B. Manohar, J.

These two appeals are filed by the National Insurance Company Limited as well as the claimants, being aggrieved by the judgment and award dated 26th August, 2008 made in MVC No. 1093/1996 passed by the Motor Accident Claims Tribunal-VII, Bijapur (hereinafter referred to as 'the Tribunal' for short).

2. Since the judgment and award passed by the Tribunal has been challenged in these two appeals, both the appeals are clubbed together and disposed of by this common judgment.

3. MFA No. 30950/2009 is filed by the National Insurance Company, challenging the judgment and award fastening the liability on them to compensate the claimants whereas the claimants being not satisfied with the quantum of compensation filed MFA No. 30544/2008 seeking for enhancement of compensation.

4. The respondents 1 to 6 in MFA No. 30950/2009 and appellants in MFA No.30544/2008 filed the claim petition contending that husband of first claimant, father of claimants 2 to 4 and son of claimants 5 and 6 one V. Nagabushan working on the site of UKP/IBC for construction of the canal work near Sungthan village of Sindagi Taluk. Respondent No. 2 was a contractor of the said Canal work. Vehicles are being used for transportation of raw materials. On 6-10-1996 at about 11.00 p.m., due to the rash and negligent driving of the Ashok Leyland Dumper bearing registration No. AP-9/T-6591 driven in a rash and negligent manner dashed against Nagabushan. Due to which, Nagabushan fell down and sustained grievous injuries and succumbed to injuries on the spot. The claimants claim that the accident occurred due to the rash and negligent driving of Ashok Leyland Dumper. They further claim that at the time of death, the deceased was working as a Supervisor in the second respondent-company and earning salary of Rs. 4,500/- p.m. The claimants are dependants of the deceased and hence sought for compensation.

5. In pursuance of the notice issued by the Tribunal, the driver of the Dumper remained ex parte. Though the second respondent appeared through counsel, he has not filed any written statement. The third respondent appeared through their counsel and filed detailed written statement contending that the claim petition itself is not maintainable. Due to negligence on the part of the deceased himself, the accident had occurred. The deceased was an employee of the second respondent-company and he died during the course and out of employment. Hence, they filed a claim petition before the Commissioner for Workmen's Compensation under the Workmen's Compensation Act, 1923. The Tribunal has no jurisdiction to entertain and decide the claim petition. They have also disputed the insurance policy of the Ashok Leyland Dumper and sought for dismissal of the claim petition.

6. On the basis of pleadings of the parties, the Tribunal framed necessary issues. In order to prove the case of claimants, the first claimant was examined as P.W.1 and also examined other two witnesses as P.W.2 and P.W.3 and got marked the documents as Ex.P.1 to Ex.P.4. On behalf of the 3rd respondent/insurance Company, an Administrative Officer of the company was examined as R.W.1 and got marked the insurance policy of the offending vehicle as Ex.R.1.

7. It is relevant to mention here that when the claim petition of the claimants was pending before the Tribunal, the respondent/insurance Company had filed I.A. No. 4 before the Tribunal contending that the claim petition filed by the claimants under Section 166 of the Motor Vehicles Act is not maintainable since the claimants have already approached the Commissioner for Workmen's Compensation in WCA/SR-16/1997 under the provisions of Workmen's Compensation Act, 1923 claiming compensation on account of death of Nagabushan against the second respondent and the Insurance Company. The Commissioner for Workmen's Compensation passed the judgment and order on 26-5-1997 awarding compensation of Rs. 1,85,355/- to the claimants. Hence, the claimants cannot maintain