Sapre, J. -- 1. This is an appeal, filed by the claimants under section 30 of the Workmen's Compensation Act (for short called 'The Act') against an award dated 10.4.2003 passed by Commissioner, Workman Compensation (Labour Court, Indore) in WCF No. 2012001. By impugned award, the Commissioner partly allowed the application made by the claimants under section 10 of the Act and awarded a total compensation of Rs. 3,25,365/- for the death of one "Prakash". However, while passing an award, the Commissioner fastened the entire liability on R-l/NA-l i.e. owner/employer of the deceased and exonerated R-24/ A-2 i.e. Insurance Company from the liability. In other words, the application was allowed only against the NA-1/R-l but was dismissed as against Insurance Company (NA-2/R-2). It is against this partial dismissal as against the Insurance Company, the claimants have filed this appeal under section 30 ibid. So far as R-l/NA-1 is concerned, though he has suffered the award but has not chosen to challenge the same by filing any appeal. In this view of the matter, the impugned award in so far as it relates to fastening upon the liability on the R-l/NA-1 i.e. employer/owner of the offending vehicle is concerned, it has become final qua him. The only question, therefore that remains to be considered in this appeal is whether Commissioner (Workman Compensation) was justified in exonerating the Insurance Company (NA-2/R-2) from the liability?

2. Facts in brief are these.

3. Prakash, aged around 25 years was employed as Driver of Tempo bearing number CPU-635. This Tempo was insured with R-2 (NA-2). On 17.3.2001 when Prakash was going from a place called 'Vijay Nagar' to a place called 'Lasudia' in Indore town in the Tempo, it met with an accident. It is in this accident, the Tempo in question was damaged extensively so also Prakash who sustained injuries. He, however, later succumbed to the injuries. The legal representatives then filed an application before the Commissioner, Workman Compensation under section 10 of the Act out of which this appeal arises seeking compensation for his (Prakash) death. It was alleged that Prakash died during the course of employment as also death occurred arising out of the employment. It was alleged that he was getting Rs. 3,000/- by way of monthly salary from his employment and hence applying the proper factor as defined in the Act, the compensation should be determined by ,passing an award in claimant's favour and against both i.e. employer of deceased (Prakash) NA-l/R-I as also Insurance ~ompany (NA-2/R-2) jointly and severally. The case was contested only by R-2 i.e. Insurance Company- whereas R-l (NA-l) remained ex-parte. The claimant filed copy of policy (cover note) in support of their case. As observed supra by impugned award, the Commissioner allowed the application and awarded compensation. It was held that deceased was earning Rs. 3,000/ - per month by way of salary. It was also held that since Driver's risk was not covered in the policy in question and hence, Insurance Company was not liable to indemnify the risk of driver. In this view of the matter, the Insurance Company was exonerated from the liability. It is this award, which is impugned in this appeal. This appeal was admitted for final haring on following 2 substantial questions of law:

"1. Whether Commissioner for workmens compensation committed an error of law in exonerating the Insurance Company on the ground that the deceased was not holding a valid driving licence;

2. Whether the Commissioner for Workmens Compensation has further erred in law that the driver of the vehicle was not covered under the policy issued by respondent?"

4. Heard Shri Sameer Verma, Advocate for applicant and Shri V.P. Khare, Advocate for respondent No.2.

5. Having heard the learned counsel for the parties and having perused the record of the case, we are inclined to allow the appeal.

6. The issue relating to liability