as compensation towards future treatment expenses, but awarded `10,00,000/- as compensation towards past and future bystander expenses. Challenge was not raised by the insurer against the quantum of compensation stood awarded by the Tribunal by filing an appeal. During the course of argument, the learned counsel for the insurer urged that `10,00,000/- stood awarded towards past and future bystander expenses is on the higher side and canvassed for adjusting the same, if additional compensation is found payable under other heads. 39. The motor accident in question was occurred in the year 2018. No dispute can be raised with regard to the factum that the claimant had sustained very serious injuries in the motor accident and was 100% permanently disabled. The claimant being bedridden, undoubtedly requires the service of a bystander. Bystanders seek excess amount for providing support to patients. Even if `8,000/- is considered 33 ## MACA Nos. 2863 of 2022 & 3759 of 2022 as the sum payable to a bystander monthly and the multiplier method is followed as in **Kajal v. Jagdish Chand and others** [2020 4 SCC 413], `12,48,000/- (`8000/- x 12 x 13) is payable. Therefore, a sum of `2,48,000/(`12,48,000/- - `10,00,000/-) is payable to the claimant additionally under that head. Being aged only 47 years and bed ridden, it is essential for the petitioner to have extra nourishments. The Tribunal has awarded `50,000/- and this Court is inclined to modify the same to `70,000/- and therefore, the claimant will get `20,000/- (`70,000/- - `50,000/-) additionally under that head. As already stated, the petitioner requires future treatment. The Tribunal failed to award compensation under that head. Therefore, this Court is inclined to award `1,00,000/- under that head. 40. As rightly pointed out by the learned counsel, the Tribunal had denied the petitioner, compensation towards loss of amenities and enjoyments in life. Being 100% permanently disabled, the petitioner is denied with the 34 MACA Nos. 2863 of 2022 & 3759 of 2022 enjoyments and amenities in life, which he would have enjoyed, had he not been met with the motor accident. The Tribunal had awarded `3,00,000/- as compensation towards pain and sufferings and it being not challenged by the insurer, this Court is also inclined to award an equal sum as compensation towards loss of amenities and enjoyments in life. The Tribunal fixed 8% per annum as the rate of interest payable for the compensation stood awarded by it. The rate of interest adopted being reasonable, this Court maintains that. 41. In the calculation of compensation afresh as aforesaid, the claimant will get `7,28,000/- (`60,000/- + `2,48,000/- + `20,000/- + `1,00,000/- + `3,00,000/-) as additional compensation and that is payable in his favour. The amount except `1,00,000/- will carry interest at the rate as fixed by the Tribunal for the original compensation, from the date of filing of the Original Petition till the date of realisation. The amount with interest accrued on it shall be 35 MACA Nos. 2863 of 2022 & 3759 of 2022 deposited by the 3[rd] respondent in favour of the claimant within a period of two months from the date on which a certified copy of this common judgment is received. The amount shall be disbursed in favour of the claimant in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. Parties shall bear their respective costs in the appeal. MACA No.2863/2022 is allowed in part and MACA No. 3759 of 2022 is dismissed accordingly. Sd/- **MARY JOSEPH JUDGE** JJ