The insurer's liability under the Motor Vehicles Act is not limited to the amount payable under the Workmen's Compensation Act. The Tribunal has the jurisdiction to award compensation beyond the amount payable under the Workmen's Compensation Act, as the Motor Vehicles Act provides a wider scope for compensation.

S. C. MOHAPATRA, J.

( 1 ) THIS is an appeal under S. 173 of the Motor Vehicles Act, 1988 in respect of an application under S. 110-A of Motor Vehicles Act, 1939 by the insurer. Cross-objection for enhancement of compensation has been filed by the claimant.

( 2 ) ON 10-12-1987 while claimant, a coolie was going in the truck bearing registration No. ORJ 6095 in course of and arising out of his employment, the truck met with an accident in which claimant sustained injuries. Effect of the injuries is that claimant is not able to walk without assistance of a stick. On account of the injuries claimant has filed application for compensation against owner and the insurer.

( 3 ) TRIBUNAL on assessment of evidence has awarded compensation of Rs. 44,400/- towards future loss of income, Rs. 5,000/- towards medical expenses, Rs. 1,000/- for assistance taken during the period of injury and Rs. 25,000/- towards mental shock, pain and suffering and made the insurer liable to pay the compensation.

( 4 ) MR. S. S. Basu, learned counsel for the insurer-appellant submitted that insurer is liable to pay only that amount which claimant would have been entitled under the Workmen' Compensation Act in view of S. 95 of the Motor Vehicles Act in absence of any additional premium for additional liability towards loss of income if it is proved that claimant was injured in the accident depending upon the percentage of disability. On the finding that the disabilities is only 25% and on account of one old fracture of hip joint, claimant is not able to walk without stick, compensation would be nil or negligible.

( 5 ) CLAIMANT on the other hand submitted that Tribunal ought to have accepted the total claim of rupees one lakh which is the just compensation.

( 6 ) IN 31 (1989) OJD (Civil) 166 (The Oriental Fire and General Insurance Company Ltd. v. Labani Sahoo) it has been decided by this Court that insurer is not liable to pay compensation more than fixed by the Workmen' Compensation Act. Same view has been taken by this Court in 1972 ACJ 187:1973 Lab IC 17, (Oriental Fire and General Insurance Co. Ltd. v. State of Orissa ). Later two decisions have been cited with approval by a Division Bench of this Court in the decision reported in 1989 0 ACJ 867 (Orissa State Road Transport Corporation v. Shankar Sahu) overruling a decision of this Court reported in 1988 ACJ 39 (Govind Nayak v. Shyama Sundar Soni) where it has been held that a claimant who is a workman has choice to approach either the Commissioner under the Workmen' Compensation Act or the Tribunal under the Motor Vehicles Act. When he approaches the Tribunal under the Motor Vehicles Act, the quantum of compensation available to him would not be limited to that which would be available under Workmen' Compensation Act. However, insurer would be liable to the extent of compensation payable under the Workmen' Compensation Act and owner would be liable to pay the balance. In determination of just compensation payable under the (Act) Workmen' Compensation Act has no relevance. This is now settled so far as this Court (is concealed ).

( 7 ) UNDER Workmen' Compensation Act, Commissioner is to examine (i) Relationship of employer and employee; (ii) Whether employee injured in the accident is workman; (iii) Wages and age of the employee; and (iv) In case of injury which is not fatal whether the cautions given by the employer to be followed by employees were adhered to. Negligence is not a pre-condition for award of compensation under that Act. In a claim under the Motor Vehicles Act, 1939, Law of Torts in all respects are applicable except change of forum from Civil Court to the specially constituted Tribunal. Person negligent for the accident of the Motor Vehicle is principally liable. Owner of the vehicle is vicariously liable. Insurer covers the risk of the owner as per terms of the policy. Even if there is no negligence, under Sec. 92-A limited amount is prescribed to be paid. For amount higher than the