JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appeal under Section 30 of the Workmen Compensation Act, 1923 ("W.C. Act" for short) at the instance of the Insurance Company arises from the judgment and order dated 28.02.2011 passed by ex-officio Commissioner for Workmen Compensation, Surat in W.C.(Fatal) Application No. 82 of 2004. 2. I have heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Mr. Hiren Modi, learned advocate for the respondent Nos. 2 to 5 (original claimants). Mr. D.B. Bhavsar, learned advocate for the respondent No. 1. There is no representation on behalf of other respondents. 3. The facts move in narrow compass. The deceased-Ramu Bhagwan Rajbhar, working as a driver of Truck bearing Registration No. GJ-5-V-9838 which was ownership of respondent No. 1 and ensured with the appellant-Insurance Company. On fateful date i.e. 26.06.2004, the deceased was returning from Silvas with Truck which was loaded with goods at about 1.30 a.m. (night). A bus was passing by relief hotel in the sim of city village. The Truck was intercepted by one Ashokbhai and Satishbhai with object of committing theft of the goods. These two persons ganged the truck was ran over the deceased, as a result, he died on the spot. The respondent Nos. 2 to 5 being legal heirs and representatives of deceased filed Claim Application before the Commissioner for Workmen and Compensation, Surat. By the impugned judgment and order directed the appellant and respondent No. 1 to pay a sum of Rs. 4,30,820 with 8% interest as compensation to the claimant jointly and severally. The respondent No. 1 is also directed to pay Rs. 2,16,910/- being 50% of the compensation as penalty. 4. The appellant-Insurance Company wants to avoid its liability on the premises that the death cannot be said to have occurred during the course of his employment. 5. Mr. Nanavati, learned advocate for the appellant-Insurance Company has vehemently urged that the Commissioner has not properly appreciated the circumstances and the manner in which the death of the driver happened. It is his contention that the driver was murdered by two persons, and therefore, it cannot be said that his death had happened during the course of his employment. It is his further submission that the interest awarded by the Commissioner is on the higher side as the vehicle was covered under Motor Act Policy. It is his contention that the driver was murdered by two persons, and therefore, it cannot be said that his death had happened during the course of his employment. It is his further submission that the interest awarded by the Commissioner is on the higher side as the vehicle was covered under Motor Act Policy. He urges that the appeal may be allowed and the impugned order qua the appellant may be quashed and set aside. 6. Mr. Hiren Modi, learned advocate for the claimants has supported the impugned judgment and order. He submits that the deceased was murdered while he was returning with the goods in the truck and with a view to committing theft of the goods ganged the deceased and the truck was ran over the deceased, and therefore according to his submission, it cannot be said to be a case of murder of simplicitor. In support of his contention, he has relied upon a decision of the Supreme Court in the case of Smt. Rita Devi and others v. New India Assurance Com Ltd. and another, AIR 2000 SC 1930 . He submits that in view of the decision of the Supreme Court in the case of New India Assurance Company Ltd. v. Harshadbhai Amrutbhai Modhiya and another, AIR 2006 SC 1926. Since the truck was covered under Motor Act Policy, the Commissioner has not committed any illegality in awarding the 8% interest on the compensation. He, therefore, urges that the appeal may be dismissed. 7. The Sole question that is required to be considered in this appeal is whether the death of the driver in the truck can be said to have occurred during the course of his employment or not. 8. The facts are undisputed. The deceased was working as a driver of truck bearing registration No. GJ-5-V-9838 belonging to respondent No. 1. It is also undisputed fact that on the fateful date he was returning with the truck which was loaded with goods and on the way the truck was intercepted near Surat by two persons with a sole object of committing the theft or robbery of the goods. To achieve their object these two persons ganged the deceased and thereafter ran over the truck on him which resulted in his instantaneous death on the spot. 9. To achieve their object these two persons ganged the deceased and thereafter ran over the truck on him which resulted in his instantaneous death on the spot. 9. The background of this admitted facts, the observations of Supreme Court in the case of Smt. Rita Devi (supra) are very relevant in paragraph No. 10. It is held as infra:- "10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder." 10. In view of the aforesaid proposition of law, the cause of the murder of the driver of the truck was caused in furtherance of the intention to commit loot or theft of the goods from the truck then such murder cannot be said to a murder simplicitor, therefore, I am of the opinion that the finding recorded by the Commissioner that the death of the driver has happened during the course of his employment cannot be said to perverse or illegal does not warrant interference in this appeal. 11. For the interest, Mr. Modi, learned advocate for the claimants has rightly placed reliance on the decision of the Supreme Court in the case of Harshadbhai Amrutbhai Modhiya (supra) wherein in paragraph No. 19 is observed as under:- "19. 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. 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, 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." 12. Indisputably, the truck was covered under Motor Act Policy, and therefore, under Section 171 of the M.V. Act, 1988 the claim of interest on the compensation is discretion of the Tribunal, I am of the view that the Commissioner has not committed any error in awarding the interest on the compensation. 13. For the foregoing reasons, I am of the view that the appeal lacks merit and therefore it is hereby dismissed. 14. The appellant has deposited the awarded compensation with the Commissioner since the appeal is dismissed the same is ordered to be released in favour of the appellant after due verification along with interest, if any. 15. The parties are left to bear their own costs. 16. Record and Proceedings is order to remitted back to the Tribunal forthwith. 17. In view of the order passed in the main matter, the Civil Application does not survive and stands disposed of accordingly. Disposed off