1. The insurer of a stage carriage, KLT 2319, appeals the decision of the Workmens Compensation Commissioner in W.C.C. No. 66 of 1980. The son of the claimant was involved in an accident and died as a consequence of the injury sustained by him. He was aged 22 years as on 5-8-1978, when the accident occurred. He was an employee of the present second respondent, who was the owner of the stage carriage. While travelling in that vehicle as an employee, he fell out of the vehicle and was crushed under the left rear wheel, as a consequence of the swerving of the Vehicle to avoid hitting, a boy who suddenly crossed the road. In the application under S.22 of the Workmens Compensation Act, the father of the deceased boy alleged that the deceased was an employee of the second respondent and he was receiving a monthly salary of Rs. 650/ and therefore the claimant was entitled to Rs. 50,000/ as compensation. The insurer resisted the claim on the ground that the deceased was only a casual employee, that the insurer was not liable to reimburse any amount payable by the insured in respect of his death, and that the accident did not occur due to any negligence on the part of the driver. The owner of the vehicle had also resisted the claim for compensation on substantially similar grounds.

2. The claimant was examined as AW2. He also examined Ext. AW-1. The respondents examined MWs.1 and 2, the latter being the son of the owner. Exts. A1 to A5 were marked on the side of the applicant, whereas Ext. M1 was marked by the insurer. The Tribunal found that the deceased was an employee of the owner of the stage carriage, that he sustained the injury out of and in the course of his employment, that the insurance policy covered the liability of the insured to compensate the claimant for the death of the employee and that the monthly wages of the deceased must to be taken to be Rs. 320/ In the absence of any direct evidence in this regard, the Commissioner adopted the rate of wages under the Minimum wages Notification applicable to employees of passenger transport industry as the average monthly wages of the deceased. On the assumption that he was drawing a salary of Rs. 300/ to Rs. 400/ the amount of compensation was fixed a Rs. 19,200/ applying Schedule IV of the Workmens Compensation Act.

3. In this appeal, the insurer raises three points: Firstly, that the deceased was not an employee who was covered by S.95 (1) proviso of the Motor Vehicle Act and therefore the insurer was not liable to compensate the insured; secondly, that the Workmens Compensation Commissioner is not entitled to direct the insurer to pay compensation in a proceeding under the Workmens Compensation Act in view S.14 of the Workmans Compensation Act; and, lastly that the finding on negligence is obligatory to fasten any liability on the insured by reason of a policy issued under the Motor Vehicles Act to reimburse the compensation payable by the insured.

4. As far as the first point is concerned, the evidence of AWs.1 and 2 as also MW-2 was sufficiently clear to the effect, that the deceased was an employee of the owner of the stage carriage. The only dispute was as to whether he was a regular employee in the sense that he was not employed on all days in the month. It is the admitted case, that he was employed at least for 8-10 days each month. A workmen as defined in the Workmens Compensation Act means, any person, (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employers trade or business. The appellant had no case that the deceased was employed otherwise than for the trade or business of the employer. There was no evidence sufficient to sustain a contention that his employment was of a casual nature. It is true that there was no evidence that he was a regular employer. But, that does not make his employment as one of a casual nature. We are, therefore, inclined to hold, that the Commissioner was right in his finding, that the applicant was a workman as defined in S.2 (p) of the Workmens Compensation Act.

5. The second point, that the Workmens Compensation Commissioner is net competent, by reason of the provisions contained in S.14 of the Act to make an award against the insurer, does not appeal to us. This is for two reasons; firstly, the insurer did cot urge this point before the Commissioner, and no reason is mentioned why this point of jurisdiction was not or could net be taken before the Commissioner. Nor are we satisfied that the appellant has made out circumstances justifying it to raise this point for the first time in this appeal. In a case where a point of jurisdiction based on S.14 of the Workmens Compensation Act was not taken before the Workmens Compensation Commissioner, this court has held in United India Insurance Company Ltd. v. Gangadharan, (1986 KLT 1034), that the appellent need not be permitted to raise that point for the first time in appeal. We are of the same view.

6. Even if we permit the appellant to raise this point, we are of the view that he cannot succeed in view of the previsions in the Meter Vehicles Act.

7. S.110AA of the Motor Vehicles Act provides an option regarding claims for compensation in certain cases. That is in the following terms:

"Notwithstanding anything contained in the Workmens Compensation Act, 1923, where the death or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmens Compensation Act, 1923, the person entitled to compensation may, without prejudice to the provisions of Chapter VII A, claim such compensation under either of those Acts but not under both."

It is clear from the above provision, that a claim for compensation arising under the Workmens Compensation Act, may be made either before the Tribunal under the Motor Vehicles Act or before the Commissioner for Workmens Compensation. The option is that of the claimant That option cannot be rendered an ineffective choice; both must be effective alternatives. If we have to uphold the objection of the appellant, we must hold either that the legislature was unaware of S.14 of the Workmens Compensation Act or that it provided analternative which was illusory. We cannot make either of those two assumptions. The non obstante clause with which S.110 AA of the Motor Vehicles Act begins clearly indicates that these alternatives are provided with full awareness of the bar created by S.14 of the Workmens Compensation Act and despite that bar. If that be so, the objection that the claim under the Workmens Compensation Act is not entertainable cannot be sustained. We are, therefore, of the opinion, that there is no merit in the second print raised by the appellant.

8. The third ground urged by counsel for the appellant also seems to us to be unsustainable. What he submits is that the policy issued by the insurer being one under the Motor Vehicles Act, it is obligatory that the claimant proves the negligence of the insured either directly or vicariously as to the cause of the accident and the consequent injuries or death. We are not impressed by the submission. We are of the opinion, that S.95 (1) of the Motor Vehicles Act, which casts a statutory liability en the insurer, coven two types of risks: one for the tort in which negligence is a necessary element; and the other, the statutory obligation of an employer under the Workmens Compensation Act, which rests entirely on the factors, that the accident occurred out of and in the course of employment of the workman under the employer. The insurer is not entitled to contend, that even in the case of the second type of case the claimant has to prove negligence; and in that event alone, he is entitled to claim compensation. Two different types of risks have been covered statutorily, and by the terms of the policy of insurance. The insurer cannot escape liability in respect of one of such risks for the reason that an element necessary to establish the other is net proved by the claimant.

9. The last submission which counsel makes is that there was no positive evidence relating to the average monthly income of the deceased, and the Commissioner went wrong in adopting the minimum wages as the standard for determination of compensation. Counsel submitted, that the evidence indicated that the deceased was working only for 8-10 days a month and he could not, therefore, have earned Rs. 320/- per month en an average. It is true, that there was no positive evidence that he was receiving Rs. 320/- per month. The owner of the vehicle could have produced the necessary documents to show the actual amount of wages paid to the deceased. Such documents could as well have been summoned by the insurer. No such attempts were made. Once a person is employed and is paid on monthly rates of wages in an industry, which is covered by the Minimum Wages Notification, there is nothing wrong in assuming that he would have been paid at least the bare minimum under the Minimum Wages Notification. The fact that he was an employee was not contraverted. The evidence of the claimant was that he was receiving an amount of Rs. 650/- per month. True it is, that it was not sought to be supported by any documentary evidence. But, once he was found to be an employee, there is nothing wrong in the Commissioner finding that he must have been paid at least the minimum wages due to the category of workmen in the notified industry. The appellant has no case, that the amount of compensation fixed is not in accordance with the entry contained in the Fourth Schedule, commensurate to a monthly wage of Rs. 320/-.

In this view, we hold, that the appeal is devoid of merit. We therefore, dismiss the same; but, in the circumstances of the case, there will be no order as to costs.

Dismissed.