1. Present is an appeal by the Insurance Company under Section 30 of the Workman Compensation Act, 1923 assailing the award dated 05/10/2017 passed by the learned Commissioner, Employees Compensation Act, Labour Court, Durg (C.G.) in case No. 09/E.C.Act/2016 (Fatal).

2. Vide the said impugned award, the Tribunal in a death case has awarded a compensation of Rs.6,68,130/- with interest @ 12% per annum from the date of application.

3. The claimant in the instant case have also filed a cross appeal. Since, Rule 41 of Workman Compensation Act, 1944 envisages certain specific provisions of the C.P.C. which would be applicable under the Employees Compensation Act and where the provision of order 41 Rule 22 has not been mentioned, the cross appeal as such preferred by the claimant would not be maintainable.

4. The counsel for the claimant at this juncture does not pressed on the said cross appeal and seeks liberty to prefer a separate appeal for redressal of his grievance. The prayer of the claimant is allowed.

5. So far as the appeal by the Insurance Company is concerned, the Insurance Company has questioned firstly the liability which has been imposed upon the Insurance Company on the ground that, the accident did not arise out of and in the course of employment as is required under Section 3 of the Employees Compensation Act. It was further contended by the counsel for the Insurance Company that, the vehicle involved in the accident did not have proper fitness certificate which was mandatorily required under the Motor Vehicles Act and this should be construed as a breach of policy condition and the Insurance Company should had been exonerated of its liability and the liability in turn should had been shifted upon the owner of the vehicle. He further relied upon the decision of the Hon'ble Supreme court in the case of Mamtaj Bi Bapusab Nadaf & Ors. Vs. United India Insurance Company & Ors. [(2010) 10 SCC 536] to contest the fact that, the vehicle was in a stationery condition and the accident therefore did not occur arising out of and in the course of employment. He further relied upon the decision of the Supreme Court in the case of Narinder Singh Vs. New India Assurance Company Limited & Ors. [{2014} 9 SCC 324] to bank upon the argument that, the vehicle in the absence of any proper fitness certificate would be impermissible to be used on the road which is also a mandatory requirement under Section 56 of the Motor Vehicles Act and therefore the Insurance Company should had been exonerated of its liability as there is a clear breach of policy condition.

6. As regards the first judgment of the Supreme Court which has been relied upon by the counsel for the appellant i.e. Mamtaj Bi Bapusab Nadaf (Supra), the said judgment is distinguishable on facts itself for the reason that, in the said case, the accident occurred when the deceased person were out of the vehicle at the time of the accident whereas in the present appeal, the deceased was sitting in the vehicle when the accident occurred.

7. Another aspect which cannot be brushed aside is the fact that, the deceased in the instant case Sagar Sahu was a helper engaged in the Truck owned by the respondent No.3 and that his place of work and duty was on the Truck itself and when the accident occurred, the deceased was on the Truck which squarely falls within the ambit of requirement under Section 3 of the Employees Compensation Act.

8. So far as the challenge to the vehicle not having proper fitness certificate is concerned, if we look into the evidence of witness on behalf of the Insurance Company, it clearly reflects that the witness B.P. Gupta, the administrative officer of the Insurance Company in his evidence has clearly accepted the fact that, the vehicle was duly insured with the Insurance Company and that the accident occurred during the validity of the policy. Further he has also admitted that an extra premium of Rs.100/- was also charged covering the risk of two of the employ