1. One Basavaraj (deceased), driver of a truck proceeding from Hubli to Bangalore on the Harihar by-pass road, stopped the truck near the check post and went to attend nature’s call. The cleaner of the vehicle went to check post for stamping the documents. The deceased while on return to the vehicle was hit and killed by the lorry, insured with respondent No.2. The wife and two minor children of the deceased have filed the petition before the Tribunal seeking compensation. The petition came to be dismissed on the ground that the deceased is an employee covered under the ESI Act and that he should seek compensation under the ESI Act and not under the Motor Vehicles Act in view of the provisions contained in Section 53 of the ESI Act.

2. The deceased was aged about 28 years according to the post mortem report. The petitioners have stated that the deceased was getting salary of Rs.2,100/- p.m. and bata of Rs.50/- per day. The employer of the deceased is also examined to substantiate the above version. The monthly income of the deceased would be Rs.3600/-.

3. Section 53 of the ESI Act is extracted hereunder for convenient reference:-

53. Bar against receiving or recovery of compensation or damages under any other law –

An insured person or his dependants 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 under the Workmen’s Compensation Act, 1923 (8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under the Act.

The above provision debars the insured person or his dependants from claiming compensation from the employer under the Workmen’s Compensation Act or any other law and that the compensation should be claimed only under the ESI Act in respect of an employment injury.

4. The ‘employment injury’ is defined in Section 2(8) of the ESI Act in the following manner:-

(8) ‘employment injury’ means a personal injury to an employee cased by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.

5. No doubt, the accident has occurred in the course and out of employment. The petitioners have not made any claim against the employer in the petition. The claim is against the offending lorry and the insurer of the lorry. The insurer of the lorry has issued policy under the terms of the Motor Vehicles Act. The deceased would be a third party as against the insurer of the offending vehicle. The prohibition under Section 53 of the ESI Act would come into play only when the compensation is claimed against the employer of the deceased.

6. In the instant case, the petitioners have filed the claim petition against the insurer of the offending vehicle on the ground that the deceased is a third party. Therefore, the provisions of Section 53 of the ESI Act would not come in the way to grant compensation to the deceased. The income of the deceased is assessed at Rs.3600/-per month. One third to be deducted towards his personal expenses. Rs.2400/- would ensure to the benefit of the dependants. The total loss of dependency would work out at Rs.4,89,600 (Rs.2400 x 12 x 17 multiplier). The wife of the deceased is entitled to compensation of Rs.25,000/- towards ‘loss of consortium’. The petitioners together would be entitled to Rs.25,000/- towards ‘loss of expectancy’ and Rs.10,000/- towards ‘funeral expenses. In all, the petitioners are entitled for a total compensation of Rs.5,49,600/- with interest at 6% p.a. from the date of the petition till payment.

Accordingly, appeal is allowed.