JUDGMENT : 1. Bajaj Allianz General Insurance Company Limited has filed this appeal challenging the judgment and award dated 10th December 2010 made in MVC No. 653/2009 passed by the Motor Accidents Claims Tribunal, Bangalore, (hereinafter, referred to as ‘the Tribunal’, for short), fastening the liability on them to compensate the claimant. 2. The 1st respondent herein filed the claim petition, contending that on 17/12/2008, at about 10.00 p.m., while claimant proceeding on his TVS Moped bearing Reg.No.KA.06.J.11 from his residence to the Factory on National High way-48, on Nelamangala-Kunigal Road, a lorry bearing Reg.No.KA.02.D.476 came from Kunigal Circle in a rash and negligent manner and dashed against the TVS Moped. Due to which, claimant fell down and sustained grievous injuries to all over the body. Initially, he was taken to Harsha Hospital, Nelamangala, for first aid treatment. Thereafter, he has taken treatment in ESI Hospital, Rajajinagar, Bengaluru. Prior to the accident, he was working as shift Engineer in Pacific Industries and getting salary of Rs.8000/- per month. In the accident, he has sustained multiple fracture of anterior teeth/fracture of right mandible and fracture of middle Phalanx of left little finger. He spent huge money for the treatment. Due to the rash and negligent driving of the Lorry which was insured with Bajaj Allianz Insurance Company Limited and hence, both the respondents are liable to compensate the claimant and sought for the compensation of Rs. 4.00 lakhs. 3. In response to the notice issued by the Tribunal, respondents No.1 and 2 have filed the written statement. 4. The respondent No.1 in the written statement denied the involvement of the lorry in the accident resulting in the injuries to the claimant. He has admitted that he is the RC owner of the lorry and contended that as on the date of the accident insurance policy is in force and hence, insurer is liable to compensate the claimant. 5. The respondent No.2 Insurance Company in its written statement denied the involvement of insured vehicle. However, admitted that the Insurance policy of the lorry is in force as on the date of the accident. Further, the claimant is covered under the provision of the Employees State Insurance Act (‘the ESI Act ‘for short). Section 53 of the ESI Act, prohibits claiming compensation from any of the authorities. Hence, the claim petition filed by the claimant is not maintainable. Further, the claimant is covered under the provision of the Employees State Insurance Act (‘the ESI Act ‘for short). Section 53 of the ESI Act, prohibits claiming compensation from any of the authorities. Hence, the claim petition filed by the claimant is not maintainable. Due to the negligence on the part of the rider of the TVS moped accident occurred and sought for dismissal of the claim petition. 6. On the basis of the pleadings of the parties, the Tribunal framed necessary issues. 7. After trial, the Tribunal held that, due to the actionable negligence on the part of the driver of the lorry accident occurred and the claimant is entitled for the compensation. Taking into consideration the injuries sustained and suffering undergone by the claimant, the Tribunal has awarded the compensation of sum of Rs.95, 832/-with 6% interest from the date of the petition till the realization. With regard to liability is concerned, though the insurance company taken the specific contention that the claimant is covered under the ESI Act, he is a person insured and sustained employment injury as provided under Section 2(8) of the Act, since he is not claimed any compensation against the employer and relying upon the judgment of this Court reported in 2010 (2) KCCR 929 , liability fastened on the Insurance Company to compensate the claimant. Being aggrieved by the judgment and award passed by the Tribunal, the Insurance Company has preferred this appeal. 8. Sri. A. N. Krishna Swamy, learned Counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. While the claimant proceeding to his Factory, he was met with an accident during the course and out of employment, since he was the insured person, he cannot claim compensation under the Motor Vehicles Act or Workmen Compensation Act. He has to make his claim only under the Employees State Insurance Act. In fact, he has taken treatment in ESI hospital, Rajajinagar, Bengaluru. There is a specific bar under Section 53 of the ESI Act, to make claim petition for damages under any other law and Section 61 contemplates Bar of benefit under other enactment. Hence, the claim petition filed by the claimant is not maintainable. In support of his contention, he replied upon the judgments reported in AIR 2015 SC 2307 (Dhropadabai and others Vs. Hence, the claim petition filed by the claimant is not maintainable. In support of his contention, he replied upon the judgments reported in AIR 2015 SC 2307 (Dhropadabai and others Vs. M/s. Techno Craft Toolings); 2009(13) SCC 361 (National Insurance Company Limited Vs. Hamida Khatoon and others) and 1996 (4) SCC 255 (A. Trehan Vs. Associated Electrical Agencies and another). 9. On the other hand, Sri. Sripad V. Shastri, learned Counsel appearing for the first respondent argued in support of the judgment and award passed by the Tribunal and contended that he has not made any claim petition against his employer. He filed the claim petition against the appellant as a third party, claiming compensation for the injuries sustained. The Bar under Section 53 of ESI Act would apply only when the compensation is claimed against the employer of the victim. Though he has taken some treatment in the ESI Hospital, there is no bar in claiming compensation as a third party from the Insurance company. In support of his contention, he relied upon the following judgments; ILR 2012 Kar 2594 (Venkataramanappa Vs. S. Ananda and others) 2010 (2) KCCR 929 (Smt. Sridevi and others Vs. Smt. S. Sarojini and others) and ILR 1998 Kar 2487 (New India Assurance Company Limited Vs. T. Suresh). Further, he contended that he is ready to refund the benefit given under the ESI Act and sought for dismissal of the appeal. 10. I have carefully considered the arguments addressed by the learned Counsel appearing for the parties. Perused the judgment and award and oral and documental evidence on record. 11. The only issue that arises for consideration in this appeal is, “Whether the claimant being a insured person sustained injuries during the course of employment can claim a compensation under the Motor Vehicle Act, when there is clear bar under Section 53 of the Employees State Insurance Act, 1948?”. 12. The contention of the appellant is that, in view of the clear bar under Sections 53 and 61 of the ESI Act, the claimant cannot maintain the claim petition. 12. The contention of the appellant is that, in view of the clear bar under Sections 53 and 61 of the ESI Act, the claimant cannot maintain the claim petition. Sections 53 and 61 of the Act read as under: Section 53: Bar against receiving or recovery of compensation or damages under any other law-An Insured person or his dependants 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, 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: 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.” 13. The reading of the above provisions make it clear that, any insured person sustained employment injury during the course and out of employment, he has to claim the compensation or damages under provisions of the ESI Act. Basically, the injuries sustained is the employment injuries during the course and out of employment. In the instant case, the claimant has not sustained any injuries during the course and out of employment. However, while he was proceeding in a TVS Moped towards the Factory on a National High way the offending lorry dashed against him and he has sustained injuries and taken treatment in Harsha hospital. Thereafter, he has taken in ESI Hospital since he is an ESI card holder. The claim petition has been filed against the insurer of the offending lorry as a third party. He has not filed the claim petition under the Employees Compensation Act. The Division Bench of this Court, in Venkataramanappa’s case and Smt. Sridevi’s case referred to above, clearly held that, the prohibition under Section 53 of the ESI Act, would apply only when the compensation is claimed against the employer of the injured. In the present case, the claimant has filed the claim petition against the insurer of the offending vehicle on the ground that, the injured is a third party. In the view of the authorities pronounced by the Division Bench, the contentions of the appellant has no substance. In the present case, the claimant has filed the claim petition against the insurer of the offending vehicle on the ground that, the injured is a third party. In the view of the authorities pronounced by the Division Bench, the contentions of the appellant has no substance. Further, the injuries sustained by the claimant is not employment injuries as defined under Section 2(8) of ESI Act. Section 2(8) reads as under: “Employment injury” means a personal injury to an employee caused by accident or an occupational disease arising out of and in 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. 14. The reading of the above definition, it is clear that to term an injury as an “employment injury” an employee should suffer injury in the accident or by an occupational disease arising out of and in course of employment. In the instant case, the claimant has not sustained any injuries during the course and out of employment. Hence, the injuries sustained by the claimant cannot be termed as “employment injuries”. The Bar under Section 53 of ESI Act is not applicable. Though the claimant being the cardholder received any benefit from the ESI Act, while awarding the compensation that amount has to be deducted. The judgment relied upon by the appellant is not applicable to the facts of the case. In Dhropadabai’s case, the deceased while discharging the duties developed chest pain and died. In those circumstances, the Hon’ble Supreme Court held that the claimant has to claim a compensation under the ESI Act. Further in Hamid Khatoon’s case, while he was travelling in the vehicle belonging to the employer to the works spot, the vehicle met with an accident and died. In those circumstances, the Hon’ble Supreme Court held that claimant has sustained employment injuries and died and he falls under Section 2(8) of the Act. Further in A Trehan’s case, while the injured person repairing the television set component it was bursted and he has sustained injuries to the face and lost the eye sight. In those circumstances, the Hon’ble Supreme Court held that, he has to claim under the ESI Act. The Hon’ble Supreme Court in paragraph 29 of the judgment reported in 1996 ACJ 1281(Employees’ State Insurance Corporation Vs. Francis Defendant Costa) has held as under: “29. In those circumstances, the Hon’ble Supreme Court held that, he has to claim under the ESI Act. The Hon’ble Supreme Court in paragraph 29 of the judgment reported in 1996 ACJ 1281(Employees’ State Insurance Corporation Vs. Francis Defendant Costa) has held as under: “29. Although the facts of this case are quite dissimilar, the principles laid down in this case are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a casual connection with the employment and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of this view that the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment.” Those judgments are not applicable to the facts of the present case. In the instant case, while claimant proceeding in TVS Moped towards his factory, offending Lorry dashed against him and he has sustained injury, That injury cannot be treated as “employment injury”. He filed claim petition as a third party and claimed compensation against the insurer of offending lorry. Since the claimant has received some of the benefit from the ESI Act, he has to refund the said benefit. He is not entitled for sum of Rs.13, 832/-awarded towards two month salary,Rs.5, 000/-awarded towards future medical expenses and a sum of Rs.15,000/-awarded towards amenities of life. The claimant has agreed to refund the same. Hence, the claimant is entitled to the compensation of Rs.62, 000/-with 6% interest as against Rs.95, 832/-awarded by the Tribunal. Accordingly, I pass the following: ORDER The appeal is allowed in part. The judgment and award dated 10th December 2010 made in MVC No.653/2009 passed by the Motor Accidents Claims Tribunal, Bangalore, is modified and the claimant is entitled to a sum of Rs.64, 000/-with interest at 6% p.a. as against Rs.95, 832/-awarded by the Tribunal. The amount in deposit is ordered to be transferred to MACT, Bengaluru.