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