1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 123 OF 2010 The National Insurance Company, Div. No.10, Flat No.101-106, N-1, BMC House, Cannought Platau New Delhi. ... Appellant versus 1. Shri Jano Vithu Kharat S/o. Vithu Kharat, 45 years of age, married, Private Secretary, R/o H. No.85, Khambamol, Kalay, Sanguem, Goa. 2. Shri Shrikant Ram Shankar Srivastav, 38 years of age, S/o Rama Shanker Lal Srivastav, married, R/o H. No.485/A Dongorim, Navelim, Salcete, Goa,(Driver and owner of the vehicle bearing No.GA-08-E-2409). ... Respondents Shri M. S. Joshi, Advocate for the Appellant. None present for the Respondents. CORAM : N. A. BRITTO, J. DATE : 28TH OCTOBER, 2010. 2 ORAL ORDER Heard Shri M. S. Joshi, the learned Counsel on behalf of the appellant. The appellant herein is the Respondent No.2 in Claim Petition No.228/2009. 2. This appeal is directed against Order dated 15-4-2010 of the learned M.A.C.T., Margao, by which the claimant(Respondent No.1 herein) has been ordered to be paid a sum of Rs.25,000/- by way of N.F.L. under Section 140 of the M.V. Act, 1988. The Respondents have chosen to remain absent. 3. The claimant was driving his Hero Honda motor-cycle on 2-4-2009 at about 2.30 p.m. and was going home when he met with an accident involving Car No.GA-08-E-2409 driven and owned by Respondent No.1 and insured with Respondent No.2, in the said Claim Petition. 4. Shri M. S. Joshi, the learned Counsel appearing on behalf of the appellant/Respondent No.2 submits that the claimant had suffered the 3 said injuries whilst returning from his work place, and, therefore in terms of Section 53 of the E.S.I. Act, 1948 would not be entitled to recover the compensation except under E.S.I. Act, 1948. Shri Joshi, learned Counsel has placed reliance on a Division Bench Judgment of this Court in Ganpat Pratap Gokle v. H. L. Roche and others((1994 ACJ 1101). 5. From the facts of the case in Ganpat Pratap Gokle v. H. L. Roche and others(supra) it can be seen that the appellant therein was employed with Forbes Campbelle & Co. Pvt.Ltd. and was proceeding to the place of work in a bus engaged by the employer. He had met with an accident causing injuries to him. The establishment where he was working was covered by the provisions of the E.S.I. Act, and not only that he had received the benefits available under the E.S.I. Act in respect of the injury suffered by him. 6. Section 53 r/w Section 2(8) of the E.S.I. Act creates a bar from recovering compensation or damages under any other law for the time being in force or otherwise, in respect of an employment injury sustained by the injured person as an employee under the Act. An 4 employment injury means a personal injury to a 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. 7. Law can be applied only to facts which are proved. There is absolutely no evidence on record at the stage of Section 140 of the M. V. Act, 1988 to suggest that the claimant's Company M.S.L. Ltd. where he was working was covered under E.S.I. Act, 1948 or for that matter the claimant had received the compensation on account of the said injury under the provisions of the said Act. That the claimant was immediately taken to an E.S.I. Hospital before taking to G.M.C. is no indication to say that the claimant was covered under the E.S.I. Act or the injury was caused in the course of his employment. These matters may be relevant in the main petition. In such a situation, the appellant/Respondent No.2 would not be right in invoking the bar of Section 53 of the said Act. 8. Moreover, Section 144 of the M. V. Act overrides Section 53 of the E.S.I. Act, for the purpose of payment of NFL. 5 9. Hence, I find no merit in this appeal, and accordingly the same is hereby dismissed. N. A. BRITTO, J. RD