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23. Looking to the provisions of Section 95 of the Act and the policy, Exh. 288, it is clear that the policy covers the risk of driver and cleaner and additional payment of Rs.16/- was paid. In view of payment of additional premium of Rs.16/-, the Insurance Co. is liable as per the terms of policy and the ratio laid down in Minu Mehta's case (supra) cannot be attracted and pressed in service by the Insurance Co. because of payment of additional premium, the Insurance Company has extended the coverage for the risk of driver and cleaner. In our opinion, therefore, the Insurance Co. cannot be absolved from liability by contending that the claimants were not entitled to compensation since there was 100% negligence on the part of the driver. The claimants are entitled to get compensation from the Insurance Co. for the death of driver on the ground that the case is covered under the terms of policy irrespective of negligence on his part.

The said observation is the basis of this Reference. The provisions of the Act prescribes statutory liability as provided under Sections 147 and 149 of the Act. The same stands modified to the extent of Common Law Liability by adding certain beneficial features for claimants. Under Common Law, a person could recover compensation only in case of proof of negligence on the part of the alleged tortfeasor. The Act under Section 140 and 163-A provides for No Fault Liability and no such equivalent provision is found in Common Law. Thus, under the Act certain burdens are imposed on the insurer which would not be there if the liability had been determined under Common Law. Section 149 of the Act also postulates that the insurer to first pay to the third party and then only recover from the owner of the vehicle in case of a breach of the policy. However, such principle would not be applicable if the liability had been determined under Common Law. Thus, when the owner of a vehicle pays additional premium to cover the Legal Liability of the paid Driver, the legal heirs of Driver have option either to file Claim application under the Employees Compensation Act, 1923 which no fault liability or under the Act as provided under Section 167 of the Act. Thus, the Act provides that option is left to the person entitled to compensation to choose a C/FA/1349/2008 JUDGMENT DATED: 01/07/2022 particular remedy. In the case of Prembai Patel (supra), the Hon'ble Supreme Court has clearly held that when the Policy is Act Only and additional premium for Legal Liability for paid Driver and Conductor is not paid then the appropriate remedy would be under the Employees Compensation Act for Compensation. However, when additional premium for legal liability of the paid Driver or Conductor is paid by the Owner, the insurance company on accepting additional liability for payment of compensation for such class of person, a claim petition under the Act would be available and the claimants have right to chose appropriate forum as per Section 167 of the Act.

13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the C/FA/1349/2008 JUDGMENT DATED: 01/07/2022 driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles.

5. In view of the above facts as well as proposition of law, it is not in dispute that the additional premium was paid to cover the risk of driver, therefore, when the owner of the vehicle has paid the additional premium and the same is being accepted by the Insurance Company, the C/FA/1349/2008 JUDGMENT DATED: 01/07/2022 liability of the Insurance Company gets extended under the Act.

6. In view of the above facts, particularly, the payment of additional premium being paid by the owner of the vehicle, which has not been denied by the Insurance Company, in my opinion, in the present case, the decision of this Court in the case of Valiben Laxmanbhai Thakore (Supra) would squarely applicable.