# NTPC v. ESIC, Sarvodaya Nagar Kanpur & Anr - **Citation:** (2022) 4 ILRA 260 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-03-11 - **Case number:** First Appeal From Order No. 2368 of 2003 - **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ntpc-v-esic-sarvodaya-nagar-kanpur-anr-48307 - **Pages:** 4 ## Headnote (A) Civil Law - Employee State Insurance Act,1948 - beneficial peace of legislation - Applicability of the Act - Section 45A - Determination of contributions in certain cases ; Section 75,75(g),75(2B) - matters to be decided by the Employees Insurance court - Court has power to waive or reduce the amount where the dispute goes to the root of the dispute that the appellant is not liable, the jurisdiction and powers of the Court were with them - provisions of law demanding of 50% would be a directly order but provisions of Section 75 (2B) are not mandatory. (Para - 5,12) Order of Commissioner and subsequent order - under challenge - grounds - no final order under Section 45-A of Act passed against plaintiff/Appellant - amount mentioned in show cause noyice cannot be treated as amount due against - direction to deposit 50% of amount - provisions of Section 75(2B) of Act not applicable - refused to decide application for grant of temporary injunction - reliefs sought - 4 All. NTPC Vs. ESIC, Sarvodaya Nagar Kanpur & Anr. 261 set aside order - direction to decide applicability of Act upon it without insisting for depositing anything .(Para - 1,2) HELD:-Matter remanded back to E.S.I court who shall not insist for any amount to be deposit . Direction to E.S.I court to decide the deleted issue no. 4 which is deleted without any application and decide the matter in view of the prevailing law and the provisions of Section 75 (2B) , Section 75(1) (g) and proviso of Section (1)(4) of the Act. Orders passed are bad in eye of law. Question of law decided in favour of appellant and against the respondent.(Para - 9,10,11) Appeals allowed. (E-7) List of Cases cited:- ## Text 260 INDIAN LAW REPORTS ALLAHABAD SERIES principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to any claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 but if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount. 16. The Tribunal shall follow the guidelines issued by the Hon'ble Apex Court in Bajaj Allianz General Insurance Company Privae Ltd. vs. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. Since long time has elapsed, the amount be deposited in the Saving Bank Account of claimant(s) in a nationalized Bank. 17. We request the Registrar General to place a copy of this Judgement before the Hon'ble the Chief Justice for circulating it to the Tribunals for their guidances, so that, the Tribunals may not commit the same error as committed in this litigation. ---------- (2022)04ILR A260 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.03.2022 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE AJAI TYAGI, J. First Appeal From Order No. 2368 of 2003 with First Appeal From Order No. 1530 of 2008 NTPC ...Appellant Versus ESIC, Sarvodaya Nagar Kanpur & Anr. ...Respondents Counsel for the Appellant: Sri Santosh Kumar Tripathi, Sri N.C. Rajvanshi, Sri Piyush Bhargava, Sri Vivek Ratan Agrawal. Counsel for the Respondents: (A) Civil Law - Employee State Insurance Act,1948 - beneficial peace of legislation - Applicability of the Act - Section 45A - Determination of contributions in certain cases ; Section 75,75(g),75(2B) - matters to be decided by the Employees Insurance court - Court has power to waive or reduce the amount where the dispute goes to the root of the dispute that the appellant is not liable, the jurisdiction and powers of the Court were with them - provisions of law demanding of 50% would be a directly order but provisions of Section 75 (2B) are not mandatory. (Para - 5,12) Order of Commissioner and subsequent order - under challenge - grounds - no final order under Section 45-A of Act passed against plaintiff/Appellant - amount mentioned in show cause noyice cannot be treated as amount due against - direction to deposit 50% of amount - provisions of Section 75(2B) of Act not applicable - refused to decide application for grant of temporary injunction - reliefs sought - 4 All. NTPC Vs. ESIC, Sarvodaya Nagar Kanpur & Anr. 261 set aside order - direction to decide applicability of Act upon it without insisting for depositing anything .(Para - 1,2) HELD:-Matter remanded back to E.S.I court who shall not insist for any amount to be deposit . Direction to E.S.I court to decide the deleted issue no. 4 which is deleted without any application and decide the matter in view of the prevailing law and the provisions of Section 75 (2B) , Section 75(1) (g) and proviso of Section (1)(4) of the Act. Orders passed are bad in eye of law. Question of law decided in favour of appellant and against the respondent.(Para - 9,10,11) Appeals allowed. (E-7) List of Cases cited:- 1. D.L.F Power Ltd. Vs Regional Director, (2009) 123 FLR 964 (P&H) 2. ESI Corpn. Vs C.C. Santhakumar, (2007) 1 SCC 584: (2007) 1 SCC (L&S) 413 (Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J. & Hon'ble Ajai Tyagi, J.) 1. Heard Sri Vivek Ratan Agarwal, learned counsel for the appellant and Sri Brahmdev Dwivedi, learnd counsel for the respondent who due to physical ailment has joined through video conferencing. "The reliefs sought in the aforesaid Appeal are that this Hon'ble Court may graciously be pleased to allow this Appeal, set aside the order dated 22.08.2003 passed by the court below in ESI case No. 4 of 2003 with costs throughout, direct the court below to decide the question raised by the appellant about the applicability of the Act upon it without insisting for depositing anything, and/or may grant such other and further relief which Hon'ble Court may deem just, fit and proper in the facts and circumstances of the cases to meet the ends of justice." 2. Facts:- The appellant has challenged the order of the Commissioner challenging 1st order and then subsequent order on following grounds:- "A. Because as yet no final order under Section 45-A of the Act has been passed against the plaintiff/Appellant and as the amount mentioned in the show cause noyice dated 20/23.06.2003 cannot be treated as amount due against the plaintiff/Appellant and as such the court below was not justified in passing the impugned order directing the Plaintiff/Appellant to deposit 50% of the amount mentioned in show cause notice dated 20/23.06.2003 and further holding that only thereafter the application for grant of temporary injunction and other pleas raised by the Plaintiff/Appellant would be considered. B. Because in the facts and circumstances of the case, the provisions of Section 75(2B) of the Act are not applicable and as such the court below acted illegality and with material irregularity in refusing to decide the application for grant of temporary injunction unless 50% of the amount shown in the show cause notice dated 20/23.06.2003 is deposited by the Plaintiff/Appellant." 3. Both the appeals requires to be allowed for the reasons as below:- 4. The provisions of Section 75(g) plays a pivotal role as jurisdiction of Insurance Court is obliged to decide the issue as to whether any organisation is covered by Employee State Insurance Act,1948 ('Act' for short). Object of Act is to provide certain benefits to the employees 262 INDIAN LAW REPORTS ALLAHABAD SERIES and there is waive power to predeposit. All these aspects were to be decided by the Court. The Employees State Insurance Act though being beneficial peace of legislation:- "A plain reading of this Section provides that a dispute between the principal employer and Corporation in respect of any contribution or any other dues could not be raised by the principal employer in the 'Employees' Insurance Court only after depositing 50% of the amount claimed by the Corporation. The only relief is provided in the Proviso of the said section is that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited. As per the proviso recording reasons in writing would arise in a situation where the Court decides to waive or reduce the amount to be deposited. In case the Court is not waiving off or is not reducing the mandatory deposit of the amount of 50%, the Court is not required to record reasons in writing, D.L.F Power Ltd. V. Regional Director, (2009) 123 FLR 964 (P&H). ESI Corpn. v. C.C. Santhakumar, (2007) 1 SCC 584: (2007) 1 SCC (L&S) 413." 5. The Court has power to waive or reduce the amount where the dispute goes to the root of the dispute that the appellant is not liable, the jurisdiction and powers of the Court were with them. Obligations to adjudicate as per the judgement of Modi Steels Unit-A v. ESI Court, (1984) 2 LLN 655 has been not adhered to. 6. We are not going into the merits of the matter as there is no adjudication that the appellant is under duty to pay the amount claimed. They have raised objections as their liability is also not there as they have their own rules which covers their employees which are much better than the Act. We are not going into this aspect. 7. We also hope that the respondent will also look into this issue as the medical benefits given to the employees according to the appellant is much more than the benefits which would accrue under the Act. We are not going into the same. The appropriated Government would look into this issue also. 8. Appeals allowed. 9. Matter be remanded back to the E.S.I court who shall not insist for any amount to be deposit as the National Thermal Power Corporation Ltd. has raised an issue that they are not covered by Employees State Insurance Act and N.T.P.C as a better came for its employees. All these contentions have not been considered by the court below while rejecting both the applications, i.e set aside. 10. The E.S.I court will decide the issues. We direct the E.S.I court to decide the deleted issue no. 4 which is deleted without any application and decide the matter in view of the prevailing law and the provisions of Section 75 (2B) relied by Sri. Brahmdev Dwivedi, learned counsel for the respondent and Section 75(1) (g) and proviso of Section (1)(4) of the Act. 11. With all these observations, we prima-facie hold that orders passed are bad in eye of law. This question of law is decided in favour of the appellant and against the respondent. 12. Record be send back to the E.S.I court to decide the matter within 12 week's from today as they are pending since long. 4 All. Smt. Shalini Srivastava & Ors. Vs. U.P.S.R.T.C. & Ors. 263 We make it clear that the provisions of law demanding of 50% would be a directly order but provisions of Section 75 (2B) are not mandatory. 13. We are thankful to both the counsels for ably assisting us. ---------- (2022)04ILR A263 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.03.2022 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE AJAI TYAGI, J. First Appeal From Order No. 2744 of 2010 Smt. Shalini Srivastava & Ors. ...Appellants Versus U.P.S.R.T.C. & Ors. ...Respondents Counsel for the Appellants: Sri Sharve Singh Counsel for the Respondents: Sri Dinkar Mani Tripathi, Sri Samir Sharma (A) Torts Law - Motor vehicle Act,1988 - quantum of compensation - Principle of " res ipsa loquitur" - " the things speak for itself" - composite/contributory negligence - head on collision - deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care .(Para - 10) (B) Torts law - Principle of Contributory negligence - a person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place - that amount will be detected from the compensation payable to him if he is injured - to legal representative if he dies in the accident .(Para - 7) (C) Tax Law - The Income Tax Act, 1961- Section 194A (3) (ix) - total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis - if the interest payable to claimant for any financial year exceeds Rs.50,000/- - insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' - if the amount of interest does not exceeds Rs.50,000/- in any financial year - registry of Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income-Tax Authority. (Para - 21) Accident - Bus knocked down Motorcyclist - died - Tribunal took the income of the deceased to be a notional income of Rs.3,000/- only - 50% negligent held by tribunal - Awarding a sum of Rs. 2,21,500/- as compensation - interest at the rate of 6% - against Rs.60,00,000/- claimed by the claimantsappellants - aggrieved hence appeal. (Para - ) HELD:-Court held the driver of the Bus 75% negligent and the deceased to be 25% negligent. income of the deceased to be Rs.7,500/- per month.Total compensation payable to the appellants is 11,62,500/-. Direction to respondent-U.P.S.R.T.C. to deposit the amount along with additional amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. Amount already deposited be deducted from the amount to be deposited.(Para - 11,13,16) Appeal partly allowed. (E-7) List of Cases cited:- 1. General Manager, Kerala S.R.T.C. Vs Susamma Thomas, 1994 SCC (2) 176 2. Sarla Verma & ors. Vs D.T.C. & anr., 2009 LawSuit (SC)