J. B. MEHTA, T. U. MEHTA, J.

( 1 ) THIS appeal arises out of the award passed by the Motor Accidents Claims Tribunal Baroda in Motor Accidents Claim application No. 8/70 of his file. The learned Tribunal has passed the award of Rs. 8 0 with proportionate costs thereon against the original opponents Nos. 1 to 4 in favour of the respondents Nos. 1 and 2 who are the original claimants. The case of the claimants is that the deceased Ganpat alias Ebho who was aged about 19 years was serving the appellant No. 2 as a labourer and was accompanying the goods vehicle belonging to the second appellant as a labourer for the purpose of loading and unloading the said vehicle On 28th November 1969 at about 5-30 p. m. the present respondent No. 3 Ramanbhai Jitabhai Baraiya was driving the motor truck belonging to the second appellant and was going from village Godhar. The truck was loaded with sand and it is an admitted position that the deceased Ganpat was sitting on the sand which was loaded in the truck. It is said that the driver of the truck (respondent no. 3) suddenly applied the brakes to the truck but the truck was dragged on its left hand side and fell in a nearby pit. The truck turned on its side and deceased Ganpat who was sitting on the sand loaded in the truck fell down and received serious injuries which resulted in his death. Along with the driver there was another labourer named Chhotabhai Somabhai ex. 66 who was sitting in drivers cabin. After the truck fell down in the pit the driver Ramanbhai and Chhotabhai got out of it unhurt but the deceased Ganpat received serious injuries as a result of which he ultimately died. Thus the case of the claimants is that the deceased died on account of the rash and negligent driving of the truck by respondent no. 3 Ramanbhai Jitabhai Baraiya.

( 2 ) DURING the course of the bearing of this appeal Shri Zaveri who appeared on behalf of the first appellant the Premier Insurance Co. Ltd. raised two points of law. He first contended that the Tribunal has no jurisdiction to decide this claim petition which was exclusively triable by the Commissioner working under the Workmens Compensation Act 1923 His second contention was that even if it is believed that the Tribunal had jurisdiction to try this claim petition the Insurance Co. could not be held liable to indemnify against any amount which is more than the amount which could be awarded to the insured under the provisions of the Workmens Compensation Act 1923 According to Shri Zaveri even if it is believed that the deceased was making the earning of Rs 100/- per month the Insurance Co. could be held liable only for the amount of Rs 7 0 because according to Sch. 4 of Workmens Compensation Act the workman who makes the earning of more than Rs. 100. 00 per month but less than Rs. 150. 00 per month can be awarded the compensa- tion of only Rs. 7 0 on account of his death.

( 3 ) ON behalf of the second and the third appellants who are the owners of the truck it was contended that the driver had not committed any negligence and that the learned Judge of the Tribunal has committed an error in coming to the conclusion that the deceased was handing over to the claimants the amount of Rs. 100. 00 per month.

( 4 ) WE first propose to deal with the legal contention raised by Shri Zaveri on behalf of the Insurance Co. Shri Zaveris contention regarding the jurisdiction of the Tribunal to try this matter was based on the wording of the first proviso to sub-sec. (1) of sec. 95 which says that a policy of insurance shall not be required to cover the liability in respect of death arising out of and in the course of employment of the employee of a person insured by the policy other than liability arising under the Workmens Compensation Act 1923 in respect of death of such employee. He pointed out that the liability of the employer of a workman whose case is covered by Workmens Compensation Act 1923 is required to be worked out according to this proviso in accordance

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