K.C. Agrawal, J. - (1.) THIS is an appeal under Section 110 -D of the Motor Vehicles Act against the judgment of the Motor Accidents Claims Tribunal, Varanasi, dated 19th October, 1976, rejecting the claim petition filed by the Appellants.
(2.) MR . Niranjan Singh was an employee of the then Benaras Electric Light and Power Company in the year 1974. On 22.3.1974, at about 5.30 p.m. while he was coming on a bicycle from his duty to his house, truck No. USU 2175 knocked him down as a result of which he received injuries and was admitted to hospital on 23.3.1974. Ultimately, he succumbed to his injuries on 27.3.1974. The heirs and legal representatives, who are the Appellants before us in this appeal, filed an application under Section 110 -A of the Motor Vehicles Act and claimed rupees one lac. as compensation. The truck, with which the accident had taken place, belonged to Kamlesh Chandra Gupta, Respondent 1. He filed a written statement denying that the accident took place on account of the rash driving of the truck by its driver and also asserted that as the Appellants had been given compensation under the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the Act'), the present claim petition was barred by Section 53 of the Act. The insurance company also contested the claim.
(3.) BY its judgment dated 19.10.1976, the Motor Accidents Claims Tribunal held that there was rashness and negligence in driving the truck and the deceased Niranjan Singh had been knocked down by the said truck and received several injuries. The Tribunal found that Niranjan Singh died as a result of the injuries received by him. Taking up issues 2 and 3 together, the Tribunal held that the average income of the deceased was about Rs. 900/ - per month. The Tribunal, however, held that as the Appellants were getting Rs. 10.65 paise per day from the employer of the deceased Niranjan Singh under the Act, the claim petition was barred by Section 53.;