ORDER : (Nupur Bhati, J.) : 1. The instant misc. appeal has been preferred by the appellant under Section 30 of the Employees Compensation Act, 1923 (‘the Act of 1923’) challenging the legality and validity of the judgment/ award dated 23.12.2015 passed by the learned Commissioner, Employee’s Compensation (‘EC’), Balotra (Barmer) Camp Pali, in Claim Case No.E.C.C.F 52/2011 whereby the learned Commissioner held the appellant-Insurance Company liable to pay the compensation to the tune of Rs.8,54,280/-. 2. Brief facts of the case are that on 16.04.2011, Shri Joga Ram (since deceased) was going from Balasore to Cuttak while driving a Truck trailor bearing Registration No.RJ-19GB-1020, when he stopped the vehicle in order to check the condition of wheel, an unknown vehicle hit him and fled away and thus the deceased succumbed to death during the course of the treatment. The incident was registered at police station Khantapada, District Balasor. His legal representatives preferred a claim petition in terms of the Act of 1923 against the employer and insurer of the vehicle. 3. After filing of claim petition, notices were issued to the non-claimant No.1 and none appeared on his behalf and therefore, ex-parte proceedings were initiated against him. A reply was filed on behalf of non-claimant No.2-Insurance Company while denying the averments made in the claim petition. It is stated in the reply that the deceased driver Joga Ram was having a fake license and the appellant-Insurance Company is not liable to pay the compensation in view of violation of the policy conditions and thus, being aggrieved of the joint and several liability imposed upon the appellant-Insurance Company and the respondent no.7/employer, the appellant-Insurance Company prefers the present misc. appeal. 4. After hearing the parties, learned Commissioner framed four issues including: 5. In support of the claim petition, the appellant company examined Shri Pankaj Meena as NAW-1 and 9 documents were exhibited and on behalf of the non-claimants, Smt. Pushpa Devi and Subhash Khan have appeared as witness and some documents were exhibited, driving license was exhibited as exhibit-10. 6. Learned counsel for the appellant submits that the learned Commissioner, EC, Balotra (Barmer), vide award dated 23.12.2015, has erred in deciding the issue no.3 that the insurance company is liable to indemnify the insured towards the penalty arising under the Employee’s Compensation Act, 1923. 6. Learned counsel for the appellant submits that the learned Commissioner, EC, Balotra (Barmer), vide award dated 23.12.2015, has erred in deciding the issue no.3 that the insurance company is liable to indemnify the insured towards the penalty arising under the Employee’s Compensation Act, 1923. He draws attention of this Court to the judgment passed by the Apex Court in the case of National Insurance Co. Ltd Vs. Mastan & Anr. reported in (2006)2 SCC 641 wherein it has been observed by the learned Tribunal that though under the Motor Vehicles Act, 1988 (‘MV Act’), even if the driver does not have any license, the Tribunal under MV Act may direct the insurer to meet the third party liability, permitting it to recover the same from the insured, however, the same is not the case under the Act of 1923. 7. Learned counsel for the appellant also relies upon the judgment passed by the Hon’ble Apex Court in the case of New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya reported in (2006) 5 SCC 192 , wherein it has been observed by the Hon’ble Apex Court that there are no corresponding provision between the MV Act and the Act of 1923 pertaining to the liability of the insurer towards a third party and the scheme of Act of 1923 does not confer a right on the claimant for compensation under the Act of 1923 to claim the payment of the compensation in its entirety from the insurer himself. 8. Learned counsel for the appellant further places reliance upon the judgment passed by the Hon’ble Apex Court in the case of Beli Ram Vs. Rajinder Kumar reported in 2021 (1) RAR 13 (SC), wherein it has been observed by the Hon’ble Apex Court that unlike the MV Act, in case where the employee is not having a valid license, under the Act of 1923, the insurance company is not liable to pay for such breach of the policy condition. 9. Rajinder Kumar reported in 2021 (1) RAR 13 (SC), wherein it has been observed by the Hon’ble Apex Court that unlike the MV Act, in case where the employee is not having a valid license, under the Act of 1923, the insurance company is not liable to pay for such breach of the policy condition. 9. Learned counsel for the appellant further submits that an application has been submitted by the appellant for summoning the Licensing Authority, Bokaro, together with record of the so called driving license, however, Commissioner dismissed the aforesaid application on 17.12.2015 while observing that the certificate issued by the DTO and the report of the surveyor has already been exhibited in evidence on behalf of the insurer, therefore, there is no need to summon the Licensing Authority, Bokaro. He submits that vide order dated 17.12.2015 the Commissioner accepted the evidence produced on behalf of the appellant company, but erroneously directed the appellant company to pay the compensation at the first instance contrary to the terms of contract of insurance. 10. Per contra, learned counsel for the respondent no. 7/employer submits that the deceased was employed as a driver and the vehicle was insured with respondent No.2-Insurance Company thus, respondent No.2-Insurance Company is liable to pay the compensation to the appellants, jointly and severally as directed by the Commissioner. 11. I have given my thoughtful consideration to the submissions advanced at Bar and have gone through the misc. appeal as well as perused the record. 12. The appellant, in the instant appeal, has suggested the following questions of law, which reads as under: - “(a) Whether learned Commissioner has jurisdiction to direct the insurer to pay the compensation at the first instance and thereafter recover the same from the owner of the vehicle, in a case where there is fundamental breach of policy conditions? (b) Whether learned Commissioner was justified in holding the appellant company liable to satisfy the claim in a case the driving license of the deceased workmen was a fake one?” 13. (b) Whether learned Commissioner was justified in holding the appellant company liable to satisfy the claim in a case the driving license of the deceased workmen was a fake one?” 13. Insofar as the second question of law as suggested by the appellant in the present appeal is concerned, this Court finds that the Hon’ble Apex Court in the case of Beli Ram (supra.) while dealing with the similar issue, has categorically held that the insurance company cannot be held liable to indemnify the owner of the vehicle when the owner was not careful in employing a person without valid credentials, i.e. a driving license in the present case and thus, under the Act of 1923, the insurance company cannot be made liable to pay compensation when the deceased employee was not having a valid and effective driving license. Thus, the Commissioner has erred in imposing a liability upon the insurance company when the license of the driver was fake. This Court also finds that the Commissioner has categorically observed while perusing the letter of the Surveyor (Exb.4 and Exb.5), along with the letter of the District Transport Officer (‘DTO’), Bokaro, pointing therein the license of the deceased was not issued from the said office and that the license produced on record, is fake and subsequently, the Commissioner also observed that the appellant-Insurance Company is not liable to pay the compensation. However, the Commissioner imposed joint and several liability upon the appellant-Insurance Company, which, in the opinion of this Court, deserved to be set aside. The relevant para of the judgment rendered by the Hon’ble Apex Court in the case of Beli Ram (supra.) is reproduced as under: “21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under: “18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section-5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.”” 14. Insofar as the first question of law as suggested by the appellant in the present appeal is concerned, this Court finds that the Hon’ble Apex Court while dealing with the similar issue in the case of Mastan (supra.), has held that even if the deceased is considered as a third party and not an authorized driver of the offending vehicle, the Act of 1923 does not mention the liability of the insurer with respect to a third party, contrary to the MV Act, which has a separate chapter dealing with the third party liability. The relevant para of the judgment is reproduced as under: “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-a-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. 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.” 15. Furthermore, it is seen that the present appeal has been filed under Section 30 of the Act of 1923 wherein the appellants/claimants have chosen to pursue their claim under the Act of 1923 and thus, in the absence of any statutory provision under the Act of 1923 stipulating the liability on the insurer in case of third party, the claimants cannot take recourse to any of the provisions of the MV Act other than what has specifically saved by Section 167 of the MV Act, for imposing a joint and several liability upon the appellant/insurance company and the employer/respondent no. 7, when the driving license of the deceased employee was fake and the liability rests entirely upon the employer/respondent no. 7. Relevant para of the judgment rendered in Mastan (supra) reads as under:- “33. 7, when the driving license of the deceased employee was fake and the liability rests entirely upon the employer/respondent no. 7. Relevant para of the judgment rendered in Mastan (supra) reads as under:- “33. 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 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.” 16. Therefore, it is seen that though both the legislation i.e. the Act of 1923 and the MV Act are beneficial legislation, however, a limitation has been imposed under Section 167 of the MV Act, which incorporates Doctrine of Election whereby the claimant can pursue only one remedy out of the two legislations and upon choosing one, the claimant is estopped from seeking compensation under the other. Section 167 of the MV Act is reproduced hereinbelow for the sake of ready reference:- “167. Section 167 of the MV Act is reproduced hereinbelow for the sake of ready reference:- “167. Option regarding claims for compensation in certain cases-Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, 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.” In the present case, the appellants have chosen the remedy for claiming compensation for the death of the deceased driver under the Act of 1923 which does not provide for the liability of the insurer to indemnify against third party risks, contrary to the provisions under MV Act. It is also seen that the Commissioner has observed in his judgment/award dated 23.12.2015 that as per Letter issued by DTO, Bokaro (Ex.A/2) in reply to the information sought under Right To Information Act, 2005, the driving license of the deceased, produced on record, has not been issued by the DTO, Bokaro. Thus, in the case where the driver himself was not having a valid license at the time of accident and being negligent, the Commissioner ought not to have imposed the liability upon the insurer appellant since the matter has come up for consideration under the Act of 1923 and not under the MV Act. 17. In this view of the matter, this Court is of the view that the impugned order dated 23.12.2015 passed by the learned Commissioner, Employer’s Compensation, Balotra (Barmer) in Claim Case No.E.C.C.F 52/2011 is modified to the extent of the joint and several liability imposed upon the appellant/insurance company to pay compensation to the claimants/respondent no. 1 to 6. The claimants would be at liberty to recover the amount of penalty from the owner-respondent No.7 of the offending vehicle. 18. In compliance of the interim order dated 25.05.2016, 50% of the compensation amount along with interest deposited by the appellant-Insurance Company shall be recovered from the owner of the vehicle. 19. As a consequence, the instant misc. appeal is partly allowed while modifying the impugned judgment and award in the above terms. Stay application as well as all other pending applications, if any, also stand disposed of.