J U D G M E N T

The second respondent Insurance Company before the Motor

Accidents Claims Tribunal is the appellant herein. This appeal has been filed against the judgment and decree dated 14.02.2017 passed by the Motor Accidents Claims Tribunal (Principal Sub Court),

Tindivanam, in M.C.O.P.No.91 of 2014.

2.The brief facts of the case is that on 12.01.2014, at about

17.00 hours, the first respondent travelled as a Cleaner in the lorry owned by the second respondent and insured with the appellant and when the vehicle was nearing Sokkanthangal Erikarai near burial way, the driver of the vehicle drove the vehicle in a rash and negligent manner and in a zig zag manner, due to which, the first respondent fell down from the lorry and sustained injuries.

3.Thereafter, the injured claimant/ first respondent filed claim petition before the Motor Accidents Claims Tribunal, claiming compensation of Rs.50 Lakhs. After adjudication, the Motor Accidents Claims Tribunal awarded a sum of Rs.19,59,050/- with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit and costs and directed the appellant Insurance Company to deposit the compensation amount. Aggrieved by the same, the appellant

Insurance Company has filed this appeal.

4.The learned counsel appearing for the appellant submitted that the appellant has filed this appeal questioning the liability. The learned counsel further submitted that the first respondent is not a third party in terms of Section 166 of the Motor Vehicles Act and he is an employee of the second respondent. Due to the rash and negligent driving of the driver of the vehicle, the first respondent sustained injuries. The first respondent himself is a tort feasor and on his own negligence, the first respondent fell down from the lorry and sustained injuries. Unless the first respondent establish that due to the rash and negligent driving of the driver of the vehicle insured with the appellant, the accident occurred, the appellant is not liable to pay compensation to the first respondent. The learned counsel further submitted that the remedy available to the first respondent claimant is to approach the Workmen Compensation Court.

5.The learned counsel appearing for the appellant further submitted that the policy is an Act I policy, in which, only third party alone is entitled to claim compensation as against the Insurance Company. The first respondent is an employee of the second respondent and is not a third party. Hence, the claim petition filed under Section 166 of the Motor Vehicles Act is not sustainable one.

6.The learned counsel appearing for the appellant further submitted that the very same issue was considered by the Hon'ble Apex Court in the decision reported in (2005) 6 SCC 172 [National Insurance Co. Ltd., Vs. Prembai Patel and others], wherein, the Hon'ble Apex Court held that 'if the legal representatives of the deceased employee approach the Motor Accident Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the Insurance Company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellant Insurance Company to pay the entire amount of compensation to the claimants. As shown above, the insurance policy taken by the owner contained a clause that it was a policy for "Act Liability" only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act'. The learned counsel further submitted that in view of the above decision the first respondent can very well approach the Workmen

Compensation Court.

7.Per contra, the learned counsel appearing for the first respondent submitted that the first respondent claimant is an employee of the second respondent who is the owner of the lorry insured with the appellant. On the fateful day, the driver of the vehicle drove the vehicle in a rash and negligent manner, due to which, the the first