M. P. CHINNAPPA, J. ( 1 ) THESE appeals are preferred by the insurance companies being aggrieved by the judgment and award dated 5-3-1990 passed in m. v. c. No. 71 of 1987 and the judgment and award dated 24-11-1988 passed in m. v. c. No. 165 of 1987 by the motor accidents claims tribunal, allowing partly the claim petitions for compensation of the petitioners. ( 2 ) THE facts leading to these appeals are that on 31-8-86 at about 10. 30 p. m. one k. n. thipperudraiah and m. r. sathyamurthy who are the employees of Karnataka soap and detergent limited which comes under the employees state insurance corporation were travelling in a van bearing No. Car 3865 belonging to the said employer. When the van reached near the government junior college (ammani college) at chowdaiah road, bus bearing No. Caa 918 belonging to Karnataka government tourist development corporation collided with the van in which these petitioners were travelling, as a result of which these persons sustained multiple grievous injuries including compound fractures. Therefore, they lodged claim petitions under Section 110-a of the Motor Vehicles Act claiming compensation against the Karnataka soap and detergent limited, Karnataka government insurance department (insurer of van car 3865), Karnataka state tourist development corporation (owner of the bus caa 918), united India insurance company limited (insurer of the bus caa 918) and k. l. venkata krishna alias krishna (driver of bus caa 918 ). ( 3 ) AFTER enquiry, the tribunal allowed both m. v. c. nos. 71 of 1987 and 165 of 1987. In m. v. c. No. 165 of 1987 filed by thipperudraiah, the tribunal has held that he is entitled for a compensation of Rs. 33,000/- with interest thereon at 9% p. a. from the date of petition till the date of realisation from the respondents 1 to 5 and as far as respondents 2 and 4 are concerned, each is directed to pay 50% of the compensation in favour of the petitioner. ( 4 ) IN m. v. c. No. 71 of 1987 which was filed by m. r. sathya murthy the tribunal has held that the petitioner therein was entitled to Rs. 35,992/- with interest at 9% p. a. and directed respondents 1 to 4 therein to jointly and severally pay the amount. ( 4 ) IN m. v. c. No. 71 of 1987 which was filed by m. r. sathya murthy the tribunal has held that the petitioner therein was entitled to Rs. 35,992/- with interest at 9% p. a. and directed respondents 1 to 4 therein to jointly and severally pay the amount. Further respondent 2 and 4 were directed to pay the compensation amount to the extent of 50% each with interest. These orders have been assailed in these appeals. ( 5 ) AS against the award passed in m. v. c. No. 71 of 1987 i. e. in favour of sathya murthy the k. g. i. d. preferred an appeal in m. f. a. No. 1338 of 1990 and in m. f. a. No. 416 of 1996 the united India insurance company also questioned that award. ( 6 ) IN m. f. a. No. 715 of 1989 the united India insurance company has questioned the award of compensation in favour of k. n. thipperudraiah in m. v. c. No. 165 of 1987. It may be mentioned here that neither the owner nor the driver of the bus caa 918 has filed any appeal. Similarly, the employer of these claimants has also not preferred any appeal. Only the insurance companies have preferred these appeals as stated earlier. ( 7 ) HEARD the learned counsel appearing for the respective parties. ( 8 ) THE learned advocates appearing for the appellants have vehemently argued that the claimants viz. Sathya murthy and also thipperudraiah being the employees of the Karnataka soap and detergent limited factory are covered under the Employees' State Insurance Act, 1948 (for short 'the e. s. i. act' ). They have availed e. s. i. facilities from the factory. Therefore, they are not entitled to file applications before the tribunal in view of the bar contained under sections 53 and 61 of the e. s. i. act. On that ground they submitted that the tribunal should have dismissed their applications. ( 9 ) THE advocates appearing for the claimants however submitted that they are entitled for the compensation payable to them due to the tortious liability of the third party, notwithstanding the fact that they are covered under the e. s. i. act. ( 10 ) ADMITTEDLY these two claimants are the employees of the 2nd respondent. ( 9 ) THE advocates appearing for the claimants however submitted that they are entitled for the compensation payable to them due to the tortious liability of the third party, notwithstanding the fact that they are covered under the e. s. i. act. ( 10 ) ADMITTEDLY these two claimants are the employees of the 2nd respondent. The van bearing No. Car 3865 was provided by their employer respondent to go to their house after their work in the factory. These two employees of the 2nd respondent sustained injuries while returning home and it has to be construed that they sustained these injuries during the course of their employment in view of Section 51-c of the e. s. i. act. Both the tribunals have held that it is not an employment injury. This finding is unsustainable. The vehicle in which they were travelling after their factory work is not their own vehicle. On the other hand, the vehicle was provided by the employer. Under Section 51-c of the Act, it is held as follows:"accidents happening while travelling in employer's transport. (1) an accident happening while an insured person is, with the express or implied permission of his employer, travelling as a passenger by any vehicle to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment, if (a) the accident would have been deemed so to have arisen had he been under such obligation; and (b) at the time of the accident, the vehicle (i) is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer, and (ii) is not being operated in the ordinary course of public transport service". under the circumstances, I hold that the injuries sustained by the claimants are only employment injuries as defined under Section 2 (8) which reads:"employment injury" means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of india;"the finding of the learned tribunal contrary to this cannot be accepted. ( 11 ) THEREFORE, the next question that arises for consideration is as to whether the claimants have availed the benefits as provided under chapter v of the act. ( 12 ) SATHYAMURTHY who was examined before the court in m. v. c. No. 71 of 1987 has stated that he was removed to sanjay gandhi hospital and on the next day he regained consciousness. Thereafter, he went to puttur bone setter and took treatment for about 3 months. However, he has stated that he did not get the salary for the said period. He was getting gross salary of Rs. 2,000/ -. He got e. s. i. benefit of Rs. 820/- p. m. he has spent Rs. 15,000/- for the treatment both in the sanjay gandhi hospital and puttur bone setter and for conveyance. ( 13 ) SIMILARLY, the claimant in m. v. c. No. 165 of 1987 also was examined as P. W. 1. He also has stated that he was removed to k. c. general hospital, malleswaram, on the same night. He was shifted to sanjay gandhi hospital for further treatment where he was treated for 21 days as inpatient. According to him, he was earning Rs. 300/- to Rs. 400/- p. m. which was over time. He was not given incentive at the rate of Rs. 100/- p. m. for 3 months when he was taking rest. He was getting a salary of rs 1,000/- p. m. he was also not paid salary for 3 months when he did not come for work. During that period he received Rs. 400/- p. m. from the e. s. i, benefit. According to him, he has spent Rs. 10,000/- for medical expenses, conveyance, etc. Both of them have admitted in the cross-examination that there is a major e. s. i. hospital situated in rajajinagar. All kinds of facilities are available in the said e. s. i. hospital for the treatment of such injury. He has stated that because it was a case of accident, he took treatment in sanjay gandhi hospital. These statements made under oath have not been questioned or controverted by the employer. It is not even suggested to the claimants that they have not undergone treatment in sanjay gandhi hospital, nor have they produced any rebuttal evidence. He has stated that because it was a case of accident, he took treatment in sanjay gandhi hospital. These statements made under oath have not been questioned or controverted by the employer. It is not even suggested to the claimants that they have not undergone treatment in sanjay gandhi hospital, nor have they produced any rebuttal evidence. Therefore, the fact remains that notwithstanding the fact that all facilities are available in the e. s. i. hospital the claimants have undergone treatment in the sanjay gandhi hospital. There also treatment is free. However, from their own admission, it is clear that they have availed all other facilities provided under the e. s. i. act. Therefore, it is clear that the claimants sustained employment injury and they availed the facilities from the corporation. ( 14 ) IN view of this, the only argument of the appellants is that the claimants are debarred from filing applications under Motor Vehicles Act, in view of sections 53 and 61 of the e. s. i. act as they are not entitled for any relief and the tribunals have committed error in granting compensation in favour of the claimants. This argument has been repelled by the claimants and they supported the impugned order on the ground that these injuries are due to tortious act of the drivers of the bus and the van. ( 15 ) IT may be mentioned that the finding of the tribunal that the accident was due to rash and negligent driving of both the vehicles has not been questioned by the respondents therein. Hence that finding of the tribunal is final. Therefore, it can be safely held that the accident is a tortious liability as these injuries were sustained in the course of employment and therefore, these injuries are employment injuries. With this prelude it is now necessary to consider the bar contained under sections 53 and 61 of the act which has been raised by the appellants, which read as follows:"53. Bar against receiving or recovery of compensation or damages under any other law. With this prelude it is now necessary to consider the bar contained under sections 53 and 61 of the act which has been raised by the appellants, which read as follows:"53. Bar against receiving or recovery of compensation or damages under any other law. An insured person or his dependents 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 (8 of 1923) or any other law for the time being in force or other wise, in respect of an employment injury sustained by the insured person as an employee under this act". "61. Bar of benefits under other enactments. When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the Provisions of any other enactment". these objections were raised before the tribunal and the tribunal after relying on the decisions cited before it held that the petition cannot be said to be barred under Section 53 of the e. s. i. act when the relief is sought for under the Motor Vehicles Act and it is not confined to employment injury, etc. , from a reading of the finding of the learned tribunal it appears that the tribunal has proceeded under the assumption that if the claim is against third party the petition is maintainable. If that is so, no liability should have been fastened on the employer because the employer is contributing the amount to the corporation as provided under the e. s. i. act and the corporation had provided all facilities to the employer. If the employer is not liable, naturally the insurance company where the vehicle was insured also is not liable to indemnify the owner. Therefore, that finding of the tribunal is contrary to its own conclusions. It is not the case of the claimants that the benefits received from the corporation are insufficient or that they have not availed any benefit. On the other hand, they have availed all the benefits as provided under the e. s. i. act. Therefore, they cannot claim the additional benefit or in other words the benefit provided under Motor Vehicles Act. On the other hand, they have availed all the benefits as provided under the e. s. i. act. Therefore, they cannot claim the additional benefit or in other words the benefit provided under Motor Vehicles Act. The e. s. i. act is a self-contained act and it is provided for speedy and efficacious remedy to the employees who are covered under the e. s. i. act. If they are not satisfied with the benefits provided to them, the only recourse open to them is to approach the board or the e. s. i. court. In this case, admittedly the claimants have not raised their little finger saying that the benefits provided to them are either inadequate or insufficient. They have also not made out any ground on that aspect. They further did not approach the corporation either by way of a suit or by way of an appeal as provided under the e. s. i. act. Therefore, it is clear that though it is employment injury and notwithstanding the fact that they have availed the benefit as provided under the e. s. i. Act, they approached the m. a. c. t. under the Motor Vehicles Act, which is barred under sections 53 and 61 of the e. s. i. act. Chapter v of the e. s. i. act deals with benefits and Section 61 under that chapter is a general clause which prohibits a person from claiming any benefits under any law when he has received any similar benefit admissible under the Provisions of any other enactment. Chapter vi deals with adjudication of dispute and claims. For this purpose the insurance court also was established and the court has to decide the matters connected with the employees covered under the insurance. ( 16 ) THE learned tribunal has relied on a decision in hindustan aeronautics ltd. V p. Venu and another , wherein this court has held that though the claim of compensation could be made only under the Provisions of chapter viii of the Motor Vehicles Act, the right to sue is a quite different matter which originates from substantive law, viz. Law of torts, which is common law and not an enactment. Consequently, Section 61 of the e. s. i. act would not bar a claim under Section 110-a of the Motor Vehicles Act. Law of torts, which is common law and not an enactment. Consequently, Section 61 of the e. s. i. act would not bar a claim under Section 110-a of the Motor Vehicles Act. Subsequently this court had an occasion to deal with sections 53 and 61 of the e. s. i. Act, in a decision in vasantha k. s. and others v k. s. r. t. c. in that case the bus was taken on contract basis by the n. g. e. f. to facilitate its workmen to reach the factory and to return to their respective places from the factory. As a result of an accident to the bus eight persons were injured and two died and claims were made under Section 110-a of the Motor Vehicles Act by the injured and the representatives of the deceased for compensation, wherein it is held: (1) reading Section 2 (b) along with Section 51-c of the e. s. i. Act, the injuries sustained and the death of the two persons was nothing but employment injury. (2) the remedy open to the injured and the lrs. Of the deceased was to approach the e. s. i. corporation constituted under e. s. i. act and not the tribunal constituted under the Motor Vehicles Act or under any other law for the time being in force including common law right under the law of torts". This decision was subsequently followed by our high court in a decision in annapurna and others v k. s. r. t. c. and others, the question before the court was that the employment injury-death of an employee of the transport corporation by an accident in the depot of the corporation due to careless driving of a bus whether the legal representatives of the deceased can claim compensation under the Motor Vehicles Act. Held no; Section 53 of the e. s. i. act has other remedies. ( 17 ) THEREFORE, from the above discussion it is abundantly clear that the injury sustained by the claimants are employment injuries and that they were not only insured under the e. s. i. corporation, but they have also availed the benefits as provided under the act. Therefore, they are not entitled to lodge a claim before the motor vehicles tribunal under the Motor Vehicles Act. Therefore, they are not entitled to lodge a claim before the motor vehicles tribunal under the Motor Vehicles Act. ( 18 ) IT is vehemently argued by the learned counsel for the respondents that it is a tortious liability. It is no doubt true that the accident occurred on the main road but while they were travelling in the vehicle provided by the employer, that means any injury sustained by them in the motor vehicle accident as detailed above, is an employment injury. Under those circumstances, they cannot say that as it is tortious liability they are entitled for the benefit. Further, they have also relied on a decision in p. Asokan v western India plywoods limited, cannanore1. In that case, the appellant therein suffered an employment injury. He had filed a suit against his employer claiming compensation not based on any enactments. He also filed an application under order 33, Rule 5, Civil Procedure Code. The trial court while considering the application under order 33, Rule 5, Civil Procedure Code, held that the suit itself is not maintainable on account of the bar contained under sections 53 and 61 of the e. s. i. act and dismissed the suit. The plaintiff preferred an appeal against that order before the Kerala high court and the matter was referred to the full bench. The full bench has held that if the appellant had paid court fee, the court could not have dismissed the suit at the threshold holding that the suit is not maintainable. Therefore, the court held that the dismissal order is not sustainable. While allowing that appeal, the full court has held that the scheme of e. s. i. act of a close analysis, takes care of only such liabilities as are geared to the employment injury. They did not purport to deal with the tortious liability of an employer. The enactment is not one intended to relieve the employer of the alleged hardship arising out of a multiplicity of liabilities, which is simultaneously a tort under common law and a violation of a statutory provision. A different view would produce patently discriminatory results which could hardly be upheld by an alert judicial mind. ( 19 ) IN a. Trehan v associated electrical agencies and another2. A different view would produce patently discriminatory results which could hardly be upheld by an alert judicial mind. ( 19 ) IN a. Trehan v associated electrical agencies and another2. Their lordships of the Supreme Court have considered Section 53 of the e. s. i. act ( as amended in 1966) and Section 2 (8) and (15) and held that an application under Section 2 (22) of Workmen's Compensation Act for compensation in respect of an employment injury filed by an injured person attracted the bar under Section 53. In that judgment their lordships also considered the full bench decision rendered by the Kerala high court in asokan's case, supra, partly overruled and partly distinguished. In that connection it is held:"we cannot agree with some of the assumption and observations made by the Kerala high court. Moreover, the Kerala high court has taken that view without referring to and considering the effect of the clear and express words used in that section. Again that was not a case where a question whether an employee and an insured person under the e. s. i. act can again claim the compensation under the Workmen's Compensation Act had arisen for consideration. We are, therefore, of the opinion that neither the observations made by k. Ramaswamy, j. In francis de costa nor the decision in p. Asokan case can be of any help to the appellant". their lordships have also considered the judgment rendered by the Karnataka high court in k. s. vasantha's case, supra and annapurna's case, supra and held that the effect of the bar created by Section 53 of the e. s. i. act with respect to the claim for compensation made under the Motor Vehicles Act for injuries received because of an accident arising out of and in the course of employment, that the view taken by this high court with respect to the object of Section 53 of the e. s. i. act and the nature and effect of the bar created by it appears to be correct. Under the circumstances, the contention of the respondents that the claim petitions do not come under the purview of sections 53 and 61 of the act is unsustainable. ( 20 ) IN the result therefore, I proceed to pass the following: ( 21 ) THESE three appeals are allowed. The impugned orders are here by set aside. Under the circumstances, the contention of the respondents that the claim petitions do not come under the purview of sections 53 and 61 of the act is unsustainable. ( 20 ) IN the result therefore, I proceed to pass the following: ( 21 ) THESE three appeals are allowed. The impugned orders are here by set aside. Consequently, the applications filed by the claimants stand dismissed. Under the peculiar circumstances of the case, there is no order as to costs. --- *** --- .