P. C. NAIK, J. ( 1 ) HEARD counsel for the appellant. ( 2 ) THIS appeal under section 30 of the workmen's Compensation Act is by the insurer. ( 3 ) RESPONDENT-CLAIMANT is the widow of Nakula Naik, a helper engaged on the truck bearing registration No. ORC 9767, who died out of an injury sustained in the course of his employment when the said vehicle was involved in an accident. She had accordingly claimed compensation of rs. 80,000 from the owner and insurer of the truck in question. ( 4 ) THE claim was resisted by the insurer, inter alia, on the ground that as the driver was driving the vehicle under the influence of liquor, it was in breach of the law and as such, it could not be held liable. The liability was sought to be assailed also on the ground that the driver did not possess a valid driving licence and as such, there being a breach of the policy condition, no liability could be saddled on the insurer. ( 5 ) BEFORE the Commissioner for Workmen's Compensation, Jeypore, the insurer opposite party No. 2 (the present appellant) had given notice to the counsel for the opposite party No. 1, the owner of the vehicle in question to produce the driving licence of the driver Nabin Halwa who was driving the vehicle on the date and time of the accident. Said notice is there at page 65 of the Commissioner's record. On 26. 3. 1993, an application was also filed on behalf of the insurer for summoning the driver requiring him to produce the driving licence. The insurer has stated that it would bear the cost incurred for summoning the driver. Said application was rejected by the Commissioner on the ground that it was with a view to prolonging the litigation. Three witnesses were examined by the claimant and in rebuttal, the Branch manager of the insurance company also entered in the witness-box. The Commissioner, however, accepted the claimant's case and awarded a sum of Rs. 39,043 as compensation and considering the fact that the vehicle in question was insured on the relevant date, directed the insurance company to satisfy the award within thirty days failing which a penalty of Rs. 7,000 as interest would be paid. Aggrieved with the said order of the Commissioner, the insurer has carried this appeal to this court. 39,043 as compensation and considering the fact that the vehicle in question was insured on the relevant date, directed the insurance company to satisfy the award within thirty days failing which a penalty of Rs. 7,000 as interest would be paid. Aggrieved with the said order of the Commissioner, the insurer has carried this appeal to this court. ( 6 ) THE award is assailed, inter alia, on the ground of denial of opportunity to the appellant to prove its case as its application for summoning the driver requiring him to produce the driving licence was rejected. The award is also assailed on the ground that as the driver was driving the vehicle in question under the influence of liquor, it was in breach of the law and as such, the insurer was absolved from its liability. ( 7 ) THE basis of the second contention is the averment in the charge-sheet (Exh. A) that "the driver is also liable under sections 177/185/187, Motor Vehicles Act as the driver was allowing about 40 to 50 passengers in the alleged vehicle being in a drunken state drove the truck. . . " Highlighting the above averment and relying on the provisions contained in section 3 of the Workmen's Compensation Act, it is strenuously urged that as the driver was under the influence of liquor, the Commissioner erred in saddling the liability on the insurer. The contention though attractive cannot be accepted for the reasons to follow. ( 8 ) TO begin with, a reference may be made to the relevant provisions contained in sub-section (1) of section 3 of the workmen's Compensation Act, 1923, which read thus: " (3) Employer's liability for compensation. The contention though attractive cannot be accepted for the reasons to follow. ( 8 ) TO begin with, a reference may be made to the relevant provisions contained in sub-section (1) of section 3 of the workmen's Compensation Act, 1923, which read thus: " (3) Employer's liability for compensation. (1) 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: provided that the employer shall not be so liable (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable to (1) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman. (2) to (5) thus, in order to lay a claim for compensation, what is needed to be established is that there was an accident; and that injury or death was on account of the accident and that the accident arose out of the employment as well as in the course of his employment. But, none of the clauses (i), (ii) and (iii) contained in proviso (b) to sub-section (1) of section 3 would apply in the case of death. This apart, these clauses would bar a claim by the injured workman in case the injury is attributable to any of the circumstances provided in these three clauses. Therefore, the present claim being by a widow of a workman, who died as a result of injuries sustained in an accident arising out of and in the course of his employment, it cannot be said, assuming that the driver was under the influence of liquor, that she cannot claim any compensation under the Act. Therefore, the present claim being by a widow of a workman, who died as a result of injuries sustained in an accident arising out of and in the course of his employment, it cannot be said, assuming that the driver was under the influence of liquor, that she cannot claim any compensation under the Act. The express wording of the proviso Provided that the employer shall not be so liable in respect of any injury, not resulting in death, caused by an accident itself excludes the case of death from the purview of the proviso. The arguments advanced on this point, therefore, cannot prevail. ( 9 ) IN view of what has been stated above, it is not relevant but it becomes necessary to be pointed out that except a recital in the charge-sheet that the driver in a drunken state drove the vehicle, there is no other material record to indicate that the driver was in fact under the influence of liquor at the time of the accident. The fact that the recital in the charge-sheet that "the driver escaped from the spot soon after the occurrence" rules out the question of his being medically examined immediately after the occurrence to show that he was intoxicated. It is also not clear as to on the basis of what material, it is mentioned in the charge-sheet that the driver was driving being in a drunken state. Except this recital, there is no other material on record to support this contention. It, therefore, has to be rejected. ( 10 ) IT may be pointed that by issuing a motor vehicle policy, the insurer in fact covers two types of risks one for the tort in which negligence is a necessary element and the other, the statutory obligation of an employer under the Workmen's Compensation Act which rests entirely on the factors laid down in section 3 thereof. Thus, if the ingredients contained in section 3 of the Act are made out the insurer cannot escape its liability under the Act unless a claim for compensation by an injured workman, falls under clause (a) or clause (b) of the proviso to sub-section (1)of section 3. If the contention of the learned counsel for the appellant that as the death of the khalasi was due to the negligence of the truck driver, is accepted, it will result in startling situation. If the contention of the learned counsel for the appellant that as the death of the khalasi was due to the negligence of the truck driver, is accepted, it will result in startling situation. Say, in a given case a truck meets with an accident due to the negligence of the driver resulting in the death of the driver and injuries to a workman which gave rise to a claim for compensation by the dependants of the driver and the other by the injured workman. In such a situation, it will follow from the contention of the learned counsel that though the dependants of the deceased driver will be entitled to compensation, proviso to section 3 (1) having no application, yet the injured workman will not be so entitled because the accident was due to the negligence of the driver thereby absolving the insurance company from liability. This cannot be and is not the intention of the legislature. Thus, a claim for compensation for death or injury caused to a workman by an accident arising out of or in the course of his employment, is required to be considered in the light of the provisions contained in section 3 of the act. To reject it on the ground of negligence of a third party would be in frustration of the provisions of the Act. ( 11 ) THE second contention is that the award is bad as the appellant has been denied opportunity to prove its case, has to be accepted. One of the contentions for avoiding the liability was that the driver of the offending vehicle did not have a driving licence. As the particulars of the driving licence were not furnished, the insurer had admittedly applied for summoning the driver with the driving licence which application on the facts and circumstances of the case was wrongly rejected. This apart, the notice to produce the documents was also filed on which no orders were passed by the Commissioner. On this point, it may be observed that a defendant/opposite party is entitled to defend a claim on the grounds which it thinks proper. It, therefore, has to be given an opportunity to substantiate its defence. Of course, it cannot be permitted to protract the litigation in the garb of leading defence. Hence, reasonable time has to be allowed for enabling it to adduce evidence. It, therefore, has to be given an opportunity to substantiate its defence. Of course, it cannot be permitted to protract the litigation in the garb of leading defence. Hence, reasonable time has to be allowed for enabling it to adduce evidence. This should not be prevented, for these are not the cases where the court is to consider whether the defendant/opposite party has or does not have a substantial defence or whether it is frivolous. Of course, after the defence evidence is on record, it is for the court to determine whether or not it is proper or sufficient to substantiate the defence. ( 12 ) IN view of the discussions made above, this court is of the opinion that the matter has to go back to the Commissioner for a determination as to whether or not the driver of the vehicle in question possessed a valid driving licence on the date of accident. It is, however made clear that this court is not expressing any opinion on the question as to whether the fact that the driver did or did not possess a valid driving licence will affect the liability of the insurer arising under the Workmen's Compensation Act. This is left to be determined by the Commissioner. ( 13 ) IN the result, the impugned award is set aside and the matter is remitted to the Commissioner for Workmen's Compensation-cum-Assistant Labour Commissioner, jeypore, Koraput for passing a fresh award in the light of the observations made in this order. The record be sent back to the Commissioner, who, on receipt of the record, shall promptly issue notice to the parties and take steps to pass a fresh award as expeditiously as possible, preferably within a period of three months from the date of appearance of the parties before him. The amount of compensation deposited shall remain in deposit till disposal of the matter by the Commissioner. Orders accordingly.