The Common Wealth Assuranse Co. Ltd. Bombay v. V.P Rahim Khan Sahib And Others.

The Common Wealth Assurance Co. Ltd. Bombay, has preferred this appeal against the order passed by the learned Motor Accidents Claims Tribunal, Chingleput, in M.O.P 46 of 1966 direeting the appellant to pay a sum of Rs. 15,000 as compensation to the respondents who are the legal representatives of the deceased Shamsir Knan.

On 17th May, 1966 the lorry Involved in the accident and which belonged to one Nagarathinam the first respondent before the Claims Tribunal was engaged by Shamsir Khan for transporting mangoes from Vellore to Madras. On the way at about 2 or 3 am on 18th May, 1966 the lorry capsized due to the rash and negligent driving of the driver who is said to have slept away while he was driving the vehicle at good speed. As a result Shamsir Khan was thrown out and was killed.

The respondent who are the legal representatives of the deceased have filed the application in question under S. 110-A of the Motor Vehicles Act claiming compensation of the sum of Rs. 15,000, against the owner of the lorry, Sri P. Nagarathinam and the appellant insurance Ccompany. The Tribunal has found that the accident was due to the rash and negligent driving of the driver, and this finding is not now challenged in appeal.

The learned counsel for the Insurance Company contends that the Insurance Company is not bound under law or under the policy to compensate the legal representatives of Shamsir Khan as the Insurance Company had not covered such a risk. On a consideration of the relevant S. 95 of the Motor Vehicles Act of the relevant claases of the Insurance policies, I am inclined to uphold the contention of the learned counsel for the appellant.

Under proviso (1)(c) to sub-S. (1) of S. 95 of the Act, a policy shall not be required to cover liability is respect of the death of a person or passenger being carried in the vehicle if it is a goods vehicle except so far as is necessary to meet the requirements in relation to liability under the Workmen's Compensation Act 1923. Under proviso (11) to S. 95, the passengers who were carried in the lorry by reason of or in pursuance of a contract for employment will however be entitied to compensation.

Turning to the Insurance Poliey, we find that S. II deals with the liability of third parties. S. II(1) provides that subject to the limits of liability the company will Indemnify the insured against all sums including claimant's costs and expenses which the insared shall become legally liable to pay is respect of (1) death or bodily injury to any person ceased by or arising out of the use of the Motor Vehicle, provided always that Except so far as is necessary to meet the requirements of S. 95 of the Motor Vehicles Act 1939, in relation to the liability under the Workmen' Compensation Act, 1923, the company shall not be liable in respect of death or bodily injury to any person (other than a passenger carried by reason, of or in pursuance of the contract of employment) being carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises.”

The not result is that the legal representatives of Shamsir Khan will be entitled to a compensation only if it is shown that he was a passenger travelling in the lorry by reason of or in pursuance of a contract of employment between him and the first respondent the owner of the lorry. I have already pointed out and it is not disputed that Shamsir Khan had only hired the vehicle from the first respondeat, the owner and was but transporting mangoes from Vellore to Madras at the time of the occurrence. This does not show that he was under any contract of employment with the first respondent the owner of the vehicle.

The learned counsel for the respondents faintly contends that the contract of employment does not necessarily mean the employment of Shamsir Khan by the first respondent but would include the hiring of the vehicle by Shamsir Khan. I am afraid that the construction sought to be put upon the word by the learned counsel for the respondents cannot be lightly upheld.

In South India Insurance Co. Ltd. v. Heerabai(1) a Division Bench of the Madhya Pradesh High Court has held that a person who hired a truck for carrying some load and accompanied the same and met with a fatal respondent on the way cannot be said to be a passenger carried by reason of or in pursuance of a contrast of employment.

In Parkash Vati v. Delhi Dayal Bagh Dairy Ltd.(2) a Division Bench of the Punjab High Court had taken the same view in respect of a commission agent who carried goods in a goods vehicle for supplying the same to the owner of the vehicle on commission basis. It was contended on behalf of the claimant in that case that the deceased should be deemed to be travelling in the vehicle by virtue of a contract of employment with himself and that the contract of employment need not necessarily be with the owner of the vehicle. The learned Judges while observing that the contract of employment need not necessarily be with the Owner of the vehicle, held that the Insurance Company cannot be made liable because the deceased was not shown to have been on the vehicle by reason of or in pursuance of any contract of employment.

To the same effect is the case of Oriental Fire and General Insurance Co. v. Kasturilal(3) where Shama J. of the High Court for the States of Punjab and Harayaaa at Chandigarh had rated that an owner of goods accompanying the goods in a truck cannot be said to be a passenger carried by reason of or in pursuance of a contract of employment.

The authorities are overwhelming in support of the contention of the learned counsel for the appellant and I respectfully agree with those decisions. I have already pointed out that the legitimate construction which can be placed upon the provisions of S. 95 of the Motor Vehicles Act and upon the provisions of S. 2 in the Insurance Policy relating liability to third parties can lead to only one conclusion that is, a passenger carried by a lorry will not be covered by the Insurance policy unless he is proved to be a passenger travelling by reason of or in pursuance of a contract of employment. I am elear that Shamsir Khan's case will not fell within this category.

In the result, the appeal filed by the appellant Insurance Company is allowed but under the circumstances without costs. The result is that the respondents 1 and 2 will be entitled to recover the compensation awarded by the Tribunal only from the third respondent, Sri Nagarathnam, the owner of the lorry. The sum of Rs. 15,000 deposited by the appellant Insurance Company in the Tribunal will be withdrawn by it without any condition.

V.C.S