Section 41
Limitation of workman’s right of action
of Workmen'S Compensation Act 1952
Nothing contained in this Act shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted and is prosecuting a suit for damages in respect of that injury in any court against his employer or if he has recovered damages in respect of that injury in any court from his employer;
and no suit for damages shall be maintainable in any court by a workman against his employer in respect of any injury—
(a)
if he has applied to the Commissioner to settle any question in respect of the injury under subsection 27(2); or
(b)
if an agreement has been come to between the workman and the employer and such agreement has been recorded under section 28; or
(c)
if he has recovered damages in respect of the injury in any court from any other person.
(2)
If a suit is instituted in any court to recover damages independently of this Act for injury caused by any accident, and it is determined in such suit or on appeal that the injury is one for which the employer is not liable in such suit, but that he would have been liable to pay compensation under this Act, the suit shall be dismissed; but the trial court, or if the determination is given on appeal, the appellate court shall, if the workman so choose, proceed to assess such compensation, but may deduct therefrom all or part of the costs which, in its judgment, have been caused by the workman instituting the suit instead of proceeding under this Act: and in any proceedings under this subsection, when the trial court or appellate court assesses the compensation, it shall
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give a certificate of the compensation it has awarded and the direction it has given (if any) as to the deduction of costs and such certificate shall have the force and effect of an Arbitrator’s order.