ORDER :

1. The instant appeal has been preferred by the Insurance company assailing the award dated 10.07.2019 passed in C.P. No.646 of 2013 whereby in a death case, the Tribunal has awarded a sum of Rs.3,36,000/-along with 7% interest in favour of the claimants-respondents.

2. Shri Anil Kumar Srivastava, learned counsel for the appellant submits that the Tribunal has erred in fastening the liability on the insurance company for the reason that in terms of Section 147 of the Motor Vehicles Act, 1988, the deceased was not covered as the policy in question was merely an 'Act Policy' and in terms whereof only third party claims could have been indemnified. Since in the instant case, the driver was not covered and he caused the accident by his own negligence, therefore, not being a third party, the insurance company was not liable for the award. It is only the owner of the vehicle who could be made responsible and this aspect has not been appropriately considered by the Tribunal who has fixed the liability on the insurance Company.

3. It has further been urged that the Tribunal has misconstrued the decision of the Apex Court in the case of National Insurance Co. Ltd. vs. Prembai Patel and others AIR 2005 SC 2337 and without considering the contention of the insurance company that under the 'Act Policy', it was only a third party claim which could be covered and not the claim of the driver, hence, the award is bad.

4. Further elaborating his submissions, it is also urged that in the policy it was clearly mentioned that no premium had been taken for the driver. Accordingly, the liability of the insurance company was limited and it could not be extended to cover such risks which were not covered by the policy and ignoring this aspect, the award has been delivered, fastening the liability on the appellant-company, which is not in consonance with law, accordingly, the award deserves to be set aside.

5. The learned counsel for the appellant in support of his submissions has relied upon the decision of the Apex Court in Oriental Insurance Co. Ltd. vs. Meena Variyal and others (2007) 5 SCC 428 and National Insurance Co. Ltd. vs. Balakrishnan and another (2013) 1 SCC 731.

6. Per contra, Shri Ravindra Pratap Singh, learned counsel for the claimants-respondents while defending the award submits that in the instant case, the claim petition was filed under Section 163-A of the Motor Vehicles Act, 1988.

7. It is further urged that Section 167 of the Motor Vehicles Act permits a person to opt for the forum to file a claim petition either under the Workmen's Compensation Act, 1923 or under the Motor Vehicles Act, 1988, but not both.

8. It is further submitted that in the instant case, the claimants chose to file the claim petition under the Motor Vehicles Act and since, the deceased was the driver of the owner of the vehicle and he sustained injuries which led to his death and being a petition under Section 163-A of the Motor Vehicles Act, it was not incumbent on the claimants to establish the negligence and once, it was proved that the accident occurred on account of use of a motor vehicle, then in terms of Section 163-A of the Act of 1988, the claimants were entitled to the compensation.

9. It is further urged by the counsel for the claimants-respondents that in terms of Section 147 of the Act, the insurance company is liable under the 'Act Policy' to cover the driver and in the instant case, it is not disputed that the deceased was a driver, therefore, the claimants were entitled to compensation and the insurance company was duty bound to indemnify the award in terms of Section 149 of the Motor Vehicles Act.

10. It is further pointed out that this aspect of the matter was considered by the Apex Court in Prembai Patel (supra) and the same has rightly been relied by the Tribunal and as such it cannot be said that the award passed by the Tribunal i