N.N. Tiwari, J—This appeal has been filed under Section 30(1)(a) of the Workmen Compensation Act, 1923 against the order dated 20.5.2003 passed by learned Commissioner, Workmen Compensation, Hazaribagh in W. C. Case No. 31/2002. By the said order, learned commissioner has directed the appellant-Insurance Company to pay the amount of compensation to the dependants of Gopal Pandy, who died in an accident while he was driving the bus bearing Registration No. BR-13P-6251 belonging to Harishchandra Prasad and insured with the appellant-Insurance Company.

2. The dependants of the deceased driver were the claimants before learned Commissioner. According to them, Gopal Pandey was working as driver of the vehicle Tata 407 bearing Registration No. BR-13P-6251. While he was driving the vehicle with a police party -in course of a combing operation, the members of the M.C.C blasted the land mines near Village -Oreya and started firing at the vehicle. As a result of which the vehicle was blown off and the driver Gopal Pandey died at the spot. At the time of the accident, the deceased driver was aged about 25 years and his monthly wages was Rs. 3,500/-per month. Since the driver Gopal Pandey died in course of his employment, his dependants (claimants) are entitled to get compensation under the provisions of the Workmen Compensation Act.

3. Notices were issued to the owner - O.P.No.1 and the insurer - O.P.No.2.

4. The O.P.No.1 appeared in the case and filed his reply stating, inter alia, that the deceased Gopal Pandey was employed as driver of the said vehicle. While he was driving the vehicle along with a police party, in course of combing operation, the members of the M.C.C blasted land mines, which caused death of the driver at the spot. When the accident took place, the wages of the deceased driver was Rs. 3,500/-per month. It has been further stated that since the said vehicle was insured with the O.P.No.2 and separate premium covering the risk of the driver was being paid by him, the insurer-O.P.No.2 is liable to pay compensation.

5. The insurer-O.P.No.2 (appellant) in its written reply denied its liability stating, inter alia, that the driver of the vehicle died while the vehicle was being used by the police department of the State and during the said period he was not an employee of the owner of the vehicle and as such the Insurance Company is not liable to pay compensation on account of the death of the driver.

6. Learned Commissioner, after hearing the parties and considering their respective contentions and the facts and materials on record allowed the claim application and assessed Rs. 1,67,799/-as the amount of compensation payable to the claimants -dependants of the deceased driver. Learned Commissioner held that since the driver died while driving the vehicle which was insured with the Insurance Company and the period of insurance was subsisting at that time, the Insurance Company is liable to pay the compensation amount.

7. The appellant has challenged the said order of learned Commissioner mainly on the ground that while the deceased driver was driving the vehicle, it was under the control of the police department of the State and during that period, the owner was not the employer of the deceased driver.

8. Mr. Alok Lal, learned counsel appearing on behalf of the appellant, submitted that the Insurance Company cannot be held liable for payment of compensation on account of death of the driver of the vehicle, as the vehicle was used by the police department, at the time of occurrence. The vehicle was hired for such purposes in breach of the terms of the policy and as such the amount of compensation is not payable by the Insurance Company. Learned Commissioner without properly considering the said legal position has passed the impugned order, which is wholly erroneous and is liable to be set aside.

9. In support of his said contentions, learned counsel referred to and relied on two decisions of the Supreme Court in Zila