CHENNAKESAV REDDY, J.

( 1 ) WHETHER an application under Sec 110-A of the Motor Vehicles act, 1939 (hereinafter referred to as the act ) for compensation is maintainable in respect of death or bodily injury arising out of and in the course of employment of a person employed by the owner of the motor vehicle covered by policy of insurance against third-party risk is the perplexing question that arises in this appeal.

( 2 ) THE facts giving rise to the queation shortly stated are these: on the night of 24th May, 1976 the lorry A. P. A. 6261 met with an accident on the Cuddapah-Madras road. As a result, one Kamparaju Kumara swamy @ Kumar, who was employed as a cleaner of the lorry, received injuries and died in the Cuddapah hospital on the next day. The mother and the minor brother of the deceased Kumar filed an application under Section 110-A of the Act before the Motor Accidents Claims Tribunal cum District judge, Cuddapah claiming compensation of Rs. 15 OOO/ -. The owner of the lorry, New India Assurance Company Limited, Anantapur, and the driver of the lorry were impleaded as respondents 1 to 3 respectively to the petition. The third respondent remained exparte. The petition was resisted only by the respondents 1 and 2. The first respondent ie. , owner of the lorry, admitted that the deceased Kumar was a cleaner appointed under him on a monthly salary of Rs. 160/ -. He also admitted that the third respondent was employed as a driver. But, however, denied that the drive drove the vehicle in a rash and negligent manner. It was also pleaded that the amount of compensation claimed was excessive and that in any case he was not liable to pay any compensation since the vehicle was insured against Workmen s Compensation aiso. The second respondent contended inter alia that the accident did not take place en acceunt of rash and negligent act of the driver, but it took place beyond the control of the driver, that the deceased Kumar did not die on account of the acci. dent but due to the reason that he jumped from the lorry and sustained injuries and that in any event the damages claimed were excessive. It was further pleaded that the petitioners should prove regarding the actual income of the deceased per month at the time of accident, that the application under Sec 110-A of the Act against the Assurance Company was not maintainable and that the remedy of the claimants was only under the workmen s Compensation Act.

( 3 ) THE Motor Accidents Claims Tribunal. on a consideration of the evidence, held that the accident took place on 24th May 1976 due to rash and negligent driving of the lorry A. P,a. 9261 by the third respondent As regards the quantum of damages, he held that the deceased was employed as a cleaner of the lorry, that he was earning a sum of Rs. 250/- per month while he was alive, that he was aged about 22 years at the time of his death and was hale and healthy. Taking the facts and circumstances in to consideration and also the further fact that the second petitioner is a minor, and the deceased if alivs would have educated him and settled him in life, a sum of Rs. 12000/ was awarded by way of general damages for loss of earning capacity and compensation for pain and suffering, and a sum of rs. 500/- by way of of special damages and directed the respondents 1 and 2 to pay the compensation with interest at 6% per annum from the date of filing of the petition to the date of realisation of the said amount.

( 4 ) IN this appeal ay the second respondent-New India Assurance company Limited the learned counsel firstly submits that in view of the proviso to Section 95 (1) (b) of the Act excluding the liability of the insurer in respfect of death or bodily injury arising out of and in the course of employment of an employee covered by the policy an application under the Act for compensation is not maintainable. A:cording to him, compensation can ba claimed only under the Workmen s Compensation act and only for such compensation as

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