Claimants under the Motor Vehicles Act retain the right to compensation despite receiving benefits under the E.S.I. Act.

1. This appeal has been filed by the appellants - claimants under S.173 of the Motor Vehicles Act , 1988 against the award dated 2.2.2010 passed by the First Additional Motor Accidents Claims Tribunal, Raipur (in short 'the Tribunal') in Claim Case No. 67 of 2009 whereby claim petition of the appellants - claimants has been dismissed.

2. Brief facts of the case, as per averments made in the claim petition, are that Pawan Yadav was working as helper in Mahamaya Steel Industries Sarora (Urla). On 28.2.2009 respondent No. 1, driving the crane, which was at the relevant time owned by respondent No. 2 and insured with the respondent No. 3 in a rash and negligent manner, caused accident, as a result of which Pawan Yadav was crushed under the wheel of the crane and died on the spot.

3. At the time of accident, the deceased was a bachelor of 19 years and was earning Rs. 4,000 per month by working as helper in the crane. In addition to this, he was also earning Rs. 2,000 per month by running a betel shop. The appellants - claimants, who are parents of the deceased, were dependent upon the deceased. Therefore, they filed a claim petition under S.166 and S.140 of the Motor Vehicles Act , 1988 (in short 'the Act, 1988') for a total compensation of Rs. 22,00,000 under various heads.

4. However, the learned Tribunal, after hearing counsel for the parties, after close scrutiny of the evidence led before it by the parties, by the impugned award dismissed the claim petition as being not maintainable.

5. We have heard learned counsel for the parties, perused the material on record, including the impugned award.

6. The claim petition has been dismissed on the ground of maintainability as the claimants were getting monthly pension under the Employees' State Insurance Act at the rate of Rs. 500 each. Though there are restrictions under S.53 and S.61 of the (in short 'E.S.I. Act') that 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 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 E.S.I. Act and there is a bar of getting similar benefits, but it is to be noticed that under the Act, 1988, any person, irrespective of the fact whether he was an employee or not, can file a claim petition if the death is due to accident arising out of the use of motor vehicle. Therefore, in making claim under the Act, 1988, the restrictions imposed in S.53 and S.61 of the E.S.I. Act would not be a bar. However, the Claims Tribunal should have taken into consideration the pension or any other benefits being received by the claimants, while considering the loss of dependency and calculating the compensation.

7. The Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Hamida Khatoon , (2009) 13 SCC 361 , in para 6, has observed thus:

“(6) In A. Trehan v. Associated Electrical Agencies , 1996 ACJ 853 (SC), it was observed in paras 8 to 13 as follows:

'(8) The E.S.I. Act was enacted with an object of introducing a scheme of health insurance for industrial workers. The scheme envisaged by it is one of the compulsory State Insurance providing for certain benefits in the event of sickness, maternity and employment injury to the workmen employed in or in connection with the work in factories other than seasonal factories. The E.S.I. Act which has replaced the Workmen's Compensation Act , 1923, in the fields where it is made applicable is far more wider than the Workmen's Compensation Act , 1923 and enlarges the scope of compensation. S.38 provides