P. S. NARAYANA, J. ( 1 ) JUDGMENT :the United India insurance Company Limited, Divisional office-V, Vengalrao Nagar, Kukatpalli Road, hyderabad, represented by its Divisional manager, the 2nd respondent in O. P. No. 1755/2001 on the file of Motor Accidents claims Tribunal-cum-Additional Chief judge, City Civil Court, Hyderabad, had preferred the present Civil Miscellaneous appeal under Section 173 of the Motor vehicles Act, 1988. In C. M. P. No. 1195/ 2003 this Court granted interim stay dated 23-1-2003. The claimant/1st respondent in the Appeal filed C. M. P. No. 4062/2003 in c. M. P. No. l 195/2003 to vacate the interim stay granted. When the vacate application came up for hearing, inasmuch as only a short question is involved, with the consent of both the parties, the main Civil miscellaneous Appeal itself is taken up for final hearing and that is how the Civil miscellaneous Appeal is being disposed of after hearing the Counsel on record today. ( 2 ) THE only question raised in the present Appeal by the appellant/insurance company is that the claimant is not entitled to maintain the claim under Section 166 of the Motor Vehicles Act, 1988 in view of the bar imposed by Section 53 of Employees state Insurance Act, 1948, hereinafter in short referred to as "act". The facts in short are as hereunder: ( 3 ) THE 1st respondent herein filed o. P. No. 1755/2001 on the file of IV additional Chief Judge-cum-Motor Accidents claims Tribunal, City Civil Court, Hyderabad under Section 166 of the Motor Vehicles act, 1988 praying the Tribunal to award the compensation of Rs. 1,50,000/- to him for the injuries sustained by him in a tipper accident. It is stated that in the petition that by the time of accident, the claimant was aged 22 years and was earning Rs. 2500/- per month by working in a courier service. 1,50,000/- to him for the injuries sustained by him in a tipper accident. It is stated that in the petition that by the time of accident, the claimant was aged 22 years and was earning Rs. 2500/- per month by working in a courier service. While so, on 1-7-2001 at about 10 a. m. , when he was proceeding on his scooter bearing No. AP 9 N 5041 from G. T. S. Colony to S. R. Nagar Cross Roads, near Jawaharnagar electrical office, suddenly the tipper of the 1st respondent bearing No. APR 1363 being driven by its driver at high speed and in a rash and negligent manner came from the opposite direction towards wrong side and dashed against his scooter and consequently he fell down and the right side front wheel of the lorry ran over his left leg resulting in fracture of both bones of left leg apart from injuries on his right leg and other parts of the body. It was also pleaded that the passersby had shifted him to Gandhi Hospital where he had taken treatment as in-patient from 1-7-2001 to 4-7-2001 and even after discharge from that hospital he had taken treatment in private hospitals by spending huge amount and in spite of the treatment taken, the injuries have not healed and still he is unable to attend to his routine work and he lost his earning capacity. It was also pleaded that since the present appellant/2nd respondent in the O. P. is the insurer of the 1st respondent tipper, both the respondents in the O. P. are jointly and severally liable to pay the aforesaid compensation. ( 4 ) THE 1st respondent in the O. P. remained ex parts and the 2nd respondent i. e. , the present appellant had filed a counter denying all the allegations. It was also pleaded that the claimant is put to strict proof of the allegations made by him in the o. P. and the claimant also must prove that the injuries sustained by him had resulted in permanent disability and at any rate the claim is highly exorbitant. ( 5 ) ON the strength of the respective pleadings of the parties, the Motor Accidents claims Tribunal had settled the following issues:1. Whether the accident in question took place due to rash and negligent driving of the driver of 1st respondent s tipper bearing No. APR 1363?2. ( 5 ) ON the strength of the respective pleadings of the parties, the Motor Accidents claims Tribunal had settled the following issues:1. Whether the accident in question took place due to rash and negligent driving of the driver of 1st respondent s tipper bearing No. APR 1363?2. Whether the petitioner is entitled for compensation, if so to what amount and from whom?3. To what relief? ( 6 ) ON behalf of the claimant, the claimant had examined himself as PW-1 and Exs. A-1 to A-6 were marked and on behalf of the respondents in the O. P. no witnesses were examined and Ex. B-1 policy was marked by consent of both the parties. As can be seen from the record, the appellant herein/2nd respondent in the O. P. , in fact filed written arguments before the Motor Accidents Claims Tribunal. The said Tribunal on appreciation of the oral and documentary evidence had allowed the claim in part with proportionate costs on the compensation of Rs. 65,000/- to the claimant with interest thereon @ 9% per annum from the date of petition till the date of realization and certain other directions also were issued by the aforesaid Tribunal. Aggrieved by the same, the 2nd respondent in the O. P.- Insurance Company had preferred the present Civil Miscellaneous appeal. ( 7 ) SRI A. V. K. S. Prasad, the learned counsel representing the appellant/insurance company with all vehemence had submitted that Ex. A-3 marked by the claimant is the discharge card issued by E. S. I. Hospital and this itself shows that the claimant is covered by the provisions of the Act and hence on the strength of the material available on record since the question of law relating to the bar imposed by the provisions of the Act in maintaining the claim under the other statutes or enactments arises for consideration and the question being a pure question of law, the appellant is entitled to raise the same in the present Appeal. The learned counsel also in all fairness had contended that except his question, on other factual aspects no other important question arises for consideration in this Appeal. The learned counsel also in all fairness had contended that except his question, on other factual aspects no other important question arises for consideration in this Appeal. The learned counsel also had drawn my attention to different provisions of the Act in general and Sections 53 and 61 of the Act in particular, and had submitted that the bar imposed by the said provisions is clearly operative and applicable to the facts of the present case also and hence the O. P. filed by the claimant under the Motor vehicles Act, 1988 itself is not maintainable. The learned Counsel also had drawn my attention to Section 51-A, Section 46 and also Sections 2 (8), 2 (12) and 2 (14) of the act. The learned Counsel while concluding his submissions had drawn my attention to several decisions in this regard which will be referred to at the appropriate places, infra. ( 8 ) PER contra, Sri J. P. Srikanth, the learned Counsel representing the 1st respondent in the Appeal, the claimant, made the following submissions. Initially, the learned Counsel had raised an objection stating that the ground of maintainability of the claim under the Motor Vehicles act, 1988 raised for the first time in the present Appeal was not taken by way of a plea in the pleading, nor the said question was urged before the Tribunal and for the first time it is being raised at the appellate stage. The learned Counsel also had submitted that to apply the bar under the provisions of the Act, certain conditions are to be satisfied and these conditions are factual aspects and hence it cannot be said that it is a pure question of law which can be raised without a plea and without letting in any evidence only because Ex. A-3 was marked on the side of the claimant. The learned Counsel had meticulously taken me through the language employed in section 53 of the Act and also the different definitions under the Act. The Counsel also had drawn my attention to certain of the decisions and also had placed reliance on certain observations or findings which had been recorded even in the decisions cited by the learned Counsel representing the appellant. The Counsel also had drawn my attention to certain of the decisions and also had placed reliance on certain observations or findings which had been recorded even in the decisions cited by the learned Counsel representing the appellant. While concluding, the learned counsel submitted that the decisions cited by the Counsel for the appellant are definitely distinguishable and they are not applicable to the facts of the present case. ( 9 ) HEARD both the Counsel and also perused the material available on record. ( 10 ) SRI B. Jai Ram, the claimant who filed O. P. No. 1755/2001, had filed his affidavit by way of chief-examination and he was cross-examined. As already referred to supra, the Insurance Company had not let in any evidence except marking Ex. B-1 insurance policy, with consent. In the evidence, PW-1 had stated that he filed the case for compensation for the injuries sustained by him in a road accident which took place on 1-7-2001 at about 10 a. m. , when he was proceeding from G. T. S. Colony to S. R. Nagar on scooter bearing no. AP9n 5041. He further stated that when he reached the Electrical Office turning at jawahar Nagar, suddenly one tipper lorry bearing No. APR 1363 came in the opposite direction with heavy speed and the driver of the tipper lorry drove the lorry in a rash and negligent manner and dashed his scooter as a result of which he fell down on the road and even after this the lorry driver had not stopped the vehicle and drove the vehicle with heavy speed. PW-1 also stated that due to the said accident, the right side of the front wheel of the lorry ran over upon his left leg which resulted into fracture of both bones of left leg and he had also received grievous injuries all over the body and immediately Police, Sanjeeva Reddy 9, nagar shifted him to Gandhi Hospital where he was treated as in-patient from 1-7-2001 to 4-7-2001 and then to E. S. I. Hospital where he was treated as in-patient for one week, and after discharge from the hospital he has been taking treatment in a private hospital. PW-1 also stated that he had spent an amount of Rs. 20,000/- for medical expenditure and before the accident he was working in First flight Limited as employee and he used to earn Rs. PW-1 also stated that he had spent an amount of Rs. 20,000/- for medical expenditure and before the accident he was working in First flight Limited as employee and he used to earn Rs. 2,500/- per month and due to this accident, he was unable to attend to his work for a period of eight months and even to this day he had not recovered fully and in such circumstances he is entitled to the compensation of Rs. 1,50,000/ -. PW-1 was cross-examined and except touching the factual aspects nothing had been elicited relating to the applicability or otherwise, of the Act. This question was not raised even in the written arguments submitted by the appellant/insurance Company before the tribunal. Evidently, before the Tribunal this aspect was left untouched and at the appellate stage this question is being raised. Section 53 of the Act dealing with Bar against receiving or recovery of compensation or damages under any other law, reads as hereunder:"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 otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act". Section 61 of the Act dealing with Bar of benefits under other enactments specifies as hereunder:"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". Likewise, Section 46 of the said Act deals with Benefits. The other relevant provisions under the Act are Section 2 (8), 2 (12) and 2 (14 ). Section 2 (8) of the Act defines employment injury as:"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". Section 2 (8) of the Act defines employment injury as:"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". Likewise, Section 2 (12) of the Act defines factory as :"factory means any premises including the precincts thereof (a) Whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or (B) Whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of a power or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (Act No. 35 of 1952) or a railway running shed;likewise, Section 2 (14) of the Act defines insured person as :"insured person means a person who is or was an employee in respect of whom contributions are or were payable under this act and who is, by reason thereof, entitled to any of the benefits provided by this Act". ( 11 ) IN The National Insurance company Ltd. , v. Chavali Vijayalakshmi, 1987 (2) ALT 193 , it was held that in the case of death of an employee of a Lorry owners Co-operative Society while inspecting the oil tanker of the society where the society contributed premia of insurance of its employee under the Insurance Act, 1948 the Tribunal under Motor Vehicles Act is barred to entertain petition for compensation filed by legal representatives of deceased employee. In Pandu v. Divisional manager of M. P. State Road Transport corporation, 1999 (3) LLJ (Supp) 28 (M. P.), it was held that the claim for compensation by an employee covered under the Act, under the Workmen s Compensation Act is not maintainable. In United India Insurance co. Ltd v. K. N. Thipperudraiah, I (1997) ACC 627, the same view was expressed. In United India Insurance co. Ltd v. K. N. Thipperudraiah, I (1997) ACC 627, the same view was expressed. Strong reliance was placed on Western India plywood Ltd. , v. Ashokan, 1997 ACJ 1281, wherein the Apex Court had expressed the view that an employee who had already received benefits under the Act cannot claim damages from his employer for employment injury in view of the bar against receiving compensation under any other law. While dealing with bar under Sections 53 and 61 of the Act, the same view was expressed in hamsa K. v. Emtici Engg. Ltd. , 2000 (II) llj 277 , and also in Management of bhavanji Mills v. Deputy Commissioner of labour, 2000 (II) LLJ 568 . ( 12 ) THERE cannot be any dispute about the proposition of law relating to the operation of bar of claiming compensation under any other enactment if a person is covered by the provisions of the Act. In the present case, on the strength of Ex. A-3, serious attempt is made by the Counsel for the appellant to convince the Court that the claimant cannot invoke the provisions of the motor Vehicles Act, 1988 claiming compensation. Strong reliance was placed under Section 51-A of the Act which deals with Presumption as to accident arising in course of employment and the said provision reads as hereunder: "for the purposes of this Act, an accident arising in the course of an insured person s employment shall be presumed, in the absence of evidence to the contrary also to have arisen out of that employment". In Regional Director, E. S. I. Corporation v. Francis De Costa, AIR 1997 SC 432 , while dealing with employment injury where the employee was on his way to the factory where he was employed and met with an accident that took place one kilometer away from the place of employment, the Apex Court observed that the injuries suffered by him cannot be said to have been caused by an accident arising out of and in the course of his employment. In Regional Director, ESI corporation v. Narsabai. 2001 (I) LLJ 1488 , where an employee died of cardiac arrest outside mill gate at 6. In Regional Director, ESI corporation v. Narsabai. 2001 (I) LLJ 1488 , where an employee died of cardiac arrest outside mill gate at 6. 55 a. m. , and the work in the first shift was to commence at 7 a. m. , it was held that under such circumstances the death of employee was not caused due to injury in course of employment and the claim for dependency benefit is not sustainable. ( 13 ) A careful reading of Section 53 of the Act definitely makes it clear that the bar is operative only if the condition ". . . . in respect of an employment injury sustained by the insured person as an employee under this Act" is applicable. Section 61 of the act simply specifies that 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. In the definition of "employment injury" under section 2 (8) of the Act referred to supra, the words employed are ". . . in the course of his employment. . . ". On the material available on record, inasmuch as such plea was not taken, PW-1 had not deposed relating to this aspect. By that it cannot be said that the presumption under Section 51-A of the Act can be drawn. Here is a case where the appellant/insurance Company had not raised the plea at all and no evidence was let in and unless it is shown that the said injury was sustained during the course of employment, it cannot be said that the bar of claiming compensation imposed by the act under other enactments can be made applicable. In my considered opinion, these are all factual aspects and merely because ex. A-3 was marked, definitely it cannot be said that all the other aspects necessary for attracting the provisions of the Act are established and in the absence of the same, advantage cannot be taken merely because the time of accident was specified as 10 a. m. Further, merely because Ex. A-3 was marked, an inference that the injury was suffered in the course of employment, cannot be drawn. A-3 was marked, an inference that the injury was suffered in the course of employment, cannot be drawn. In the facts and circumstances, definitely the insurance Company, which had not raised such a plea, which in my considered opinion is a mixed a question of fact and law and not a pure question of law, cannot be permitted to raise for the first time at the appellate stage such a plea to the prejudice of the 1st respondent/claimant. ( 14 ) VIEWED from any angle, I am of the considered opinion that the Appeal is devoid of merits and accordingly the Civil appeal dismissed. However, since the matter was fought only on a question of law, each party to bear their own costs.