G.R. Majithia, J.
1. The Insurance Company has come up in appeal against the order of Commissioner under the Workmen's Compensation Act (for short the Act) awarding a sum of Rs. 95,092.50 as compensation to the respondent/claimant.
2 The facts : -
The claimant was employed as a truck driver by respondent No. 2. The vehicle was insured with the Oriental Insurance Company. The claimant left Barwala after loading wheat in the truck bearing registration No HRS 3558 for Delhi on June 11, 1988. The truck turned turtle near Julana on Jind-Rohtak road on June 12, 1988 at 6 A. M. The claimant was being paid Rs. 1,000/- as monthly wages by the employer. After serving notice on the owner and the Insurance Company, he filed the petition under Section 10 and 22 of the Act and the Commissioner came to the conclusion that she claimant received injuries in the course of employment with Anand Parkash and that he was being paid Rs. 800/- P.M. as wages The vehicle was insured with the Insurer namely, Oriental Insurance Company Limited. He assessed the compensation at Rs. 62411.0. The employer and the Insurance Company did not make the provisional payment under sub-section (2) Section 4 of the Act and he directed that the compensation amount be paid with interest at the rate 6% per annum. The total payable comes to Rs. 95,092 50.
3. The claimant had earlier filed claim petition under Section 110-A of the Motor Vehicles Act on August 17, 1988. The Oriental Insurance Company (appellant) took the objection that the claim petition under the Motor Vehicles Act was not maintainable since the accident had taken place due to the negligence of the petitioner and the petition was not maintainable before the Motor Accident Claims Tribunal. The objection was upheld and the claim application was rejected vide order dated November 11, 1988. However, it was observed in the order that the dismissal of the claim application by the Motor Accident Claims Tribunal would not bar the filing of the claim petition under the Act. The application under the Act was filed after the decision of the Motor Accident Claims Tribunal. When the appeal came up for motion hearing before me, it was represented that the Commissioner under the Act could not pass the order against the Insurance Company and that dismissal of the application by the Motor Accident Claims Tribunal bars the maintainability of the claim application by the Commissioner. The corresponding Section of Section 110 A of 1939 Act is Section 165 of 1988 Act. On analysing the suction, it becomes clear that before an application could be entertained fey the Motor Accident Claims Tribunal under Section 165 of 1988 Act, the cause of action should be such as could be entertained by the Claims Tribunal. It must give rise to a claim for compensation under Section 165 of 1938 Act The accident must hare occurred due to the actionable negligence of the owner or the driver of the vehicle, causing an injury or death of third party. When the accident occurs due to actionable negligence of the driver himself, no claim can be entertained by the Claims Tribunal under Section 165 of 1988 Ace. Section 165 of 1988 Act would not come into play at all, for the Claims Tribunal has no jurisdiction to entertain such an application. Section 3(5) of the Act would not be an embargo for making an application before the Workmen's Compensation Commissioner. The same read thus :-
'3(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workmen in any court of law in respect of any injury-
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this act.'
A workman can elect to avail himself for any other remedy ether than provided by the Act. If the workman receives injury in the course of employment, he can sue for damages under Section 22 of the Act and the claim application will be tried under the provisions of Chapter 3 of the Act. A contract of insurance is a contract of indemnity. Under the terms of the policy, the insurer has undertakes to indemnify the insured against all the sums to which the insured shall become liable in respect of death and bodily injury to any person. The employees of the insured are not exempted. The insurance company cannot urge that it is not liable to indemnify the insured for the compensation amount for which he is held liable by the Commissioner under the Act. Once the liability of the owner of the vehicle is established, the insurance company is bound to indemnify the insured. The submission of the learned counsel that the insurance company is cot liable for the compensation amount is devoid of any merit.
4. For the aforesaid reasons, the appeal fails and is dismissed with no order as to costs.