R. K. ABICHANDANI, J.

( 1 ) THIS appeal is directed against the award dated 24-2-1983 made by the Claims Tribunal (Main), Junagadh in M. A. C. Petition No. 165 of 1981, partly allowing the same and awarding compensation of Rs. 94. 000. 00 within proportionate costs and interest at the rate of 6 percent per annum, from the date on which the application seeking permission to issue as indigent person was filed, till the realisation of the amount. According to the claimants, on 2-12-1980, deceased kalidas Durlabji, the owner of the rickshaw No. GTW 467 while being carried in the rickshaw after it was repaired and was being tested by the mechanic Kishor dayalji, who was driving it, was killed when the rickshaw turned turtle due to the rash and negligent driving of the said driver. The Insurance Company filed its written statement Ex. 23, raising a plea that the Insurance Policy did not cover the use of the vehicle for organised racing, reliability trial or speed testing. The driver of the rickshaw in his objections Ex. 17 denied that there was negligence on his part and contended that the rickshaw dragged towards the left side of the road and the accident had occurred without there being any fault on his part.

( 2 ) ). There was no dispute about the fact that the insured owner was in the rickshaw at the time when after the repairs, it was taken out for trial and had died as a result of the rickshaw turning turtle.

( 3 ) ). The Tribunal held that insured owner had died in the vehicular accident due to the rash and negligent driving of the said vehicle by the driver Kishor Dayalji. It was held that the claimants were entitled to compensation of Rs. 94,000. 00 and not Rs. 1. 34. 000. 00 as claimed.

( 4 ) ). On issue No. 3 as to against whom the award should be made, construing the provisions of Sec. 95 (5) of the Motor Vehicles Act and Clause 2 of item (3) of the Policy, the Tribunal held that not only the owner, but its authorised driver was also insured and therefore, when the accident occurred due to the negligence of the authorised driver and when liability of the death of insured owner arose, the insurance company was bound to indemnify the authorised driver. Since the authorised driver was liable to pay to the claimants for his negligence which resulted into death of the owner of the rickshaw, it was not open for the Insurance Company to contend that it cannot be held liable for the claim awarded against the driver. Relying upon the decision of this Court of L. I. C. v. Legal Representatives of the deceased Naranhhai, reported in 1973 ACJ 226 (1972 GLR 920), in which it was held that where the driver was driving the vehicle with the assureds permission or under his order, the statutory indemnity was by reason of the special provision in the Act. one analogous to Sec. 95 (5), was available for seeking indemnity from the insurance company and that our law has also specifically altered the general law because even right to avoid policy on this ground which the insurer has, does not come in the way of the duty of insurer to satisfy the judgment against the persons insured in respect of the third party risk under Sec. 96 (1) of the Act, the Tribunal held that when the driver is covered by the policy of insurance, even the owner will become a third party vis-a-vis the driver. It was, therefore, held that the insurance company was bound to indemnify the driver when he was held to be liable to pay compensation to the claimants.

( 5 ) ). The learned Counsel appearing for the appellant contended that the insurance company cannot be held liable in respect of the death of the insured owner because he was not a third party. He submitted that even if an authorised driver was driving the vehicle, the owner cannot be treated as a third party. He placed reliance on the decisions of the Karnataka High Court, in M. Akkuvva v. New India Assurance Co. Ltd. and Ors. reported in 1988 ACJ 445; Kerala High Court in National Insurance co. Ltd. v. Annamma

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