Milap Chandra, J.

1. This appeal has been filed against the judgment of the Workmens Compensation Commissioner, Jodhpur dated 16.2.1985 by which he has awarded Rs. 25,200/-as compensation and Rs. 12,600/- as penalty with interest at the rate of 6 per cent per annum from 23.3.1981. The facts of the case giving rise to this appeal may be summarised thus.

2. Bhagwan Singh, husband of Roop Kanwar, respondent No. 1 and father of Sarwan Singh, respondent No. 2 and Keshaw Kanwar, respondent No. 3, was a cleaner in the truck No. RSN 5900, owned by Hari Singh, respondent No. 4. On March 23,1981, its driver Tulchha Ram took it to the workshop of Kasim Khan, PW 3 for certain repairs. When it was being put in the garage of the said workshop, its stone-pattis fell down over Bhagwan Singh. As a result thereof, he received serious injuries, he was immediately taken to Mahatma Gandhi Hospital, Jodhpur and he remained there for about four months for his treatment. On 8.7.1981, he filed a claim petition under Rule 20, Workmens Compensation Rules, 1924 before the Workmens Compensation Commissioner, Jodhpur for the recovery of Rs. 23,520/- as compensation with costs, interest and penalty against Hari Singh, owner of the truck and United India Insurance Co. Ltd., Jodhpur, insurer of the truck.

3. The owner of the truck Hari Singh filed his written statement admitting that the claimant Bhagwan Singh was a cleaner on his truck No. RSN 5900, he was getting Rs. 200/-per month as pay, the truck was insured with the United India Insurance Co. Ltd., Jodhpur, appellant, the accident had taken place, he received injuries and the insurance company was duly informed of the accident.

4. The appellant insurance company admits in its written statement that the said truck No. RSN 5900 was insured with it and a letter was received from the insured Hari Singh informing about an accident. The remaining allegations of the claim petition were denied. It has also been averred that the accident took place due to the carelessness and negligence of the claimant himself, it did not arise out of his employment and the insurance policy did not cover the risk of a cleaner.

5. The Workmens Compensation Commissioner framed five issues and recorded the evidence of the claimant and the employer Hari Singh. The insurance company did not produce any evidence despite taking several adjournments. During the pendency of the case, the claimant Bhagwan Singh died on 7.5.1983 and his heirs, respondent Nos. 1 to 3. were brought on record. After hearing the parties, the said award was passed by the Workmens Compensation Commissioner, Jodhpur.

6. It has been contended by the learned counsel for the appellant that the Workmens Compensation Commissioner has seriously erred in passing the award against the appellant despite the fact that the accident took place in the garage of Kasim Khan which was a private place and over which the public had no right of access. He also contended that the insurance company did not undertake the liability for a cleaner and the liability for the driver was only undertaken. It was further contended by him that the Commissioner had no jurisdiction to pass the award against the insurance company as it was not proved on record that the employer Hari Singh had become insolvent. He relied upon R.B. Moondra & Co. v. Bhanwari 1971 ACJ 438 (Rajasthan), National Insurance Co. Ltd. v. Jabunbi 1984 ACJ 741 (MP), United India Fire & General Insurance Co. Ltd. v. Joseph Mariam : 1979 ACJ 349 (Kerala) and United India Fire & General Insurance Co. Ltd. v. P.M. Mammal : 1979 ACJ 448 (Kerala). He lastly contended that penalty and interest could not be awarded against the appellant and placed reliance upon Gautam Transport v. Jiluben Huseinbhai : 1989 ACJ 587 (Gujarat).

7. In reply, it has been contended by the learned counsel for the claimants that it has not been averred in the written statements that the place where the accident took place was not a public place and as such the appellants cannot be allowed to contend that the place where the accident took place was a private place. He relied upon United India Insurance Co. Ltd. v. Gangadharan : 1988 ACJ 296 (Kerala). He also contended that the garage of Kasim Khan was a public place as defined in Section 2(24), Motor Vehicles Act, 1939, as the public had and have a right of access to it. He relied upon Pandurang Chimaji Agale v. New India Life Insurance Co. Ltd. : 1988 ACJ 674 (Bombay). He further contended that it is clear from the cover note, Exh. A-10, certificate of insurance, Exh. A-12 and insurance policy, Exh. A-19, that they also included the liability of the cleaner and it is clear from the various provisions of the Motor Vehicles Act, 1939 and Workmens Compensation Act, 1923 that an insurance company is liable to pay compensation under the Workmens Compensation Act, 1923. He relied upon Oriental Fire & General Insurance Co. Ltd. v. Nani Bala Devi : 1987 ACJ 655 (Gauhati), Oriental Fire & General Insurance Co. Ltd. v. Presiding Officer, Labour Court 1988 ACJ 797 (Pat), Oriental Insurance Co. Ltd. v. Jevaramma [Sic. : 1988 ACJ 671 (Karaataka), Kamla Devi v. Navin Kumar] 1973 ACJ 115 (Rajasthan) and National Insurance Co. Ltd. v. Narayanan Nair : 1988 ACJ 1010 (Kerala). He lastly contended that the insurance company is also liable to pay the penalty and interest as it was promptly informed of the accident by the insured.

8. The learned counsel for the respondent No. 4 Hari Singh duly supported the learned counsel for the claimant-respondent Nos. 1 to 3. He also contended that the said truck No. RSN 5900 was not of higher capacity requiring two drivers, additional premium of Rs. 16/-was paid for covering the liability for the driver and the cleaner and as such the risk of the cleaner Bhagwan Singh was also covered. He lastly contended that to fasten the liability under the Workmens Compensation Act, 1923 against an insurance company, it is not necessary that the accident should have taken place in a public place.

9. The first question for consideration is whether the appellant is liable to indemnify the insured employer Hari Singh, respondent No. 4. It is correct that under Section 14 of the Act of 1923, the insurance company is liable to pay the amount of compensation when the employer becomes insolvent. This does not mean that an insurance company is liable to pay compensation only in case the employer becomes insolvent. The first proviso to Sub-section (1) of Section 95 of the Act of 1939 simultaneously used two negatives. Two negatives result in one positive. Shorn of the two negatives, the proviso runs as under:

Provided that a policy shall be required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment under the Workmens Compensation Act 1923 (No. VIII of 1923), in respect of the death of, or bodily injury to, any such employee...

10. Section 110-AA of the Act of 1939 provided an option to a claimant for compensation. It could not be rendered ineffective by the said interpretation put forward by the learned counsel for the appellant. It clearly provided that compensation could be claimed under any of these two Acts. The non-obstante clause of Section 95 of the Act of 1939 clearly indicated that these alternatives were provided with full awareness of the provisions of Section 14 of the Act of 1923. It has been observed by their Lordships of the Supreme Court in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi : 1981 ACJ 507 , as follows (para 25):

It was suggested that the interpretation which we are putting on Section 95 (2) (a) will create difficulties in cases where the insured also incurs liability under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle. It is true that under Section 95 (2) (a), the liability of the insured and therefore the insurers indemnity includes the liability of the aforesaid description under the Act of 1923. But that is a matter of apportionment which may require a rateable deduction to be made from the compensation payable to each victim, depending upon the quantum of compensation payable under the Act of 1923 to employees carried in the goods vehicle.

In Kamla Devi v. Navin Kumar 1973 ACJ 115 , it has been held that the insurance company is liable to indemnify the insured employer.

11. There is yet another aspect of the matter. Admittedly, the insurance policy, Exh. A-19, was issued by the appellant. By this policy, the said truck No. RSN 5900 was insured in favour of its owner Hari Singh for the period from 28.4.1980 to 27.4.1981. Admittedly, the accident took place on 23.3.1981. It shows that additional premium of Rs. 16/-was paid besides basic premium of Rs. 125/-. Its endorsement No. 16 runs as under:

UNITED INDIA INSURANCE CO. LTD. Endorsement No. 16

Legal liability to persons employed in connection with the operation and/or maintaining and/or loading and/or unloading of motor vehicles:

Attached to and forming part of policy No. 43501/24/1/663.

In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the company shall indemnify the insured against his legal liability under:

The Workmens Compensation Act 1923 and subsequent amendment of the Act prior to the date of this endorsement the Fatal Accidents Act, 1855 or at common law in respect of personal injury to any paid driver or cleaner or conductor or person employed in loading and/or unloading whilst engaged in the service of the insured in such occupation in connection with any motor vehicle and will in addition be responsible for all costs and expenses incurred with its written consent.

The premium having been calculated at the rate of Rs. 8/- per driver (and/or cleaner or conductor and/or persons employed in loading and/or unloading) the insured shall certify at the expiry of each period of insurance the maximum number of drivers and/or cleaners and/or conductors and/or persons employed in loading and/or unloading employed at any one time during such period in connection with the motor vehicle belonging to him and the premium shall be adjusted accordingly.

By this endorsement, the appellant agreed to indemnify the insured employer Hari Singh for his liability under the Workmens Compensation Act, 1923 in respect of personal injury to his cleaner also.

12. In R.B. Moondra & Co. v. Bhanwari 1971 ACJ 438 (Rajasthan), the provisions of Sections 13 and 19 of the Act of 1923 and the first proviso to Section 95 (1) and Section 110-AA of the Act of 1939 were not discussed. This case finds reference in Kamla Devi v. Navin Kumar 1973 ACJ 115. Similarly, National Insurance Co. Ltd. v. Jabunbi 1984 ACJ 741 , United India Fire & General Insurance Co. Ltd. v. Joseph Mariam : 1979 ACJ 349 and United India Fire & General Insurance Co. Ltd. v. P.M. Ishammal : 1979 ACJ 448 , have not discussed the said provisions.

13. It has been held in Northern India Insurance Company v. Commissioner for Workmens Compensation : 1973 ACJ 428 , Northern India Motor Owners Insurance Co. Ltd. v. Magan Shanaji Solanki 1974 ACJ 55 , Sital Prasad v. Afsari Begum : 1977 ACJ 486 , Premier Insurance Co. Ltd. v. C. Thomas 1983 ACJ 783 , Oriental Fire & General Insurance Co. Ltd. v. Matias Burla : 1986 ACJ 732 , Bibhuti Bhusan Mukherjee v. Dinamani Devi 1982 ACJ 338 , United India Insurance Co. Ltd. v. Vasudevan : 1989 ACJ 405, Khwajabai v. Gulabkhan Jamalkhan Pathan 1979 ACJ 277 , National Insurance Co. Ltd. v. Narayanan Nair : 1988 ACJ 1010 , Kamla Devi v. Navin Kumar 1973 ACJ 115 , National Insurance Co. Ltd. v. Prembai : 1987 ACJ 278 , United India Fire & General Insurance Co. Ltd. v. Machinery Manufacturers Corporation Ltd. : 1986 ACJ 1079 , Bhajanlal Padia v. Bajinath : 1987 ACJ 572 , that the insurance company is liable to pay compensation even if the insured employer is not insolvent.

14. The next question for consideration is whether the insurance company is liable to indemnify the insured employer only when the accident takes place in a public place. No such objection was taken by the appellant in its written statement filed before the Workmens Compensation Commissioner. Neither an issue was framed nor any evidence was produced on this point by the insurance company. As such this objection cannot be allowed to be raised at the appellate stage. Reference of United India Insurance Co. Ltd. v. Gangadharan : 1988 ACJ 296 , may be made here.

15. There is yet another aspect of the matter. Admittedly, the accident took place in the workshop of Kasim Khan, PW 3. It was public place within the meaning of Section 2 (24) of the Act of 1939 as public had a right of access to it. Any person could go inside it. His brother Kalu Khan has categorically stated in his cross-examination that any person could come in the workshop for repairs of his vehicle. No suggestion was put in the cross-examination of Kasim Khan that it was a private place and not a public place. It has been observed in Pandurang Chimaji Agale v. New India Life Insurance Co. Ltd. : 1988 ACJ 674 , as under (paras 8,10 and 11):

(8) It is in the light of the object of the statute, its aforesaid relevant provisions and the scheme, that we have to appreciate the true import of the expression public place for the purposes of Chapter VIII of the Act. It has further to be remembered that the expression public place is a term of the Act, the same having been defined specifically by Sub-clause (24) of Section 2 of the Act. That definition reads as follows:

(24) "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage;

The first thing to remember with regard to the definition is that it is an inclusive one. Secondly, it in term makes it clear that any road, street, way or other place, whether a thoroughfare or not, is a public place for the purposes of the Act, the only condition being that the public should have a right of access to it. Thirdly, the expression used in the definition is a right of access and not access as of right. Lastly, when it states that any place or stand at which passengers are picked up or set down by a stage carriage, is a public place, it shows that it is not so much concerned with the ownership of the place as with its user. Stage carriage is defined in Sub-clause (29) of Section 2 and it means a motor vehicle which is used to carry or adapted to carry more than six persons excluding the driver and which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. In short, it means a public passenger carrier. In other words, by virtue of the last part of the definition, the expression would include any place, including private, where public passenger carrier picks up or sets down passengers.

The definition of public place under the Act is, therefore, wide enough to include any place which members of public use and to which they have a right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of public and be available for their use, enjoyment, avocation or other purpose.

(10) If we further bear in mind the overall object of the provisions of Chapter VIII which deals with compulsory insurance of the vehicle to cover risks to third parties and their property, with claims to be filed for recovering compensation, no fault liabilities and liabilities arising out of hit and run accidents, etc. the intention of the legislature is clear. It is to secure compensation to the persons and property which are exposed to the accidents caused by the vehicles. The very nature of the motor vehicle and its use mandate these provisions. The motor vehicle in this respect can be likened to a wild animal. Whoever keeps it does so at his risk. As pointed out earlier, some of the restrictions on the use of the vehicle contained in the Act are irrespective of the nature of the place where it is used and irrespective of whether it is plied or kept stationary. The legislature was concerned not so much with the nature of the place where the vehicle causes the accident as where it was likely to do so. Hence all places where the members of public and/or their property are likely to come in contact with the vehicles can legitimately be said to be in its view when the legislature made the relevant provisions for compulsory insurance. It will have, therefore, to be held that all places where the members of public have an access, for whatever reasons, whether as of right or controlled in any manner whatsoever, would be covered by the definition of public place in Section 2 (24) of the Act. To hold otherwise would frustrate the very object of the said Chapter and the Act.

(11) Although dictionary meaning of the expression is hardly of any use to us, it will be instructive to refer to it. In Strouds Judicial Dictionary, 5th Edn., page 2094, public place has been defined as follows:

A "public place" is a place to which the public can and do have access; it doesnt matter whether they come at the invitation of the occupier or merely with his permission, or whether some payment or the performance of some formality is required before access can be had...

This definition it taken from the decision in R. v. Kane (1965) 1 All ER 705 and is a reproduction of only a part of it given there. The other part reads as follows:

... but a place such as the club in the present case, would be a private place, if there was a real restriction of access to members and their guests and that any other members of the public who get in was in reality a trespasser.

In this case what fell for consideration was whether for the purposes of common law offence of affray in a public place, the Stage and Press Club where the offence took place was a public place. The other definitions of public place given in the dictionary are with reference to the provisions of the Vagrancy Act of 1824. They are hardly of any relevance to us.

In Blacks Law Dictionary, 5th Edn., page 1107, public place has been defined as follows:

Public place: A place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighbouring public (e.g. a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals and welfare of the community. A place exposed to the public and where the public gather together or pass to and fro.

Neither the Act of 1923 nor the above-quoted endorsement No. 16 of the policy Exh. A-19 requires that the accident should have taken place in a public place. Thus the said contention of the learned counsel for the appellant is also devoid of force.

16. There is also no force in the contention of the learned counsel for the appellant that the insurance company did not undertake the liability for the cleaner. As already observed above, additional premium of Rs. 16/- was paid besides paying the basic premium of Rs. 125/-. This additional premium of Rs. 16/-was for two persons, i.e., for the driver and the cleaner. The said truck No. RSN 5900 was not of that capacity and model which required two drivers. The above-quoted endorsement No. 16 leaves no manner of doubt that the liability of the cleaner was also undertaken by the appellant.

17. The last question for consideration is whether the appellant is not liable to pay the interest and penalty. The above-quoted endorsement No. 16 clearly shows that the appellant in consideration of the payment of additional premium agreed to indemnify the insured employer against his liabilities under the Workmens Compensation Act, 1923. Admittedly, the amounts of penalty and interest have been levied by the Commissioner under Section 4A of the Act of 1923. Sub-section (5) of Section 95 of the Act of 1939 reads as under:

(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person.

Thus the Commissioner rightly made the appellant liable to pay the amounts of interest and penalty. In Gautam Transport v. Jiluben Huseinbhai 1989 ACJ 587 (Gujarat), the insurance policy had no endorsement like above-quoted endorsement No. 16. Thus there is no force in the appeal.

18. In the result, the appeal is dismissed with costs.