Dinesh Maheshwari, J. - (1.) These two apeals preferred respectively by the insurer of one of the vehicles involved in the accident and by the claimants against the same award dated 1.9.1998 made by Motor Accidents Claims Tribunal-I, Jodhpur in M.A.C. Case No. 604 of 1995 were heard together and are taken up for disposal by this common judgment. The insurer contends that the victim being driver of the Roadways bus involved in the accident, having suffered employment injury and being covered under the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the E.S.I. Act'/'the Act of 1948'), the claimants are not entitled to claim compensation under the Motor Vehicles Act, 1988 (hereinafter referred to as 'the M.V. Act'/'the Act of 1988'). On the other hand, the claimants seek enhancement of the amount of compensation awarded by the Tribunal.
(2.) The facts relevant for determination of the questions involved in these appeals could be noticed thus: The claimants, appellants in C.M.A. No. 714 of 1998, submitted the claim application under sections 140 and 166 of the Act of 1988 with the submissions that they were respectively the wife, children and parents of the deceased Indra Singh who was in the employment of Rajasthan State Road Transport Corporation ('R.S.R.T.C.') as driver earning an average income of Rs. 2,455 per month. Narrating the accident, it was averred that on 2.7.1993, the deceased Indra Singh was driving a bus bearing registration No. 2818 and started from Chaba for Jodhpur, At about 10.30 a.m. after taking passengers from Phalodi Road Bus Stand, he proceeded further and after about 1 1/2 km from the bus stand, the non-applicant No. 1 brought driving a truck bearing registration No. RJF 3571 rashly and negligently in the middle of the road; the deceased lowered down the speed of his bus and took it towards left hand side, yet the non-applicant No. 1 hit the bus head-on that resulted in bursting the front tyre of the bus and the bus went down the road before coming to a halt; the deceased driver of the bus sustained various injuries and fell out; he was removed to the hospital and despite all efforts, could not be saved and met with his untimely death on 9.7.1993. It was asserted that there was no fault of the deceased bus driver and the accident was caused by rash and negligent driving of truck bearing registration No. RJF 3571 by non-applicant No. 1 in the middle of the road. For quantification of compensation, it was pointed out that the deceased was 35 years of age and earning average Rs. 2,455 per month; that the claimants were his widow 27 years of age and the children in the age group of 6 years to 3 months and the parents in the age group of 75-70 years. It was submitted that the deceased was the only earning member of the family and all the claimants were totally dependent upon him. An amount of Rs. 5,00,000 was claimed for loss of income and further Rs. 1,00,000 towards the loss of retiral benefits; further compensation was claimed towards loss of property, funeral expenses and so also non-pecuniary losses. The applicants claimed Rs. 9,02,000 under section 166 of the Act of 1988 and separate amount of Rs. 25,000 under section 140. The claim application was submitted against the driver, owner and insurer of the truck No. RJF 3571.
(3.) The driver and owner of the truck remained ex pane and the insurer while stating general denial of the claim averments submitted that in the police investigation, it was found that the accident was caused because of the fault of deceased bus driver Indra Singh and, therefore, the claimants were not entitled to claim any compensation. In the alternative, it was submitted that if any fault be found of the truck driver, liability be fixed on the principles of contributory negligence. It was also alleged that the truck driver was not having valid driving licence and was not plying in the control and at the instructions of the insured. Another objection was stated in the manner that the deceased Indra Singh fell in the category of 'employee' within the meaning of E.S.I. Act and under the said Act, the risk was covered and, therefore, unless claimants establish that they have not recovered any compensation under the E.S.I. Act, they were not entitled to claim compensation before the Tribunal.;