Risk is covered by payment of extra premium.

Being aggrieved by the order dated 17.02.2005 passed in W.C.No.268 of 2003 passed by the Workmens Compensation Commissioner (Deputy Commissioner of Labour), Salem (hereinafter referred to as “the Commissioner), the second opposite party (insurer therein) has filed the above appeal.

2. Respondents 1 and 2 herein, who are the parents of one Thangavel @ kumar, filed W.C.No.268 of 2003 claiming a compensation of Rs.5,00,000/- in respect of the death of their son on the ground that while he was employed as a Rig Operator under the third respondent in Ashok Leyland Rig Unit bearing Registration No.TNP 7897 met with an accident in the course of his employment on 012. 1999. According to Respondents 1 and 2 their son was getting a monthly salary of Rs.5,000/-. The vehicle in question was insured with the appellant herein and as such the third respondent as the owner and the appellant as the insurer are liable to pay compensation.

.3. The said claim of Respondents 1 and 2 was resisted by the appellant herein and before the Commissioner the third respondent-owner of the vehicle remained exparte. The appellant who was the second respondent before the Commissioner filed a counter statement contending as follows:-

The insurer did not admit the employment of the deceased as Rig Operator under the third respondent and his salary. The insurer contended that the accident had not taken place in the course of employment and arisen out of employment under the third respondent. The vehicle was not insured on the date of accident. It was further contended that the claim is highly excessive and the insurer is not liable to pay any compensation.

4. Before the Commissioner, the first respondent herein was examined as P.W.1 and on the side of Respondents 1 and 2, the First Information Report was marked as Ex.A-1, Post-mortem Report was marked as Ex.A-2 and the Insurance Policy was marked as Ex.A-3. On the side of the insurer/appellant herein, one Mohan was examined as R.W.1 and the Insurance Policy was marked as Ex.B-1.

5. On a careful consideration of the evidence on record, the Commissioner held that the accident took place in the course of employment of the deceased under the third respondent herein and as the vehicle in question was covered by Ex.A-3-Insurance Policy and premium had been paid for seven employees, awarded a compensation of Rs.2,20,950/- and directed the appellant herein to deposit the same. The said award is challenged in the above appeal.

.6. While admitting the above appeal, the following substantial question of law has been formulated:-

.“Whether the Lower Court has not erred in holding that an occupant in the Rig was covered under Ex.A-3-Policy of Insurance even though the motor vehicle was not in use”.

7. Heard Mr. N.Vijaya Raghavan learned counsel for the appellant and Mr.S.Kaithamalai Kumaran learned counsel for Respondents 1 and 2.

8. The learned counsel for the appellant relied upon the decision of a Division Bench of this Court rendered in the case of National Insurance Co. Ltd., Salem Vs. Ayyadurai and another reported in 2003 (2) Law Weekly 601. In that case, the insurer was the appellant and the policy issued by it was in respect of a Motor Vehicle which had mounted on it a drilling rig. The policy contains Endorsement No.37 which reads as follows:-

“37. Mobile Cranes/Drilling Rigs.

It is hereby declared and agreed not-withstanding anything to the contrary contained in this policy that in respect of the Motor Vehicle the Company shall be under no liability.

.(a) Under Section I of this Policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except or loss or damage arising directly from fire, explosion, self ignition or lightning or burglary, housebreaking or theft.

.(b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in re