JUDGMENT : S.K. Ray, J. - This appeal is by opposite party No. 2 who is the Orissa Co-operative Insurance Society Limited in a claim case filed by the claimant-Respondent No. 1 u/s 110A of the Motor Vehicles Act before the Motor Accident Claims Tribunal. The claimant was working as a Khalasi in a truck bearing registration No. O.R.U. 1918 belonging to one Lingaraj Patnaik of Bhubaneswai This truck met with an accident on 30-8-71 as a result of which the occupants of the vehicle were seriously injured including the claimant. Ultimately one of his legs had to be amputated. The Tribunal awarded compensation of Rs. 6,000/- to the claimant which was made payable both by the truck owner as well as by the Insurance Company. He also awarded interest at the rate of 6 per cent per annum on the principal amount of Rs. 6,000/-. 2. The truck had been insured by the Appellant, but the insurance policy covered liability which may be incurred in respect of death or bodily injury to a third party caused by or arising out of the use of the truck in a public place. In other words, this policy covered only third party risks and is called an 'Act Policy'. 3. The Appellant took various defence in the claims case. The quantum of compensation claimed was challenged as excessive. It was also said that the claimant was not an employee of the owner of the truck, nor was he getting a monthly income of Rs. 150/- and that there was negligence on the part of the driver of the truck at the time of the accident. He disowned his liability. All the aforesaid defences were rejected and it was specifically found that the claimant was an employee of the truck owner. In this appeal the finding that the claimant was an employee of the truck owner is not challenged, nor is the quantum of compensation awarded by the Tribunal. 4. The only point which is canvassed here is that the insurer is not liable under the policy to pay the compensation to the claimant. The policy of insurance Ext. In this appeal the finding that the claimant was an employee of the truck owner is not challenged, nor is the quantum of compensation awarded by the Tribunal. 4. The only point which is canvassed here is that the insurer is not liable under the policy to pay the compensation to the claimant. The policy of insurance Ext. A being a third party insurance taken out under the provisions of Section 95(1) of the Motor Vehicles Act covered liability in respect of persons expressly mentioned in Chapter II and not in respect of any workman employed in the truck at the time of accident. As a subsidiary point, it is contended that claimant who was a Khalasi is not a 'workman' as defined in Section 2(n) (ii) of the Workmen's Compensation Act, 1923 and, consequently, even if the policy is held to cover liabilities arising under the Workmen's Compensation Act, it would not cover the liability in respect of the claimant. 5. Section 95 of the Motor Vehicles Act runs as follows:- (1) In order to comply with the requirements of this Chapter a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; or by a co-operative society allowed u/s 108 to transact the business of an insurer, and (b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place ; (ii) against the death of or bodily injury to passenger or a public service vehicle caused by or arising out of the vehicle in a public place. Explanation:-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act of omission which led to the accident occurred in a public place; Provided that the policy shall not be required- (i) to cover liability in respect of the death arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of this employment, other than a liability arising under the Workmen's Compensation Act, 1923 in respect of the death of or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on "he vehicle, or (c) if it is a goods vehicle, being carried in the vehicle, or (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or (iii) to cover any contractual liability. (2) Subject to the proviso to Sub-section(l) a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:- (a) where the vehicle is a goods vehicle a limit of fifty thousand rupees in all, including the liabilities, if any arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number being carried in the vehicle; (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment:- (i) m respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all ; (ii) in respect of passengers:- (1) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers ; (2) a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers; (3) a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and (4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case ; (c) save as provided in clause(d) where the vehicle is a vehicle of any other class, the amount of liability incurred ; (d) irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damage to any property of a third party; The other Sub-section of this section need not be quoted as they are not relevant for the present purpose. On a plain reading, the proviso to the explanation to Sub-section (1) of the aforesaid section expressly provides for exclusion of liabilities arising otherwise than under the Workmen's Compensation Act, from the purview of the 'Act policy'. This is clear from the expression 'other than' occurring in proviso (1) This mean that the 'Act policy must cover the liability which would arise under the Workmen's Compensation Act. Whatever limitations are incorporated in Sub-section (2) of Section 95, they are all subject to the proviso to the explanation in Sub-section (1). This is clear from the expression 'other than' occurring in proviso (1) This mean that the 'Act policy must cover the liability which would arise under the Workmen's Compensation Act. Whatever limitations are incorporated in Sub-section (2) of Section 95, they are all subject to the proviso to the explanation in Sub-section (1). In other words, Sub-section (2) is subjects to the proviso directing that the policy shall cover the liability arising under the Workmen's Compensation Act. The point of Mr. Mohan by argument is that the 'Act policy' would never cover the liability under the Workmen's Compensation Act, but as I read the provisions as aforesaid, this does not bear the meaning sought to be attributed to the aforesaid provision of Section 95. This interpretation seems to be reinforced if one looks to Section 110AA of the Motor Vehicles Act which gives an option to a workman entitled to compensation both under the Motor Vehicles Act and under the Workmen's Compensation Act to choose his forum. This section says that: Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both. If the policy did not cover liability arising in respect of a workman, the aforesaid provision will be purposeless. Therefore, it is not correct to say that an 'Act policy' does not cover the liability arising under the Workmen's Compensation Act in respect of death or injury to a workman. Clause (a) to Sub-section (2) of Section 95 also clearly gives the same indication. This clause, while laying down the limit of compensation payable, says that such maximum limit shall include the liability, if any, arising under the Workmen's Compensation Act. This reference to the liability under the Workmen's Compensation Act is indicative of the position that the 'Act policy' shall cover the liability arising in respect of death or injury to a workman as defined in the Workmen's Compensation Act. This reference to the liability under the Workmen's Compensation Act is indicative of the position that the 'Act policy' shall cover the liability arising in respect of death or injury to a workman as defined in the Workmen's Compensation Act. If a workman under the Workmen's Compensation Act was not covered by such a policy, there would, to my mind, have been no necessity of specifically referring to liability arising under the Workmen's Compensation Act in proviso (i) of Sub-section (1) and Clause (a) of Sub-section (2) of Section 95 and in Section 110AA of the Motor Vehicles Act. I have no doubt in my mind that the 'Act policy' really covers the liability arising in respect of the bodily injury caused to the claimant who was an employee of the truck owner at the time of accident. My aforesaid view is supported by the decision in the case of T.M. Venkatarajan and Another Vs. T. Abdul Munaf Sahib and Others. In that case the cleaner of a lorry died in an accident which took place on account of negligence of the driver. The cleaner was undoubtedly a workman and the liability to compensation arose under the Workmen's Compensation Act, and it was contended that the insurer was not required to meet this liability arising under the Workmen's Compensation Act. This contention was negatived. It was held that u/s 95 of the Motor Vehicles Act a statutory duty was cast upon the insurance company to indemnify the insured against any liability to pay compensation to his employee under the Workmen's Compensation Act, and the company could not contend that it was absolved of the liability to pay compensation merely because the claimants had initiated proceedings under the Motor Vehicles Act instead of the Workmen's Compensation Act. 6. The next question is whether this employee can be said to be a workman as defined in Section 2 (n) (ii) of the Workmen's Compensation Act. If he is not so covered, then certainly the insurer would not be liable. Section 2 (n) of the Workmen's Compensation Act defines 'workman'. 6. The next question is whether this employee can be said to be a workman as defined in Section 2 (n) (ii) of the Workmen's Compensation Act. If he is not so covered, then certainly the insurer would not be liable. Section 2 (n) of the Workmen's Compensation Act defines 'workman'. The relevant portion of the definition is extracted here: Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is- XXX (ii) employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Schedule II. XXX The relevant portion of Schedule II of the Workmen's Compensation Act, 1923 is extracted below: The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is- (i) employed, otherwise than in a clerical capacity or on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle; XXX The claimant was a Khalasi employed for the purpose of loading or unloading of the truck, involved in the accident. To attract this clause the other question to determine is whether the truck is a vehicle propelled by mechanical power. The dictionary meaning of the word 'mechanical' is as follows: pertaining to machines; dynamical, worked or done by machinery or by mechanism; machinelike; of the nature of a machine or mechanism; without intelligence or conscious will; Though gasoline provides the power, the truck is propelled by manual operation of gear, clutch and steering wheel, and other mechanical parts of the engine. To my mind, truck is a vehicle which is propelled by mechanical power. I have not been shown any judicial decision to the contrary. Therefore, the claimant is covered by this description of an employee in Schedule II and as such is a workman as defined in Section 2(n) of the Workmen's Compensation Act. To my mind, truck is a vehicle which is propelled by mechanical power. I have not been shown any judicial decision to the contrary. Therefore, the claimant is covered by this description of an employee in Schedule II and as such is a workman as defined in Section 2(n) of the Workmen's Compensation Act. A workman who suffers injury in course of his employment is entitled to compensation under the provisions of the Workmen's Compensation Act, which the employer is liable to pay therefore, the insurer would be liable in this particular case to pay compensation to the claimant. It is not said that the claimant initiated any proceeding under the Workmen's Compensation Act, for compensation and he apparently opted to come to the Claims Tribunal for his compensation to be assessed under the Motor Vehicles Act. 7. The insurance policy has been put into evidence in this case.. This policy has been divided into various sections. Section II deals with liability to third parties. Sub-section (1) of this section runs as follows:- 1. Subject to the limits of liability the company will indemnify the Insured against all sums including claimant's costs and expenses which the Insured shall become legally liable to pay in respect of: (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/ or unloading) of the Motor Vehicle. (ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle. Provided always that: XXX (c) Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act, 1923, the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises. xxx The statutory liability arising under the Workmen's Compensation Act against the owner of the vehicle which is required to be covered by the compulsory 'Act policy' to be issued u/s 95 of the Motor Vehicles Act is expressly made a term of this policy. xxx The statutory liability arising under the Workmen's Compensation Act against the owner of the vehicle which is required to be covered by the compulsory 'Act policy' to be issued u/s 95 of the Motor Vehicles Act is expressly made a term of this policy. This indicates that there was no doubt in the minds of the insured and the insurer that the liability arising under the Workmen's Compensation Act is required to be covered by the 'Act policy' u/s 95 of the Motor Vehicles Act, and therefore, by way of abundant precaution they have repeated the requirement of Section 95 in the body of the policy itself. 8. For the aforesaid reasons I am satisfied that there is no error committed by the Claims Tribunal in awarding compensation to the injured and fixing the liability on the insurer for the same. 9. The Claims Tribunal has, as already stated assessed the compensation at Rs. 6,000/- and has made both the opposite parties, namely, the owner of the truck and the insurer to be liable for the said sum without apportioning it between them. It is clear from the proviso (i) to the explanation to Sub-section (1) of Section 95 of the Motor Vehicles Act that the insurance company shall indemnify the insured against any liability to pay compensation to his employee under the Workmen's Compensation Act. Therefore, under the policy the insured is absolved from all liabilities arising under the Workmen's Compensation Act. The Claims Tribunal was, therefore, wrong in making the insured and the insurer jointly and severally liable for the entire compensation amount awarded. He should have determined the liability under the Workmen's Compensation Act and limited the liability of the Appellant to that extent, the balance compensation amount being payable by the owner. Since it would be harassing to the claimant to remit the case to the Tribunal for this purpose, I have proceeded to determine the liability under the Workmen's Compensation Act (hereinafter referred to as the Act) myself. Section 3 of the Act provides. Since it would be harassing to the claimant to remit the case to the Tribunal for this purpose, I have proceeded to determine the liability under the Workmen's Compensation Act (hereinafter referred to as the Act) myself. Section 3 of the Act provides. If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: xxx Section 4 of the Act has laid down the principles for computation of the amount of compensation payable in respect of death caused to, or other kinds of injuries suffered by, the workmen. Section 4(c)(i) of the Act runs as follows: 4(1). Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: (a) x x x (b) x x x (c) where permanent partial disablement results from the injury- (i) in the case of any injury specified in Part II of Schedule I such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and xxx Part II of Schedule I contains a list of injuries deemed to result in permanent partial disablement. Counsel for both parties agree that serial No. 21 is applicable to the present case. Therefore, the compensation payable under the Act is 40 per cent of the loss of earning capacity. The loss of earning capacity occurs when there is permanent total disablement and the amount of compensation payable in such a case is Rs. 9,800/- as provided in Schedule IV, because the monthly wage of the claimant was Rs. 150/-. So, 40 per cent of this amount, which is Rs. 3,920/- is 'the amount of compensation under the Act. The amount of Rs. 6,000/- is, therefore, to be apportioned between the insured and the insurer in the following manner, namely, the insurer is to pay Rs. 3,920/- and the insured, i.e. the truck owner is to pay Rs. 2,080/- with six per cent interest per annum from the date of the award of the Claims Tribunal till realisation. The award is accordingly modified and it is made clear that the insurer will not be liable for the compensation payable by the owner as apportioned above. 3,920/- and the insured, i.e. the truck owner is to pay Rs. 2,080/- with six per cent interest per annum from the date of the award of the Claims Tribunal till realisation. The award is accordingly modified and it is made clear that the insurer will not be liable for the compensation payable by the owner as apportioned above. Subject to the aforesaid modification as to apportionment, the decision of the Claims Tribunal as to the total amount of compensation is upheld. In the peculiar circumstances of this case, there will be no order for costs of this Court. Appeal partly allowed without costs. Final Result : Allowed