- (1.) THE workman died from injuries recieved in an accident while he was returning home from his place of work, i.e., the establishment of the employer Company, the petitioner before this Court. A claim petition was instituted before the Employee's Compensation Commissioner, Sonepat in which an objection was taken by the employer that the accident is not covered under the provisions of the Employee's Compensation Act, 1923 in view of the statutory bar contained in S.53 of the Employees' State Insurance Act, 1948. Section 53 reads as follows: - "(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.)" By the Employees' State Insurance (Amendment) Act, 2010 (18 of 2010) introduced on the statute book w.e.f. 01st June, 2010 a right is conferred on the workman to claim compensation for injury and right on the claimants on account of death of the insured person/workman in accidents happening while commuting to the place of work or vice versa. The newly introduced Section 51 -E of the ESI Act, 1948 reads as follows: - "(51 -E. Accidents happening while commuting to the place of work and vice versa. - An accident occurring to an employee while commuting from his residence to the place of employment for duty or from the place of employment to his residence after performing duty, shall be deemed to have arisen out of and in the course of employment if nexus between the circumstances, time and place in which the accident occurred and the employment is established.)"
(2.) IT is not disputed before this Court that the petitioner -Company is covered by the provisions of the Employees' State Insurance Act, 1948 and the workman was an 'insured person' covered by the Act. Therefore, the claim in this case clearly lies not before the Employee's Compensation Commissioner but before the adjudicatory machinery provided under the ESI Act. It may be noted that fatal accident occurred on 19th December, 2012 after S.51 -E of the ESI Act, 1948 was introduced in the law. In view of this amendment to the ESI Act, Mr. Manuja is correct in his contention that the action brought before the Commissioner Workman's Compensation was not maintainable since the action would lie before the Employees' State Insurance Court. Therefore, the present proceedings before the Commissioner deserve to be terminated by sustaining the objection as to maintainability. They are accordingly terminated.
(3.) HOWEVER , instead of the claimants being compelled to present a fresh application before the Employees' State Insurance Court to claim compensation it is found expedient to order the transfer of the judicial file from the Board of the Commissioner Employee's Compensation, Sonepat and to direct transfer of that file to be placed before the competent authority under the Employees' State Insurance Act exercising territorial jurisdiction over the area in which the death occurred. Both parties have consented to this order in order to save time as neither death nor relationship of employment is disputed. The petitioner would take all steps provided by law and required of it including sending a report of the death to the office of ESI concerned within 15 days from reciept of a copy of this order. The original file before the Commissioner be either sent per hand of an official of the office of the Commissioner Workman Compensation, Sonepat or by courier or as deemed fit by the Commissioner but with expenses to be borne by the petitioner . Let the parties appear before the ESI Court for preliminary appearance on 15.04.2014 and in case, it is a holiday, on the next working day.;