B.P. Das, J.
1. This appeal is directed against an award dated 26.12.1995 passed by the Member, 2nd Motor Accidents Claims Tribunal (S.D.), Berhampur in M.A.C. No. 5 of 1993 (165 of 1992).
2. The brief fact leading to this appeal is that on 27.12.1991 at about 9 a.m. while respondent No. 1 along with other coolies was traveling in the offending truck bearing No. ORL 299, it met with an accident, resulting in the death of three coolies and he sustained injuries on his person. The respondent No. 1-claimant was working as coolie in the aforesaid truck.
3. The Tribunal framed as many as five issues and came to a finding that due to rash and negligent driving of the driver of the vehicle the accident occurred and the driver of the vehicle was having a valid driving licence as well as the vehicle was validly insured on the date of accident. The Claims Tribunal in the aforesaid M.A.C. had directed the payment of compensation of Rs. 21,600 which includes Rs. 2,500 towards mental agony, pain and suffering and shock, Rs. 10,000 towards expenditure on treatment, Rs. 2,500 towards nature of treatment and Rs. 3,600 towards loss of income.
4. The insurer challenges the entire award on the ground that as the vehicle was driven by the cleaner, who had no driving licence, respondent No. 1-claimant is not entitled to any compensation as there is breach of violation of the terms of the policy. That apart, the appellant has also disputed the driving licence of the driver of the vehicle.
5. In course of the argument, learned Counsel for appellant came forward with a new plea which was neither taken before the Tribunal nor in the grounds taken in this appeal memo saying that as the injured was a coolie, the liability should be limited only to the extent of the liability under Workmen's Compensation Act. This question cannot be raised at this stage as there is no pleading to that effect. That apart, this question is no more res Integra, because law is settled that where compensation is claimed by the injured person against the owner of a vehicle on the basis of the negligent act of the driver during the course of his employment, the law which applies is the common law. If an award is passed in such a proceeding, it is to be made on the principles of common law. The liability, therefore, arises at common law. If the owner of the vehicle has insured himself in consideration of an additional premium against such liability by provision such as the one contained in Endorsement No. IMT 16 herein, the insurance company will be liable to indemnify the owner in respect of such liability. In such a case, it could not be said that the liability was confined only to the extent of the liability under the Workmen's Compensation Act. [See Gujarat Mineral Development Corporation v. Varjubhai Lallubhai Bhil, 1979 ACJ 186 (Gujarat)].
6. On perusal of Exh. 1, the photostat copy of the insurance policy, I find that the driver and four coolies are mentioned therein and there is no interpolation as alleged by the insurer, and policy was issued on 27.12.1991 at 6 a.m. and thus it was valid up to the midnight of 26.12.1992 '6 a.m.'. From the L.C.R., I find that an extra additional premium was paid covering the driver and four coolies under the provision, such as containing Endorsement No. IMT 16. There is no doubt that it is only the common law which applies to the present case. The objection of the insurer on this score fails. So far as validity of the driving licence is concerned, the Claims Tribunal has dealt with it in issue No. 3 and found that the vehicle was driven by a person having a valid driving licence.
7. That apart, law is well settled in the case of New India Assurance Co. Ltd. v. Kamla, : [2001]2SCR797 , that insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay the compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties if there was any breach of policy conditions on account of the vehicle being driven without a valid licence. This decision is also having no application to this case as there is specific finding of the Tribunal that the vehicle was driven by a person having valid driving licence.
8. For the reasons stated above the appeal fails and is dismissed.