G.P. Singh, J.
1. This order shall also dispose of Misc. Appeal No. 285 of 1979 and Misc. Appeal No. 286 of 1979. All these appeals arise out of a common award made by the Commissioner for Workmen's Compensation on 17th September 1979.
2. Three workmen, namely Chhotelal, Lakhanlal, and Darshan Singh, who were employed by one Dhalloomal Sindhi, were working on his truck when another vehicle collided with the truck and the truck overturned. In this accident Lakhanlal died and Darshan Singh and Chhotelal suffered some injuries. Chhotelal instituted Claim No. 11 of 1978, Darshan Singh instituted Claim No. 10 of 1978 and dependents of Lakhanlal instituted Claim No. 9 of 1978. Chhotelal's claim was dismissed by the Commissioner. Darshan Singh's claim was allowed to the extent of Rs. 15,724/- and the claim of dependants of Lakhanlal was allowed to the extent of Rs. 19,200/. The Insurance Company with which the truck was insured was also made liable for payment of the compensation allowed to Darshan Singh and the dependents of Lakhanlal. Chhotelal has filed Misc. Appeal No. 279 of 1979 against the dismissal of his claim. Insurance Company has filed Misc. Appeals 285/79 and 286/79 in respect of the claims of Darshan Singh and the dependents of Lakhanlal which were allowed by the Commissioner.
3. Learned Counsel for the appellant Chhotelal submitted before us that the evidence produced by the appellant relating to his injuries was not properly appreciated and that on a proper appreciation of evidence it ought to have beep held that there was permanent total disability and that the appellant was not in a position to do any work which he was doing when the accident happened. In our opinion, there is no merit in this submission. The oral evidence in this respect consisted of Chhotelal himself and Dr. Wasudeo. Chhotelal was examined by the Civil Surgeon also whose evidence was also recorded. According to the evidence of the Civil Surgeon, there was no weakness in the hands of Chhotelal and there was absolutely no sign of any permanent disability. The Commissioner accepted the evidence of the Civil Surgeon in preference to the evidence of Dr. Wasudeo. Apart from the question that this is purely a question of fact, we have gone through the evidence of both the doctors and we find no good reason to take a view different from that taken by the Commissioner. The evidence of Dr. Wasudeo is conjectural. According to him there is weakness in the hands of Chhotelal which has resulted in permanent total disablement. Chhotelal was first examined in the Victoria Hospital. The medical report relating to him in the Victoria Hospital does not show any disability. The Civil Surgeon also examined Chhotelal before giving his evidence and he found no evidence of weakness of hands in Chhotelal. We accept the evidence of the Civil Surgeon and reject the case of permanent total disablement. We, however, find that Chhotelal was hospitalised for a week. During this period he was unable to work. He, therefore, suffered temporary disablement within the meaning of Section 4(1)(d) of the Workmen's Compensation Act, 1923, for a period of seven days. According to Schedule IV, for this disablement he was entitled to receive Rs. 100/- as compensation. We are also of opinion that he should further be allowed interest at the rate of 6% and penalty of Rs. 50/- in accordance with Section 4A(3). The learned Counsel appearing for the Insurance Company has agreed that a lump sum of Rs. 200/- be allowed to Chhotelal.
4. Coming to the appeal filed by the Insurance Company in respect of the claim of dependents of Lakhanlal, the argument of the learned Counsel is that Vimlabai and Narayan who are respectively minor sister and brother of the deceased instituted a claim before the Claims Tribunal and, therefore, in view of Section 3(5) the Commissioner was not entitled to entertain a claim under the Workmen's Compensation Act. Now, Lakhanlal left behind Gangobai his mother, Vimlabai his sister and Narayan his brother. According to the definition of 'dependents' in the Fatal Accidents Act, sister and brother are not included. Vimlabai and Narayan had, therefore, no locus standi to institute the claim before the Motor Accidents Claims Tribunal. The filing of such a claim, in our opinion, does not bring into operation the bar under Section 3(5) and moreover this claim was withdrawn before it could be adjudicated upon on merits by the Tribunal. In these circumstances, the bar under Section 3(5) was not at all attracted. Gangobai, the mother filed her claim before the Commissioner. Subsequently Vimlabai and Narayan also joined in this claim. The claim laid by them, in our opinion, properly entertained by the Commissioner. Learned Counsel for the appellant further argued in respect of the claim of the dependents of Lakhanlal as also in respect of the claim of Darshan Singh that the award should not have been made against the Insurance Company because on there is no specific provision under the Workmen's Compensation Act for making the Insurance Company liable.... This point is concluded against the Insurance Company by a Division Bench ruling of this Court In Northern India Insurance Co., Branch Indore v. Commissioner for Workmen's Compensation, Indore and Ors. 1973 A.C.J. 428. In that case it has been held that provisions of Section 96 of the Motor Vehicles Act are applicable even to the claim under the Workmen's Compensation Act and the Insurance Company cannot take any defence which is not open to it under Section 96. The learned Counsel for the appellant also tried to urge on merits that the injuries received by Darshan Singh did not result in permanent total disablement. This argument has to be rejected for two reasons ; firstly it is a pure question of fact which cannot be entertained in an appeal under Section 30 of the Workmen's Compensation Act and secondly, the Insurance Company cannot take any defence which is not open to it under Section 96(2) of the Motor Vehicles Act is laid down in the case of Northern India Insurance Co. (supra).
5. As a result of the above discussion, Misc. Appeal No. 279 of 1979 is partly allowed with costs. We award a sum of Rs. 200/- in favour of appellant Chhotelal. The amount shall be payable by all the respondents including the Insurance Company. Counsel's fee Rs. 50/-. Misc. Appeals Nos. 286 and 285 of 1979 are dismissed with costs. Counsel's fee Rs. 200/-in each of these two Appeals.