33. Section 33 of the principal Act is amended by deleting subsection (2) and substituting the following subsections:
“(2) Subject to subsections (2A) and (2B), no action for damages shall be maintainable in any court by an employee against his employer in respect of any injury by accident arising out of and in the course of employment —
if he has a claim for compensation for that injury under the provisions of this Act and does not withdraw his claim within a period of 28 days after the service of the notice of assessment of compensation in respect of that claim;
if he and his employer have agreed or are deemed to have agreed to the notice of assessment under section 24(2)(a) for that injury; or
if he has recovered damages in respect of the injury in any court from any other person.
(2A) Where —
a claim for compensation under this Act is made for an employee’s injury by accident arising out of and in the course of the employment;
there is no objection by the employee to the notice of assessment of compensation in respect of that claim;
the compensation ordered by the Commissioner thereafter in respect of that claim is of a lesser amount than that stated in that notice of assessment of compensation in respect of that claim;
within a period of 28 days after the making of the order, the employee notifies the Commissioner and the employer in writing that he does not accept the compensation so ordered, and has not received or retained any part of such compensation earlier paid (if any) by the employer; and
no appeal under section 29 is made against the order,
the employee may institute an action in any court against his employer for damages in respect of that injury and any order made by the Commissioner in respect of that injury shall be void.
(2B) Where —
the Commissioner assesses or makes an order that no compensation shall be payable for a claim for compensation for an employee’s injury by accident arising out of and in the course of employment because —
the injury did not arise out of and in the course of the employee’s employment; or
the injured person is not an employee within the meaning of this Act; or
an appeal to the High Court under section 29 from an order made by the Commissioner has failed because of any reason mentioned in paragraph (a)(i) or (ii),
the employee may institute an action in any court to recover damages independently of this Act for injury caused by that accident.”.