1. Bajaj Allianz General Insurance Company Limited has filed this appeal challenging the judgment and award dated 10th December 2010 made in MVC No. 653/2009 passed by the Motor Accidents Claims Tribunal, Bangalore, (hereinafter, referred to as ‘the Tribunal’, for short), fastening the liability on them to compensate the claimant.

2. The 1st respondent herein filed the claim petition, contending that on 17/12/2008, at about 10.00 p.m., while claimant proceeding on his TVS Moped bearing Reg.No.KA.06.J.11 from his residence to the Factory on National High way-48, on Nelamangala-Kunigal Road, a lorry bearing Reg.No.KA.02.D.476 came from Kunigal Circle in a rash and negligent manner and dashed against the TVS Moped. Due to which, claimant fell down and sustained grievous injuries to all over the body. Initially, he was taken to Harsha Hospital, Nelamangala, for first aid treatment. Thereafter, he has taken treatment in ESI Hospital, Rajajinagar, Bengaluru. Prior to the accident, he was working as shift Engineer in Pacific Industries and getting salary of Rs.8000/- per month. In the accident, he has sustained multiple fracture of anterior teeth/fracture of right mandible and fracture of middle Phalanx of left little finger. He spent huge money for the treatment. Due to the rash and negligent driving of the Lorry which was insured with Bajaj Allianz Insurance Company Limited and hence, both the respondents are liable to compensate the claimant and sought for the compensation of Rs. 4.00 lakhs.

3. In response to the notice issued by the Tribunal, respondents No.1 and 2 have filed the written statement.

4. The respondent No.1 in the written statement denied the involvement of the lorry in the accident resulting in the injuries to the claimant. He has admitted that he is the RC owner of the lorry and contended that as on the date of the accident insurance policy is in force and hence, insurer is liable to compensate the claimant.

5. The respondent No.2 Insurance Company in its written statement denied the involvement of insured vehicle. However, admitted that the Insurance policy of the lorry is in force as on the date of the accident. Further, the claimant is covered under the provision of the Employees State Insurance Act (‘the ESI Act ‘for short). Section 53 of the ESI Act, prohibits claiming compensation from any of the authorities. Hence, the claim petition filed by the claimant is not maintainable. Due to the negligence on the part of the rider of the TVS moped accident occurred and sought for dismissal of the claim petition.

6. On the basis of the pleadings of the parties, the Tribunal framed necessary issues.

7. After trial, the Tribunal held that, due to the actionable negligence on the part of the driver of the lorry accident occurred and the claimant is entitled for the compensation. Taking into consideration the injuries sustained and suffering undergone by the claimant, the Tribunal has awarded the compensation of sum of Rs.95, 832/-with 6% interest from the date of the petition till the realization. With regard to liability is concerned, though the insurance company taken the specific contention that the claimant is covered under the ESI Act, he is a person insured and sustained employment injury as provided under Section 2(8) of the Act, since he is not claimed any compensation against the employer and relying upon the judgment of this Court reported in 2010 (2) KCCR 929, liability fastened on the Insurance Company to compensate the claimant. Being aggrieved by the judgment and award passed by the Tribunal, the Insurance Company has preferred this appeal.

8. Sri. A. N. Krishna Swamy, learned Counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. While the claimant proceeding to his Factory, he was met with an accident during the course and out of employment, since he was the insured person, he cannot claim compensation under the Motor Vehicles Act or Workme