The liability of an insurance company under a third-party insurance policy taken out under S. 95 of the Motor Vehicles Act is limited to the extent of liability provided in the Workmen's Compensation Act in respect of the death or bodily injury of an employee of the insured.

P. C. MISRA, J.

( 1 ) THIS appeal arises out of the judgment of the Motor Accident Claims Tribunal, Dhenkanal in Motor Accident Claim Misc. Case No. 6 of 1974. The petitioners before the Tribunal were the widow and the children of deceased Bidura Behera who claimed a compensation under S. 110a of the Motor Vehicles Act.

( 2 ) THE case of the petitioners, in short, is that the deceased was working as a day labourer in loading and unloading bamboos in the truck bearing registration No. ORC/4925. On 13-5-74 at about 7. 00 p. m. , the deceased was proceeding to Hindol Road Railway Station depot in the truck to unload the bamboos. The truck had to pass through the western level crossing of the railway line and while going through the said level crossing a railway engine running without light and whistle dashed against the aforesaid truck as a consequence of which the truck was dragged on to a distance and resulted in instantaneous death of the deceased. It was claimed that at the relevant time, the deceased was 35 years old and was having a monthly income of Rs. 150/ -. A total compensation of Rs. 35,500/-was claimed deducting Rs. 500/- paid by the Railway to meet the funeral expenses of the deceased. Opposite Party No. 1 is the South Eastern Railway. The vehicle having been registered in the name of Opposite Party No. 2, he was impleaded and it is said that Opposite Party No. 3 had temporarily become the owner of the vehicle at the relevant time. Opposite Party No. 4 is the driver of the truck and Opposite Party No. 5 is the Insurance Company.

( 3 ) OPPOSITE Party No. 1 filed a written statement contending that no liability can be fixed against the Railway and the claim is thoroughly misconceived. It was also stated that the driver of the truck was expected to stop the vehicle and watch if any train was approaching specially because of the fact that it was an unmanned level crossing. It was further pleaded that the engine while moving was giving whistle and the driver of the vehicle should have been more careful.

( 4 ) OPPOSITE Party No. 3 filed a written statement and disputed the claim of the petitioners on various grounds. The occurrence of the accident was admitted, but it was contended that the accident was caused due to the negligence of the Railway administration. Opposite Party No. 3 further pleaded that if at all any liability was to be found, opposite party No. 2 being the real owner of the vehicle would be liable and not Opposite Party No. 3. According to him, he was looking after the truck at times and used to transport his goods on payment of higher charges. The deceased was a Watchman under Opposite Party No. 2, the registered owner. The age of the deceased at the time of his death was also disputed and it was said that he was 50 years old at the relevant time. As to his income, it was contended that his daily income was Rs. 3/-and he was contributing Rs. 90/- per month to his family. That the level crossing was unmanned was admitted by Opposite Party No. 3, but his case was that the railway engine was moving without any light and it being a dark night, the driver of the truck could not get the slightest indication of the railway engine which was moving on the line.

( 5 ) THE other Opposite Parties do not appear to have filed any written statement.

( 6 ) THE learned Accident Claims Tribunal after examining the evidence adduced by both the parties allowed a compensation of Rs. 18,940/- to the petitioners. It was conceded at the trial that no compensation could be claimed against the Railway, Opposite Party No. 1. The claim was, therefore, allowed on contest against Opposite Party No. 3, and ex parte against Opposite Party No. 5. It was ordered that Opposite Party No. 5 being the Insurance Company, shall pay the compensation of Rs. 18,940/- to the petitioners together with future interest at the rate of 6% per annum from the date of judgment till the date of payment.

( 7 ) THE Insurance Company impleaded as Oppos