Shyamasundar, J.:— A question very unusual in nature arises, in this appeal by a non-suited claimant in a motor accidents claim pertaining to the death of the claimant's adult son in an accident that occurred on the 20th of March, 1977 at about 10-00 a.m at a place called Doddabathi near Davanagere City in the district of Chitradurga. As a result of the mishap, the claimant's 27 years old son Bopanna alias Harish, sustained severe injuries to which he later on succumbed to at the C.G Hospital, Davanagere on the 21st of March, 1977.

2. Anent to his death the question that arises for consideration is, can a claim for compensation under “Act Policy” be pressed against the insurer of the motor vehicle where the accident-victim is the representative or agent — in this case also the son — of the owner-cum-person insured of the vehicle involved in the accident?

Tracing back the proposition, the question would be whether the insurer under the ‘Act Policy’ liable for compensation for the death of the insured-owner of the vehicle, while travelling with his own goods in his own vehicle. If the insurer is not then, an agent or representative of the owner so travelling would be in no better position — unless such a person is a “workman” travelling in the vehicle in the course of employment.

The answer to this question, however, interesting academically, is not, perceived by the fall-out from this exercise, likely to bring to the grieving next of kin any solace with the dismissal of the claim by the Tribunal.

3. Before we go into this question, leading to this unpalatable result, it is necessary to state a few facts that have led up to this appeal, which has certainly has had a checkered career bearing almost the appearance of being jinxed from the very beginning.

4. The claimant is one Akkavva wife of Mandanna and has since become his widow following his death in the month of March, 1987. Mandanna, was running a Goods carriage service at Pune under the name and style of New Good-luck Transport Co., which as facts of this case would indicate appear to have not brought any share of good luck to him or to his family. Mandanna and Akkavva had only one son Bopanna alias Harish, who on the date of his death was round about 27 years old and also gainfully employee in a private concern at Bombay as a lesser official drawing a salary of Rs. 950/- per mensem.

On the ill-fated day the deceased Bopanna was travelling in his father's lorry bearing No. MHQ 2883 duly insured with New India Insurance Co., the sole contestant of this appeal as well as the claim case in the Court below. The lorry it would appear was carrying a load of cement that admittedly belonged to Mandanna, the owner of the goods-vehicle. Indeed the case which the claimant did not put-forward at the beginning and tried to plead at a late stage is, that Bopanna was carrying his father's goods in the former's own lorry under instructions from the father and was fatally injured en-route, because of the driver's folly. It was urged, that the claimant was entitled to be compensated by the insurer with whom the vehicle was duly insured on the date of the accident. In effect the claim by the mother of the deceased person is against her own husband and his insurer. The relationship, by itself, is not determinable. The crucial question is whether the deceased-Bopanna, while accompanying his father's goods in the father's own vehicle was such person the risk arising out of whose death is compulsorily insurable under the Motor Vehicles Act, so as to render the insurer liable.

This claim against the insurer has been turned down by the Tribunal for want of proof apart from belatedness. The question before us would ultimately be whether the Tribunal was right in not upholding the case of the claimant as aforesaid.

5. To continue the narrative owing to a hazard on the road near the village Doddabathi within the vicinity of Davanagere city, the lorry met with an accident severely injuring the lone passenger Bopanna alias Harish who was immediately rushed to the C.G Hospital, Davanagere for treatment. He succumbed to the injuries on the next day despite treatment. His mother Akkavva, thereafter moved the Tribunal at Chitradurga for compensation in M.V.C No. 32 of 1977. Akkavva, implead the owner i.e, her own husband; the driver and the insurer of the goods vehicle in question as parties thereto.

6. On service of summons, both the owner and the driver remained ex-parte, the insurer alone appeared and contested the case pleading amongst other things that deceased was at best a passenger in a goods vehicle and, therefore, even granting that actionable negligence was made out, it was futile for the claimant to seek to foist liability on the insurer. Thereupon the Tribunal framed the following issues and asked the parties to go to trial thereon.

(1) Whether one A.M Bopanna, died in a lorry accident that occurred on 20th March 1977 at 10-00 a.m near Doddabathi village?

(2) Whether the said accident is due to the rash or negligent driving of the lorry MEQ 2883 by 3rd respondent?

(3) Whether the petitioner is entitled for any compensation and, if so, for how much and from whom?

At the enquiry the claimant examined herself as P.W 1 and closed her side after producing some documents as per Exhibits P-1 and P-2 etc., which are not necessary to call attention to in these proceedings. The sole contestant, the insurer did not lead any rebuttal evidence.

In the cross-examination of the claimant, for the first time it was elicited that the deceased was travelling on the ill-fated day in that lorry along with the goods of his father on a care-taker basis pursuant to and impliedly under the instructions of his father.

7. The Tribunal on a consideration of the evidence held actionable negligence on the part of the driver of the goods vehicle to be established but appropos the liability of the insurer it excluded the same on the ground that the deceased was at best a gratuitous passenger in a goods carriage and, therefore, his risk was not covered by the insurer. But then it did not consider whether it could make an award at-least against the driver, if not, against the owner, who would in any way be liable on the finding that actionable negligence of the driver was proved. The Tribunal having simply dismissed the claim petition without more the claimant preferred an appeal to this Court in M.F.A No. 125 of 1980. That appeal was dismissed by the Court for default on 4-10-1983 and regrettably the claimant did not take any steps for getting that order set-aside in time. She however, made an application belatedly for setting aside that order on 18-2-85. This Court, by an order dated 18-3-1985 rejected the said application as barred by time holding inter-alia that there were no grounds to condone the delay. Thereafter, the claimant preferred an appeal to the Supreme Court of India in Civil Appeal No. 3945 of 1986 which stood allowed by an order dated 28-10-1986 resulting in a remit of the case back to this Court for fresh disposal on merits. Before it could be taken up for hearing again as directed by the Supreme Court, it transpired that the claimant's husband Mandanna, the owner of the goods vehicle and the person-insured died and, therefore, his representatives were in due course brought on record, resulting in a curious spectacle of the claimant now being pitted against her own children as legal representatives of her husband in this stage of the proceedings.

8. Now, for the point raised for consideration. The finding of actionable negligence as recorded by the Tribunal being in favour of the claimant remains undisturbed since it has remained unchallenged and upon that finding, the driver of the goods vehicle would certainly be liable and the owner thereof also becomes liable vicariously. But, then before the Tribunal there has been no attempt to foist liability on either the owner or the driver; but, even so the Tribunal should have assessed their liability in terms of compensation payable to the claimant. That has not been done. But no exception — quite understandably indeed — having been taken before us to that mode of disposal of the proceedings by the Tribunal, it is not necessary for us to say anything more about it.

The only question that survives for consideration hereafter is the insurer's liability. The vehicle had full insurance coverage on the date of the accident and would be clearly answerable for the claim if only it is possible to hold the victim of the accident to be a third-party vis-a-vis the contract of insurance between the owner and the insurer. The Tribunal has recorded a finding that the deceased was at best a gratuitous passenger in a goods vehicle whose risk was not covered under the insurance cover extended by the contesting respondent herein. The Tribunal's view is summed up in the following passage:

“The petitioner Akkava has admitted in her evidence that the lorry belongs to her husband who is the proprietor of the Good-Luck Transport at Poona and her husband has insured the vehicle as a goods vehicle. It is not disputed that there is no coverage for the owner of the lorry or his son. In the course of the cross-examination of the petitioner, it is elicited that her husband has asked her son to bring cement from Madras and, therefore, her son was travelling along with the goods. But it cannot be said that the deceased was travelling in the lorry as the owner of the goods by virtue of any contract of employment under his father. The father of the deceased has not entered the witness box to show that he had engaged his son to carry the cement or the cement sheets from Madras to Bombay. There is nothing to indicate in the application that the deceased was asked by his father to carry the goods from Madras to Bombay in the lorry. Sri M.A Barangal, the learned Advocate appearing for the petitioner very strongly relied on a decision of our High Court in Renukappa T.M v. Fahmida reported in 1979 (2) Kar. L.J 103, to hold the insurance company liable. In that case, the insurer is held liable to pay compensation in respect of the death of the owner of the goods travelling in the lorry along with his goods. But the owner of the goods was not the owner of the truck and he was a third-party who was carrying the goods in the truck belonging to some other gentle-man. In this case the person carrying the goods is the son of the owner of the truck and there is no evidence to show that the owner of the truck had engaged his son to carry the goods in the lorry by virtue of any contract of employment. Therefore, I find it difficult to extend the principles enunciated in Renukappa's case to the facts of this case. As a matter of fact, the petitioner has not stated anything about the so called contract of employment between her son and her husband and it is only in the course of the cross-examination she has come out with a new theory of her husband asking her son to go to Madras and bring cement. The vehicle in question is a goods vehicle and its insurance as admitted by the parties, is for third-party risk and as such there is no liability on the part of the insurance company to pay any compensation for the death of the son of the owner of the lorry in question. No relief is claimed against owner and driver of the lorry. Hence my finding on this issue.”

9. The foregoing makes it clear, the Tribunal was not prepared to accept the claimant's case that the deceased was travelling in the lorry on an errand of the insured to whom the goods in the vehicle belonged to. Mandanna, the owner of the lorry who was alive at the time of the proceedings before the Tribunal, remained ex-parte after service of notice. He was not examined at the enquiry. The case that at his bidding the deceased was travelling in the lorry to ensure the safe conduct of his goods set-up by the claimant in her cross-examination does not advance the case of the claimant any further. The son would, then, be in no better position than the owner father himself. It was not the claimant's case that Bopanna, was a workman’ under the owner and was travelling in the vehicle in the course of employment.

But, then reliance is placed by the appellant's Counsel on a decision of the Orissa High Court in National Insurance Co. v. Lakshmi Devi . 1985 ACJ 48. for the proposition that a person travelling in a truck if put incharge of the goods transported in the truck was entitled to the benefit of insurance cover. That was a case in which a peon of a Court was conveying the personal effects of a judicial officer, who was under orders of transfer in a goods vehicle which en-route met with an accident resulting in the death of the peon. The insurer sought to absolve itself of liability by making out that the peon was only a gratuitous passenger in the truck. The Court however, repelled that contention pointing out inter alia that on facts it was established that the peon was travelling on the master's business and the master having engaged the truck for conveyance of his goods, the insurer was therefore liable to compensate.

In paragraph 7 of the Judgment Their Lordship after adverting to the scope of Section 95 of the Motor Vehicles Act, dealing with insurance of motor vehicles against third-party risk and adverting to the decisions of the Madras High Court in Vanguard Insurance Co. Ltd., Madras v. Chinnammal . 1969 ACJ 226 Madras. and two other decisions viz., (1) Oriental Fire and General Insurance Co. Ltd. New Delhi v. Gurdev Kaur . 1967 ACJ 158 P & H. and (2) Hukum Chand Insurance Co. Ltd. v. Badruddin . 1980 ACJ 164 M.P. have concluded that in view of the aforesaid legal position i.e, the deceased being deputed by P.W 4, who hired the vehicle in question, to accompany his goods, is entitled to protection with such risk being covered under Section 95(1)(b), proviso (ii).

While we are in agreement with the said ratio, the principle of that decision is not attracted here, because the owner of the vehicle and the owner of the goods are very distinct. The owner — and his agent or representative — travelling in the vehicle are not third-parties. Indeed, the proposition that all persons who are not parties to the contract of insurance has its own limitation. Even so, a representative or agent — as distinct from a servant — of the owner who is a party to the contract cannot be a third party. In Pushpabai v. Ranjit Ginning and Pressing Co., Pvt., Ltd.,5 Supreme Court said:

“Sections 95(a) and 95(b)(i) of the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960 and excluded the liability of the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The plea that the words “third-party” are wide enough to cover all persons except the persons and the insurer is negatived as the insurance cover is not available to the passengers made clear by the proviso to sub-section which provides that a policy shall not be required:

“(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.”

Under Section 95(1)(b) an insurer issuing a policy is compulsorily required to insure the owner against any liability arising out of the death of or bodily injury to a “third-party.” Liability and the conditions and limits thereof in respect of personal injury to or death of employees of the insured person, in the course of their employment is covered by proviso (i) to Section 95(1)(b). Section 95(1) does not render it necessary for an insurer under an “Act Policy” to undertake the liability to pay compensation in respect of the death of the insured person himself in an accident involving the vehicle-insured.

Basically, a contract of motor insurance seeks to indemnify the owner of the vehicle against liability arising out of claims of third-parties arising against the insured-owner out of the use of the motor-vehicle. A contract of insurance which stipulates to pay compensation for the death of the insured-person himself cannot be said to be a contract of indemnity. If the owner of the vehicle, who has the benefit of indemnity is himself not covered by the policy his representative — unless he be an employee covered by the first proviso to Section 95(1)(b) — is in no better position in relation to the insurers obligation or the absence of it.

10. In the present case, the circumstances of the deceased-person, unfortunately do not attract the insurer's liability under Section 95(1). We see nothing else on record on the basis of which any relief can possibly be afforded to the appellant. However unfortunate orregrettable the result, it cannot be helped. Therefore, it is with some regret we proceed to dismiss this appeal, but without any order as to costs.