Whether insurance company can denied for WC claim saying you first go to ESIC though claim not lodged by them and benefit not received form ESIC
Claim should receive in WC policy why insurance company denied
To represent in insurance co
ineligible for any compensation under the Workers' Compensation (WC) policy for the same incident.
INsurance company was justified in denying claim
Act as mentioned herein above
It’s wrong practice by insurance companies.
Section 53 of the ESIC Act bars an insured person or their dependants from receiving or recovering compensation or damages for the same injury or illness under any other law if they have received compensation benefits under ESIC. However, this bar applies only if the compensation under the ESIC Act has actually been received.
• If the claimant has not lodged a claim with ESIC or has not received any benefits from ESIC, the bar in Section 53 does not apply, and the claim under the Workmen’s Compensation Act can be maintained.
Dear Ajay Sir, Thank you for your reply. With respect, your answer is incomplete and gives a misleading impression of the law. Please note the settled position of the Supreme Court (binding law) — which your answer omits: A. Trehan v. Associated Electrical Agencies, (1996) 9 SCC 255 — Section 53 of the ESI Act operates only when ESIC benefits have actually been availed. Mere coverage under ESIC is not a bar. Western India Plywood Ltd. v. P. Ashokan, (1997) 7 SCC 638 — the statutory bar applies only after ESIC compensation has been paid. National Insurance Co. Ltd. v. Mastan & Anr., (2006) 2 SCC 641 — the doctrine of election becomes final only after the claimant has availed a remedy under one statute. In short: Coverage under ESIC alone does not preclude recovery under a Workmen’s Compensation policy. The bar in Section 53 applies only if ESIC benefits were actually received. If no ESIC claim was filed and no benefit was paid — as is the factual position in my case — the WC claim remains legally maintainable. If you relied on a different authority or a specific factual premise (for example, that ESIC benefits were in fact paid), please share the full citation or the ESIC record relied upon. Otherwise I request that your published answer be corrected to reflect the binding Supreme Court position cited above — so that readers are not misled.
The insurance company cannot legally deny your Workmen’s Compensation (WC) claim simply by saying “go to ESIC first”, especially when no ESIC claim was filed and no ESIC benefits were ever received. Their stand is incorrect in law.
Your claim under the WC policy is fully valid and enforceable.
The law is clear that only when a worker actually receives ESIC benefits does the bar apply. If no benefit has been received, you are free to pursue your WC claim. This has been confirmed repeatedly by the Supreme Court of India.
Because you never claimed ESIC and ESIC never paid you anything, the insurance company cannot reject your WC claim on that basis.
You should now:
• Ask the insurer to give their denial in writing, along with any ESIC documents they claim to rely upon. They will not have any.
• Send a legal notice demanding approval of your WC claim.
• If they still refuse, file a complaint before IRDAI / Ombudsman and, if needed, the Consumer Commission. These forums regularly direct insurers to pay full compensation with interest.
I can assist you with:
• Drafting the legal notice
• Responding to the insurance company
• Filing the IRDAI / Ombudsman complaint
• Filing a Consumer Complaint for compensation, interest, and costs
An insurance company cannot legally deny a Workmen Compensation (WC) claim merely by saying “go to ESIC first” if the employee was not covered under ESIC at the time of accident, or no ESIC benefits were actually available/received.
If an employee is covered under ESIC (i.e., ESI contribution is paid and employee is eligible), then injury compensation must be taken only from ESIC, not from WC policy.
But if the employee is not covered under ESIC, or ESIC benefits are not available, then the employer (and the WC insurance) is fully liable under the Workmen Compensation Act.
ESIC and WC benefits cannot both apply, only one applies.
An employee can receive either ESIC benefits or WC (Workmen Compensation) benefits, not both.
If ESIC does not cover the employee (no registration, no contribution, no benefit), then the WC insurer is fully liable.
As per Section 53 of the Employees’ State Insurance Act and multiple Supreme Court judgments (e.g., Western India Plywood v. Ashokan, ESI Corporation v. Francis De Costa), ESIC and Workmen Compensation Act operate mutually exclusively.
If ESIC benefits are not available, the Workmen Compensation Act applies fully, and the insurer must indemnify the employer.
You can write to the insurance company about this as follows:
A denial merely stating “approach ESIC” without proving coverage is not acceptable.
Unless you provide documentary proof of:
ESIC registration of this employee Contribution records ESIC acceptance of a claim you cannot deny the claim on ESIC grounds.
In the conclusion of your legal notice you can demand the following:
Withdraw the denial letter
Process and settle the WC claim as per policy terms
Release compensation within 7 working days.
Failing which, you can mention that you will be constrained to escalate the matter to:
Insurance Ombudsman
Commissioner for Workmen Compensation (Labour Department) including consumer commission, if applicable.
The said act is illegal. You can approach the labour court for relief. You can also seek Independent relief before consumer court for deficiency of service against insurance company
Your WC claim is fully maintainable. The insurance company's ground for denial is legally unsustainable.
1. ESIC coverage alone does not bar a Workmen’s Compensation (WC) claim
The Supreme Court has repeatedly held that Section 53 of the ESI Act bars a WC claim only when the employee has actually received ESIC benefits, not merely because the establishment is covered under ESI.
Therefore, the insurance company cannot reject the claim merely by saying “first go to ESIC” when
• no ESIC claim was filed
• no ESIC benefit was received
2. Supreme Court has settled this issue beyond doubt
You are absolutely right in citing the following binding precedents:
• Trehan v. Associated Electrical Agencies, (1996) 9 SCC 255 — Bar under Section 53 applies only when benefits under ESIC have actually been availed.
• Western India Plywood Ltd. v. P. Ashokan, (1997) 7 SCC 638 — ESIC compensation must have been paid for the bar to apply.
• National Insurance Co. Ltd. v. Mastan, (2006) 2 SCC 641 — Doctrine of election becomes final only after the claimant chooses and receives benefits under one statute.
Since in your case no ESIC benefit has been availed, the bar under Section 53 is not triggered at all.
3. WC policy cannot be avoided by pushing the claimant to ESIC
Insurance companies often try to shift liability by citing ESIC coverage, but this argument fails when there is no ESIC claim or benefit.
The WC policy was specifically purchased to cover such employees. Once an accident has occurred, the insurer must evaluate and pay the claim strictly under the WC Act and policy conditions.
4. You can strongly insist on your WC claim being processed
Your legal position is completely clear:
• The claim is maintainable under the Workmen’s Compensation Act
• ESIC has not paid anything
• There is no statutory bar
• The insurer cannot escape its contractual liability
5. How to represent before the insurance company
You should submit a written representation stating:
• No ESIC claim was filed
• No ESIC benefit has been paid
• The Supreme Court has clearly held that only receipt of ESIC benefit triggers the bar
• Therefore, the insurer must process the WC claim strictly as per policy
Attach photocopies of the relevant Supreme Court judgments as supporting authority.
6. If the insurer still denies the claim
You have strong grounds to:
• File a complaint before the Insurance Ombudsman
• Initiate a claim before the Commissioner under the Employees’ Compensation Act, who can direct the insurer to pay
• Seek statutory interest and penalties for wrongful denial
1) We have to consider the effect of the bar created by Section 53of the ESI Act. Bar is against receiving or recovering any compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute as can be seen from the use of the words 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" and "under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise". The words "employed by the Legislature" are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to by passing the bar and defeating the object of the provision. In view of the clear language of the Section, we find no justification in interpreting or construing it as not taking away the right of the workman who is an insured person and an employee under the ESI Act to claim compensation under the Workmen's Compensation Act. We are of the opinion that the High Court was right in holding that in view of the bar created by Section 53 the application for compensation filed by the appellant under the Workmen's Compensation Act was not maintainable.
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Dear Advocate Indu, Judgement copies of three awards required to argue with Insurance Co I will pay for it Please matter most urgent
kindly forward copy of order passed by iniurance company
You can contact the individual advocate by clicking on to their icon available against their name, book a consultation and procure the desired judgment through the chosen advocate of this website or you can contact your own advocate in the local to assist you in this regards.
Yes, the insurance company can legally deny the Workmen’s Compensation (Employees’ Compensation) claim if the worker was an “insured person” under ESIC for that employment and this is an employment injury.
Reason :
Section 53, ESI Act says that an insured person “shall not be entitled to receive or recover” compensation under the Workmen’s Compensation Act or any other law for the same employment injury.
The Supreme Court in A. Trehan and Western India Plywood v. P. Ashokan has treated this bar as absolute – if the establishment is covered by ESIC and the injury is an “employment injury”, the remedy is only under ESIC, not under WC.
So, even if no ESIC claim was lodged and no benefit is yet received, many courts hold that the WC / EC claim itself is not maintainable because of Section 53.
What you can still argue (in one line):
The only way to sustain a WC policy claim is if you can show the worker was not actually an “insured person” for that injury (e.g. wages above ESIC limit, establishment not covered on that date, accident not an “employment injury” as defined), otherwise you will be pushed to ESIC.
For anything strategic or to challenge the insurer, you should sit with a local labour-law advocate in Gujarat and show them all policy and ESIC papers.
You can have a telephonic consulation through kaanoon with me i will do the needful
Dear Client, an insurance company cannot legally deny a Workmen Compensation (WC) claim merely by saying “go to ESIC first,” unless the worker was actually covered under ESIC and had already received ESIC benefits for the same injury. If the worker is eligible for ESIC but no claim was filed, no benefits were received, and ESIC has not accepted liability, the insurer cannot refuse WC liability on that ground alone. In such cases, the WC insurer must either settle the claim or issue a written repudiation with valid legal reasons—otherwise their denial is arbitrary and can be challenged before the Commissioner under the Employees' Compensation Act or in IRDAI grievance forums. I hope this answer helps. For any more queries, do not hesitate to contact us.
- Further, held that mere applicability of the ESI Act does not bar compensation under the Workmen Compensation Act unless ESI benefits are actually available.
- Hence, insurance company cannot deny on that ground.
REPLY TO ADVOCATE AJAY SETHI Dear Sir, Thank you for your response. However, I wish to clarify respectfully that the statement: “Section 53 creates an absolute bar against claiming compensation under any other law” is correct only with the condition that the employee has actually received ESIC benefits. This crucial condition is confirmed in three binding Supreme Court judgments: 1. A. Trehan v. Associated Electrical Agencies, (1996) 9 SCC 255 – Bar under Section 53 applies only after ESIC benefits are actually availed. 2. Western India Plywood Ltd. v. Ashokan, (1997) 7 SCC 638 – ESIC compensation must actually be paid for the bar to apply. 3. National Insurance Co. Ltd. v. Mastan, (2006) 2 SCC 641 – Election becomes final only after availing ESIC remedy. Therefore, the “absolute bar” exists only AFTER receipt of ESIC compensation, not merely because the employee is covered under ESIC. In my case: - No ESIC claim was lodged - No ESIC benefits were received - ESIC will not accept claim after 1.5 years Hence Section 53 does NOT apply and WC claim remains fully maintainable. I am only clarifying the complete legal position based on Supreme Court rulings. Thank you for your time and guidance.
absolute bar against claiming compensation for an employment injury under any other law ) if the employee is an "insured person" under the ESI Act. The bar applies whether the employee has actually received the benefits or not, so long as they are covered by the ESI scheme and are entitled to claim the benefits under that Act.
2) The critical point is that the entitlement to benefits under the ESI Act, not the actual receipt of them, activates the bar. An employee cannot bypass the ESI Act by simply choosing not to lodge a claim and then pursuing compensation under the WC Act. The ESI scheme is designed to be the exclusive remedy for insured employees and their dependents for employment injuries.
3) if you are an insured person under the ESI Act, any injury that qualifies as an "employment injury" falls under the ESI framework.
4) The fact that you have not lodged a claim or received benefits does not automatically make your WC claim maintainable, because the law bars you from "receiving or recovering" compensation under any other law if you are an insured person entitled to ESI benefits.
You may please note that the this legal requirement is explicitly affirmed by the Hon’ble Supreme Court of India in three binding decisions, namely:
1. A. Trehan v. Associated Electrical Agencies, (1996) 9 SCC 255
The Supreme Court held that the bar under Section 53 applies only after ESIC benefits are actually availed by the employee.
2. Western India Plywood Ltd. v. Ashokan, (1997) 7 SCC 638
The Court reiterated that Section 53 becomes operative only when compensation is actually paid under the ESIC scheme.
3. National Insurance Co. Ltd. v. Mastan, (2006) 2 SCC 641
The Court clarified that the bar of election is final only after the employee has availed remedies under ESIC.
Mere coverage, eligibility or possibility of ESIC claim is not sufficient.
In your case no “double benefit” or “dual compensation” exists.
Hence Section 53 cannot be invoked.
Accordingly, the Workmen Compensation claim is fully maintainable, and the WC policy must respond.
Therefore as the employee has not received any benefit from ESIC, the “absolute bar” under Section 53 does not apply.
The Workmen Compensation claim is legally valid and the insurer is obligated to process the claim under the WC policy.
Best of luck
Section 53 of the ESI Act bars an employee from claiming compensation under other laws only after ESIC benefits have actually been received, as confirmed by binding Supreme Court judgments—A. Trehan v. Associated Electrical Agencies (1996), Western India Plywood Ltd. v. Ashokan (1997), and National Insurance Co. Ltd. v. Mastan (2006). This means mere ESIC coverage or registration is not a complete bar to Workmen’s Compensation claims if no ESIC benefits were claimed or paid. In your case, since no ESIC claim was lodged and no benefits received, Section 53 does not apply, and the WC claim remains maintainable. This legal position is acknowledged in multiple authoritative rulings and supports pursuing the WC claim despite ESIC coverage.