Result: Writ Petition dismissed.

A.N. Venugopala Gowda, J.

The point which arises for consideration in this writ petition is, whether the petitioner who is an employee, can calim compensation by filing claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act) from the respondent, on account of the injury suffered by him during the course of employment, when he has availed the benefits under the provisions of the Employees State Insurance Act, 1948 (hereinafter referred to as ESI Act)?

2. Factual Matrix:

(a) Briefly stated, the facts are that, the petitioner while working as a Private Security Guard in Mallasandra Milk Dairy of Tumkur Taluk from Janardhan Detectives and Security Chambers and while discharging the duties on 29.8.02 and while counting the milk cans of vehicle bearing registration No. KA-37-3799, on its backside, another vehicle bearing registration No. KA-06-4125, driven by its driver rashly and negligently, hit the petitioner, on account of which, he sustained the injuries. The information regarding the case was sent to the jurisdictional police and a case was registered against the driver of the motor vehicle bearing registration No. KA-06-4125 for the offences punishable under Sections 279 and 337 of IPC. According to the petitioner, he sustained fracture of tibia at upper and middle 1/3rd along with other injuries and took treatment at Tumkur Government Hospital. Subsequently, he was admitted to ESI Hospital for further treatment wherein, surgery was conducted.

(b) The petitioner filed claim petition under Section 166 of the M.V. Act, in the MACT at Tumkur, in MVC No. 83/03, which was contested by the respondent. After enquiry, the MACT has held the petition as not maintainable and has ordered the return of the petition with a direction to present the same before the proper authority. Feeling aggrieved, this writ petition has been filed.

(c) There is no dispute that, the petitioner being an employee and insured person under the ESI Act and as the injury sustained by him was an employment injury, became entitled to the benefit of Section 46(c) of the ESI Act. He had approached the ESI Corporation, which has granted the benefit available to him under the ESI Act.

3. Contentions:

(a) The main contention urged by Sri V. B. Siddaramaiah, learned Counsel appearing for the petitioner is that, the claim for compensation made by the petitioner under the MV Act was de-hors the contract of service and was based on the law of torts and hence, the bar created by Section 53 of the ESI Act is not at all applicable and the MACT has committed the error in returning the petition for presentation before proper authority.

(b) Per contra, Sri A.M. Venkatesh, assisted by Sri Shivannegowda, learned Advocates for the respondent, contended that, the ESI Act is a self contained Code and the injured employees like the petitioner are entitled to the benefit, in cases of injury suffered, under the provisions of the ESI Act and such employees, in the case of an employment injury, are debarred from making any claim under any other Act or law. Learned Counsel drew my attention to the relevant provisions of the ESI Act.

(c) In reply, Sri V.B. Siddaramaiah, learned Counsel contended that, Section 53 of the ESI Act should be construed in such a way that, an aggrieved employee is able to receive adequate compensation on account of the injury sustained by him involving a motor vehicle accident, by approaching the forum provided under the MV Act. Learned Counsel contended that, the amount paid or other benefits received under the ESI Act, cannot be regarded as an adequate measure of compensation for the pain and suffering of the petitioner, the amount spent towards obtaining treatment and the loss in earning capacity and other relevant factors and therefore, Section 53 of the ESI Act should not be construed in such a way, as to prevent an employee from claiming compensation from the owner and insurer of the motor vehicle, which