IN THE KARNATAKA HIGH COURT 

FULL BENCH 

R. A. Shiraguppi for respondent No. 1. in M.F.A. No. 206 of 1991. 

R. L. Patil for respondent No. 2 in M.F.A. No. 206 of 1991. 

JUDGMENT 

[VISHWANATHA SHETTY J. delivered judgment on behalf of himself and GOPALA GOWDA J. G. C. BHARUKA. J. delivered a separate judgment.] 

G. C. BHARUKA J. - This appeal arises under section 110D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act"). The claimant is the appellant before us. The owner of the vehicle and the insurance company are respondents Nos. 1 and 2 respectively. The principal grievance raised by the claimant is that the Motor, Accidents Claims Tribunal (hereinafter referred to as "the Tribunal") has committed an error of law in exonerating the insurance company from indemnifying the compensation awarded against the owner. 

On a close reading of the order of reference drawn by the learned single judge, the following questions of law seem to require our consideration : 

(i) Whether, under section 95 (1) of the Act, the owner of a goods vehicle is required to compulsorily insure against the risk of death or bodily injury of his employees arising out of and in the course of their employment because of the use of the vehicle in a public place; 

(ii) Whether the insurer will be liable to indemnify the owner against the compensation awarded only in proceedings commenced under the Compensation Act or will be so liable even if the compensation is awarded by the Tribunal under the Act and in either case, to what extent. 

The relevant facts are quite brief and are almost admitted. Respondent No. 1 is the owner of a goods vehicle bearing registration No. MEC 4469. The claimant was under his employment working as a driver. On November 28, 1988, while he was travelling in the vehicle as an additional driver, it met with an accident causing injuries to the claimant and to one more person. On the fateful day, the vehicle was being driven by another driver named Nawab Jan. 

Subsequently, the claimant filed an application for compensation before the Tribunal under section 110A of the Act. The Tribunal after holding an enquiry held that the accident had taken place because of rash and negligent driving. Accordingly, it awarded global compensation of Rs. 52,400 with costs and interest. Respondent No. 1, being the owner, was held vicariously liable to pay the said amount. 

So far as the liability of the insurer to indemnify the owner and pay the compensation is concerned, though it has been found that there was an insurance policy filed by the claimant as exhibit P-4, which was duly corroborated by motor renewal endorsement placed at exhibit R-1, but since as per the details of premium set out therein, the risk of additional driver was, not covered, therefore, the Tribunal exonerated the insurance company from indemnifying the owner. It is in the said factual settings, that the legal issues pertaining to liability of the insurance company, based on the construction of section 95 of the Act, have been raised by the claimant with whom the owner has joined hands. 

Before adverting to the issues raised, it may be pertinent to ascertain the rights of an employee of a goods vehicle suffering injuries in an accident to the vehicle arising out of and in the course of his employment. There may be varying situations which can give rise to claims for compensation under the Act or the Compensation Act or under both the Acts but subject to section 110AA of the Act. These situations will arise (i) if the accident is not attributable to any negligence on the part of the driver/owner, or, (ii) if it is found that the victim had not suffered injuries arising out of or in the course of his employment, or, (iii) if the employee suffers injury, fatal or otherwise, in the course of his employment and is attributable to the negligence of the driver/owner. I will do better to substantiate this aspect by referring to some of the decisions of the Supreme Court. 

In the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan [1977] 47 Comp Cas 736; AIR 1977 SC 1248, the apex court, after considering the legislative history and considering the provisions of the Act, has held that (page 745 of 47 Comp Cas) : 

"The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent." 

It has further been held that the owner of the motor car does not become liable because of his just owning the same. On the other hand, it has been laid down as of law that "the proof of negligence remains the lynch pin to recover compensation". 

Therefore, for maintaining the claim for compensation under Chapter VIII of the Act the claimant has to prove that the accident, resulting in death or bodily injury, had occasioned because of negligence of the driver and vicariously makes the owner as well liable to the compensation. In case, the claimant fails to substantiate the negligence aspect, his claim preferred under Chapter VIII of the Act based on the principle of fault has to fail. 

On the other hand, for claiming compensation by a workman under the provisions of the Compensation Act, the proof of negligence on the part of the owner, vicariously or otherwise, has no role to play. The considerations for awarding statutory compensation under this Act are quite different as has been enumerated by the Supreme Court in McKinon McKenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmad Issak, AIR 1970 SC 1906; [1971] 39 FJR 45, 48. In para 5 of the judgment, it has been held that : 

"To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment' mean 'in the course of the work which the workman is employed to do and which is incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words, there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises 'out of employment'. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act." 

Therefore, it is clear that for maintaining a claim under the Compensation, Act, proof regarding negligence of the employer or any other person acting under him is wholly immaterial. To come within its purview, it is merely required to be established that the injury by accident has arisen both out of and in the course of employment and that it is not attributable to the employee's imprudent act by which he had exposed himself to added peril. 

Keeping in view the legal framework culled out as above, it has to be held that a person who is a workman within the meaning of the Compensation Act and has suffered bodily injury arising out of and in the course of his employment and has proved negligence on the part of the driver/owner of the vehicle involved in an accident, can proceed to recover compensation either under the provisions of Chapter VIII of the Act or under the, Compensation Act but because of section 110AA of the Act not under both. The controversies in this regard noticed in various judicial pronouncements have been set at rest by insertion of section 110AA by Act 56 of 1969, which reads thus 

"110AA. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen's Compensation Act, 1925 (8 of 1925), where the death of, or bodily injury to, any person, gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923 (8 of 1923), the person entitled to compensation may, without prejudice to the provisions of Chapter VIIA, claim such compensation under either of those Acts but not under both." 

Pari materia provision is contained in section 167 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "new Act"). 

Re : Question No. (i) : 

The legislative history of making insurance compulsory to cover third party risk involving motor accident has been traced by the Supreme Court in Minu B. Mehta v. Balkrishna Ramchandra Nayan [1977] 47 Comp Cas 736 wherein it has been noticed that (page 745) : 

"In England the owners of the vehicle voluntarily insured against the risk of injury to other road users. With the increase of traffic and accidents it was found that in a number of cases-hardship was caused where the person inflicting the injury was devoid of sufficient means to compensate the person afflicted. In order to meet this contingency the Road Traffic Act, 1930, the Third Parties (Rights Against Insurers) Act, 1934, and the Road Traffic Act, 1934, were enacted in England. A system of compulsory insurance was enacted by the Road Traffic Act, 1930. Its object was to reduce the number of cases where judgment for personal injuries obtained against a motorist was not met owing to the lack of means of the defendant in the running-down action and his failure to insure against such a liability. It is sufficient to state that compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur. 

The Indian law introduced provisions relating to compulsory insurance in respect of third party insurance by introducing Chapter VIII of the Act. These provisions almost wholly adopted the provisions of the English law. The relevant sections found in the three English Acts, the Road Traffic Act, 1930, the Third Parties (Rights Against Insurers) Act, 1930, and the Road Traffic Act, 1934, were incorporated in Chapter VIII." 

Section 94 of the Act provides for compulsory insurance against third party risks. The expression "third party" has been defined under section 93(d) of the Act. It merely provides that "third party" will include the Government. The definition is inclusive and not exhaustive. Therefore, we have to understand this term in the sense it is judicially construed by the House of Lords in the context of the Road Traffic Act, 1930, which, as noticed by our Supreme Court, is the adoptive source of our legislation. In the case of Digby v. General Accident Fire and Life Assurance Corporation Ltd. [1942] 2 All ER 319; [1943] AC 121 (HL), Viscount Simon L.C. has held that (page 321) : 

"The first and main sub-section is clear enough. It provides for what is ordinarily called, in this connection, third-party insurance. In the Road Traffic Act, 1930, section 35, which provides for compulsory insurance, the expression used is 'third-party risks'. Whichever phrase is used, I think that the governing conception is that the insurer is one party to the contract and the policy holder another party, and that claims made by others in respect of the negligent use of the car may be naturally described as claims by third parties." 

Therefore, even an employee of a vehicle owner is covered by the expression "third party". This is further clear from section 95 of the Act which requires that a policy of insurance is to be issued by an authorised insurer insuring the person specified in the policy, i.e., insured, against any liability which may be incurred by him in respect of the death of or bodily injuries to "any person" caused or arising out of the use of the vehicle. But, so far as the requirement of compulsory insurance as contemplated under the Act is concerned, the Legislature has placed the employees of the insured in a separate class for the said purpose as it would be evident from the statutory provisions and its successive developments, to be shortly noticed. 

To substantiate the above view, I am quoting hereunder the relevant provisions contained in section 95 of the Act, as amended from time to time. Sub-sections (1) and (3) thereof to the extent they relate to goods vehicle and as they stood originally read thus : 

"95. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which - 

(a) is issued by a person who is an authorised insurer, and 

(b) insures the person or classes of person specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place : Provided that a policy shall not, except as may be otherwise provided under sub-section (3), be required. - 

(i) to cover liability in respect of the death, arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, or ... 

(3) A Provincial Government may prescribe that a policy of insurance shall in order to comply with the requirements of his Chapter cover any liability arising under the provisions of the Workmen's Compensation Act, 1923, in respect of the death of or bodily injury to any paid employee engaged in driving or otherwise in attendance on or being carried in a motor vehicle." 

From the above, it will be seen that so far as compulsory insurance against the liabilities arising under the provisions of the Workmen's Compensation Act, 1923 (in short "the Compensation Act') is concerned, under sub-section (3) of section 95 of the Act, it was left to the discretion of the Provincial Governments to provide for the same. But, subsequently Parliament in order to ensure safeguards to victim employees as well, by the Motor Vehicles (Amendment) Act, 1956, deleted the said sub-section (3) of section 95 and amended the proviso to subsection (1) thereof by providing for compulsory insurance to cover the liabilities arising under the Compensation Act. The amended section 95 of the Act, to the extent it relates to goods vehicles, reads thus : 

"95. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which, - 

(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under section 108 to transact the business of an insurer, and 

(b) insures the person or classes of person specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place; Provided that a policy shall not be required, - 

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee - 

(a) engaged in driving the vehicle, or ... 

(c) if it is a goods vehicle, being carried in the vehicle, or ..." There have been further amendment to the said section 95 by Act 56 of 1969, but that is not material for the present purposes. 

Thus, it is clear from the above that, under section 95(1) of the Act, it is now mandatory for the owner of a goods vehicle to get insured against the risk of death or bodily injury of his employees arising out of and in the course of their employment because of the use of the vehicle in a public place, in respect of the liability arising under the Compensation Act. 

Re. Question No. (ii) : 

The above provisions, as amended by the 1956 Amendment Act, have been bodily incorporated under section 147(1) of the Motor Vehicles Act, 1988, which had recently fallen for consideration before the Supreme Court in Ved Prakash Garg v. Premi Devi [1997] 90 Comp Cas 405, 418; [1997] 91 FJR 689; [1997] 8 SCC 1, 14, wherein their Lordships after detailed consideration of the provisions of the Motor Vehicles Act and the Compensation Act have held that : 

"Sub-clause (b) of section 147(1) read with the proviso lays down a statutory scheme of compulsory coverage of liability incurred by the employer vis-a-vis his employees when they sustain injuries by the use of motor vehicles during their employment and on account of motor accidents arising out of and in the course of their employment. But the statutory coverage for such liability would be limited to the extent of liability of the insured employer arising under the Workmen's Compensation Act in respect of death or bodily injury to such employees. As the motor accidents resulted in fatal injuries to the employees who were either driving or were being carried in the goods carriage as cleaner whatever liability was incurred by insured owners of the goods vehicles in connection with proceedings arising out of the Compensation Act was covered by the statutory, liability of the respondent-insurance companies." 

In the above view of the matter, it is no more necessary to delve deep on the issue at hand. Keeping in view the judgment of the Supreme Court which is now the law of the land, it can unhesitantly be held that under a compulsory insurance policy wherein the insurer undertakes to indemnify the owner of the vehicle to 'the extent it is statutorily provided under section 95 of the Act, he is liable to indemnify the owner only in respect of the liabilities incurred by such owner in connection with proceedings arising out of the Compensation Act. 

Now, for understanding as to how liability can arise under the Compensation Act, one has to glance through the scheme envisaged under the said Act. The Compensation Act deals with the provisions for payment by certain classes of employers to their workmen as compensation for employment injuries caused by accident. In view of section 2(n) of the Compensation Act, it cannot be disputed that every person recruited as driver, helper, mechanic, cleaner or in any other capacity with a motor vehicle is a workman for the purpose of the said Act and the list of persons set out in Schedule 11 is subject to the said definition and not in derogation thereof. 

Section 3 of the Compensation Act deals with "employer's liability for compensation'. Sub-section (1) thereof lays down that "if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II". Section 4 of the Compensation Act deals with "amount of compensation". It lays down the statutory scheme for computing the compensation payable in cases of the types of accidental injuries suffered by the workmen concerned. The employer, on a conjoint reading of section 3(1) and section 4(1) of the Compensation Act, would be liable to make good the liability for paying compensation to the insured workmen under circumstances contemplated by these provisions. 

Section 19 of the Compensation Act also deserves to be noted at this stage. Sub-section (1) thereof lays down that : 

"19. (1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner." 

Sub-section (2) of section 19 bars the jurisdiction of the civil court to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner, or to enforce any liability incurred under this Act. As per the aforesaid provisions any dispute between the employer-insured on the one hand and the insurance company, that is said to have insured the employer against such claims for compensation under the Compensation Act, on the other, has to be resolved in default of agreement between them, by the Commissioner functioning under the Compensation Act and not by any civil court. 

From the statutory provisions as noticed above and the pronouncements of the Supreme Court on the subject, it is clear that if an employee of the goods vehicle suffers bodily injury arising out of or in the course of his employment then the Legislature has given him the option to seek compensation either by filing an application before the Claims Tribunal under the provisions of the Act, which has to be determined keeping in view the common law principles of tortious liability as adopted in India or he may claim statutory compensation resorting to the proceedings under the Compensation Act. But, section 110AA of the Act forbids him to claim compensation under both the Acts. No doubt, there are advantages and disadvantages in choosing either of the two forums but that has to be weighed by the claimant to secure the best, keeping in view his own facts and circumstances. By approaching the Claims Tribunal, he may have the advantage of getting higher compensation but for such compensation the Legislature has not provided the protection of recovery by way of compulsory insurance. Whereas, as held by the Supreme Court in the case of Ved Prakash Garg v. Premi Devi [1997] 90 Comp Cas 405; [1997] 91 FJR 689 if the liability of the compensation arises in connection with the proceedings under the Compensation Act, then only the same will be recoverable from the insurer under the scheme of compulsory insurance envisaged under the proviso to section 95 of the Act. Taking any other view may amount to causing violence to the statutory scheme. It is for this reason that admittedly, as now held even by the Supreme Court in Ved Prakash Garg v. Premi Devi [1997] 90 Comp Cas 405; [1997] 91 FJR 689 in the compulsory insurance, the insurer can be held liable to discharge the liabilities of the owner of the vehicle arising out of only the proceedings under the Compensation Act. Consequently, if the liability of paying Compensation arises in connection with proceeding arising out of the Motor Vehicles Act, then it cannot be said to be covered by statutory insurance scheme. It can also be held without hesitation that the Accident Claims Tribunal constituted under the Motor Vehicles Act cannot exercise the jurisdiction of determining the amounts payable under the Compensation Act because the Tribunal is of limited jurisdiction and cannot embark upon the powers conferred upon the Commissioner under the Compensation Act. Therefore, no part of the compensation determined by the Tribunal can be held to be covered under the statutory insurance. 

Coming to the facts of the present case, the appellant had thought it more advantageous to get this right of compensation adjudicated by the Claims Tribunal thereby forfeiting his right to claim any statutory compensation provided under the Compensation Act. Therefore the compensation awarded by the Tribunal is not protected by the umbrella of compulsory insurance. Consequently, if he fails to recover the compensation determined by the Claims Tribunal, then he has done it at his own risk and peril by electing a forum which appeared to him to be more advantageous. Having opted to get the compensation adjudicated by the Tribunal, which is not covered by compulsory insurance scheme under section 95 of the Act, he cannot turn around and plead that at least to the extent of liability which can arise under the Compensation Act, the insurance company should be held liable to indemnify the owner and thereby should be directed to make good the same to the appellant. At the cost of repetition, I may say that, as held by the Supreme Court, since there were no proceedings for determination of compensation under the Compensation Act, therefore, for the purpose of proviso to clause (b) of sub-section (1) of section 95 of the Act, no liability at all had arisen under the Compensation Act. The same reasoning follows for sub-section (2)(a) of section 95 of the Act where the expressions used are the same namely, "arising under the Workmen's Compensation Act, 1923". The dictum of the Supreme Court in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059; [1982] 52 Comp Cas 454, has to be understood in harmony with its later judgment in the case of Ved Prakash Garg v. Premi Devi [1997] 90 Comp Cas 405; [1997] 91 FJR 689 (SC). 

Having answered the questions of law on which we are required to deliberate, in my opinion, the appeal should now be placed before the learned single judge for final disposal. 

P. VISHWANATHA SHETTY J. - We have gone through in draft the judgment of our learned brother justice Bharuka. Our brother, in his judgment, has formulated two questions, which have arisen for consideration before the Full Bench. It may be useful to reproduce them, which read as under : 

(1) Whether, under section 95(1) of the Act, the owner of a goods vehicle is required to compulsorily insure against the risk of death or bodily injury of his employees arising out of and in the course of their employment because of the use of the vehicle in a public place ? 

(2) Whether the insurer will be liable to indemnify the owner against the compensation awarded only in proceedings commenced under the Compensation Act or will be so liable even if the compensation is awarded by the Tribunal under the Act- and in either case to what extent ? 

In so, far as the first question is concerned, our learned brother has taken the view that under section 95(1) of the Motor Vehicles Act, 1939 (hereinafter referred to as "the Act"), it is mandatory for the owner of a goods vehicle to get insured against the risk of death or bodily injury of his employees arising out of and in the course of their employment because of the use of the vehicle in a public place. We respectfully concur with the views expressed by our learned brother. 

However, with regard to the second question, while we agree with the view expressed by our learned brother that in view of section 110AA of the Act, the option is left to the claimants to invoke the provisions of either the Workmen's Compensation Act (hereinafter referred to as "the Compensation Act"), or the Act; and once they exercise their option and invoke the provisions of any one of the Acts it is not permissible thereafter to invoke the provisions of the other Act, we regret very much our inability to subscribe to the views expressed by him that once the provisions of the Act are invoked and a claim is made before the Motor Accidents Claims Tribunal (hereinafter referred to as "the Tribunal"), the insurer is excluded from his liability to pay compensation to the claimant and the claimant is entitled to recover compensation from the owner under common law as may be determined by the Tribunal. The judicial opinion on this question is not unanimous. There is no authoritative pronouncement of the Hon'ble Supreme Court on this question. Therefore, the second question which requires elucidation by this court, is of considerable importance and we may also state that it is also not free from difficulty. However, before considering the said question, it may be useful to extract sections 95(1)(b), (2) and 110AA of the Act and section 19 of the Compensation Act, which read as hereunder: 

(a) Sections 95(1) and (2) and 110AA of the Act 

"95. Requirement of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which - 

(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under section 108 to transact the business of an insurer, and 

(b) insures the person or classes of persons specified in the policy to the extent specified in subsection (2) - 

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; 

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place : 

Provided that a policy shall not be required - 

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee - 

(a) engaged in driving the vehicle, or 

(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

if it is a goods vehicle, being carried in the vehicle, or 

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or 

(iii) to cover any contractual liability. 

Explanation. - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property with is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. 

(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :- 

(a) where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle; 

(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,- 

(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all 

(ii) in respect of passengers, - 

(1) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers 

(2) a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers; 

(3) a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and 

(4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case; 

(c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred; 

(d) irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damage to any property of a third party. 

"110AA. Option regarding claims for compensation in certain cases. - 

Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923), where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923 (8 of 1923), the person entitled to compensation may claim such compensation under either of those Acts but not under both". 

(b) Section 19 of the Compensation Act 

"19. Reference to Commissioner. - (1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman or as to the amount or duration of compensation including any question as to the nature or extent of disablement, the question shall, in default of agreement, be settled by a Commissioner. 

(2) No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act." 

Now, let us examine the second question, referred to by us above. 

As observed by us earlier, we are unable to persuade ourselves to agree with the views expressed by our learned brother on this question. In our view, on proper interpretation and consideration of Chapter VIII of the Act and the relevant provisions contained in the Compensation Act, it is open to the victim of the motor accident, who is an employee, or his legal heirs in the case of death of the victim of the 'accident, to claim compensation either under the Compensation Act or under the Act. This is clear from section 110AA of the Act. The option is given to the claimant to prefer his or her claim either before the Tribunal or before the Commissioner under the Compensation Act. In the event of the claimant making a claim under the provisions of the Compensation Act, he or she is entitled for compensation payable as prescribed under the Compensation Act. This minimum assurance is guaranteed without the claimant being compelled to undergo the hazards of an adjudication of the dispute before the Tribunal though the compensation payable may be less than what the claimant may be entitled to secure under the law of torts. 

No doubt, the first proviso given to clause (b) of sub-section (1) of section 95 of the Act, if it is read in isolation, may not, in explicit terms or clearly, give an indication that the insurer is liable to pay the entire compensation as may be determined by the Tribunal. Since the said provision is not very clear, the said provision is required to be read along with the other provisions of the Act and also the object behind Chapter VIII of the Act. There cannot be any doubt that Chapter VIII of the Act is a welfare legislation which is intended to protect the victims of motor accidents who sustain injury or their legal heirs in the case of their death. While Parliament was fully aware that tortfeasors are liable to indemnify, or pay damages for their tortious acts, however, keeping in mind that in all cases, tortfeasors may not be in a position to satisfy the decree/award that may be passed against them, made the taking out of a policy of insurance compulsory before a vehicle is put on the road by the owner of a vehicle. This is clear from section 94 of the Act which prohibits any person except as a passenger, to use or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person a policy of insurance complying with the requirements of Chapter VIII of the Act. Section 95 of the Act provides for the requirements of policies and limits of liability. Sub-section (1) of section 95 provides that in order to comply with the requirements of Chapter VIII, a policy of insurance must be a policy which-(a) is issued by a person who is an authorised insurer and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Therefore, reading of sub-section (1) of section 95 makes it clear that the policy of insurance is required to be taken from a person who is authorised to issue such policy against any liability that may be incurred to the third party or any passenger of a public service vehicle on account of the accident caused by or arising out of the use of the vehicle in a public place. Sub-clauses (i) and (ii) of clause (b) of section 95(1), to a large extent, cover a large section of victims of motor accidents. However, the proviso given to clause (b) of subsection (1) of section 95, in our opinion, makes it obligatory on the part of the owner of the vehicle to take out a policy of insurance which provides for payment of minimum compensation as prescribed under the Compensation Act in the case of employees mentioned in the said provision. 

Now, the question is whether the proviso given to clause (b) of sub-section (1) of section 95 intends to exclude the liability of the insurer to indemnify the owner or the driver of the vehicle, for payment of compensation if the victim of the accident, who is an employee of the owner of the vehicle or his legal heirs from payment of compensation either to the extent of the entire compensation awarded by the Tribunal or to the extent of the limit prescribed under the Compensation Act ? To our mind, it appears that though the language employed is not happily worded, it is not possible to take the view that the employees of the owner, who are the victims of motor accidents or their legal heirs in the case of death, will not be entitled to receive compensation awarded by the Tribunal which they are entitled under common law from the insurer, when all others including third parties and passengers in public vehicles are assured of payment of compensation either for the bodily injuries sustained by the victims of the accidents or in the case of death, by their legal heirs. Sub-section (2) of section 95 of the Act provides that subject to the proviso given to sub-section (1), a policy of insurance shall cover any liability in respect of any one accident up to the limits provided in clause (a) of the said section "including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of or bodily injury to, employees other than the driver not exceeding six in number, being carried in the vehicle". The inclusive definition provided in clause (a) of sub section (2) of section 95, in our view, suggests that the liability of the insurer would include not only one arising under the Compensation Act, but also the liability that would arise under the common law of torts. The reference to the liability of the insurance company under the Compensation Act in the first proviso to section 95(1)(b) of the Act, in our view, is meant merely to indicate the existence of the liability of the insurance company under the Act, but not the extent of the liability thereof. The limit of the liability of the insurance company is prescribed under section 95(2) of the Act. Therefore, in our view, the only way to harmoniously construct the proviso given to clause (b) of sub-section (1) of section 95 of the Act with sub-section (2) of section 95, is that if a workman opts to invoke the jurisdiction of the Tribunal, subject to the onus imposed upon him by law of torts to establish negligence on the part of the driver of the vehicle, the claimant is entitled for the benefit of the award of compensation under common law for damages; and this implies that the insurer is liable to make good the same. Further, it cannot be disputed that employees of a motor vehicle, who are engaged in driving a vehicle, or if it is a public service vehicle, engaged as a conductor of the vehicle, or if it is a goods vehicle, being carried in the vehicle, generally belong to the lower strata of the society and are neither economically well placed in life nor socially or culturally advanced. In this situation, can it be assumed that Parliament, while providing for a statutory protection and guarantee for payment of compensation to large sections of the victims of motor accidents or their legal heirs, would not envisage giving protection to these unfortunate sections of the society who are required to face the hazards of motor accidents at any moment on account of the nature of employment ? As observed by us earlier, Chapter VIII of the Act is in the nature of a welfare legislation. While construing the welfare legislation, if the language employed in a provision is not very clear or is capable of more than one interpretation or meaning, it is the duty of the court to place such interpretation which would further or advance the object of the legislation or cause of justice, equity and make the legislation more meaningful and purposeful. In this connection, it is useful to refer to the observations of the Supreme Court in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059; [1982] 52 Comp Cas 454 and New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani [1964] 34 Comp Cas 693; AIR 1964 SC 1736, and that of the Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai [1977] ACJ 253. 

(a) In the case of Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi [1982] 52 Comp Cas 454 (SC), the Supreme Court, at paragraphs 15 and 18 of its judgment, has observed thus (pages 462 and 464) 

"Both by common practice and the application of recognised rules of statutory construction, harsh consequences following upon an interpretation are not considered as the governing factor in the construction of a statute, unless its language is equivocal or ambiguous. If the language is plain and capable of one interpretation only, we will not be justified in reading into the words of the Act a meaning which does not follow naturally from the language used by the Legislature. It therefore becomes necessary to consider whether the language used by the Legislature in section 95(2) of the Act admits of any doubt or difficulty or is capable of one interpretation only. 

We are, therefore, of the opinion that the ambiguity in the language used by the Legislature in the opening part of section 95(2) and the doubt arising out of the co-relation of that language with the words 'in all' which occur in clause (a), must be resolved by having regard to the underlying legislative purpose of the provisions contained in Chapter VIII of the Act which deals with third party risks. That is a sensitive process which has to accommodate the claims of the society as reflected in that purpose. Indeed, it is in this area of legislative ambiguities, unfortunately not receding, that courts have to fill gaps, clear doubts and mitigate hardships. In the words of Judge Learned Hand - 

'It is one of the surest indexes of a mature and developed jurisprudence ... to remember that statutes always have some purpose or object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning. Cabell v. Markham [1945] 148 F 2D 737, 739. 

There is no table of logarithms to guide or govern statutory construction in this area, which leaves a sufficient and desirable discretion for the judges to interpret laws in the light of their purpose, where the language used by the law-makers does not yield to one and one meaning only. Considering the matter that way, we are of the opinion that it is appropriate to hold that the word 'accident' is used in the expression 'any one accident' from the point of view of the various claimants, each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer. 

(b) The Supreme Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani [1964] 34 Comp Cas 693 has, at paragraph 12, observed thus (page 699) : 

"Chapter VIII of the Act, it appears from the heading, makes provision for insurance of the vehicle against third-party risks, that is to say, its-provisions ensure that third-parties who suffer on account of the user of the motor vehicle would be able to get damages for injuries suffered and that their ability to get the damages will not be dependent on the financial condition of the driver of the vehicle whose user led to the causing of the injuries. The provisions have to be construed in such a manner as to ensure this object of the enactment." 

(c) In the case of Megjibhai Khimji Vira v. Chaturbhai Taljabhai [1977] ACJ 253; AIR 1977 Guj 195, 199, the Division Bench of the Gujarat High Court has observed at paragraph 12 of its judgment thus : 

"There cannot be any gainsaying that the 1939 Act makes provision for the constitution of the Claims Tribunal to provide a cheap and speedy mode of enforcing liability arising out of the use of motor vehicles. It is a benevolent legislation which calls for liberal and broad interpretation so that the real purpose underlying the enactment of sections 110 to 110F is achieved and full effect is given to the legislative intent. It is well settled that, if while interpreting a welfare legislation any provision of the Act is capable of two constructions, that construction should be preferred which furthers the, policy of the Act and is more beneficial to the class in whose interest the law has been made..." 

Therefore, if the proviso is to be understood in the light of what is laid down by the Supreme Court and the Gujarat High Court, the proviso, in our view, cannot be understood or interpreted to mean that the employees of the owner of a vehicle are not entitled to claim compensation either in addition to what is fixed under the Compensation Act or even the amount fixed under the Compensation Act, if they make a claim before the Tribunal, from the insurer. As observed by us earlier, the court will have to harmoniously interpret the provisions contained in Chapter VIII of the Act keeping in mind the very object of the legislation. If it is so understood and interpreted, in our view, the insurer is liable to pay the entire compensation as may be determined by the Tribunal pursuant to the claim made by the victims of the motor accident in the case of injury, or the legal heirs of the victims of such an accident in the case of death. The above view of ours also gets support from the decisions of the High Courts of Allahabad, Orissa, Bombay, and Madhya Pradesh in Oriental Fire and General Insurance Co. Ltd. v. Ram Sunder Dubey [1982] ACJ 365 (All); National Insurance Co. Ltd. v. Gonti Eliza David [1984] ACJ 8; [1986] 59 Comp Cas 745 (Bom); Oriental Fire and General Insurance Co. Ltd. v. Dhanno [1987] 2 ACJ 759 (MP); [1989] 65 Comp Cas 783 and Surinder Kumar fain v. Smt. Sukh Dai [1986] 60 Comp Cas 650; [1986] ACJ 848 (P&H). 

(a) In the case of Oriental Fire and General Insurance Company Ltd. v. Ram Sunder Dubey [1982] ACJ-365 the Division Bench of the Allahabad High Court has, at paragraph 15, 14 and 15, observed thus (page 367) : 

"The effect of section 110AA of the Motor Vehicles Act is that it gives an option to the claimants either to seek the compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. What is prohibited is that the claimants cannot claim the compensation under both the Acts. 

There is nothing in the Motor Vehicles Act to show that while awarding compensation to an employee under the Motor Vehicles Act, the Tribunal is bound to apply the schedules framed under the Workmen's Compensation Act, for determination of the compensation. 

Coming to the argument of A. B. Saran based on section 95(2)(a) of the Motor Vehicles Act, the interpretation of the section is that first there is a limit of Rs. 50,000 in respect of death or bodily injury to an employee. This limit also applies in the case of a claim for the compensation under the Workmen's Compensation Act. The words' a limit of Rs. 50,000 in an, including the liabilities, if any, arising under the Workmen's Compensation Act' in the section indicate that the provision is inclusive, i.e., in other words, it provides for a liability of the insurance company both under the Motor Vehicles Act and also under the Workmen's Compensation Act. If the words 'if any, arising under the Workmen's Compensation Act, 1923', had not been in the section, it had been open to the insurance company to urge that the liability of an insurance company is limited to the Motor Vehicles Act and would not extend to the Workmen's Compensation Act. These words have been incorporated to prevent any such argument. The argument of A. B. Saran that the compensation to the claimants should have been awarded in accordance with the provisions of the Workmen's Compensation Act has, therefore, necessarily to be rejected." 

(b) Following the above judgment of the Allahabad High Court, in the case of National Insurance Co. Ltd. & v. Gonti Eliza David [1936] 59 Comp Cas 745 (Bom), the Division Bench of the Bombay High Court has, at paragraphs 12 and 13 of the judgment, observed as follows (page 749) : 

"The cleavage of judicial opinion in this regard can be attributed to the difficulty in co-relating the language of the proviso to sub-section (1) of section 95 with that in sub-section (2) of that section. The former seems to tell the insurer and the owner : 'as regards third party risks, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmen's Compensation Act'. Sub-section (2) on the other hand gives a confusing mandate : 'there is an outer limit of one lakh of rupees as respects the liability incurred as a result of an accident but that liability will include a liability arising under the Workmen's Compensation Act also'. The use of an inclusive definition in drafting sub-section (2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmen's Compensation Act but also something more. Needless to say, that other species of liability would be the one arising under common law of tort. 

The only way to resolve the ambiguity would be, as pointed out by the Supreme Court in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi [1981] ACJ 507; [1982] 52 Comp Cas 454, to apply the touchstone that the purpose of law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled under section 110AA of the Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration in deciding his claim under the two Acts would be different-a Tribunal would apply the principles of tort in liability circumscribed by the Workmen's Compensation Act while, if the aggrieved chooses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining his case. The quantum of compensation under the Workmen's Compensation Act is quantified in the Schedule itself. But the quantum of damages under the common law of tort is subject to determination by the Tribunal on the basis of well settled principles. The Workmen's Compensation Act offers no leeway in the matter of quantification of damages; the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a Tribunal which is generally presided over by a senior judicial officer may throw open a number of issues the burden of proving which would lie on the claimant. In this option of forum shopping-if the workman has chosen to undertake the responsibility of discharging the onerous burden imposed upon him by tort law, it follows that he should get the benefit of the expression 'including the liabilities, if any, arising under the Workmen's Compensation Act, 1923', occurring in clause (a) of sub-section (2) of section 95 of the Motor Vehicles Act which implies that the insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act." 

(c) Similar is the view taken by a learned single judge of the Madhya Pradesh High Court in Oriental Fire and General Insurance Company Ltd. v. Dhanno [1989] 65 Comp Cas 783 In the said case, at paragraph 5, it is observed as follows (page 786) 

"I would propose, therefore, to read the relevant provisions to see whether the view taken in the decisions cited have a reasonable basis so that should revise my own view. Mr. Singhal has placed reliance on clause (ii) of the proviso to, sub-section (1)(b) of section 95 of the Act, which is in the following terms : 

'Provided that a policy shall not be required - . . . 

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to person being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises'. 

I do not read anything in the provision quoted above to indicate that when a liability in terms thereof is fastened on the insurer, the extent of liability should not extend beyond what is provided in the Workmen's Compensation Act. On the other hand, the provision evidently deals with the situation in which death or bodily injury to persons 'being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises'. Still, I may also read clause (i) of the proviso, the relevant part whereof is as follows : 

'to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee'. 

The provision aforequoted explicitly accepts the requirement of a policy in the cases contemplated thereunder, and it has also not excluded the insurer from entering into a contract of indemnity to cover circumstances and conditions embraced by the provision. Indeed, because of this statutory entitlement, an employee or his legal representatives is/are entitled to exercise an option under section 110AA to sue the owner of the motor vehicle either under the Workmen's Compensation Act or file a claim against him under the Act, as contemplated under sections 110 and 110A. Reading clause (i) carefully, I do not see any inhibition or limitation even therein to suggest that when a liability is taken by an insurer thereunder, the extent of liability in such a case would be limited to that as allowed under the Workmen's Compensation Act. What it has merely said is about the nature of the liability and not about the extent of the liability. Mr. Singhal, therefore, placed for my consideration the insurance policy and relied on endorsement No. I. M. T. No. 16, which is to the effect that 'company shall indemnity the insured against his legal liability under the Workmen's Compensation Act. Herein also, I do not read any limit of liability being explicitly reserved by the insurer by the terms of the contract that is entered with the owner of the motor vehicle." 

(d) In the case of Surinder Kumar Jain v. Smt. Sukh Dai [1986] 60 Comp Cas 650 (P&H) the learned single judge of the Punjab and Haryana High Court has, at paragraph 7 of the judgment, observed as follows (page 652) : 

"A reading of the provisions in section 95 of the Act would show that there is no provision contained therein which can be read to limit the liability of the insurance' company to that payable under the Workmen's Compensation Act, 1923. Me reference to the liability of the insurance company under the Workmen's Compensation Act, 1923, in proviso (i) to section 95(1)(b) of the Act is merely to indicate the existence of the liability of the insurance company under that Act, but not the extent thereof. The limit of liability of the insurance company is prescribed under section 95(2)(a) of the Act, which was rightly construed by the Division Benches of the High Courts of Allahabad and Bombay as inclusive of liability both under the Motor Vehicles Act, 1939, as also under the Workmen's Compensation Act, 1923. Respectfully agreeing with his view, the conclusion is inescapable that in, the present case, the liability of the insurance company must extend to the entire amount awarded. In other words, the truck owner, driver as also the insurance company are jointly and severally liable for the compensation awarded to the claimants." 

The precedents, referred to above by us, clearly support the view we have taken above. Therefore, the words "other than the liability arising under the Workmen's Compensation Act" incorporated in the proviso given to section 95(1)(b), in our view, do not in any manner support the contention of the insurer that the liability of the insurer is only to the extent of the liability prescribed under the Compensation Act and if a claim is made under the Act, the claimant is not even entitled for payment of compensation prescribed under the Compensation Act, from the insurer. In our view, when once the taking of a policy in respect of the employees referred to in proviso (i) given to section 95(1)(b) of the Act, in respect of a liability arising under the Compensation Act, is made compulsory, it is not possible to take the view that merely because the compensation payable under the Compensation Act is fixed as prescribed under the Compensation Act, the insurer is not liable to pay the compensation awarded by the Tribunal. If such an interpretation is placed, it would negate the-Very object of Chapter VIII of the Act. We do not find any good or valid reason to take such a view, which would discriminate against a section of the victims of the motor vehicle accident who are employees of the owner of a vehicle, from others. 

One other aspect of the matter, which is required to be dealt with, is whether, in the event of the claimants failing to establish that the motor accident in question had taken place either on account of negligence of the driver of the vehicle when the driver himself or his legal heirs are, not the claimants, or on account of the negligence of the employer or owner of the vehicle, the claimants are precluded from claiming compensation before the Tribunal even with regard to the compensation payable to them under the Compensation Act. Section 110AA of the Act gives an option to the victims of the motor accidents or the legal heirs of such victims in the case of death to institute proceedings either before the Tribunal constituted under the Act or to make a claim before the Commissioner for Workmen's Compensation under the Compensation Act. 

Now, the question is that when an option is given to the parties, merely because a claim is made before the Tribunal, whether the right to claim compensation provided under the Compensation Act is taken away on the ground that the claimants have failed to establish the tortious act either on the part of the employer or the employee of the vehicle, who is responsible for the accident ? In our considered view, if the object of the legislation both under the Act and the Compensation Act is kept in view, it is not possible to take the view that if the claimant fails to establish the tortious act either on the part of the employer or the driver of the vehicle, he is not entitled to receive the minimum compensation provided under the Compensation Act. In our view, when section 95(1)(b) of the Act makes it compulsory for taking out a policy of insurance, which includes payment of compensation under the Compensation Act, in the case of categories of persons referred to in the said sub-section; and when the Compensation Act, without proof of tortious act, provides for payment of compensation prescribed under the Act, merely because the jurisdiction of the Tribunal is invoked for payment of compensation, it is not reasonable to take the view that the compensation made payable as prescribed under the Compensation Act should be denied to the claimants. If an executive officer of the State under the Compensation Act is entrusted with the responsibility of calculating the compensation as prescribed under the Act, and making payment to the claimant irrespective of the fact whether there is negligence on the part of the employer or not, we do not find any justifiable ground to deny the same benefit to the claimant merely because he makes a claim before the Tribunal in the hope of getting higher compensation than the one prescribed under the Compensation Act. The Tribunal is presided over by judicial officers either in the cadre of District judge or Civil judge (Senior Division). The Tribunal is only required to calculate or total up the compensation as prescribed under the Compensation Act. If that could be done by the Commissioner for Workmen's Compensation, in our view, there should not be any difficulty for a judicial Officer to determine the same. The substance of the matter is one of payment of compensation in respect of a right that has accrued to the claimants under the Compensation Act. When section 110AA of the Act provides for an option to the claimants either to move the Tribunal or the Commissioner for Workmen's Compensation, while placing an interpretation to the said provision, the court should keep in mind the object of the legislation, which is benevolent in nature and which is intended to protect the rights of the victims of the accident. If the provision is so understood, the only view that can be taken under the circumstances is to hold that even in the event of the claimants failing to establish negligence or tortious act on the part of the employer or the driver of the vehicle, still the claimants are entitled for payment of compensation as prescribed under the Compensation Act. 

Sub-section (2) of section 19 of the Compensation Act, which ousts the jurisdiction of the civil court to settle, decide or deal with any question which is by or under the Compensation Act, required to be settled or dealt with by a Commissioner or to enforce any liability incurred under the Compensation Act, is of no assistance to support the plea of the insurance company that in view of the said provision, the Tribunal constituted under the Act has no power to pay the compensation payable under the Compensation Act merely because the claim is made before the Tribunal. It is necessary to point out that the Compensation Act is of the year 1923. The Act is a subsequent legislation. Chapter VIII of the Act came to be incorporated long after the coming into force of the Compensation Act. Further, section 110AA of the Act came to be incorporated in the Act by means of Act 56 of 1969. Section 110AA of the Act provides that notwithstanding anything contained in the Compensation Act, where the death of or bodily injury to any person gives rise to a claim for compensation under the Act and also under the Compensation Act, the person entitled to compensation may claim such compensation under either of those Acts but not under both. Therefore, section 110AA of the Act makes it clear that the person who is entitled to claim compensation under the Act and also under the Compensation Act, can opt for claiming compensation either under the Act or under the Compensation Act. Therefore, in our considered view, section 110AA of the Act also specifically confers power of awarding compensation prescribed under the Compensation Act by the Commissioner, on the Tribunal constituted tinder the Act if a claim is made before the Tribunal. 

Further, the words 'including the compensation under the Workmen's Compensation Act' provided in the proviso given to sub-section (1)(b) of section 95 of the Act is a clear indication of the Act that irrespective of the proof of negligence on the part of either the driver or owner of the vehicle, the insurance policy should cover the liability of the employer payable under the Workmen's Compensation Act. The intention of the amendment made to section 95(1) of the Act by means of Act 100 of 1956, it appears to our mind, is to see that the workers are not left high and dry and they are assured of recovery of a minimum compensation as laid down in the Compensation Act even when they move the Tribunal under the Act. If the view expressed by us above is not taken, it would result in great injustice to the victims of motor accidents or their legal heirs, who move the Tribunal with the hope of getting more compensation and generally on legal advice. It is common experience that on many occasions, for want of legal evidence and proof of negligence; genuine claims made by the victims of accidents or their legal heirs may fail. Under these circumstances, if a claimant, who is assured of the compensation under the Compensation Act, were to be told that since he has moved the Tribunal, he is not entitled for award of compensation assured to him under the Compensation Act, it would result in travesty of justice. Such an interpretation would only cause additional misery to the suffering of the victim of the accident. Such interpretation has to be avoided by the courts if it is permissible, while interpreting the provisions of law. In our view, the discussion made above clearly shows that the view taken by us is permissible. In the light of the discussion made above, we are unable to subscribe to the view taken by our learned brother that in the event of the claimant failing to establish the negligence on the part of the driver or the owner of the vehicle, the claimant, who moves the Tribunal, is not even entitled for payment of compensation prescribed under the Compensation Act. 

We also find it necessary to refer to the decision of this court in the case of National Insurance Co. v. Dundamma [1991] ILR Kar 2045; [1992] 75 Comp Cas 141 [FB] and Oriental Insurance Co. Ltd. v. Smt. Irawwa [1992] ILR Kar 1592; [1993] 76 Comp Cas 830. 

In the case of National Insurance Co. v. Dundamma [1991] ILR Kar 2045 ; [1992] 75 Comp Cas 141, 144 the question that was referred to the Full Bench, was as follows 

"Whether by force of clause (ii) of the proviso to section 95(1)(b) of the Motor Vehicles Act, 1939, the insurance company is liable to pay compensation in respect of death or bodily injury to any person travelling in a vehicle, though it is not a vehicle constructed and adapted and meant in law for carrying passengers for hire or reward, even to the extent of the number of passengers permitted to be carried in the vehicle though not for hire or reward, even in the absence of any extra coverage secured by the owner under the policy concerned in respect of such passengers ?" 

Therefore, the question referred to the Full Bench in National Insurance Co. v. Dundamma [1991] ILR Kar 2045; [1992] 75 Comp Cas 141 did not relate to the extent of the liability of the insurance company and the court was not required to address the question as to what extent they are liable to indemnify the insured directly. However, the said question was considered by the court at paragraph 12 of the judgment, as hereunder (page 160) 

"As regards clause (i) again there is no controversy. It is common ground that to the extent of liability arising under the Workmen's Compensation Act, 1923, in respect of death or bodily injury to a person driving any type of vehicle (vide clause (a)); a person engaged as a conductor or a ticket examiner in a public service vehicle (vide clause (b)) and in respect of employees carried in the vehicle if it were to be a goods vehicle (vide clause (c)) it is not compulsory that the insurance policy should cover the risk over and above the liability arising under the Workmen's Compensation Act. In other words, in respect of those persons compulsory coverage is prescribed up to the extent of liability under the Workmen's Compensation Act. However, if any owner of a vehicle is desirous of covering the entire risk in respect of any such employee, i.e., whether a driver or a conductor or a ticket examiner in a public service vehicle or an employee travelling in a goods vehicle, he is at liberty to secure coverage for the entire risk, i.e., even higher than the liability arising under the Workmen's Compensation Act by making extra payment of the premium in terms of the Tariff Regulations of the Insurance Company concerned, by way of abundant caution. On this aspect also there is no controversy ..." 

Therefore, from what is stated above, it is clear that there was no dispute raised which came up for consideration before the Full Bench with regard to the extent of the liability of the insurance company and it was taken as admitted that the liability of the insurance company is to the extent of coverage under the Compensation Act. Therefore, we are of the opinion that the decision in the case of National Insurance Co. v. Dundamma [1991] ILR Kar 2045; [1992] 75 Comp Cas 141 of the Full Bench of this court is of no assistance to support the plea of the insurance company that the liability of the insurance company is only to the extent of the liability fixed under the Compensation Act. 

In the case of Oriental Insurance Co. Ltd. v. Smt. Irawwa [1993] 76 Comp Cas 830 (Kar), the Division Bench of this court simply followed the dictum of the Full Bench in the case of National Insurance Co. v. Dundamma [1991] ILR Kar 2045; [1992] 75 Comp Cas 141. This is clear from the observations made by the court, which read as hereunder (page 845) : 

"We, however, make it clear that the answer given above does not apply to the driver and the employees carried in a goods carriage in respect of whom section 147(1) requires compulsory coverage of the risk to the extent of liability under the Workmen's Compensation Act." 

Therefore, we are of the opinion that in both the decisions, there was no discussion made by the court as to the extent of the liability of - the insurance company and the judgment in the case of Oriental Insurance Co. Ltd. v. Smt. Irawwa [1993] 76 Comp Cas 830 (Kar), proceeded on the basis of consensus. 

However, in the case of National Insurance Co. Ltd. v. H. N. Rama Prasad [1985] ACJ 864 (Kar), no doubt, at paragraph 9 of the judgment, the Division Bench of this court has taken the view that the liability of the insurer is limited to what is contained in the Compensation Act, under the Act policy. The observations made by the court in paragraph 9 of the judgment, are as hereunder : 

"9. Adverting now to the ground made out in the appeal by the insurer, the only ground made out is that the liability of the insurer should be confined to what is contemplated under the provisions of the Workmen's Compensation Act. Section 95(1) in the proviso states that in respect of the death arising out of and in the course of employment of an employee, or in respect of the bodily injury sustained by such an employee, arising out of and in the course of his employment, then the liability of the insurance company is confined to 'what is contained under the Workmen's Compensation Act. Thus, reading section 95(1) with the proviso, it becomes clear that in the case of death or bodily injury to an employee in the course of his employment the liability of the insurance company is limited to what is contained in the Workmen's Compensation Act, under the Act policy. Under the Workmen's Compensation Act, for permanent total disablement, an employee drawing a salary of Rs. 500 to Rs. 600 is granted Rs. 30,240. The evidence on record discloses and it is also found by the Tribunal as a matter of fact, that the disablement in the instant case is only to the extent of 60 per cent. Therefore, the liability of the insurance company would be limited to Rs. 18,144 from out of the total compensation awarded by the Tribunal to the claimant." 

We are unable to subscribe to the view taken by the Division Bench of this court in the case of National Insurance Co. Ltd. v. H. N. Rama Prasad [1985] ACJ 864 (Kar) in the light of the discussion made by us above and, therefore, we hold that to the extent indicated above, the said decision does not lay down the law correctly. 

In the light of the discussion made above and also the conclusion reached above, we are unable to subscribe to the views expressed by the High Courts of Orissa, Madras and Kerala in the case of Oriental Fire and General Insurance Co. Ltd. v. Bidi [1972] ACJ 187 General Assurance Society Ltd. v. Jayalakshmi Ammal [1975] ACJ 159 Orissa Co-operative Insurance Society Ltd. v. Sarat Chandra Champati [1975] ACJ 196; Ayisha Beevi v. Kalidasan [1987] ACJ 584 and New India Assurance Co. Ltd. v. Pathu [1992] 2 ACJ 877, wherein the said High Courts have taken the view that while the Tribunal can determine the total compensation payable to the victim of the accident, or his legal heirs in the case of death of the victim of the accident, but the liability of the insurer is only to the extent of the liability of the employer to pay compensation payable under the Compensation Act; and any excess of the amount payable as determined by the Tribunal is required to be paid by the owner and the driver of the vehicle involved in the accident. 

Now, the only other question that is required to be considered is, whether the Supreme Court in Ved Prakash Garg v. Premi Devi [1997] 90 Comp Cas 405; [1997] 91 FJR 689, has taken the view that the liability of the insurer is only limited to be liability arising under the Compensation Act, as observed by our learned brother at paragraphs 20 and 25 of his draft judgment. With respect to our learned brother, we find it difficult to agree with him. In our view, the Supreme Court in Ved Prakash Garg v. Premi Devi [1997] 90 Comp Cas 405; [1997] 91 FIR 689 has not laid down that the liability of the insurer is only limited to the extent of the liability fixed under the Compensation Act The only question that came up for consideration before the Supreme Court in Ved Prakash Garg v. Premi Devi [1997] 90 Comp Cas 405; [1997] 91 FJR 689 was whether the insurer is liable to pay the penalty for default committed by the employer in not paying the compensation which he was liable to pay as prescribed under the Compensation Act. The question whether the insurer was liable to pay the penalty was considered in the light of the provisions contained in section 4A(2) and section 4A(3) of the Compensation Act. The interpretation to be placed to proviso (i) to clause (b) of sub-section (1) of section 95 was not before the Supreme Court. This is clear from the observations made by the Supreme Court, at paragraph 12 of the judgment, wherein it is stated thus (page 419) : 

"The moot question is whether the insurance coverage as available to the insured employer owners of the motor vehicles in relation to their liabilities under the Workmen's Compensation Act on account of motor accident injuries caused to their workmen would include additional statutory liability foisted on the insured employers under section 4A(3) of the Compensation Act." 

Further, the Supreme Court, at paragraph 14 of the judgment, has stated as hereunder (page 422) : 

"On the aforesaid interpretation of these two statutory schemes, therefore, the conclusion becomes inevitable that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Compensation Act along with interest thereon, if any, as imposed by the Commissioner, under section 3 and section 4A(3)(a) of the Compensation Act will have to be made good by the insurance company jointly with the insured employer. But so far as the amount of penalty imposable on the insured employer under contingencies contemplated by section 4A(3)(b) is concerned as that is on account of personal fault of the insured not backed up by any justifiable cause, the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The latter because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmen's Compensation Commissioner." 

It is necessary to point out that when a claimant approaches the Commissioner under the Compensation Act, the claimant is not entitled to claim compensation under the common law of torts. In that background, in our view, an observation was made by the Supreme Court stating that (page 418) "But the statutory coverage for such liability would be limited to the extent of liability of the insured employer arising under the Workmen's Compensation Act in respect of death or bodily injury to such employees". The said observation of the Supreme Court, referred to by our learned brother in paragraph 191 of his judgment, to limit the liability of the insurer, has no application to the present case. 

In the light of the discussion made above, our conclusions on the two questions referred to earlier are as follows : 

(i) In so far as the first question is concerned, as observed earlier, we respectfully agree with the conclusion reached by our learned brother; 

(ii) In so far as the second question is concerned, we are of the view that the insurer is liable to indemnify the owner against the compensation awarded by the Tribunal subject to the limit prescribed under sub-section (2) of section 95 of the Act if the accident in question takes place on account of the tortious act of the driver of the vehicle when the claimant is not a driver, who was engaged in actually driving the vehicle in the case of injury to him or his legal heirs in the case of his death; 

(iii) If the claimant fails to prove tortious act on the part of the driver of the vehicle as stated above, the insurer would be liable to indemnify the owner only to the extent of the liability of the owner to pay compensation to the employee as prescribed under the Compensation Act; and 

(iv) Merely because a claim is made before the Tribunal for payment of compensation, the insurer is not absolved of his liability to pay compensation prescribed under the Compensation Act. 

In the instant case, the appellant is an additional driver. He was not driving the vehicle. The Tribunal has only made the owner liable to pay the compensation of Rs. 52,400 awarded to the appellant with interest. The Tribunal has rejected the claim of the appellant against the insurance company on the ground that the policy does not cover any additional driver. It cannot be disputed that the appellant being an additional driver travelling in the vehicle, he is an employee of the owner. In the light of the conclusion reached above, we are of the opinion that the insurer is liable to pay the compensation awarded to the appellant in terms of section 96 of the Act. We accordingly answer the reference made to the Full Bench by the learned single judge. 

The papers may now be placed before the learned single judge as ordered by our learned brother.