Kailasam, J.
1. The appellant was the claimant before the Motor Accidents Claims Tribunal, (Subordinate Judge), Cuddalore in a petition filed under S. 110-A of the Motor Vehicles Act. On 23rd September 1967 he was travelling in lorry MSV 8251, belonging to the first respondent, which was proceeding to Madurai. At about 4 am on 24th September 1967, when the lorry was proceeding near Vandipalayam on the Grand Trunk Road, it hit against a stationary lorry parked on the left side of the road, resulting in grievous injury to the eyes of the appellant and injury to his head resulting in fracture of the skull. The appellant was treated in the Government Hospital, Cuddalore, and later in the Stanley Hospital, Madras. He claimed that he had incurred an expenditure of Rs. 1000 for treatment and Rs. 35000 by way of compensation for pain and suffering, loss of income and loss of employment and for medical expenses, past and future.
2. The respondents denied liability on the ground that the appellant had no right to travel in the lorry which was only a goods vehicle, not authorised to carry passengers for hire or reward. As the injuries were caused in the course of unauthorised travel, the respondents disclaimed all liability.
3. The Tribunal framed three issues, and the first of them related to the question, whether the accident was due to the rash and negligent act of the driver of the lorry MSV 8251. On this point there was only the evidence of the injured appellant. According to him, while the lorry was proceeding near Vandipalayam, a lorry was standing on the left side of the road. At that time the lorry in which he was travelling was also proceeding on the left (side of the road. When it neared the stationary lorry it was going at a high sped. The appellant cried, but the lorry went and dashed against the stationary lorry. As a result of the impact the appellant received injuries for which he was treated in the Government Hospital, Cuddalore, and later at the Stanley Hospital, Madras. This evidence was not challenged in cross-examination, nor was the driver of the lorry or any other witness examined to prove that the dashing of the lorry against the stationary lorry was not due to any rash or negligent driving of the lorry in which the appellant was travelling. Prima facie, when a moving lorry hits against a stationary lorry, negligence can be presumed, in the absenee of any evidence to the contrary. It may be that the driver of the lorry might have proper defence on the ground that there was no rear light in the stationary lorry or that it bad been stationed at such a position that the driver of the lorry could not have seen it. But no such defence has been raised in this case and in the absence of such rebutting evidence we have to proceed on the basis that the running of the lorry into the stationary lorry was due to the negligence of the driver. On this point we differ from the Tribunal which found that negligence had net teen established, as the only witness examined was the victim.
4. The second question that was considered by the tribunal was whether the appellant was travelling in the lorry in the course of his employment. The case of the appellant was that he loaded certain goods in the lorry and on the invitation of the driver who wanted him to keep him company and to look after the goods, he travelled in the lorry. R.W 1 vehemently denied any such authority in the driver to permit anybody to travel in the lorry. He further denied that the appellant travelled with the consent of or in the course of his employment in the M.B.T company. We see no reason for rejecting the testimony of R.W 1. as there is no material for coming to the conclusion that the appellant travelled in the lorry with the consent of the owner of the lorry or in the course of his employment. On this question we agree with the tribunal.
5. The only other question that remains to be considered is whether a person who travels in a lorry without authority and not in the course of his employment would be entitled to any compensation, when the lorry meets with an accident due to the negligence of the driver. Sec. 95 of the Motor Vehicles Act, as it stood before the amendment by Act 56 of 1969, provided that the policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-Sec. (2) against any liability which may be incurred by him or them in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. Sub-Sec. 2(d) deals with the maximum liability of the insurer. It provides that the policy of insurance shall cover any liability, if the vehicle is a goods vehicle upto a limit of Rs. 20,000 (enhanced to Rs. 50,000 by the amendment Act 56 of 1969) in all, including the liabilities, if any, arising under the Workmen's 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. In order to fasten any liability on the insurer, there must be liability incurred by the owner of the vehicle. The proviso to Sec. 95(1) also makes it clear that a policy is not 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, other than liability arising under the Workmen's Compensation Act, 1923, in respect of the death or bodily injury to any such employee. Therefore the only liability for death or injury to the person in the course of his employment is under the Workmen's Compensation Act. If the person was not in employment and if he was travelling without authorisation, there is no provision in the Act to protect such a person. The rules framed under the Motor Vehicles Act prohibit travel by any person as a passenger in goods vehicle. Under the circumstances, we see no ground for fastening any liability on the insurer or on the owner of the vehicle for the injuries sustained by the person who was travelling without authority in the lorry and sustained injuries due to the negligence of the driver. The question has been elaborately considered by Ganesan, J. in Common Wealth Assurance Co., Ltd. v. Rahlm Khan Sahib(1). We agree with the view of the learned Judge and hold that 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.
6. The appeal therefore fails and is accordingly dismissed. There will be no order as to costs.
V.C.S