The judgment established the entitlement of claimants to seek compensation under the Motor Vehicle Act despite receiving compensation under the Employee State Insurance Act.

RITU BAHRI, J.

1. Two appeals, as noticed above, are being disposed of by this common judgment, having arisen out of the impugned Award dated 16.01.2014 passed by the learned Motor Accident Claims Tribunal, Panchkula.

2. The facts which are not in dispute are that on 30.11.2002, Ashok Kumar, died in a road accident, due to rash and negligent driving of Karnail Singh of bus bearing registration No. HR-68-A-9987 belonging to State of Haryana and owned by General Manager, Haryana Roadways, Chandigarh depot and another insured with the New India Insurance Co. F.I.R was registered in this regard against respondent No. 1.

3. The learned counsel for the appellant-Insurance Company contends that the claimants have already taken the compensation under the ESI and thus, the claim petition filed by the claimants under the Motor Vehicle Act is not maintainable. Once the compensation has been taken under one Act, then no compensation can be claimed under the Motor Vehicle Act and the learned Tribunal has wrongly followed and wrongly interpreted Section 53 of the Employee State Insurance Act, which is not applicable to the facts of the present case.

4. The learned counsel for the claimants-appellants contends that the compensation awarded by the learned Tribunal is on the lower side and deserves to the enhanced.

5-6. I have heard learned counsel for the parties and perused the record.

COMPENSATION AWARDED BY MACT

7. As far as the appeal preferred by the insurance company is concerned, it is not in dispute that the offending vehicle was fully insured from the appellant-company. Ex.RA is the photocopy of the driving licence possessed by the driver at the time of the accident. Its genuineness is also not under challenge. The only question which requires determination is as to whether the learned Tribunal has fell in error by awarding the compensation to the claimants under the Motor Vehicle Act, as they had already taken the compensation under the ESI

8. Reference at this stage can be made to a statement of Mitlesh Kathpalia, Manager of M/s Devi Graphics where the deceased was working. In his statement, he stated that the deceased was drawing a salary of Rs. 7000/- per months besides he was getting Rs. 100/- per hour as over time. The deceased was enrolled with ESIC through his employer and his insurance enrolment No. was 2412623828. He has proved the salary certificate as Ex P5 and copies of letters issued by ESIC as Mark A to Mark C.

Further Vinay Sirivastava being Assistant in ESIC, Ambala Cannt while appearing as P.W.5 has admitted that the deceased was enrolled with ESIC through his employer and his insurance enrolment No. was 2412623828. In his cross examination, he admitted that the department of ESIC has fixed the pension payable to the legal heirs of the deceased on the basis of contribution made for the last six months prior to his death. He stated that the deceased was drawing wages of Rs. 4700/- per month and in the month of January, February and March, 2012, the deceased was getting wages of Rs. 5000/- per month but there is a difference between salary and wages. At last, he stated that the legal heirs of the deceased are geing family pension from ESIC @ 4497/- per month.

The argument raised by learned counsel for the Insurance Company is l