JUDGMENT : 1. The present First Appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 challenging the judgment and order dated 06.06.2006 passed by the learned Ex-Officio Commissioner, Labour Court, Surat in W.C. (Fatal) Application No.120/2004. 2. Being aggrieved and dissatisfied with the impugned judgment and order dated 06.06.2006 passed by the learned Ex- Officio Commissioner, Labour Court, Surat in Workmen Compensation (Fatal) Application No.120/2004, whereby learned Commissioner directed original opponents to pay Rs.4,33,820/- as compensation to respondent Nos.1 to 3 (original applicants) along with interest @ 12% from the date of application. 3. Heard learned advocate Ms. Lilu K. Bhaya for the appellant and the learned advocate Mr. Hiren M. Modi for the respondent Nos.1 to 3 and the learned advocate Mr. Mahesh Bhavsar for the respondent No.4. 4. The brief facts of the case are that the original applicants i.e. present respondent Nos.1 to 3 filed Claim Application before the learned Commissioner, Surat. It is the case of the original applicants that deceased-Rajeshbhai Chhanabhai Rathod @ Patel was in employment of the opponent No.1 i.e. the present respondent No.4. Deceased was a paid driver of Qualis Car bearing Registration No.GJ-5-CB-8488 and was drawing Rs.3500/- per month as salary and Rs.50/- per day as a daily allowance. On 05/09/2004, the respondent No.4 instructed the deceased to take the passengers to Amreli in the said Qualis Car. On the same day, the said Qualis Car met with an accident, deceased sustained serious injuries and was admitted in Civil Hospital, Ahmedabad. During treatment deceased-Rajeshbhai Chhanabhai Rathod @ Patel expired on 05/09/2004. The present claim application was filed for a relief of compensation of Rs.4,33,820/- together with funeral charges and 12% interest with 50% penalty to be recovered from the opponents. 4.1. Respondent No.4 though served, did not file any written statement. The appellant i.e. original opponent No.2 appeared and filed written statement at Exhibit-7 and denied all averments made in the claim application. Issues were framed at Exhibit-8. Vide Exhibit-10 father of deceased was examined and documentary evidence such as police complaint, Panchnama, policy of vehicle, R.C. Book, driving licence, school leaving certificate of the deceased were produced. 5. Learned advocate for the appellant has submitted that the learned Commissioner has committed an error by holding the present appellant as liable to pay Rs.4,33,820/- with compensation with 12% interest from the date of accident till realization. 5. Learned advocate for the appellant has submitted that the learned Commissioner has committed an error by holding the present appellant as liable to pay Rs.4,33,820/- with compensation with 12% interest from the date of accident till realization. Learned advocate for the appellant has placed reliance upon the terms and conditions of the policy and has further submitted that insured i.e. respondent No.4 has committed breach of the terms and conditions of the policy. It is further submitted that the vehicle in question bearing Registration No.GJ-5-CB-8488 was a private car and the policy was issued as a private car policy. It is further submitted that since the vehicle in question was not insured as a public vehicle, applying the clauses of limitation as to use, the terms and conditions of the policy were breached by the insured as the vehicle was used as a commercial purpose. It is further submitted that the said Qualis car was being used for hire and reward. 5.1. It is further submitted that in cross-examination, original applicant, has admitted that the opponent No.1 i.e. present respondent No.4 is engaged in the business of travelling and deceased was serving as a driver with respondent No.4. It is further submitted that over and above such admission, in the application itself, the original applicants have stated that the on date of the accident, upon instructions of respondent No.4, the passengers were carried in the vehicle in question and the said vehicle met with an accident on 05/09/2004. It is further submitted that the vehicle was passed by R.T.O. Authorities as a private vehicle and R.T.O. tax was also collected as private vehicle. Insurance was also taken as private vehicle. However, the vehicle was used as commercial purpose of hire and reward. It is further submitted that learned Commissioner has wrongly held appellant liable for interest. The liability of interest is always on respondent No.4-Employer. It is also urged by learned advocate for appellant that respondent has committed breach of terms and conditions of the policy. 5.2. In support of his submissions, learned advocate for the appellant has placed reliance upon the decision in the case of New India Assurance Company Limited Versus Jaysukhlal Maganlal Doshi reported in 2013 (0) GLHEL-HC 230112. 6. Per contra, learned advocate for the respondent No.4 submitted that vehicle in question was never used as commercial vehicle. 5.2. In support of his submissions, learned advocate for the appellant has placed reliance upon the decision in the case of New India Assurance Company Limited Versus Jaysukhlal Maganlal Doshi reported in 2013 (0) GLHEL-HC 230112. 6. Per contra, learned advocate for the respondent No.4 submitted that vehicle in question was never used as commercial vehicle. It is further submitted that on the date of accident, the vehicle in question was given to one of the friends of the respondent No.4 for travelling purposes. It is further submitted that respondent No.4 filed Cross-Objection No.72 of 2008 before this Hon’ble Court which came to be dismissed on 29.07.2009 with a liberty to file appropriate proceedings against the ex parte order passed by the Workmen Commissioner, Surat. However, till today no application for setting aside ex-parte order has been filed by respondent No.4. 7. Per contra, learned advocate for the respondent Nos.1 to 3 i.e. original applicants has supported the judgment and award passed by the learned Ex-Officio Commissioner, Labour Court, Surat and submitted that Insurance Company has failed to establish the fact that there was a breach of terms and conditions of the policy. It is further submitted that there is no evidence on record that the vehicle in question was being used for hire and reward. Appellant has not brought any evidence that respondent No.4 accepted any amount from the passengers who were travelling on the date of accident. The passengers who were travelling in the vehicle were not examined by the Insurance Company and thus, in absence of direct evidence on the breach of terms and conditions of the policy, no interference is required with the findings of fact. It is further submitted that the decision relied upon by the learned advocate for the appellant is not applicable as the said decision is arising out of the in the case of Motor Vehicle Act, wherein the claim of the deceased passengers were under Workmen Compensation Act. 7.1. Learned advocate for the respondent has placed reliance upon the decision of National Insurance Company Limited Versus Panibudi Chulia & Ors by the High Court of Orrisa (Full Bench) on 15.04.2006 in Miscellaneous Appeal No.516 of 1998. 7.1. Learned advocate for the respondent has placed reliance upon the decision of National Insurance Company Limited Versus Panibudi Chulia & Ors by the High Court of Orrisa (Full Bench) on 15.04.2006 in Miscellaneous Appeal No.516 of 1998. By placing reliance upon the said decision, the submission of the learned advocate for the respondents is that the provisions contained in the Motor Vehicle Act and the provisions contained in the Workmen Compensation Act, 1993 cannot be matched with and in absence of any provisions such as Section 149 of the Motor Vehicles Act, the issue of violation of policy condition by the insured cannot be determined by the learned Commissioner while deciding claim application under the Workmen Compensation Act. Reliance is placed upon the para Nos.5 and 6 of the same decision which are hereby reproduced as under; 5. Learned Counsel appearing for the parties at the time of hearing fairly submitted that the decision rendered by the Apex Court in the case of New India Assurance Co., Shimla v. Kamla, ( AIR 2001 SC 1419 ) is based on Section 149 of the M.V. Act, 1988. Learned Counsel for the appellant Sri Mishra, could not place any similar provision in the Workmen's Compensation Act. We have also verified the Workmen's Compensation Act exhaustively and did not find any similar provision as that of Section 149 of the M.V. Act, 1988. Learned Counsel for the appellant Sri Mishra relied upon a decision of the Apex Court in the case of Rita Devi v. New India Assurance Co. Ltd. Reported in 2000 ACJ 801 ; ( AIR 2000 SC 1930 ). The dispute in the said case was as to whether death was due to the motor accident or due to murder. After perusal of the entire judgment we do not find anything contained therein which is relevant for the purpose of answering the reference. Rather in this connection another decision of the Apex Court in the case of National Insurance Co. Ltd. v. Mastan and Anr., reported in 2005 AIR SCW 6305 ; (2006 AIR – Kant HCR 506) is relevant. In the said case the claimant was working as cleaner in a lorry and the said lorry was involved in an accident resulting in sufferance of injuries by the claimant which led to disability to the extent of 45% to 50%. In the said case the claimant was working as cleaner in a lorry and the said lorry was involved in an accident resulting in sufferance of injuries by the claimant which led to disability to the extent of 45% to 50%. He initiated a proceeding under the Workmen's Compensation Act, 1923 (1923 Act) and claimed compensation. The Commissioner, Workmen's Compensation awarded a sum of Rs .2,70,264/- by way of compensation apart from interest to the tune of Rs. 33,230/-. The Insurance company preferred an appeal before the High Court under Section 30 of the 1923 Act and the same was dismissed on the premise that the appellant was not entitled to urge any ground which was not available to it under the relevant provisions of law. The matter was thereafter referred to a Larger Bench and the reference was "whether the restrictions on the defences available to an insurance company in terms of Section 149(2) of the M.V. Act have any application to the proceedings under the Workmen's Compensation Act.". The Larger Bench held that under the W.C. Act, in the insurance company can only agitate violation of any condition of the policy to make substantial question of law and therefore, the question of raising defences available in terms of Section 149(2) of the M.V. Act does not arise. The Apex Court under such circumstances observed and held as follows (Paras 19 and 22): “Section 143 of the 1988 Act limits its applicability to the 1923 Act in a case whether the liability arises despite of 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. xxx xxx xxx 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 vehicles has no licence, the insurer would not be liable to indemnify the insured. xxx xxx xxx 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 vehicles 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. 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 therefore. 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”. Hon'ble Justice P.K. Balasubramanyan while agreeing with the views taken also separately observed thus (para 35 of Kant HCR): “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 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 vehicle. Sections 141 and 142 deal with the 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”. In view of what has been decided by the Apex Court in the aforesaid case as referred to above, the reference made by the Hon'ble Single Judge stands answered. 6. From the discussions made by the Apex Court in the aforesaid case it is clear that the Motor Vehicles Act, 1988 and Workmen's Compensation Act, 1923 are self contained Codes. Section 143 in Chapter X of the Motor Vehicles Act, 1988 only relates to certain claims under Workmen's Compensation Act, 1923. Section 143 of the M.V. Act, 1988 provides that the provisions of Chapter X shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923 resulting from an accident of the nature referred to in sub-section (1) of Section 140. Section 140 in Chapter X only relates to 'no fault' claim. Therefore, the Apex Court in the aforesaid judgment in para 22 observed that Section 143 of the 1988 Act makes a provision that 1923 Act is applicable only in a case arising out of 'no fault' liability as contained in Chapter X of 1988 Act. The Court further held that the provision of Section 143 therefore cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. The Court further held that the provision of Section 143 therefore cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. In paras 23 and 24 of the judgment the Apex Court held that 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 no under both. S. 167 of the 1988 Act contains a non-obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. In paras 22 and 35 of the judgment, the Apex Court having laid down that under the 1988 Act if the driver of the vehicle has no licence, the insurer shall not be liable to indemnify the insured and that 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 and that the 1923 Act does not envisage such a situation, we are of the view that the decision rendered in the case of Oriental Insurance Co. Ltd. v. Akadasi Das (2003 (96) Cut. LT 126) has not been correctly decided. With the aforesaid finding, the matter is remitted back to the Hon'ble Single Judge for disposal in accordance with law. 7.2. During the course of hearing, it was pointed out by the learned advocate for the respondents that Cross-objection No.72 of 2008 was also filed by the insured i.e. respondent No.4 and vide order dated 29.07.2009, the cross-objection filed by the respondent No.4 came to be dismissed by this Court. The copy of the said order dated 29.07.2009 is placed on record. 8. I have considered the submissions canvassed by the learned advocates for the parties and also perused record and proceedings. The limited issue which has been harped upon by the learned advocates for the parties is with regard to the breach of the terms and conditions of the policy. 8. I have considered the submissions canvassed by the learned advocates for the parties and also perused record and proceedings. The limited issue which has been harped upon by the learned advocates for the parties is with regard to the breach of the terms and conditions of the policy. So far as other issues such as quantum of compensation, rate of interest and penalty are concerned, there were no submissions canvassed by either of the parties. 9. For deciding the breach of the terms and conditions of the policy, the policy document at Exhibit-18 is required to be looked into. Indisputably, the Qualis car bearing Registration No.GJ-5-CB-8488 was insured with the appellant. The terms and conditions of the policy also mentions limitation as to use. On perusal of the said policy, it transpires that the policy was issued for private car and there is a restriction in the policy for the use of the car as hire and reward. In contract of insurance insured and insurer are bound by the terms and conditions of the policy. The original claimants in the claim petition have stated that deceased was serving as a Driver in Qualis Car owned by respondent No.4. It is also averred in the application that respondent No.4 i.e. original opponent No.1 was carrying on the business of travelling and on the date of accident, the deceased was carrying passengers in the Qualis Car. Even in the cross- examination, it is a clear admission on the part of the applicants that the opponent No.1 is engaged in the business of travelling. Though notice of claim application was served upon the owner of the Qualis Car bearing Registration No.GJ-5-CB-8488, the opponent No.1 did not file any written statement. 10. The submission canvassed by the learned advocate for the respondent No.4 that the vehicle in question was never used as a commercial vehicle and on the date of accident, the vehicle in question was given to one of the friends of respondent No.4 though sounds attractive but has no force. In my view such defence is an afterthought. Even after rejection of their cross objections by this Court, respondent No.4 did not approach the learned Commissioner for setting aside order. Even the original claimants did not examine any passenger who were travelling in the said Qualis car. The deceased was a workman and has died during the course of employment. In my view such defence is an afterthought. Even after rejection of their cross objections by this Court, respondent No.4 did not approach the learned Commissioner for setting aside order. Even the original claimants did not examine any passenger who were travelling in the said Qualis car. The deceased was a workman and has died during the course of employment. The best available evidence was with respondent No.4 to show and prove that the vehicle in question was never used for commercial purpose. I am of the opinion that the learned Commissioner has committed an error by holding the Insurance Company liable for the amount of compensation. The breach is on the part of respondent No.4 which is evident from the averments made by the original claimants and the admission in the cross-examination. 11. The original claimants should not be suffered on the ground of breach of terms and conditions of the policy. The judgment and award passed by the learned Ex-Officio Commissioner, Labour Court, Surat in W.C. (Fatal) Application No.120/2004 is hereby modified to the extent that the original claimants shall be entitled to recover an amount of Rs.4,33,820/- with interest @ 12% p.a. from the date of application till realization from the original opponent No.1 i.e. present respondent No.4. Rest of the judgment and order is not interfered with and the same shall remain as it is. 12. In view of above observations, the present First Appeal is allowed. The amount which has been deposited by the appellant may be refunded back to the appellant after due verification and procedure prevailing. 13. Record and proceedings be sent back to the concerned Court below.