JUDGMENT : Sandeep Sharma, J.: FAO No. 475 of 2016 Instant appeal is directed against order/award dated 27.5.2016 passed by the learned Civil Judge (Senior Division), Shimla exercising powers of Commissioner under the Employee's Compensation Act, 1923 in W/C Case No. 15/2 of 2009/2013, whereby compensation to the tune of Rs.10,07,233/- including interest at the rate of 12% per annum from 15.7.2009, till its realization came to be awarded in favour of the respondents No.1 and 2-claimants (hereinafter, ‘claimants’). 2. Before proceeding to ascertain the correctness and legality of aforesaid impugned award, it may be noticed that respondents No.1 and 2-claimants and respondent No.3- owner/insured have not chosen to lay challenge, if any, to the impugned award on any count, thus, same has attained finality qua them. However, insurer being aggrieved with the liability imposed upon it, has approached this Court on the ground that the learned Commissioner below has wrongly saddled the insurer with the liability. 3. Facts in brief, as are necessary for the adjudication of the case at hand are that legal representatives of deceased driver-employee, filed a petition before the learned Commissioner below under Section 22 of the Workmen's Compensation Act, 1923 for grant of compensation on account of death of Praveen Kumar alias Pappu. Claimants averred that the deceased Praveen Kumar was employed as a driver on the Truck bearing registration No. HP-63-5015 by respondent No. 3/Mr. Brij Lal i.e. owner of the aforesaid truck, which was insured with the appellant-insurance company for the period from 24.6.2008 to 23.6.2009, vide certificate/policy No. 3003/52065750/01/000 issued on 28.6.2008. Claimants also averred that on 14.6.2009, at about 5.00 pm, deceased Praveen Kumar alias Pappu left Darlaghat Cement Factory with loaded truck of cement for Kinnaur and during the intervening night of 14/15.6.2009 at 12.30-1.00 am, on Luhri road near Dhami, District Shimla, truck in question met with an accident and Praveen Kumar alias Pappu died during the course of employment. Post-mortem was conducted on 15.6.2009 at Community Health Centre, Suni and as per post-mortem report, cause of death of the deceased was sudden neurogenic shock followed by head injury and blunt trauma over chest due to accident. As per claimants, deceased was receiving Rs.4500/- as salary per month besides Rs.25/- per day. Post-mortem was conducted on 15.6.2009 at Community Health Centre, Suni and as per post-mortem report, cause of death of the deceased was sudden neurogenic shock followed by head injury and blunt trauma over chest due to accident. As per claimants, deceased was receiving Rs.4500/- as salary per month besides Rs.25/- per day. Age of deceased at the time of accident was 22 years and he was holding a valid and effective driving licence issued by Registering and Licensing Authority on 9.3.2008 for HTV/HGV and other types of vehicles valid upto 5.4.2010. No notice was sent to the owner, as he was in the knowledge of the accident. Owner submitted claim for vehicle with the appellant-Insurance Company and as such appellant-Insurance Company was also having knowledge of the accident. Claimants further averred that Praveen Kumar was maintaining them and both of them were dependent upon his earnings. Since no compensation amount, which became due on 15.6.2009, came to be deposited within one month by the respondents, claimants preferred aforesaid claim petition before the learned Commissioner below. 4. Respondent No.3 (owner) while admitting the claimants to be widow and mother of the deceased Praveen Kumar, specifically denied that he used to pay salary of Rs.4500/- per month and Rs.25/- per day to the deceased Praveen Kumar. He claimed before the learned Commissioner below that he used to pay wages of Rs.2,000/- per month to the deceased and Rs.100/- as daily allowance. He further stated that at the time of accident, age of deceased was 22 years and he was holding a valid and effective driving licence issued by Registering and Licensing Authority. 5. Appellant-insurance company while opposing claim put forth by the claimants, averred before learned Commissioner below that vehicle in question was being driven in contravention of the terms and conditions of the policy and provisions of Motor Vehicles Act as such, no compensation is payable on account of death of deceased, Praveen Kumar. However, the fact remains that the appellant-insurance company admitted the factum with regard to Truck bearing registration No. HP-63-5015 being insured by it for the period from 24.6.2008 to 23.6.2009, vide policy issued by it on 28.6.2008, in favour of the insured/owner of truck. Appellant-insurance company also denied for want of knowledge the factum with regard to accident as well as wages @ Rs.4500/- per month being paid by the owner of the truck. Appellant-insurance company also denied for want of knowledge the factum with regard to accident as well as wages @ Rs.4500/- per month being paid by the owner of the truck. In nutshell, case of the appellant before the learned Commissioner below was that since vehicle was being driven by the deceased in violation of insurance policy, it is/was the employer who is/was liable to pay compensation to his employee and as per policy, it is/was to indemnify the insured subject to terms and conditions of the insurance policy. But since in the instant case, vehicle in question was being driven in contravention of the terms and conditions of the policy, appellant-Insurance Company is not liable to indemnify the claimants. 6. Learned Commissioner below allowed the claim petition and awarded a sum of Rs.10,07,233/- alongwith interest at the rate of 12% per annum, payable by the appellant-insurance company. 7. In the aforesaid background, appellant-insurance company has approached this Court by way of instant appeal, laying therein challenge to the aforesaid Award passed by the learned Commissioner below under Employee's Compensation Act, with a prayer to quash and set aside the same. 8. Instant appeal came to be admitted by this Court on 25.7.2017, on the following questions of law: “1. Whether the learned Civil Judge (Senior Division) Shimla exercising powers of Commissioner under Employee's compensation Act below is right in taking monthly wages of the deceased as Rs.5000/ instead of Rs.2000/ per month when the accident has taken place prior to the amendment dated 31.5.2010 vide notification dated S.O.1258(E)? 2. Whether the appellant is liable to pay the compensation when the driving licence of the deceased driver was found fake that too when the same has been proved by the appellant by leading cogent evidence? 3. Whether the learned Civil Judge (Senior Division) below is right in taking the income or salary of the deceased as Rs 5000/ per month in the absence of any documentary evidence that too when the respondent has admitted his wages as Rs 2000/ per month?” 9. Mr. 3. Whether the learned Civil Judge (Senior Division) below is right in taking the income or salary of the deceased as Rs 5000/ per month in the absence of any documentary evidence that too when the respondent has admitted his wages as Rs 2000/ per month?” 9. Mr. Jagdish Thakur, learned counsel representing the appellant, while inviting attention of this Court to the findings returned by the learned Commissioner below strenuously argued that once the learned Commissioner below had come to the conclusion on the basis of cogent and convincing evidence adduced on record by the appellant that deceased had no valid and effective driving licence, there was no occasion for the learned Commissioner below to saddle the appellant with the liability to pay the compensation to the claimants being insurer. Mr. Thakur, further contended that it is well settled by now that if the vehicle involved is/was being plied in breach of terms and conditions of the policy, insurance company can not be held liable, rather, it is the owner, who is to be saddled with the liability. Mr. Thakur, further submitted that the learned Commissioner below has fallen in grave error while concluding that since respondent No.3 being owner of the vehicle had taken due and proper care to verify the licence of the deceased before employing him as a driver, no liability can be saddled upon him. He further submitted that mere verification of licence, if any, by owner will not absolve him of his liability to pay compensation, especially if vehicle owned by him is plied in violation of the terms and conditions of the policy. Mr. Thakur, contended that once it is/was specifically provided in the policy that it shall not be liable to pay compensation, if vehicle is driven by the driver not having a valid and effective driving licence, there was no occasion for the learned Commissioner below to saddle the appellant with the liability, which otherwise should have been imposed upon the owner of the truck being employer. Lastly, Mr. Thakur argued that otherwise also, bare perusal of Section 3 of the Employee's Compensation Act, 1923 nowhere provides that insurance company shall be liable to pay compensation for injury, permanent incapacitation or death of an employee caused during the course of employment, rather, it is the employer, who shall be liable to pay compensation according to the provisions of the Act. Mr. Mr. Thakur, contended that the appellant being insurer is/was only bound to indemnify the insured under the 1923 Act, subject to terms and conditions of the policy. In support of aforesaid contentions, he placed reliance upon the judgment passed by Hon'ble Apex Court in case National Insurance Co. Ltd. v. Mastan. reported in (2006) 2 SCC 641 10. Mr. Praneet Gupta, learned counsel representing the claimants and Mr. Ashwani Kaundal, learned counsel representing the owner of the truck, supported the impugned Award passed by learned Commissioner below and contended that once it stands duly proved that vehicle in question was insured with the appellant-Insurance Company, it was under obligation to indemnify the employer. Learned counsel for the respondents, further contended that it has specifically come in the evidence that the owner of the truck had made an attempt to verify the correctness of driving licence possessed by the deceased as such, plea that the deceased employee was not having driving licence was not available to the appellant-Insurance Company. Aforesaid counsel further contended that the claim under Workmen's Compensation Act can not be opposed by the insurance company by placing reliance upon various provisions contained under the Motor Vehicles Act i.e. Sections 147, 148 and 149 contained under Chapter XI of the Act ibid and the claim petitions under both the Acts need to be determined and decided as procedure contained in the respective Acts. 11. I have heard the learned counsel for the parties and gone through the record carefully. 12. Though from a bare perusal of the questions enumerated above, it is quite apparent that all the questions are factual and same can not be said to be questions of law, much less substantial questions of law, however, this Court in the process of exploring answers to the aforesaid questions, deems it proper to deal with question No.2, at the first instance. 13. Section 143 contained in Chapter X of Motor Vehicles Act provides that only provisions of Chapter X of the Motor Vehicles Act shall be applicable to the claims preferred under Workmen's Compensation Act. Section 143 of the Motor Vehicles Act nowhere provides that the provisions contained in Chapter XI of the Motor Vehicles Act are also applicable to the Workmen's Compensation Act, thereby excluding applicability of Chapter XI to the proceedings under the Workmen's Compensation Act. 14. Hon'ble Apex Court in National Insurance Co. Section 143 of the Motor Vehicles Act nowhere provides that the provisions contained in Chapter XI of the Motor Vehicles Act are also applicable to the Workmen's Compensation Act, thereby excluding applicability of Chapter XI to the proceedings under the Workmen's Compensation Act. 14. Hon'ble Apex Court in National Insurance Co. Ltd. v. Mastan (supra), has held that applicability of provisions of 1988 Act, in proceedings under 1923 Act is confined to the matters coming under the purview of Chapter X only and it can not be stretched any further. As far as Section 143 of 1988 Act is concerned, it only applies to the Workmen's Compensation Act, 1923 in cases where liability arises despite the fact that accident may have taken place without any fault on the part of the driver of the vehicle or other persons in control thereof. Under 1923 Act, workman is entitled to compensation even if no negligence is proved against the owner or any person in charge of the vehicle, as such, there is no scope of applicability of Section 143 of the 1988 Act including Chapter XI thereof. 15. In the case at hand, there is no dispute with regard to the plea having been raised by the appellant that the employee or driver of the vehicle in question was not having valid and effective driving licence, rather, it is the categorical finding of the learned Commissioner below that the deceased employee was not having valid licence. Moreover aforesaid finding returned by learned Commissioner below has attained finality because neither the claimants nor the owner of the vehicle have laid challenge to the aforesaid finding of the learned Commissioner below. 16. The question, which arises for consideration of this Court at this stage is whether aforesaid defence as raised by the appellant-Insurance Company is available to it or not. 16. The question, which arises for consideration of this Court at this stage is whether aforesaid defence as raised by the appellant-Insurance Company is available to it or not. In the case at hand, there is no dispute with regard to the insurance given by the appellant qua vehicle owned and possessed by the owner, which was being plied/driven by the deceased employee at the time of alleged accident, rather, in nutshell, case of the appellant is that since vehicle in question was being driven in breach of the terms and conditions of the insurance policy, it is not liable to indemnify the owner, who otherwise, in terms of Section 3 of the Workmen's Compensation Act is liable to pay compensation to the deceased employee, who dies during the course of employment, which stands duly proved on record. 17. Section 3 of the Workmen's Compensation Act is reproduced below: “3. Employer's liability for compensation. 17. Section 3 of the Workmen's Compensation Act is reproduced below: “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 1[three] days; (b) In respect of any injury, not resulting in death or permanent total disablement cause by an accident which is directly attributable to – (i) 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 trained, for the purpose of securing the safety of workmen, or (iii) The wilful removal or disregard by the workman of any safety guard or other device which he knew to hive been provided for the purpose of securing the safety of workman, 4[* * *] 4[* * *] 5[(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as all occupational disease peculiar to that employment, or if a workman , whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as all occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify ill respect of each such employment, contracts any disease specified therein as all occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is provided, the accident shall be deemed to have arisen out of, and in the course of, the employment 6[Provided that if it is proved, - (a) That a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule II has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment; and (b) That the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section: Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be all injury by accident within the meaning of this section.] 7[(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be all injury by accident within the meaning of this section, and such employment was user more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.] (3) 8[The Central Government or the State Government], after giving, by notification in the official Gazette, not less than three months, notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of subsection (2) shall apply 6[in the case of a notification by the Central Government, within the territories to which this Act extends, or, in case of a notification by the State Government, within the State] 7[* * *] as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.] (4) Save as provided by 9[sub-sections (2), (2A)] and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is 10[***] directly attributable to a specific injury by accident arising out of and in the course of his employment. (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 workman 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. 18. Complete reading of Section 3 as reproduced herein above, nowhere makes the appellant-Insurance Company directly liable to pay compensation on account of injury, incapacitation or death of an employee during the employment, rather, it is the employer, who is liable to pay compensation to the employee or his family members in the event of his death. Similarly, insurance company being an insurer is bound to indemnify the insured under 1988 Act, but that is subject to terms and conditions of the contract of policy. In the case at hand, there is no dispute, if any, with regard to contract of insurance between appellant and insured/owner of truck qua the vehicle involved in the accident but now the question arises, whether appellant being insurer is liable to indemnify the owner of the truck qua insurance policy given by it against the vehicle which at the relevant time was being driven by the deceased driver in breach of the terms and conditions of the insurance policy. 19. In this background, it is pertinent to take note of the fact that insurance policy issued by appellant was qua the vehicle and that was issued under Motor Vehicles Act, under Section 146 thereof, which makes it necessary to get an insurance policy. Section 146 of the Motor Vehicles Act is quoted below: “146. 19. In this background, it is pertinent to take note of the fact that insurance policy issued by appellant was qua the vehicle and that was issued under Motor Vehicles Act, under Section 146 thereof, which makes it necessary to get an insurance policy. Section 146 of the Motor Vehicles Act is quoted below: “146. Necessity for insurance against third party risk- (1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that person, as the case may be, a policy of insurance complying with the requirement of this Chapter. 1[Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991)]. Explanation--A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no believe that there is no such policy in force. (2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise. (3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely— (a) the Central Government or a State Government, if the vehicle issued for Government purposes connected with any commercial enterprise; (b) any local authority; (c) any State transport undertaking. Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability person in its employment may incur to third parties. Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability person in its employment may incur to third parties. Explanation--For the purposes of this sub-section," appropriate Government" means the Central Government or a State Government, as the case may be, and— (i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government; (ii) in relation to any corporation or company owned by the central Government and one or more State Government, means the Central Government; (iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority. 20. It would be apt to take note of Section 3 of the Motor Vehicles Act, which is reproduced herein below: “3. Necessity for driving license - (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle (other than 1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75) unless his driving license specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may by prescribed by the Central Government.” 21. It would be appropriate to take note of the judgment passed by Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Mastan (supra), wherein Hon'ble Apex Court has held that under Workmen's Compensation Act, 1923, a workman is entitled to compensation, even if no negligence is proved against the owner or any person in charge of the vehicle but it is not possible to extend the applicability of Section 143 of 1988 Act included in Chapter XI thereof, to claims under 1923 Act. Hon'ble Apex Court, in the aforesaid judgment has categorically held that insurer would be bound to indemnify the insured under 1923 Act, subject to terms and conditions of the contract insurance. Hon'ble Apex Court, in the aforesaid judgment has categorically held that insurer would be bound to indemnify the insured under 1923 Act, subject to terms and conditions of the contract insurance. Hon'ble Apex Court has held as under: “17. It is beyond any doubt or dispute that in a proceeding where the right of the insurer to raise a defence is limited in terms of sub-section (2) of Section 149, an appeal preferred by it against an award of the Motor Accidents Claims Tribunal must only be confined or limited to some extent. But once a leave has been granted to the insurer to contest the claim on any ground as envisaged in Section 170 of the 1988 Act, an appeal shall also be maintainable as a matter of right, wherein the High Court can go into all contentions. The Full Bench of the Karnataka High Court, in our opinion, committed a serious error in relying upon the judgments of this Court, in terms whereof the right of appeal of the insurance company has been held to be limited, inasmuch in those decisions this Court was considering a situation where sub-section (2) of Section 149 was attracted. 18. Section 143 of the 1988 Act limits its applicability to the 1923 Act in a case where the liability arises despite the fact that the accident might have taken place without any fault on the part of the driver of the vehicle or others in control thereof. Under the 1923 Act also, as noticed hereinbefore, a workman is entitled to compensation even if no negligence is proved against the owner or any other person in charge of the vehicle. It is, thus, not possible to extend the applicability of Section 143 of the 1988 Act to include Chapter XI thereof to a claim under the 1923 Act. 19. Right of appeal is a creature of statute. The scope and ambit of an appeal in terms of Section 30 of the 1923 Act and Section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in course of employment. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in course of employment. The amount of compensation would be determined having regard to the nature of injuries suffered by the worker and other factors as specified in the Act. The findings of fact arrived at by the Commissioner for Workmen's Compensation are final and binding. Subject to the limitations contained in Section 30 of the 1923 Act, an appeal would be maintainable before the High Court; but to put the insurer to further disadvantages would lead to an incongruous situation. 20. An insurer, subject to the terms and conditions of contract of insurance, is bound to indemnify the insured under the 1923 Act as also the 1988 Act. But as noticed hereinbefore, keeping in view the nature and purport of the two statutes, the defences which can be raised by the insurer being different, the scope and ambit of appeal are also different. 21. Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-à-vis the third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for one. 22. Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 167 contains a non-obstante clause providing for such an option notwithstanding anything contained in the 1923 Act.” 22. It is quite apparent from the aforesaid proposition of law laid down by Hon'ble Apex Court that under the 1988 Act, driver of the vehicle is liable but he would not be liable in cases arising under 1923 Act but, if driver of the vehicle has no licence, insurer would not be liable to indemnify the insured. Motor Vehicles Act, 1988 provides for mandatory insurance under Section 147 of the Act, and as such, award can be passed against an insurer and, insurer having regard to Section 149 of the 1988 Act, has a limited defence as provided therein. However, defence of the insurer in the proceedings under 1923 Act would be unlimited and all the defences are available to the insurer. Insurance Company can agitate violation of any condition of policy to make it substantial question of law. As has been taken note above, Hon'ble Apex Court in Mastan’s case (supra) has categorically held that insurer subject to terms and conditions of contract of insurance is bound to indemnify the insured under 1923 Act as also 1988 Act but keeping in view the nature and purport of the statutes, defences which can be raised by the insurer being different, scope and ambit of appeal are also different. Under 1988 Act, Accident Claims Tribunal having regard to its right and liabilities vis-à-vis third party person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured but 1923 Act does not envisage such a situation, as such, limited right of defence in claim petition under 1988 statute can not be held applicable to claim petition arising under different statute unless there exists special provision thereof. Section 143 of the 1988 Act makes provisions of 1923 Act applicable in cases arising out of no fault liability as contained in Chapter X of 1988 Act, but certainly it can not be said to have applicability in relation to claim petitions filed under Chapter XI thereof. 23. Otherwise also, in the case at hand, there is no dispute that policy in question has been issued under Motor Vehicles Act and not under Workmen's Compensation Act, as such, plea of limited right to defend the claim petition arising under Motor Vehicles Act, can not be held to be applicable in claim petitions arising under a different statute i.e. 1923 Act. 24. Leaving everything aside, there is no provision, if any, contained in Workmen's Compensation Act, 1923, which provides that plea with regard to driver having no valid licence can not be raised by insurance company, especially when it is to indemnify owner qua policy taken by him/her against a third party or a vehicle. In the case at hand, insurance company has successfully proved on record that deceased workman was driving vehicle owned by the owner in breach of the terms and conditions of the insurance policy /contract inter se appellant and owner. Insurance policy given by appellant strictly provides that it shall not be liable to indemnify the insurer in case vehicle is driven in breach of the terms and conditions of the insurance policy. 25. Interestingly, in the case at hand, respondent No. 3 (owner) in his reply has nowhere taken the defence that at the time of engaging employee as a driver in the vehicle, he had verified authenticity and correctness of the driving licence held by driver/ deceased employee. He for the first time in his statement recorded before the learned Commissioner below stated that he had employed deceased on his vehicle after having verified licence held by him. He for the first time in his statement recorded before the learned Commissioner below stated that he had employed deceased on his vehicle after having verified licence held by him. It is well settled by now that no evidence can be led beyond the pleadings, but in the instant case, learned Commissioner below solely with a view to defeat the plea/argument raised by the insurance company that deceased employee was not having valid licence at the time of accident, placed undue reliance upon aforesaid statement made by respondent No.3-owner during his examination-in-chief, which otherwise could not be taken into consideration by the learned Commissioner below being beyond the pleadings. 26. Similarly, Hon'ble Apex Court in Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd. (2007) 13 SCC 446 , has held that defence available to insurer in proceedings under Motor Vehicles Act, 1988 and Workmen's Compensation Act are distinct. Having regard to Section 149(2) of Motor Vehicles Act, insurer ordinarily has limited defence as provided for therein. However, its defence in proceedings under Workmen's Compensation Act would be unlimited and all defences available to employer would be available to it. Further the Hon'ble Apex Court held that in case of a contract of insurance, the insurer is liable to indemnify the insured, subject to terms and conditions of the insurance policy. Hon'ble Apex Court further held as under: “15. The 1988 Act provides for mandatory insurance for the matters laid down under Section 147 of the Act and, thus, an Award can be passed against an insurer. An insurer, having regard to Sub-Section (2) of Section 149 of the Act, would, ordinarily, have limited defence as provided for therein. The defence of an insurer in a proceeding under the 1923 Act would be unlimited and all the defences which are available to the employer would be available to it. 20. The correctness of the said decision is not in question before us. We may, however, notice that the said decision was distinguished in New India Assurance Co. Ltd. v. Harsahadbhai Amrutbhai Modhiya and Anr. [ (2006) 5 SCC 192 ], wherein it was held that whereas under the 1988 Act contracting out is not permissible, it would be so permissible under the 1923 Act, stating: "As indicated hereinbefore, a contract of insurance is governed by the provisions of the Insurance Act. Ltd. v. Harsahadbhai Amrutbhai Modhiya and Anr. [ (2006) 5 SCC 192 ], wherein it was held that whereas under the 1988 Act contracting out is not permissible, it would be so permissible under the 1923 Act, stating: "As indicated hereinbefore, a contract of insurance is governed by the provisions of the Insurance Act. Unless the said contract is governed by the provisions of a statute, the parties are free to enter into a contract as for their own volition. The Act does not contain a provision like Section 147 of the Motor Vehicles Act. Where a statute does not provide for a compulsory insurance or the extent thereof, it will bear repetition to state that the parties are free to choose their own terms of contract. In that view of the matter, contracting out, so far as reimbursement of amount of interest is concerned, in our opinion, is not prohibited by a statute." Balasubramanyan, J. in his concurring judgment, opined : "23. The law relating to contracts of insurance is part of the general law of contract. So said Roskill, L.J. in Cehave v. Bremer. This view was approved by Lord Wilberforce in Reardon Smith v. Hansen-Tangen (1976)3 All ER 570 (HL) (All ER p. 576h) wherein he said: "It is desirable that the same legal principles should apply to the law of contract as a whole and that different legal principles should not apply to different branches of that law." A contract of insurance is to be construed in the first place from the terms used in it, which terms are themselves to be understood in their primary, natural, ordinary and popular sense. (See Colinvauxs Law of Insurance, 7th Edn., para 2-01.) A policy of insurance has therefore to be construed like any other contract. On a construction of the contract in question it is clear that the insurer had not undertaken the liability for interest and penalty, but had undertaken to indemnify the employer only to reimburse the compensation the employer was liable to pay among other things under the Workmen's Compensation Act. Unless one is in a position to void the exclusion clause concerning liability for interest and penalty imposed on the insured on account of his failure to comply with the requirements of the Workmen's Compensation Act of 1923, the insurer cannot be made liable to the insured for those amounts." 27. Unless one is in a position to void the exclusion clause concerning liability for interest and penalty imposed on the insured on account of his failure to comply with the requirements of the Workmen's Compensation Act of 1923, the insurer cannot be made liable to the insured for those amounts." 27. Similarly, Hon'ble Apex Court in New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya, (2006) 5 SCC 192 , has held as under: “14. By reason of the provisions of the Act, an employer is not statutorily liable to enter into a contract of insurance. Where, however, a contract of insurance is entered into by and between the employer and the insurer, the insurer shall be liable to indemnify the employer. The insurer, however, unlike under the provisions of the Motor Vehicles Act does not have a statutory liability. Section 17 of the Act does not provide for any restriction in the matter of contracting out by the employer vis-a-vis the insurer. 15. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided for therein. With a view to minimize his liability, an employer can contract out so as to make the insurer not liable as regards indemnifying him in relation to certain matters which do not strictly arise out of the mandatory provisions of any statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law. 20. The views taken by us find support from a recent judgment of this Court in P.J. Narayan v. Union of India and Ors. [2004 ACJ 452] wherein it was held: "1. This writ petition is for the purpose of directing Insurance Company to delete the clause in the Insurance Policy which provides that in case of compensation under the Workmen's Compensation Act, 1923, the Insurance Company will not be liable to pay interest. We see no substance in the writ petition. There is no statutory liability on the Insurance Company. The statutory liability under the Workmen's Compensation Act is on the employer. An insurance is a matter of contract between the Insurance Company and the insured. We see no substance in the writ petition. There is no statutory liability on the Insurance Company. The statutory liability under the Workmen's Compensation Act is on the employer. An insurance is a matter of contract between the Insurance Company and the insured. It is always open to the Insurance Company to refuse to insure. Similarly they are entitled to provide by contract that they will not take on liability for inter est. In the absence of any statute to that effect, insurance Company cannot be forced by Courts to take on liabilities which they do not want to take on. The Writ Petition is dismissed. No order as to costs."” 28. Further the Hon'ble Apex Court in Kamla Chaturvedi v. National Insurance Co., (2009) 1 SCC 487 , has held as under: 7. In Ved Prakash Garg v. Premi Devi and others [ 1997(8) SCC 1 ] this court observed that the Insurance Company is liable to pay not only the principal amount of compensation payable by the insurer employer but also interest thereon if ordered by the Commissioner to be paid by the insured, employee. Insurance company is liable to meet claim for compensation along with interest as imposed on insurer employer by the Act on conjoint operation of Section 3 and 4(A)(3)(a) of the Act. It was, however, held that it was the liability of the insured employer alone in respect of additional amount of compensation by way of penalty under Section 4(A)(3)(b) of the Act. 8. In New India Assurance Co.'s case (supra) and Ved Prakash Garg's case (supra) was distinguished on facts. It was observed that in the said case the court was not concerned with a case where an accident had occurred by use of motor vehicle in respect whereof the Contract of Insurance will be governed by the provisions of the Motor Vehicles Act, 1988 (in short the `M.V. Act'). “19.... a contract of Insurance is governed by the provisions of the Insurance Act, 1938 (in short the `Insurance Act'), unless the said contract is governed by the provisions of a statute. The parties are free to enter into a contract as per their own volition. The Act does not contain a provision like Section 148 of the MV Act where a statute does not provide for a compulsory insurance or accident thereof. The parties are free to choose their terms of contract. The parties are free to enter into a contract as per their own volition. The Act does not contain a provision like Section 148 of the MV Act where a statute does not provide for a compulsory insurance or accident thereof. The parties are free to choose their terms of contract. In that view of the matter contracting out so far as the reimbursement of amount of interest is concerned is not prohibited by a statute. This position have been reiterated in P.J. Narayan v. Union of India and others [ 2006 (5) SCC 200 ]. In the instant case the position is different. The accident in question arose on account of vehicular accident and provisions of MV Act are clearly applicable. We have gone through the policy of insurance and we find that no such exception as was the case in New India Assurance Co.'s case was stipulated in the policy of insurance. Therefore, the Insurance Company is liable to pay the interest.” 29. A Coordinate Bench of this Court in a judgment in case Beli Ram v. Rajinder Kumar and another, decided on 3.3.2009, 2010 ACJ 1653 , has categorically held that in the absence of any valid and effective driving licence the liability to pay compensation can not be fastened upon the insurer notwithstanding the fact that the vehicle in question was insured by the insurer. It was held as under: “19. The vehicle in question was insured in terms of insurance policy, Exh. RA. The driver proved his valid and effective driving licence, Exh. PW1/C. As per the statement of Bal Krishan the driving licence in question was endorsed by the Superintendent R&LA, Udaipur. He, however, categorically deposed that licence in question, even though bearing the endorsement of the Superintendent of the R&LA was not endorsed for renewal after 6.9.1996. Importantly, there is a letter written by Manoj Kumar, Surveyor and Assessor, on which there is an endorsement that 'no such licence has been endorsed by this office during 1996 (as per office record)'. The vehicle in question met with an accident on 20.5.1999, thus, in the absence of any renewal, in my considered view, the findings returned by the Commissioner that the applicant being an illiterate person cannot be expected to know whether the endorsement was signed by Office Superintendent are wrong, perverse and contrary to record and as such are set aside. The vehicle in question met with an accident on 20.5.1999, thus, in the absence of any renewal, in my considered view, the findings returned by the Commissioner that the applicant being an illiterate person cannot be expected to know whether the endorsement was signed by Office Superintendent are wrong, perverse and contrary to record and as such are set aside. Findings with regard to issue No. 3 returned by the Commissioner are set aside and it is categorically held that the driver in question was not possessed with a valid and effective driving licence at the time of occurrence of the accident. 20. In the absence of any valid and effective driving licence, the liability to pay the compensation cannot be fastened upon the insurer notwithstanding the fact that the vehicle in question was insured by the insurer. That the vehicle was insured in terms of insurance policy, Exh. RA, is not in dispute. Clause (17) of the same, as 'is sought to be pressed by learned counsel for the insured is of no consequence. In the absence of any valid and effective driving licence the terms and conditions of the policy stood materially breached. Therefore, the findings of the Commissioner that the liability to pay the compensation is that of insurer are illegal and need to be reversed. The substantial question of law as framed at the instance of the insurer is thus answered.” 30. After having carefully perused aforesaid law laid down by the Hon'ble Apex Court as well as Coordinate Bench of this Court, this Court has no hesitation to conclude that defence of the insurer in proceedings under 1923 Act would be unlimited and all the defences which are available to the employers are available to it. Hence, insurer is not liable to indemnify the insured in case vehicle is driven in breach of the terms and conditions of the insurance policy. Question of law No.2 is answered accordingly. 31. Mr. Jagdish Thakur, learned counsel representing the appellant further contended that the learned Commissioner below has erred in taking into consideration income of the deceased as Rs.5,000/- per month, because as per Section 4(3) of the Employee's Compensation Act, maximum salary/wages of an employee can be taken as Rs.4,000/- per month prior to 30.5.2010. 31. Mr. Jagdish Thakur, learned counsel representing the appellant further contended that the learned Commissioner below has erred in taking into consideration income of the deceased as Rs.5,000/- per month, because as per Section 4(3) of the Employee's Compensation Act, maximum salary/wages of an employee can be taken as Rs.4,000/- per month prior to 30.5.2010. He further argued that the amendment was made applicable prospectively but despite that learned Commissioner below has taken monthly salary of deceased as Rs.5,000/-, as such, impugned award is liable to be quashed and set aside. 32. Admittedly, in the case at hand, death of workman took place on 6.8.2009, whereas, amendment with respect to salary of workman came to be carried out vide S.O. 1258(E) on 31.5.2010, as such, maximum income of the workman could not be taken more than Rs.4,000/- for the purpose of calculation of compensation amount. 33. The explanation (II) under section 4 (1) of Employee’s Compensation Act, 1923 has been omitted with effect from 18.1.2010. Thus, the income of the deceased was to be calculated as per the existing explanation (II), which was in vogue at the time of accident. Thus, the income of the deceased was to be computed at Rs. 4,000/-instead of Rs. 5,000/-per month. Learned Commissioner has overlooked this important aspect of the matter while computing the income of the deceased. 34. Their Lordships of the Hon’ble Supreme Court in Kerala State Electricity Board vs. Valsala K., 2000 ACJ 5 (SC) have held that Sections 4 and 4-A of the Workmen’s Compensation Act, 1923 as amended in 1995 would not apply retrospectively. Their Lordships have held as under: “[4] A two Judge Bench of this Court in The New India Assurance Company Limited v. V. K. Neelakandan, Civil Appeal Nos. 16904-16906 of 1996, decided on 6-11-1996, however, took the view that Workmen's Compensation Act, being a special legislation for the benefit of the workmen, the benefit as available on the date of adjudication should be extended to the workmen and not the compensation which was payable on the date of the accident. The two Judge Bench in Neelakandan's case (supra), however, did not take notice of the judgment of the larger Bench in Pratap Narain Singh Deo's case ( AIR 1976 SC 222 : 1976 Lab IC 222) as it presumably was not brought to the notice of their Lordships. The two Judge Bench in Neelakandan's case (supra), however, did not take notice of the judgment of the larger Bench in Pratap Narain Singh Deo's case ( AIR 1976 SC 222 : 1976 Lab IC 222) as it presumably was not brought to the notice of their Lordships. Be that as it may, in view of the categorical law laid down by the larger Bench in Pratap Narain Singh Deo's case, the view expressed by the two Judge Bench in Neelakandan's case is not correct. [7] Insofar as these special leave petitions are concerned, we find that the accident took place long time back. Compensation became payable to the workmen, as it is not disputed that the accidents occurred during the course of employment, as per the law prior to the amendment made in 1995. Keeping in view the peculiar facts and circumstances of these cases, pettiness of the amounts involved in each of the cases and the time that has since elapsed, we are not inclined to interfere with the impugned orders, decided on the basis of the 1995 amendment, in exercise of our jurisdiction under Art. 136 of the Constitution of India and, therefore, dismiss the special leave petitions, but, after clarifying the law, as noticed above.” 35. Learned Single Judge of Jharkhand at Ranchi High Court in Project Officer, Basudeopur Colliery vs. Dhaneswari Devi, 2014 ACJ 1325 has held that the calculation of compensation amount should be made under the provision existing on the date of incident relying upon Kerala State Electricity Board vs. Valsala K., 2000 ACJ 5 (SC). Learned Single Judge has held as under: “[3] It is further pointed out that the original claim of the claimant was also under the same calculation, but the learned Presiding Officer, Labour Court, Dhanbad has wrongly calculated the amount under the amended provision and therefore, the aforesaid finding of the learned Presiding Officer, Labour Court is liable to be set aside and the amount payable to the claimant shall be calculated in view of the existing provision as contained under section 4 at the relevant point of time. In this context learned Counsel appearing for the appellant has relied upon the judgment in Kerala State Electricity Board and another v. Walsala Kr. and another, 1999 AIR(SC) 3502 In paragraph-5 their lordships have held as follows:-- 5. In this context learned Counsel appearing for the appellant has relied upon the judgment in Kerala State Electricity Board and another v. Walsala Kr. and another, 1999 AIR(SC) 3502 In paragraph-5 their lordships have held as follows:-- 5. Our attention has also been drawn to a judgment of the Full bench of the Kerala High Court in United India Insurance Co. Ltd. v. Alavi, 1998 80 FLR 72 wherein the Full Bench precisely considered the same question and examined both the above noted judgments. It took the view that the injured workmen becomes entitled to get compensation the moment he suffers personal injuries of the types contemplated by the provisions of the Workmen's Compensation Act and it is the amount of compensation payable on the date of the accident and not the amount of compensation payable on account of the amendment made in 1995, which is relevant. The decision of the Full Bench of the Kerala High Court, to the extent it is in accord with the judgment of the larger Bench of this Court in Pratap Singh Narain Singh Deo v. Srinivas Sabata and another lays down the correct law and we approve it.” 36. As far as another argument advanced by the learned counsel representing the appellant is concerned that it has specifically come in the reply filed by the respondent No.3 that he used to pay Rs.2,000/- per month to the deceased and as such, there was no occasion for the learned Commissioner below to take income of the deceased as Rs.5,000/-, without there being any evidence on record. This Court finds from the record that claimants pleaded before the learned Commissioner below that respondent No. 3 was paying monthly salary of Rs.4500/- and Rs.25/- per day as diet money to the deceased Praveen Kumar, whereas, respondent No.3 stated that he was paying Rs.2500/- per month and Rs.100/- per day and as such respondent No.1 was paying Rs. 5500/- in total, hence learned Commissioner below could take into consideration income of deceased as Rs.4,000/- as has been held. 37. Mr. Jagdish Thakur, learned counsel representing the appellant further contended that the daily allowance received by the deceased could not be included as part of salary as such same could not be taken into consideration by the learned Commissioner below while calculating salary of deceased. 38. 37. Mr. Jagdish Thakur, learned counsel representing the appellant further contended that the daily allowance received by the deceased could not be included as part of salary as such same could not be taken into consideration by the learned Commissioner below while calculating salary of deceased. 38. The question whether the daily allowance was to be calculated for the purpose of wages of the deceased is no more res integra in view of the law laid down by learned Single Judge of Madhya Pradesh High Court (Indore Bench) in Basantabai and another vs. Shamim Bee and another, 2012 ACJ 1858. Learned Single Judge has held that bhatta received by deceased should form part of his income while computing compensation. Learned Single Judge has held as under: [4]…………….. To determine the question whether the bhatta (daily allowance) is a part of wages for computing the compensation under Motor Vehicles Act and ultimately to determine the question of wages of a driver, we have to consider the evidence and if it has come in the evidence that he was also getting Rs. 50 per day as daily allowance, whether the same can form part of wages. 50 per day as daily allowance, whether the same can form part of wages. The term 'wages' has been defined in many Central Acts, such as, under the Payment of Wages Act, 1936; the Minimum Wages Act, 1948, the Industrial Disputes Act, 1947; and under the Workmen's Compensation Act, 1923, which are as under: Payment of Wages Act, 1936: Section 2(vi)--'wages' means all remuneration (whether by way of salary allowance, or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and include-- (a) xxx (b) xxx (c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name): (d) xxx (e) xxx Minimum Wages Act, 1948: Section 2(h)--'wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance, but does not include— (i) the value of (a) xxx (b) any other amenity of any service excluded by general or special order of the appropriate Government; (ii) xxx (iii) any travelling allowance or the value of any traveling concession; (iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (v) xxx Industrial Disputes Act, 1947: (rr) 'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment and includes such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) xxx (iii) xxx Workmen's Compensation Act, 1923: (m) 'wages' includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment; From a bare reading of the definitions of 'wages' under the Minimum Wages Act, 1948, Industrial Disputes Act, 1947 and the Workmen's Compensation Act, 1923, it is amply clear that the 'wages' means all remuneration whether by way of salary, allowance or otherwise expressed in terms of money or capable of being so expressed, payable to a person employed in respect of his employment or of work done in such employment and includes any additional remuneration, any travelling allowance or the value of any travelling concession or any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment, shall form part of the wages. These definitions are quite exhaustive and it prima facie appears that any amount paid to the driver either as additional remuneration payable in terms of employment or any travelling allowance or any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment, would be included in the definition of 'wages'. Therefore, any bhatta or daily allowance that is paid to the driver under any special contract as additional remuneration or as daily allowance may be considered as part of the wages but if any sum is paid for defraying any expenses towards food as and when the driver will go outside the city then it may not form part of the wages. For that the claimant has to prove that the amount of daily bhatta is paid as additional remuneration or as travelling allowance and it may depend from case to case and on the nature of the vehicle as well as the nature of duties and if it is found proved that the bhatta is paid as additional remuneration under the terms of contract for the purposes mentioned in the definition of 'wages' then as per the evidence on record the court may include the aforesaid bhatta as part of wages. [6] For the above-mentioned reasons, the substantial question of law No. 2 framed by this court is answered in favour of the appellants by holding that bhatta is part of the wages for the purpose of computation of compensation.” 39. Questions No. 1 and 3 are accordingly answered. 40. In view of the detailed discussion above, present appeal is allowed. Award passed by the learned Commissioner below is set aside to the extent that instead of appellant-Insurance Company, respondent No.3 i.e. owner of the truck/employer is held liable to pay the amount of compensation to the respondents No.1 and 2. The amount of compensation shall be calculated after taking salary of the deceased as Rs.4,000/- per month. Thus, after applying multiplier of 221.37 the amount of compensation would be 221.37 x 2000 = 4,42,740/-, plus interest of 12% per annum from 15.7.2009 till the date of realization. Both the claimants shall be entitled to equal shares of compensation. 41. The amount deposited by the appellant- Insurance Company with the Registry of this Court alongwith upto-date interest, is ordered to be released to it forthwith. 42. Both the claimants shall be entitled to equal shares of compensation. 41. The amount deposited by the appellant- Insurance Company with the Registry of this Court alongwith upto-date interest, is ordered to be released to it forthwith. 42. Pending applications, if any, are disposed of. CROSS-OBJECTIONS NO. 61 OF 2017 43. At this stage, it may also be noticed that respondents/claimants No.1 and 2 have also filed cross-objections bearing No. 61 of 2017, praying therein to dismiss the appeal preferred by the appellant/Insurance Company and award them penalty to the extent of 50% alongwith interest in terms of Section 4-A(3)(b) of the Employees Compensation Act, 1923. 44. Mr. Praneet Gupta, learned counsel representing the respondents/claimants forcibly contended that unfortunate accident took place in the intervening night of 14/15.6.2009 but no effort was made to pay compensation as contemplated under Section 4 of the Employees Compensation Act, 1923. He further contended that factum with regard to death of deceased employee was well within the knowledge of the employer i.e. respondent No.3, who is truck owner and as such, they have also apprised aforesaid facts to the employer by way of notice but despite that no amount was paid in terms of aforesaid provisions of law within the period prescribed therein. Mr. Gupta, while inviting attention of this Court to the claim petition filed by the respondents, further contended that it was specifically pleaded in the petition under Section 22 of the Workmen’s Compensation Act that respondent No.1 to the best of knowledge of the applicants/claimants, lodged claim qua vehicle with the appellant/Insurance Company and as such, appellant/insurance company is/was also aware of the death of the driver and as such, is/was under obligation to pay amount as envisaged under Section 4 of the Employees Compensation Act. While inviting attention of this Court to the impugned Award passed by learned court below, Mr. Gupta, further contended that despite there being specific plea to grant penalty on account of failure on the part of the respondent employer as well as insurer, learned court below failed to award any amount in terms of Section 4 of the Employees Compensation Act and as such impugned award deserve to be modified accordingly. 45. Mr. Gupta, further contended that despite there being specific plea to grant penalty on account of failure on the part of the respondent employer as well as insurer, learned court below failed to award any amount in terms of Section 4 of the Employees Compensation Act and as such impugned award deserve to be modified accordingly. 45. Mr. Jagdish Thakur, while opposing the aforesaid cross-objection having been filed by the respondents/claimants No.1 and 2, strenuously argued that since deceased had no valid and effective driving licence, insurer was not under any obligation to indemnify the employer i.e. owner of the truck, since vehicle in question was being plied in breach of insurance policy. Mr. Thakur, further contended that penalty, if any, in terms of aforesaid provisions of law is/was required to be paid by the employer, who had acquired the knowledge of accident immediately after the accident, as has been admitted by him before the Court below. 46. Mr. Ashwani Kaundal, learned counsel representing respondent No.3 i.e. owner of the truck, denied the factum with regard to receipt of any notice allegedly issued by respondents/claimants No.1 and 2. Mr. Kaundal, further contended that since claim with regard to vehicle involved in the accident was immediately lodged by the respondent No.3 i.e. Owner of the truck to the insurance company, insurance company was under obligation to pay amount as envisaged under Section 4 of the Employees Compensation Act. 47. However, the fact remains that neither the counsel representing insurance company nor learned counsel representing owner of truck raised question, if any, with regard to maintainability of cross-objections filed by respondents No.1 and 2 during pendency of present appeal having been preferred by the appellant/insurance company. 48. This Court after having noticed the aforesaid plea with regard to penalty raised on behalf of the respondents/claimants No.1 and 2, deems it proper to frame following questions of law:- “Whether learned Commissioner below has erred in law in not awarding penalty in terms of Section 4- A(3)(b) of the Workmen’s Compensation Act when employee i.e. owner of the truck or insurer thereto failed to deposit the amount when it fell due as per provisions of Employees Compensation Act, 1923.” 49. Now this Court shall proceed to decide additional substantial question of law formulated at the time of hearing of instant appeal. Now this Court shall proceed to decide additional substantial question of law formulated at the time of hearing of instant appeal. As per section 3 of the Act, employer is liable to pay compensation if personal injury caused to employee in the accident is during the course of his employment. Under Section 3 of the Act certain exceptions have been carved out where employer has not been made liable to pay compensation as envisaged under Section 3 of the Act but Section 3(b) of the Act specifically provides that employer shall not be liable in respect of any injury not resulting into death or permanent total disablement caused by an accident, which is directly attributable to the employee who at the time of accident was under the influence of drugs or liquor or there was willful disobedience on his part to obey an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employee. But careful perusal of Section 3(b) clearly suggests that in case of death or permanent disablement of an employee, employer shall be liable to pay compensation in terms of Section 3 of the Chapter II of the Act. Section 4(a) specifically provides that compensation under Section 4 shall be paid as soon as it falls due and in case the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of employee to make any further claim. Section 4(3)(b) empowers Commissioners to direct employer to pay sum not exceeding 50% of such amount by way of penalty, in addition to the amount of arrears and interest thereon. 50. At this stage, it would be profitable to reproduce Section 4-A of the Act, as under:- “4-A compensation to be paid when due and penalty for default.(1) Compensation under Section 4 shall be as soon as it falls due. (2). 50. At this stage, it would be profitable to reproduce Section 4-A of the Act, as under:- “4-A compensation to be paid when due and penalty for default.(1) Compensation under Section 4 shall be as soon as it falls due. (2). In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the {employee}, as the case may be, without prejudice to the right of the (employee) to make any further claim. (3) Where any employer is an default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall:- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty: Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed” 51. In the case at hand, there is no dispute with regard to fact that respondent No.3 i.e. owner of the truck had acquired knowledge of the accident immediately because in his cross-examination he has categorically admitted that he after having acquired knowledge of accident through conductor of the truck visited the spot of the accident on the next day. In the case at hand, there is no dispute with regard to fact that respondent No.3 i.e. owner of the truck had acquired knowledge of the accident immediately because in his cross-examination he has categorically admitted that he after having acquired knowledge of accident through conductor of the truck visited the spot of the accident on the next day. Though, there is no denial in the reply filed by the respondent No.3 to the reply filed by respondents/claimants No. 1 and 2 that due notice was given to employer with regard to accident but otherwise also it is an admitted fact that employer was in the knowledge of the accident and despite that he failed to pay amount in terms of Section 4-A of the Act and as such, learned court below ought to have considered and decided the specific plea with regard to penalty under Section 4-A of the Act. But interestingly, learned court below while holding insurance company liable to pay compensation failed to take note of specific prayer having been made by respondents/claimants No.1 and 2 for levying penalty against the employer or insurer in terms of Section 4-A on account of delay in paying amount of compensation in terms of Section 4 of the Act. 52. As per section 4-A, compensation in terms of Section 4 is required to be paid as soon as it falls due. Section 4-A(2) specifically provides that even if employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts and such payment shall be deposited with the Commissioner or made to the employee as the case may be, without prejudice to the right of the employee to make any further claim. 53. Section 4-A(3) further provides that where employer is in default in paying the compensation due under this Act within one month from the date, it fell due, the Commissioner shall be empowered to award penalty as has been discussed hereinabove. 54. Section 4(1) of the Act provides for compensation payable to workmen, who have suffered different injuries. Similarly, Section 4-A(1) provides that the compensation prescribed under Section 4 of the Act shall be paid as soon as it falls due. 54. Section 4(1) of the Act provides for compensation payable to workmen, who have suffered different injuries. Similarly, Section 4-A(1) provides that the compensation prescribed under Section 4 of the Act shall be paid as soon as it falls due. The last words “ as soon as it falls due” under Section 4-A(1) evidently indicate that in the case of death of a workman it falls due upon his death and not on the date on which the Commissioner determines it in case of any dispute. Aforesaid provision of law further casts a duty upon the employer to make the provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim. In this regard reliance is placed upon judgment passed by Karnataka High Court in Jayamma versus Executive Engineer, P.W.D., Madhugiri 1982 ACJ 361; wherein it has been held as under:- “7. We may now take up the primary question for consideration. The answer to this question depends upon the date on which the compensation falls due under the Act. Section 4-A operates when there is default in paying the amount of compensation within one month from the date it fell due. It was urged by counsel for the appellant that the compensation falls due immediately upon the death of a workman and it shall be deposited within one month from that date. But, on the other hand, it was urged by the Government Advocate that the amount of compensation falls due only when it is determined by the Commissioner and not until then. 8. It seems to us that the contention urged for the respondent appears to be untenable. Section 4(a) of the Act provides for compensation payable to workman who have suffered different injuries. Section 4-A(1) provides that the compensation prescribed under Section 4 of the Act shall be paid as soon as it falls due. The last words “ as soon as it falls due” under section 4-A(1) evidently indicate that in the case of death of a workman it falls due upon his death and not on the date on which the Commissioner determines it in case of any dispute. The last words “ as soon as it falls due” under section 4-A(1) evidently indicate that in the case of death of a workman it falls due upon his death and not on the date on which the Commissioner determines it in case of any dispute. This becomes further clear if we move on to Section 4-A(2) of the Act, which provides: “In case where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.” It is clear from the above sub-Section that even when there is a dispute as to the amount payable, the employer shall make a provisional deposit calculated on the extent of liability which he accepts and he cannot keep quiet till the Commissioner determines the correct amount payable to the workman. 9. In the case of death resulting from the injury, this question has been made further clear from section 8 of the Act r/w rules 6&7 of the Rules framed under the Act. Section 8 prohibits payment of compensation in respect of a workman, who death resulted from the injury in any manner otherwise than by deposit with the Commissioner. Rule 6 provides procedure for depositing such compensation. Rule 8 provides a remedy to the dependents where the employer has failed to deposit the compensation. It states that the dependent of the deceased workman may apply to the Commissioner for the issue of an order directing the employer to deposit the amount. When the Act prohibits payment of compensation directly to the dependents and recognizes the only method of payment i.e., by depositing with the Commissioner, it is incumbent upon the employer to determine the compensation payable under the Act and deposit the same immediately after the death of a workman. In our opinion, in a case like this, the death of the workman alone is the cause of action for payment of the amount of compensation under the Act. 55. In our opinion, in a case like this, the death of the workman alone is the cause of action for payment of the amount of compensation under the Act. 55. Reliance is also placed on a judgment passed by High Court of Judicature at Bombay Aurangabad Bench, in Ishwar Gulab Pawar v. Ayoub Jamal, 2015 ACJ 1316, wherein it has been held as under: “18. On the second point, the learned counsel for the claimant placed reliance on the case reported as 2009 (5) Bom.C.R. 523 (AURANGABAD BENCH) [Udhav Rangnathrao Pawar Vs. Sheshrao Ramji Jogdanad and Anr.]. The learned Single Judge of this Court has considered and discussed three cases of the Apex Court on the point of penalty, which can be given to claimant and the cases are reported as AIR 1976 SC 222 [Pratap Narain Singh Deo Vs. Shrinivas Sabata], AIR 1997 SC 3854 [Ved Prakash Garg Vs. Premi Devi] and AIR 2007 SC 1208 [National Insurance Co. Ltd. Vs. Mubasir Ahmed]. The learned Single Judge of this Court has held that the case of Pratap Narain Singh Deo was decided by larger bench and the other case of Ved Prakash Garg cited supra need to be used as the law laid on the point. It is observed that in the subsequent case viz. Mubasir Ahmed's case, the Apex Court has not considered the ratio laid down in the two cases already decided and so, the ratio laid down in the case of Pratap Nairan's case cited supra need to be used. The relevant paras from the judgment of the learned Single Judge of this Court are 12, 21, 31 and 32 and they are as under :- "12. Section 3 of the said Act deals with the employers liability for compensation. Sub-section (1) of section 3 of the said Act states that if personal injury is caused to a workman by an accident arising out of and in the course of his employment, his employer shall be liable to pay the compensation in accordance with this chapter. What is the amount of compensation, which is required to be paid by the employer to the workman under sub-section (1) of section 3, is specified under section 4. Section 4-A of the said Act deals with the compensation to be paid when due and the penalty for default. What is the amount of compensation, which is required to be paid by the employer to the workman under sub-section (1) of section 3, is specified under section 4. Section 4-A of the said Act deals with the compensation to be paid when due and the penalty for default. Sub-section (1) of section 4-A states that the compensation shall be paid as soon as it "falls due". Sub-section (3) of section 4-A states that where any employer is in default in paying the compensation under this Act, within one month from the date it "fell due", the Commissioner can direct in terms of clause (a) that the employer shall, in addition to the amount of arrears, pay simple interest thereon, at the rate of 12 per cent per annum. Clause (b) further empowers the Commissioner to direct the employer to pay, in addition, a further sum not exceeding 50 per cent of such an amount by way of penalty, if, in his opinion, there is no justification for delay in payment of arrears and interest. However, the only rider on imposition of penalty under clause (b) is that the employer has to be given a reasonable opportunity to show cause why the order imposing the penalty should not be passed. 21. Thus, the decision of the larger bench in Pratap Narain's case would bind this Court and hence, it is held that the compensation payable in such cases would be on the date of accident, irrespective of any dispute regarding total denial of liability or denial of liability to the extent claimed as against the accepted sum. The expression "falls due" employed under subsection (1) of section 4-A of the said Act shall have to be, therefore, construed with reference to the date of accident only. Any other construction would defeat the object of sub-section (1) of section 3 of the said Act, which is to make the compensation immediately available for the benefit of the claimants, whose bread winner might have been seriously injured or might have lost his life. 31. Any other construction would defeat the object of sub-section (1) of section 3 of the said Act, which is to make the compensation immediately available for the benefit of the claimants, whose bread winner might have been seriously injured or might have lost his life. 31. Now, turning to the question of imposition of penalty under sub-clause (b) of sub-section (3) of section 4-A of the said Act, the Apex Court has held in Ved Prakash's case (supra) that the penalty is required to be levied under the said provision after issuing show cause notice to the employer concerned who will have a reasonable opportunity to show cause why, on account of some justification on his part for the delay in payment of the compensation amount, he is not liable for this penalty. It has further been held that if ultimately, the Commissioner after giving reasonable opportunity to the employer to show cause, takes a view that there is no justification for such a delay on the part of the insured employer and because of his unjustified delay and due to his personal fault he is held responsible for the delay, then the penalty would be imposed on him. It has further been observed that so far penalty is concerned, the same is not automatic flowing from the main liability incurred by the insured employer under the said Act. 32. This judgment in Ved Prakash's case has been followed in un-reported judgment of this Court in F.A.No. 1562/2009, Nandi Sahakari Sakhar Karkhana's case (supra). It has been held that a show cause notice was required to be issued to the employer calling upon him to furnish the explanation for the delay caused in making the payment of arrears. Upon receipt of the explanation from the employer, if the Commissioner is not satisfied then the penalty to the extent of maximum 50 per cent of the amount of compensation determined is required to be paid by the employer. The order impugned in the present case is a composite order determining the compensation payable by the employer imposing the interest on the arrears of the amount of compensation and imposing penalty for failure to furnish the satisfactory explanation. The order impugned in the present case is a composite order determining the compensation payable by the employer imposing the interest on the arrears of the amount of compensation and imposing penalty for failure to furnish the satisfactory explanation. The show cause notice contemplated by clause (b) of section 3 of section 4-A of the said Act is with reference to the arrears of the amount of compensation determined to be payable by the employer along with the interest payable thereon. This finding would arise only upon determination of the compensation by the Commissioner under section 19 of the said Act. Hence, the show cause notice contemplated is after passing of the order by the Commissioner determining the compensation. In view of this order imposing penalty of Rs.45,000/- to the extent of 50% of the amount of compensation of Rs.90,000/- determined by the Commissioner, needs to be quashed and set aside with a direction to the Commissioner to issue a show cause notice providing the appellant / employer a reasonable opportunity of being heard in the matter and to furnish the explanation for the delay caused in making the payment of arrears of compensation and interest, and thereafter to pass an appropriate order." 19. In view of the aforesaid position of law and the facts of the present case, it can be said that there was sufficient material to make out the case for imposing penalty on owner. The Commissioner ought to have considered the case from the angle discussed above. This Court holds that for following the procedure like issuing show cause notice to the employer, for giving the opportunity in respect of imposition of penalty, the matter needs to be remanded back. So substantial questions of law (i) and (iii) are answered accordingly, in favour of claimant. The remaining substantial question of law is answered against the appellants/claimant. In the result, the following order.” 56. This Court in FAO No. 621 of 2003, titled Executive Engineer, B & R HPPWD Solan versus Kewal Ram, decided on 16.7.2004, has held as under: “8. After having examined the over all facts and circumstances of this case, I am satisfied that there is no justification either in law or on the admitted facts for non deposit/payment of compensation by the appellants. Thus, Section 4-A(3)(b) of the Workman’s Compensation Act is clearly attracted so far levy of penalty is concerned. After having examined the over all facts and circumstances of this case, I am satisfied that there is no justification either in law or on the admitted facts for non deposit/payment of compensation by the appellants. Thus, Section 4-A(3)(b) of the Workman’s Compensation Act is clearly attracted so far levy of penalty is concerned. Further, on the basis of the discussion in the preceding paras, of this judgment, it is felt that in addition to sum of Rs.14,620/- + 6% interest, respondent is also liable to pay 50% penalty on the awarded compensation i.e. Rs.14,620/-. 9. In case compensation was paid to the respondent or deposited with the Commissioner below, liability to pay interest as well as penalty could have been legitimately avoided. As already noted, after contesting the case for almost a decade, amount was deposited on 3.9.2003 for maintaining the present appeal. 10. This is not the first case of its type that has come to the notice of this Court where State and its functionaries have been found remiss to protect its interest. On the facts of a particular case and law governing the same, a lis may be contested. But the contest should not have to be there for the sake of contest, only because a case has been instituted. Functionaries of State are expected to properly examine the matter and then take action in its best interest. This observation is being made for being kept in view by the State so that its interest is well protected. 11. No other point is urged. 12. In view of the aforesaid discussion, while partly allowing the appeal, impugned order of Commissioner, under Workmen’s Compensation Act, 1923, HP PWD, South Zone, Winter Field, Shimla- 171003 in case No. LA-SLN-129/93, dated 6.5.2002 titled as Shri Kewal Ram versus The Executive Engineer, HP PWD, (B&R), Solan Division and another, is modified in the following terms: (a) that the respondent is held entitled to compensation of Rs.14,620/- only, (b) on this amount, respondent is held entitled to interest @ 6% per annum on and with effect from 21.6.1993 to the date of deposit/payment, whichever is earlier. (c) he is also held entitled to 50% penalty on the sum of Rs.14,620/- (d) copy of this judgment will be circulated by the Registry to all the Commissioner under, Workmen's Compensation Act, 1923 in the State of H.P. for their guidance; and (e) a copy of this judgment be also sent to the Chief Secretary to the Government. No costs. 57. After having carefully perused the aforesaid law laid down by various High Courts as well as Coordinate Bench of this Court, this Court has no hesitation to conclude that learned Commissioner below ought to have granted penalty in terms of Section 4-A of the Act, against the employer, who despite having acquired knowledge, immediately after the accident, failed to deposit the amount of compensation in terms of Section 4-A of the Act within stipulated period. In the case at hand, respondent No.3 i.e. truck owner has nowhere rendered explanation, if any, for delay in paying the amount of compensation in terms of Section 4-A of the Act, rather, he has stated that appellant being insurer was liable to pay compensation in terms of Section 4-A of the Act, which submission is not tenable in view of categorical findings recorded by this Court while answering substantial question No.2 that appellant-insurance company, is/was not liable to indemnify the respondent No.3 i.e. employer/truck owner as truck was being plied in contravention of terms and conditions of insurance policy. 58. Though the question with regard to maintainability of cross-objections filed during the pendency of the appeal has not been raised by any of the parties to the lis but this Court draws strength from judgment passed by High Court of Judicature at Allahabad in Moti Lal v. Thakur Das, 1985 ACJ 634, wherein it has been held as under: “12. For the respondent, it is contended that the Compensation Commissioner was wrong in deducting the sum i.e. Rs.1,800/- said to have been spent over medical treatment and Rs.1,600/- paid in cash from the compensation. A cross-objection to this effect has also been filed. The appellant took a preliminary objection that no cross-objection was legally maintainable. For the respondent, it is contended that the Compensation Commissioner was wrong in deducting the sum i.e. Rs.1,800/- said to have been spent over medical treatment and Rs.1,600/- paid in cash from the compensation. A cross-objection to this effect has also been filed. The appellant took a preliminary objection that no cross-objection was legally maintainable. He has in his support cited a decision of the Andhra Pradesh High Court reported as Parimi Venkanna v. Managing Partner, Modern Spun Pipe Co., 1974 Labour and Industrial Cases, 1480, where it was held that the Workmen's Compensation Act was a self contained Code and since there was no provision for filing a cross-objection none was maintainable. It was also observed that the right of the respondent to prefer cross-objection under Order 41, rule 22, Code of Civil Procedure, arises in an appeal against a decree. Since the appeal under section 30 of the Act is directed against an order only and not against any decree the provisions of Order 41, rule 22 could not be applied. However, the legal position in this High Court is different. Under the Motor Vehicles Act also against an award in a motor accident claim case an appeal is provided under section 110-D. There is no provision for filing cross-objection in the same way as in the Workmen's Compensation Act. A Full Bench of this Court in U.P. State Road Transport Corporation v. Janki Devi, 1982 ACJ 429 (Allahabad), however, took the view that in an appeal filed under section 110-D of the Motor Vehicles Act, 1939, a cross-objection as contemplated under Order 41, rule 22, Code of Civil Procedure was maintainable. 13. After considering a large number of authorities regarding the nature of appeal emanating from different special Acts, it was held that if an appeal was provided to the High Court without anything more the same procedure should govern it as applies to an appeal of a similar nature under the ordinary law. Thus in a matter of civil nature the procedure applicable to a civil appeal should apply. It was further observed that although the Claims Tribunal was not a civil court yet the nature of jurisdiction exercised by it was the same as that of the civil court and its award is a judicial decision. Thus in a matter of civil nature the procedure applicable to a civil appeal should apply. It was further observed that although the Claims Tribunal was not a civil court yet the nature of jurisdiction exercised by it was the same as that of the civil court and its award is a judicial decision. While hearing an appeal under section 110-D, the High Court has to consider the claim in the same manner as any claim in an appeal from a civil court from an area where there is no Claims Tribunal. The award was held to be akin to a decree of the civil court. Extending this principle and by reading ‘Court’ for ‘Tribunal’ and ‘decree’ for an ‘award, it was held that Order 41, rule 22, Code of Civil Procedure applied. The position under Workmen's Compensation Act is also similar. I am respectfully bound by the decision of the Full Bench and, therefore, on a parity of reasoning, I hold that in an appeal filed under section 30 of the Act also the respondent would be entitled to prefer a cross-objection under Order 41, rule 22, Code of Civil Procedure. The preliminary objection is, therefore, rejected.” 59. Reliance is also placed upon the judgment passed by High Court of Andhra Pradesh at Hyderabad in case titled as Singareni Collieries Co. Ltd versus Commissioner for Workmen’s Compensation, 1988 ACJ 940, wherein it has been held as under:- “15. Following the aforesaid principles, I am of the view that even though there is no specific provision in the Workmen’s Compensation Act, enabling the respondent to prefer cross-objection still, the cross-objections are maintainable. Reliance is also placed upon the judgment passed by Hon’ble High Court of Andhra Pradesh in case titled Government of Andhra Pradesh Transport Department, Hyderabad versus Mrs. K.Padma Rani and others 1975 ACJ 462 “23. In the Union co-operation Insurance Society Limited, Madras v. Lazarammal Ravel and others(1974 II MLJ 160) a Division Bench of the Madras High Court has taken similar view and held:- “4. Regarding the cross-objection two preliminary objections were raised. The first is that the appeal being one arising under a special stature and the Civil Procedure Code, not being applicable to the Tribunal constituted under the said statute, viz, the Motor Vehcile Act no cross-objection can be filed. Regarding the cross-objection two preliminary objections were raised. The first is that the appeal being one arising under a special stature and the Civil Procedure Code, not being applicable to the Tribunal constituted under the said statute, viz, the Motor Vehcile Act no cross-objection can be filed. It is pointed out that under Section 110-D though there is provision for any of the aggrieved parties to file an appeal, there is nothing in the section permitting a respondent to an appeal to file cross-objection. 5. In support of this contention, three decisions were relied on, the first is Vedanta-Charsami v.Muthiah Chetti… “Under section 110-D of the Motor Vehicles Act, an appeal lies to this court. It must be remembered that when once an appeal is entertained by this court, all the provisions relating to the appellate jurisdiction of this court are attracted. It is true that all the provisions of the Code of Civil Procedure are not applicable to the Tribunal, because it is a creature of the statute, but the appeal against the order of the Tribunal is to the High Court not to any other Tribunal constituted under the Statute. In Secretary of State v. Ramarao, the question was whether the ordinary rules of the Code of Civil Procedure would apply to an appeal to the District Court against the decision of the Forest Settlement Officer, under section 10(2) of the Madras Forest Act. The privy council pointed out that the appeal being to the District Court which is one of the ordinary court of the country the ordinary rules of the Code of Civil Procedure, apply”… “As we pointed out earlier, section 110-D of the Motor Vehicles Act contemplates an appeal to the High Court. Once an appeal is entertained by this Court, all the rules in the Code of Civil Procedure would be applicable to such an appeal in asmuch as no other procedure is prescribed under the said Act that means, order 41 rule 22, Code of Civil Procedure would be applicable and the respondent in an appeal would be entitled to present a memorandum of crossobjections as provided under the said rules. Venkataraman, J. in disposing of Venkatesan v. Ranganayaki has taken a similar view and we agree with the same.” 60. Venkataraman, J. in disposing of Venkatesan v. Ranganayaki has taken a similar view and we agree with the same.” 60. Having regard to the aforesaid law laid down by various High Courts including this Court, this Court has no hesitation to conclude that cross-objections filed by respondents No.1 and 2 under Order 41 rule 22 CPC are maintainable and cross-objectors are entitled to penalty in terms of Section 4-A of the Act ibid, because admittedly the employer has failed to pay the compensation within a period of one month from the date of knowledge with regard to alleged accident. 61. Accordingly, this Court taking note of the material adduced on record by the respective parties, holds cross-objectors/ respondents No.1 and 2 entitled to penalty equivalent to 25% of the amount of compensation calculated above i.e. 25% x 4,42,740/-= Rs.1,10,685/-, in equal shares, to be paid by respondent No.3/employer, in addition to the amount of compensation calculated in para-40 above. The Cross-objections are disposed of accordingly.