A. N. SURTI, J. B. MEHTA, J.

( 1 ) THE insurance company in the present petition challenges the order of the authority under the Workmens Compensation Act determining compensation amount of Rs. 9800. 00 as payable to respondent No. 1 the driver and making that amount payable both by respondent No. 2 the owner of the motor vehicle in question as well as by the petitioner insurance company. Mr. Shah rightly did not challenge the relevant findings of fact which could never be characterised as perverse. The drivers pay was Rs. 1251. 00 per month and the accident which took place on October 26 1965 was found to have arisen out of and in the course of his employment. WI. S4311 also did not challenge the compensation amount which was fixed on the basis of the workmans injury in question. The only point which Mr. Shah raised was that an insurance company could never be made liable to pay any compensation and the Commissioner under the Workmens Compensation Act had no jurisdiction to pass such order against the insurance company.

( 2 ) THIS important question which is raised by Mr. Shah can only be resolved by considering the scheme of the Workmens Compensation Act 1923 hereinafter referred to as the Act and of the Motor Vehicles Act 1939 where Chapter VIII has been introduced providing for insurance of motor vehicles against third party risk. It is true that when the 1923 Act enacted workmens compensation scheme there was no provision for any statutory insurance of the employer. That is why in that Act a workman is given a right to proceed against his employer even though liability is an absolute liability and not fault based liability which is fastened on the employment when the accident is arising out of and in the course of the employment. Sec. 3 (1) has enacted that if such personal injury is caused to a workman by accident. arising out of and in the course of his employment his employer shall be I able to pay compensation in accordance with the provisions of that chapter. Sec. 3 (5) further enacts that nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury (A) if he has instituted a claim to compensation in respect of the injury before a commissioner or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of the Actsec. 12 provides for cases where contract has been given for work which is ordinarily part of the trade or business of the principal employer. In such cases the principal employer having been made liable to pay compensation under the Act he is entailed to be indemnified by the contractor who was the immediate employer and that is why if the question arises as to the right to and amount of any such indemnity in default of an agreement it is required to be settled by the Commissioner under sec. 12 (2 ). Sec. 13 provides for remedies of employer against a stranger if a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof. Sec. 14 which is material provides as under:- 14 Insolvency of employer:-WHERE any employer has entered into a contract with any insurers in respect of any liability under this Act to any workman then in the event of the employer becoming insolvent or making a composition or scheme of arrangement with his creditors or if the employer is a company in the event of company having commenced to be wound up the rights of the employer against the insurers as respects that liability shall notwithstanding anything in any law for the time being in for

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