AHMED KHAN Vs. SHER KHAN

JUDGEMENT

(1.) THIS is claimant's appeal under Section 173 of the Motor Vehicles Act 1988. By the impugned Award, the claim petition filed by the claimant has been dismissed by the Tribunal in view of provision contained in Section 53 of the employees State Insurance Act, 1948 (for short '1948 Act') Tribunal found and held that the respondent Sirajkhan as also appellant were equally responsible for causing the accident. This finding is not under challenge. It is not disputed that on the fateful day, offending vehicle was insured with National Insurance company Limited. Tribunal, however dismissed the claim petition in view of section 53 of the 1948 Act only on the ground that the appellant had already received the lump sum amount of compensation and is getting monthly disability pension at the rate of Rs. 1300. 82 from the ESI and as such, he is not entitled to compensation under Motor Vehicles Act, 1988; Hence this appeal.

(2.) WE have heard learned Counsel for appellant and learned Counsel for the Insurance Company and MPSRTC.

(3.) AFTER having heard rival submission, in our opinion the appeal deserves to be allowed. The moot question is whether the appellant is entitled the compensation under the Law of Torts? Learned Counsel for appellant placed reliance on a decision of this Court in the case of M. P. State Road Transport corporation Vs. Pravin Kumar Bhatnagar, 1994 ACJ 579 and submitted that respondents can not take the plea that the appellant is not entitled to compensation under the Motor Vehicles Act, 1988. It is pertinent to point out that Section 53 of 1948 Act creates bar only against receiving the compensation for the employment injury. Section 53 came up for consideration of this Court in case of M. P. State road Transport Corporation (supra) and it was held that the claimant could recover the compensation from the owner/driver and insurer of the offending vehicle involved in the road accident. The decision of this Court (supra) was later on approved by the Supreme Court in a subsequent decision. The Tribunal dismissed the claim petition only on this technical ground without assessing the amount of compensation. Shri Goyal, Counsel for the Insurance Company is not right in contending that it was a case of composite negligence. As stated herein above, the Tribunal has found that it was a case of contributory negligence. In case of composite negligence the amount of compensation can be recovered from any of the joint tort-feasors. The accident occurred on account of collision between two vehicles and the Tribunal has rightly held that it was a case of contributory negligence.