JUDGMENT Pushpendra Singh Bhati, J. - This appeal U/s.30 of the Workmen's Compensation Act, 1923 has been filed for the following reliefs :- "It is, therefore, most humbly and respectfully prayed that this appeal may kindly be allowed with costs, judgment and award dated 26.12.2003 passed by the learned Commissioner, Workmen's Compensation Act, Rajsamand in Case No.4/2002, may kindly be quashed and set aside and the claim petition may kindly be dismissed as against the appellant company." 2. The unfortunate accident happened on 13.8.2001 when Kesa Ram (deceased) was working as Helper in the mines of respondent no.2 on Poclain Machine. While he was working, a huge stone fell on the Machine, crushing Driver and Kesa Ram. Both of them expired due to the said accident. 3. Counsel for the appellant-Insurance Company submits that an employee/workman has an opportunity to elect remedy in accordance with Section 167 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act') and once he has elected to file claim under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'WC Act'), then he is not entitled to invoke the provisions of MV Act, for which restricted parameters of Chapter-X of MV Act shall apply. 4. Counsel for the appellant demonstrated from policy that a premium of Rs.5091/- was charged and no premium was charged to cover for the risk of any other employee (except the Operator, for which a premium of Rs.15/- was charged). The policy also include own damage clause. Counsel for the appellant submits that it is admitted position that deceased was not an Operator on Poclain Machine and was working as Labour in the mines of respondent no.2. Counsel for the appellant submits that once a labour/workman has consciously chosen option regarding availing compensation under the WC Act, then he shall not be entitled to get any relief under MV Act, particularly, beyond Chapter-X. 5. Counsel for the appellant submits that the learned Commissioner had gone on the premise that since Operator of machine in-question and Labour i.e. Kesa Ram were working on Poclain Machine, therefore, Kesa Ram is entitled to recover compensation under third party risk clause when the proceedings in-question were filed under WC Act. Counsel for the appellant has drawn attention of this Court to judgment rendered by Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Counsel for the appellant has drawn attention of this Court to judgment rendered by Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Mastan & Anr., (2006) 2 SCC 641 ; relevant portion whereof reads as follows : "34. On the language of Section 167 of the Motor Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen's Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen's Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicles Act 1988. Chapter X of the Motor Vehicles Act 1988 deals with what is known as 'no fault" liability in case of an accident. Section 140 of the Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the of the vehicle. Sections 141 and 142 deal with particular claims on the basis of no fault liability and Section 143 re-emphasizes what is emphasized by Section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under the Workmen's Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act 1988 overriding effect." 6. Counsel for the respondent has not been able to refute the proposition that Kesa Ram (deceased) was working as Labour on the mines of respondent no.2. The learned Commissioner has gone absolutely on the premise that, though, Kesa Ram died during the course of employment but compensation can be recovered under third party risk. Counsel for the respondent, however, has shown judgment of Hon'ble Apex Court passed in the matter of Firdaus Vs. Oriental Insurance Company Ltd. & Ors.,2017 2 RAR 112 (SC) ; relevant portion whereof reads as under :- "(3) This Court in G. Govindan v. New India Assurance Co. Ltd. and Ors. has settled the controversy as regards liability of insurer to pay compensation to third party in the absence of any intimation of transfer of the vehicle to the transferee. Ltd. and Ors. has settled the controversy as regards liability of insurer to pay compensation to third party in the absence of any intimation of transfer of the vehicle to the transferee. It was held therein that since insurance against third party is compulsory, and once the insurance company had undertaken liability to third party incurred by the persons specified in the policy, the third party's right to recover any amount is not affected by virtue of the provisions of the Act or by any condition in the policy." 7. Counsel for the respondent further submitted that while representing owner, penalty has been passed without giving an opportunity of hearing, which is mandatory as per Section 4-A (3) (b) of WC Act. Counsel for the respondent has further relied upon judgment of this Court (Jaipur Bench) in Sharad Industrial Products Vs. Shri Kishore Singh & Ors.,2014 RAR 233 (Raj.) ; relevant portion whereof reads as follows :- "7. As far as penalty levied on the insured is concerned, I am of the considered view that prior to levy of penalty for delayed payment of compensation to which an employee is entitled to under the Act of 1923, in terms of plain language of proviso to clause (b) of Sub-section 3 of Section 4A of the Act of 1923, it is mandatory that a show cause notice be issued to the employer requiring to show cause as to why penalty should not be levied upon him. Aside of the fact that in the instant case no such notice was issued to the employer, even in the claim petition no issue with regard to the payment of penalty was framed. Consequently, the insured-employer was not put to notice on levy of penalty nor in a position at any point of time to set up his defence against its levy. This aspect of the matter, in my considered opinion, deserves to be therefore decided in favour of the insured-employer and the matter remanded to the Commissioner for re-determination of the issue after hearing the insured-employer. " 8. This aspect of the matter, in my considered opinion, deserves to be therefore decided in favour of the insured-employer and the matter remanded to the Commissioner for re-determination of the issue after hearing the insured-employer. " 8. After hearing counsel for the parties and perusing record, this Court is of the opinion that doctrine of election is always permitted to workman/labour to elect any remedy between WC Act and MV Act but once a remedy is elected, then while proceeding under WC Act the learned Commissioner erred in going upon third party risk concept and grant relief to the workman/ employee in the capacity of third party. Once WC Act is invoked, then the compensation hinges upon the fact of employeremployee relationship as mentioned in Section 3 coupled with the fact that in the accident employer-employee relationship is established. The third party risk component which is available in the policy could have been invoked only in MV Act and that too is subject to conditions of that law. 9. In light of the aforesaid discussion, this Court does not find any reason why the appeal should not be allowed (excluding the liability of the Insurance Company). The issue raised by the respondent regarding penalty having been levied without adhering to the provisions Section 4-A (3)(b) of WC Act cannot be accepted by this Court as the employer was a party to the WC proceedings and ample opportunity of hearing was there to lay down his case so as to establish that he was not responsible for giving penalty levied upon himself. The precedent law cited only speaks of opportunity of hearing, which in view of this Court is sufficiently there. Once an owner is incorporated as party and gets opportunity to participate, the proceedings is complete for all purposes including levying of penalty. 10. Thus, while dismissing cross-objection, the appeal of Insurance Company is allowed and the impugned order is interfered with to the extent that the complete liability as marked in impugned judgment shall be of owner and the Insurance Company stands exonerated from all such liability. Any amount which lying in Fixed Deposit shall be returned back to the Insurance Company. Excess amount of compensation paid shall be recoverable from the owner. The cross-objection of the claimant is also accordingly decided as the penalty has already been upheld.