K.M.Samad v. Employees State Insurance Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 3RD DAY OF FEBRUARY 2015/14TH MAGHA, 1936 INS.APP.No. 95 of 2012 -------------------------------- JUDGMENT DATED 13-01-2012 IN IC 8/2007 OF EMPLOYEES INSURANCE COURT, ALAPPUZHA ......

APPELLANT(S)/APPLICANT:

---------------------------------------- K.M.SAMAD, AGED 55 YEARS, S/O.K.M.MOOSA, KOTTAPPADY HOUSE, ASHOKAPURAM P.O., ALUVA.

BY ADVS.SRI.P.N.SUKUMARAN SRI.P.S.APPU SRI.JAISON JOSEPH RESPONDENT(S):

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1. EMPLOYEES STATE INSURANCE CORPORATION, REPRESENTED BY MANAGER, LOCAL OFFICE, E.S.I.CORPORATION, ALUVA-683 101.

2. EMPLOYEES STATE INSURANCE CORPORATION, REPRESENTED BY DIRECTOR, MALU'S COMPLEX, ST.FRANCIS CHURCH ROAD, KALOOR, COCHIN-682 017. BY ADVS. SRI.T.P.M.IBRAHIM KHAN, SC SRI.K.M.ABDUL MAJEED THIS INSURANCE APPEAL HAVING COME UP FOR ADMISSION ON 03-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/

P.B. SURESH KUMAR, J.

---------------------------- Insurance Appeal No.95 of 2012 ------------------------------------ Dated this the 3rd day of February 2015

J U D G M E N T

The decision of the Employees Insurance Court, Alappuzha in I.C.No.8 of 2007 is under challenge in this appeal. The applicant in the proceedings is the appellant.

2. The applicant was an insured employee attached to M/s.Asoka Textiles Ltd., Aluva covered by the provisions of the Employees State Insurance Act, hereinafter after referred to as 'the Act' for short. On the basis of a report submitted by the employer of the applicant that the applicant has sustained an employment injury, the Employees State Insurance Corporation, hereinafter referred to as 'the Corporation' for short, disbursed to the applicant temporary disablement benefits to the tune of Rs.30,430/-. Later, it was revealed on enquiry that the claim raised by the applicant was false. Consequently, the Corporation revoked its decision to grant disablement benefits to the applicant and initiated steps to recover the amounts paid to the

Insurance Appeal No.95 of 2012 2 applicant. The proceedings before the Insurance Court was instituted challenging the steps taken by the Corporation for recovery of the disablement benefits granted to the applicant.

3.

The Insurance Court, on an appraisal of the materials on record, found that the applicant is liable to re-pay the amount received by way of disablement benefits with 6% interest and permitted the applicant to pay the same in ten monthly instalments. It is challenging the said order of the Insurance Court that the applicant has come up in this appeal.

4. In the meanwhile, the Corporation instituted S.T.No.4130 of 2001 before the Court of the Judicial First Class Magistrate No.1, Aluva against the applicant for the offence under Section 84 of the Act, for having obtained the disablement benefits based on a false claim. In the said proceedings, the applicant was convicted and sentenced to undergo imprisonment. The conviction and sentence was challenged by the applicant in Criminal

Insurance Appeal No.95 of 2012 3 Appeal No.823 of 2006 before the Sessions Court, Ernakulam. The appellate court reduced the sentence of imprisonment imposed on the applicant till rising of the Court and directed the applicant to pay a sum of Rs.45,000/- by way of compensation to the Corporation as provided for under Section 357(3) of the Code of Criminal Procedure.

5. In this appeal, the applicant has produced the judgment of the Sessions Court, Ernakulam in Criminal Appeal No.823 of 2006. He has also produced the receipt issued from the Court of the Judicial Magistrate of First Class No.1, Aluva, evidencing the deposit of the compensation directed to be paid for the benefit of the Corporation. There is nothing on record to indicate as to whether the amount which has been deposited by the applicant has been received by the Corporation. Section 357(5) of the Code of Criminal Procedure provides that at the time of awarding compensation in any subsequent Civil Suit relating to the

Insurance Appeal No.95 of 2012 4 same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. In other words, the mandate of the statute is that if proceedings are initiated simultaneous to the criminal proceedings for recovery of the amount due from the accused, the amount directed to be paid as compensation under Section 357(3) of the Act shall be adjusted towards the dues. The coercive proceedings initiated by the Corporation for recovery of the amounts due from the applicant can certainly be considered as a simultaneous proceedings initiated for recovery of the amount due from the applicant. Even though Section 357(5) of the Code of Criminal Procedure may not strictly apply to the proceedings initiated by the Corporation, according to me, the compensation paid by the applicant is liable to be adjusted against the amounts payable by the applicant to the Corporation. This aspect of the matter is not seen considered by the Insurance Court. In the circumstances, I deem it appropriate to remit this matter to the

Insurance Appeal No.95 of 2012 5 Insurance Court for fresh disposal, after considering the issue as to whether the amount paid by the applicant as directed by the Sessions Court, Ernakulam in Crl.Appeal No.823 of 2006 by way of compensation is liable to be adjusted against the amount due from the applicant. The appeal is disposed of as above.

Sd/- P.B. SURESH KUMAR JUDGE NS /True Copy/ P.A to Judge