: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.638 OF 1993 Lahu Lakma Bije ... Appellant V/s. Kirtikumar Dayalji Kothari & Anr. ... Respondents a/w FIRST APPEAL NO.639 OF 1993 Lahu Lakma Bije ... Appellant V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents a/w FIRST APPEAL NO.640 OF 1993 Lahu Lakma Bije ... Appellant V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents a/w FIRST APPEAL NO.641 OF 1993 Lahu Lakma Bije ... Appellant V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents a/w FIRST APPEAL NO.642 OF 1993 Devu Buthia Bhurkud ... Appellant : 2 : V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents a/w FIRST APPEAL NO.643 OF 1993 Devu Buthia Bhurkud ... Appellant V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents a/w FIRST APPEAL NO.644 OF 1993 Gangaram Kadadia Kharpade ... Appellant V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents a/w FIRST APPEAL NO.645 OF 1993 Janibai Vajia Uradia ... Appellant V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents AND FIRST APPEAL NO.647 OF 1993 Jifribai Raoji ... Appellant V/s. Kirtikumar Dayalji Kothari & anr. ... Respondents Mr.T.J Mendon for Appellants Mr.M.S. Karnik for Respondent No.1 : 3 : CORAM: SMT.NISHITA MHATRE, J. JUDGEMENT RESERVED ON: OCTOBER 24, 2009 JUDGEMENT DELIVERED ON: DECEMBER 19, 2009 JUDGEMENT: 1. These First Appeals challenge the common award of the Motor Accident Claims Tribunal, Thane in Motor Accident Claim Application Nos.398 to 406 of 1983. The Tribunal has dismissed the claim applications on the ground that the insurance company was not liable to pay compensation. 2. The facts giving rise to the present appeals as under: A group of labourers alongwith their children boarded a motor truck No.MWT 2994 owned by Respondent No.1 on 20.21983. At about 2 pm near Village Narangi, Taluka Dahanu, they loaded the truck with their cooking utensils, firewood and clothes tied in gunny bags and/or bundles. They were proceeding to a brick kiln where they were assured of work. When the aforesaid truck stopped at Virar Phata, the driver of the truck enquired with them whether they wanted a lift in his truck. Accordingly, all the labourers boarded the truck. The driver charged them Rs.1.50/- for the luggage of each labourer and Rs.1.50 per passenger. The truck was already loaded with cement bags. Near Narangi village the driver of the truck lost control of the vehicle as a result of which the truck overturned. Six persons died on the spot in the accident. Three others sustained severe injuries. Four of the deceased belonged to one family and two from another. The claimants before the Tribunal were either the legal representatives of the deceased or the victims of the accident themselves. It was contended by the claimants that the accident had occurred due to : 4 : the gross negligence on the part of the driver of truck. 3. Motor Accident Claim Application Nos.398, 399, 400, 401 of 1983 were filed by one Lahu Lakma Bije claiming compensation for the death of his wife, minor son Sitaram, minor daughter Nimoni and minor daughter Sunder respectively. The compensation claimed was Rs.50,000/-, Rs.35,000/-, Rs.30,000/- and Rs.20,000/- respectively. Devu Buthai Bhurkud is the claimant in respect of MAC No.402 of 1983 and 403 of 1983 claiming compensation for the death of his sons Madhya and Sadya of Rs.30,000/- and Rs.25,000/- respectively. The claimants in the other applications are the victims, who survived the accident. 4. The Tribunal after considering the evidence on record concluded that the applicants had proved that the accident occurred on 20.2.1983 as a consequence of the rash and negligent driving of the driver of truck No.MWT-2994 in which the deceased and the victims were travelling. However, the Tribunal did not grant any compensation as the insurance company proved that the insurance policy had been breached. It was held that passengers were carried for hire or reward in the truck which was a goods carrier and therefore the insurance company was not liable to pay any insurance. Although no issue was framed as to whether the owner was liable it was held that there was no evidence to indicate that the owner had expressly authorised the driver to ferry passengers in his truck for hire or reward. The Tribunal relied on the judgment of the Division Bench of this Court in the case of Maimuna Begum Abdul Razzaque & Ors. v/s. Taju Ahmed Khan & Ors., 1989 Mh.L.J. 352. 5. The learned advocate for the appellants submits that the judgment of the : 5 : Tribunal is contrary to the judgments of the Supreme Court in the case of New India Assurance Limited v/s. Asha Rani & Ors., 2003 (Vol. 1) ACJ 1 and in the case of National Insurance Co. Ltd. v. Chholleti Bharatamma & Ors., 2008 ACJ 268. He also relies on the judgement of the Division Bench of this Court in the case of Nasibdar Suba Fakir vs. Adhia & Co. & Ors., 1983 Mh.L.J. 647 to contend that the insurance company would be liable for payment of compensation when a person travels in a goods vehicle as the owner of the goods. 6. Mr.Karnik, appearing for Respondent No.1, the owner of the truck, submits that the Tribunal has committed no error in concluding that the deceased and the victims were travelling without permission from the owner of the truck. He submits that there was no evidence on record indicating that the owner had at any point of time given permission to his driver to ferry passengers in the goods vehicle. In such circumstances, submits Mr.Karnik, the passengers travelling in a goods vehicle are not entitled to compensation from the owner of the truck. He submits that once it has been held that there is a breach of the insurance policy on account of the fact that the passengers were illegally travelling in the truck, the owner also cannot be vicariously liable for any act of the driver. 7. Before adverting to the law, it would be necessary first to consider the facts in the present case. Undoubtedly, the claimants and the victims were travelling in a goods vehicle. Their contention that they paid Rs.1.50 per head to the driver for travelling in vehicle besides paying Rs.1.50 per article of luggage has not been controverted by the respondents since the driver has not been examined. The driver was a party to the application and he was later deleted from the array of parties. The : 6 : goods with which the deceased/claimants were travelling were their personal belongings besides firewood. Admittedly, the goods vehicle had not been hired by these persons. They boarded the vehicle in order to travel from Vasai phata to the brick kiln on which they were to get employment. Thus, they had not hired the vehicle to carry their goods but instead were travelling by the vehicle as passengers. Undoubtedly, they had luggage with them but these were personal belongings and could not be termed as goods. Thus, it cannot be said as sought to be submitted on behalf of the appellants that they were travelling in the vehicle which was a goods vehicle as owners of the goods. There is evidence on record to indicate that the vehicle was transporting cement bags which admittedly were not being transported for and on behalf of the deceased/victims. All the judgments cited by the learned advocate for the appellants do not in any manner support his cause. In the case of New India Assurance Co. Ltd. v/s. Asha Rani & Ors., 2003 ACJ 1, the Supreme Court has held that it was not necessary for the insurer to insure against the owner of the case or his authorised representative being carried out in the vehicle under the Motor Vehicles Act of 1939. After the amendment of 1994, the expression “including owner of the goods or his authorised representative carried in the vehicle” which was added to the preexisting expression “injury to any person” could not be said to either clarify or amplify the pre-existing statute. The amendment in fact according to the Supreme Court demonstrates that the Legislature wanted to bring within the sweep of section 147, the compulsion for the insurer to insure even in case of goods vehicle the owners of the goods or his authorised representative being carried in a goods vehicle. 8. The proviso to section 95(i) stipulates that an insurance policy shall not be : 7 : required to cover the liability in respect of death of an employee except under the Workmen’s Compensation Act when such an employee is engaged for driving the vehicle or if it is a public service vehicle and the employee is the conductor or if it is a goods vehicle and the employee is being carried in that vehicle. However, the proviso further stipulates that a policy shall not be required except where the vehicle is one in which the passengers are carried for hire or reward by reason or in pursuance of any contract of employment to cover liability in respect of the death or bodily injury to persons being carried in the vehicle. 9. The learned advocate for the appellants attempted to submit that the present case would be covered by the proviso to section 95(1) of the Act of 1939. However, in my opinion, neither the claimants nor the deceased would fall within the parameters of the proviso, because they were not employees of the person who had hired the vehicle nor were they being carried pursuant to the contract of employment for hire or reward. Admittedly, the vehicle in question was a goods vehicle. The passengers had travelled in the vehicle, presumably after requesting the driver of the vehicle. Even if the contention of the appellants is accepted that they had paid the driver of the vehicle for ferrying themselves as well as their luggage, in my opinion, the insurance company would not be liable since there was no need for the insurance company to cover such contingencies. However, in my view, the owner of the vehicle would certainly be liable in the facts and circumstance of the present case. The driver has not been examined as stated earlier. Therefore, it must be accepted that the driver had permitted the claimants/deceased to travel in the vehicle and had charged each of them an amount. It must also be accepted that the driver had charged them an amount for carrying their personal effects and, therefore, the owner : 8 : of the vehicle would certainly be vicariously liable as there was no contrary evidence on record. 10. Accordingly, the judgments cited at the bar regarding the liability of the insurance company where passengers travel in a a goods vehicle are not applicable in the present case. Those judgments were in respect of the situations in which the owner or the representative of the owner of the goods travels in the goods vehicle hired by the owner of the goods. When a vehicle meets with an accident while transporting both the goods, as well as the owner of the goods or his representative, as the case may be, the Courts have held that the insurance company would certainly be liable under the 1939 Act. As stated earlier the goods vehicle in the present case was hired by a third person to transport his goods. The vehicle stopped en route and the driver accepted the victims as passengers. The goods which the claimants/deceased were transporting were their personal belongings which they were carrying with them. In my opinion, the insurance company cannot be held to be liable in such a situation and the Tribunal has rightly dismissed the claim against the insurance company. However, the Tribunal has erred in dismissing the applications against the owner. 11. Accordingly, the appeals are partly allowed. The applicants are remanded to the Tribunal to decide the qunatum of compensation payable by the owner of the motor truck No.MWT-2994. The Tribunal will decide the claims within six months from today.