Negligence is not relevant for statutory liability in insurance claims under Motor Vehicles Act; issues not raised before the Tribunal cannot be introduced on appeal.

1. Heard learned counsel for the appellant and learned counsel for the respondents.

2. The present appeal has been preferred by the appellant- insurance company challenging the award dated 09.11.2004 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.5, Muzaffar Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. No.250 of 2003 whereby the Tribunal has awarded Rs.3,47,000/- along with 6% interest as compensation to the claimants/respondents.

3. Challenging the aforesaid award, learned counsel for the appellant has contended that deceased was employed as driver on Truck No.U.P-12-4282 which met with the accident on 27.02.2003 and dashed with a stationary truck. It is submitted that claim petition has been instituted under Section 166 of the Motor Vehicles Act and as there is no finding of the Tribunal on the issue of negligence, therefore, award passed by the Tribunal cannot be sustained in law. It is further contended that under Section 167 of Motor Vehicles Act , dependants of the deceased can institute claim petition claiming compensation either under the Motor Vehicles Act or under the Workmen Compensation Act as the claim petition has been filed for the death of deceased being employee on the truck, therefore, compensation should be computed as per the formula prescribed under Section 4A of the Workmen Compensation Act , 1923. Thus, it is contended that if compensation is computed by applying the formula prescribed under Section 4A of the Workmen Compensation Act , the compensation would reduce substantially, and thus, compensation awarded by the Tribunal is not sustainable in law.

4. Per contra, learned counsel for the respondents would contend that it is admitted that deceased was driver on truck, and under Section 167 of Motor Vehicles Act , it is the choice of the claimants/respondents to file claim petition either under Motor Vehicles Act or under Workmen Compensation Act . Thus, it is contended that in such view of the fact, the issue of negligence is not relevant. It is further contended that appellant- insurance company has not set up any plea in the written statement that compensation should be computed as per the Workmen Compensation Act since the claimants/respondents are claiming compensation against the owner of truck on which deceased was employed as driver on the principle of employer and employee relationship.

5. I have considered the rival submissions of the parties and perused the record.

6. So far as the issue with regard to negligence is concerned, it is not in dispute that deceased was employed as driver on the truck. By virtue of proviso to Section 147(1) of the Motor Vehicles Act , the driver is covered even if there was no premium paid by the owner covering the risk of driver. Since the liability of the insurance company for the driver is statutory liability, therefore, the question of negligence of driver in the accident is not relevant. In such view of the fact, the submission of learned counsel for the appellant on the issue of negligence is not sustainable in law and is rejected.

7. So far as the question as to whether compensation should be computed by the Tribunal on the formula prescribed under Section 4A of the Workmen Compensation Act is concerned, the said plea has not been set up by the insurance company in the written statement neither any issue was got framed on the said plea before the Tribunal. It is pertinent to note that under the insurance policy, the owner of the vehicle has paid premium of Rs.75/- covering the risk of three employees. Now the question in the instant case arises as to whether premium paid by the owner covers the unlimited liability of the employee