J U D G M E N T

G. P. MITTAL, J.

1. The Appellant New India Assurance Company Limited impugns the award dated 11.08.2011 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of Rs.4,33,000/- was awarded in favour of Respondent no.1 for the death of her bachelor son Tarun Sharma.

2. During inquiry before the Claims Tribunal in a petition under Section 163-A of the Motor Vehicles Act, 1988 (the Act), it was stated by Respondent no.1 that deceased Tarun Sharma was in private service with Respondent no.2 Naresh Grover, owner of the two wheeler bearing registration no.DL-4S-AE-8473 involved in the accident. It was pleaded that on 25.02.2008 at about 11:45 p.m., deceased Tarun Sharma was riding the two wheeler bearing registration no. DL-4S-AE-8473 from the place of his work to his residence. When the motorcycle reached at NSIT Chowk, Dwarka, an unknown vehicle came from the crossing.

3. Deceased Tarun lost control over his motorcycle and hit the divider. He suffered injuries which proved fatal. The identity of the other vehicle alleged to be involved in the accident was not known.

4. In the written statement filed by Naresh Grover, Respondent no.2 herein, the averments made in Para 23 of the petition were not denied specifically or by necessary implication. Respondent no.2 at the same time admitted that deceased Tarun Sharma was employed with him (Respondent no.2) as a Field Assistant and was earning Rs.3,000/- per month. Respondent no.2 also stated that as a Field Assistant, deceased Tarun Sharma used to take the vehicle belonging to Respondent no.2 in the field and sometimes he would also take the vehicle with him at his home. On the day of the accident, the deceased was taking the vehicle with him at his home.

5. In the written statement filed by Appellant Insurance Company, it was stated that deceased Tarun Sharma died due to his own negligence. He was not a third party and hence, the Appellant Insurance Company was not liable to pay the compensation.

6. On appreciation of evidence and law, the Claims Tribunal found that negligence is not required to be proved by the legal heirs of the deceased victim to claim compensation under Section 163-A of the Motor Vehicles Act, 1988 (the Act). The Claims Tribunal further held that in case of liability to pay compensation to an employee under the Employees Compensation Act, 1923, also negligence is not required to be proved. While referring to Section 147 of the Act, the Claims Tribunal opined that the liability in respect of the employee is required to be covered under the insurance policy and yet it proceeded to award the compensation payable by the Appellant.

7. At this stage, it will be appropriate to refer to the insurance policy in the instant case. Although the insurance policy was not specifically proved, a copy thereof seems to be placed on record by the Respondent claimant which has not been disputed by the Appellant Insurance Company. The policy is in respect of a two wheeler under which premium towards own damage (OD) and Third Party (TP) of 394, stamp duty of Re.1/- and service tax of Rs.49/- was charged. The question whether the insurer would be liable to pay the compensation in respect of an employee who is himself driving a vehicle was gone into by the Supreme Court in Oriental Insurance Company Limited v. Meena Variyal and Ors., AIR 2007 SC 1609 and it was observed that under Section 147(1) of the Act, insurance policy need not cover the liability in respect of death or injury arising in the course of employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmen’s Compensation Act, 1923 in respect of a driver or the conductor, in respect of a public service vehicle if it is goods carriage being carried in the vehicle.

8. Thus, two questions arise for consideration in the instant appeal, first, whether the risk of an employee was necessarily to be covered under Section 147 of the Act. Admitt