D.S Tewatia, J.:— Manohar Lal deceased was run over by truck No. HRK-1237 allegedly driven by Sham Lal, cleaner of the truck and the driver sitting by his side. Claim preferred for compensation by deceased's widow, mother and minor son was negatived by the Tribunal against the owner of the truck Ajit Singh and the Insurance Company. The claim to the tune of Rupees one lac was, however, allowed against Sham Lal clearner. Sham Lal preferred an appeal to this Court to which he impleaded as respondents Ajit Singh and the insurance Company as well. Claimants neither filed any appeal nor preferred cross-objection to the appeal filed by Sham Lal.

2. The learned Single Judge disagreed with the finding of the Tribunal in regard to the liability of the owner Ajit Singh. The learned Judge also held that the insurer was liable to indemnify Ajit Singh owner of the vehicle. The learned Single Judge then invoking the prevision of Order 41 Rule 33, C.P.C held cleaner Sham Lal, owner Ajit Singh and the insurance Company jointly liable to pay the compensation amount which he assessed at Rs. 64,000/- along with the interest at the rate of 6 percent from the date of the claim application with a rider that in view of section 96 of the Motor Vehicles Act (Hereinafter referred to as the Act). the liability of the insurer i.e insurance company would be limited to Rs. 50,000/- only. Aggrieved by the judgment owner Ajit Singh and insurance company have preferred two separate appeals, L.P.A No. 374 of 1980 by Ajit Singh and L.P.A No. 317 of 1980 by the insurance Company which we propose to decide by a common judgment.

3. In assailing the judgment of the learned single Judge the two appellants, the insured (the owner of the truck) and the insurer i. e. insurance Company, partly make a common cause in so far as their opposition to the finding that the owner of the truck was liable for the act of the cleaner and that appellate court could saddle the said owner and the insurance Company with joint liability alongwith the cleaner by invoking the provisions of Order 41 Rule 33, C.P.C is concerned. Failure of their common attack led to the parting of company while insured claimed that the insurance Company was liable to indemnify him regarding the entire amount awarded by the learned single judge, the insurance company sought to absolve itself of all liability on two grounds (i) that the original owner of the vehicle had transferred the vehicle and the insurance policy had lapsed and (ii) that the vehicle at the time of the accident was driven by a person who was not in possession of a driving license

4. A discussion of the liability of the owner for the act of the cleaner naturally must have precedence over the other contentions raised on behalf of the appellants for if they succeed in getting this court to hold that the owner was not liable for the act of the cleaner then it would not be necessary at all to examine the other contentions.

5. The learned single judge in regard to this aspect of the case reached has given, conclusion in the light of following four conclusions of fact:—

1. Ashok Kumar RW2 was employed as a driver and Sham Lal, appellant, as cleaner on the truck, by. Ajit Singh, RW3 the-owner of the truck.

2. At the time of the accident, the truck was being driven by Sham Lal, RW, the driver of the truck and the later was sitting by the former when the accident took place.

3. That the accident had taken place during the course of performance of business of the truck as the vehicle was being-brought back after unloading the goods, and lastly

4. That the truck had been allowed by Ashok Kumar, R.W its driver, to be driven by Sham Lal, appellant, in spite of the Instructions of the owner of the truck to the contrary”

6. The learned Judge guided himself by their Lordships enunciation of law in Sitaram Motilal Kalia v. S.J Bhatt . 1966 A.C.J 89., in regard to the doctrine of vicarious liability of the owner in cases of accidents of vehicles driven by other persons. That was a case in which the owner of the car entrusted the same to his driver for plying the same as a taxi. The driver made over the car to a third person who was engaged as a cleaner by the owner who drove the car in order to give driving test for obtaining a driver's license. While so driving the; cleaner injured a person who claimed damages. Their Lordships while holding in that case that owner was not liable for the tortuous act of the cleaner indicated the parameters of the doctrine of vircarious liability in the following words:—

“The law is settled that a master is vicariously liable for the act of his servants acting in the course of employment. Unless, the act is done in the course of employment, the servant's act does not make the employed liable. In other words, for the master's liability to arise, the act must be a wrongful and unauthorised mode-of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable”

7. In that case it was held that the course of employment was the business of plying the car as taxi. The driver in handing over the car to the cleaner to enable the latter to give a driving test did not act in the course of master's business or employment and therefore, the said act of entrusting the vehicle to the cleaner could not be considered to be doing an act authorised by an owner in an unauthorised manner.

8. The learned single Judge also sought support for his view from an English case Ricketts v. The Toos Tilling Ltd L.R . 1915 1 K.B 644.. In that case the driver of an omnibus entrusted it to the conductor who turned the vehicle back in order to bring it back to its destination. It was held that when the driver asked the conductor to drive the omnibus, he did so for the master's business. He merely did the master's work in a negligent way and therefore, master was liable for the act of the conductor.

9. Nearer home, he approvingly noticed a single bench decision of this court in Behari Lal v. Surinder Singh . AIR 1965 Punj 376. in which this court held the owner liable for the act of the cleaner who had been handed over the steering wheel of the lorry for driving towards its destination.

10. Reliance was also placed on three other decisions namely Insurance Companies Association Pool Bombay v. Bachabai Babulal . 1976 A.C.J 362., Oriental Fire and General Insurance Co Ltd. v. Surinder Kumar . 1977 A.C.J 501., and Khidni v. Dayal Singh . 1969 A.C.J 444., all holding the owner liable for accidents caused by cleaners who were entrusted with the driving by the drivers of the employer.

11. The learned Judge distinguished the three decisions that had been pressed upon him for holding that the owner would not be liable for the act of the third person who at the time of the accident was made to drive the vehicle by the driver who had either been expressly or impliedly instructed not to do so. The learned single Judge expressed himself in the following words:—

“In Roshan Lal Bhalla v. Sudesh Kumar 1968 Accidents Claims Journal 63, the accident resulting in the damage to two persons going on the scooter had been caused by a truck, driven by driver. The plea taken was that the driver was driving the vehicle without the knowledge of the owner at an untimely hour without the and, therefore, the master was not liable. It was contended that the truck was being used for military supplies and was parked for the night in the premises of R.L Kochar & Co. The owner was not aware where from the truck was being driven and ignorance was pleaded as to whether the driver had taken the truck without permission at the relevant time. The High Court, however, negatived all these pleas and held the owner liable. The learned counsel wanted to rely on an observation of the Court in paragraph 30 of the judgment in the following terms:—

If the driver has acted against the instructions of his owner, the case would be different.”

12. It is quite evident from the facts of the case that there was no such question for determination involved as to what will be the position if the driver allowed the vehicle to be driven by another person in the course of employment or during the course of business when the vehicle was being driven.

13. In Padmavati v. Duggansika 1975 Accident Claims Journal 222, two passengers voluntarily got into the jeep. The right front wheel of the jeep flew away from the axel. Consequently, the jeep toppled and as result the passengers sustained injuries and one of them died. It was held by the High Court of Karnataka that it was a case of sheer accident and the claimants had failed to establish that the accident had taken place on account of the rash and negligent driving by the driver.

14. In Machiraju Vasalkshl v. Treasurer, Council of India, Mission of the Luthern Church in America 1978 Accident claims Journal 314, the driver of the car picked up passengers while the car was being driven for master's business. The car went off the road and dashed against the tree resulting in the death of passengers picked up by the driver. It was held that the owner of the car was not liable because the act of the driver in picking up the passengers was not within scope of his employment.”

15. With respect we entirely concur in the view that the learned single judge has taken of the law in regard to the vicarious liability of the owner of a vehicle in regard to the tortuous act of third person acting in the course of employment of owner of a vehicle and in distinguishing the judgments cited on behalf of the appellant herein.

16. On behalf of the appellants in addition to the aforementioned cases that have been distinguished by the learned single Judge our attention has been drawn only to one more judgment, a Division Bench decision of this court reported in Jiwan Das Roshan Lal v. Karnail Singh . 1980 A.C.J 445. That was a case in which driver of a truck took in the truck a passenger. The truck met with an accident in which the said passenger was injured who laid a claim against, inter-alia, the owner of the truck was not vicariously liable for the unauthorised act of the driver qua the passenger in question.

17. In our view this judgment is also of no avail to the appellants. In that case the driver in giving lift to the passengers cannot be considered to be acting in course of his master's business which did not include the carrying of passengers. In the case in hand the bringing to the truck to its destination was for the purpose of the business of owner of the truck which would be an authorised act. The driver executed that purpose in an unauthorised mode. In the light of the enunciation by their Lordships on the point adverted to in the earlier part of the judgment the owner shall be vicariously liable for this unauthorised mode of doing by his servant what he was authorised to do.

18. Now coming to the next important aspect of this case pertaining to the invoking of the provision of Order 41 Rule 33, CPC for saddling the owner and the Insurance Company, the two appellants alongwith the cleaner Sham Lal with joint liability to pay Rs. 64000/- by way of compensation to the claimants even though the claimants had not either through a separate appeal or through corss-objection challenged the decision of the Tribunal exonerating the owner and the insurance Company completely of any liability to pay compensation to the claimants, it may be observed that on behalf of the claimant-respondents reliance was placed on three Supreme Court decisions namely Panna Lal v. State of Bombay . AIR 1963 SC 1516., Kok Singh v. Shrimati Deokibai . 1976 1 SCC 383, and Giani Ram v. Ramji Lal . 1969 1 SCC 813, whereas on behalf of the appellants two decisions of the Supreme Court in Nirmala Bala Ghose v. Balai Chand . AIR 1965 SC 1874. and Tummalla Atchaiah v. Venka Narasingarao . 1979 1 SCC 166, were pressed into service. To this tally appellant added one more judgment rendered by this court in Jiwan Dass Roshan Lal v. Karnail Singh.

19. On behalf of the appellant it has been canvassed that the provisions of Order 41 Rule 33 CPC could be invoked in situations referred to in the illustration given at the end of the aforementioned provision or in situations analogous thereto. It is emphasised that the illustration was chosen by the Legislature not for the purpose of widening the scope of the prevision in question but for determining the extent of its scope and parameters. The decision of the constitution Bench in Panna Lal's case (supra) was sought to be distinguished on the ground that the situation that arose in that case was identical to the one referred to in the illustration i.e the plaintiff had sought decree against Mr. Tiwari, Deputy Commissioner in the alternative. It is convassed that where a plaintiff seeks a decree against one or the other defendant or sets of defendants in the alternative and if the suit is decreed against a given defendant or sets of defendants then it must be taken that the court had given to the plaintiff the whole relief that he had sought and the plaintiff would have no case to go in appeal against the decision of the court and that if the appellant Court comes to the conclusion that the appeal was to be partly or wholly allowed it could act under the said provision in order to do justice to the plaintiff to pass such decree or order as the circumstances of the case justified. It was convassed on behalf of the appellants that since in the present case the learned single judge did not partly or wholly allow the appeal of Sham Lal, there arose no occasion for him to invoke the powers under Order 41 Rule 33, C.P.C The learned counsel for the appellants additionally urged that the powers under Order 41 Rule 33 were not unrestricted and the same were intended to do justice by granting relief to a party who had not appealed when refusing to do so would result in making inconsistent contradictory or unworkable orders and for this proposition drew support from Nirmala Bala Ghose's case (supra).

20. The learned single Judge found himself unable to be bound by the decision in Nirmala Bala Ghose's case (supra) by a Bench of three Judges in the face of the constitution Bench of five Judges in Panna Lal's case supra which had not been noticed or explained in Nirmala Bala Ghose's case (supra). We find ourselves in the same quandary. Having regard to the language of the provision which contains to words of the restriction and their Lordships' full throated endorsement of the wide powers that this provision confers on the appellate court and further in view of the guidance indicated by their Lordships in Union of India v. K.S Subramanian . 1976 3 SCC 677, for acting in a situation when a court is confronted with conflicting binding judgments of the superior court, we feel bound by the decision of the constitution Bench in Parma Lal's case (supra)

21. We may also observe with respect that their Lordships in Kok Singh's case (Supra) appeared to have indicated with clarity the underlying purpose of the provision of Order 41 Rule 33 C.P.C which in substance meant that appellate Court would pass an order which would have been passed by the Court below if the court below would have taken the view in regard to the rights and liabilities of the parties to the suit as is being taken by the appellate court.

22. Now coming to the mutual dispute of the insured and the insurer already projected in the earlier part of the judgment, it may be observed that the learned single Judge found no merit in the two contentions, advanced on behalf of the insurance Company. The learned Single Judge held that the insurance Company failed to establish that respondent Ajit Singh was not the original owner. The learned Judge took particular notice of the fact that when Ajit Singh appeared on the witness box no question was put to him by the learned counsel for the insurance Company regarding the alleged sale of truck, not even the policy of insurance was placed on the record, nor any evidence was adduced on behalf of the insurer to prove the plea raised in the written statement for claiming the exemption from liability on that account.

23. The other contention raised by the insurance company to claim exemption from liability was negatived by the learned single judge on the ground that the insurance Company had failed to establish on the record that it was exempted from liability if at the time of the accident the vehicle was driven by a person without a license. The learned Judge observed that the insurance policy which is said to contain such a term was not placed on the record by the insurance Company.

24. With respect we entirely concur in the view that the learned Single Judge has taken in regard to the aforesaid two contentions of the insurance company.

25. We have, however, respectful reservations in regard to the view that the learned single Judge has taken of the provisions of Section 96 sub-section (2) clause (b) of the Act in limiting the liability of the insurance Company to a sum of Rs. 50.000/- only, provisions of Section 95 of the Act only lays down the statutory requirement about the policy and it does not prohibit covering of a risk of a higher amount. A Division Beach of this court in Hans Raj v. Sukhdev Singh . 1982 A.C.J 435., had an occasion to examine in all its aspect the provisions of sub-section (1) of section 96 and sub-section (2) of Section 95 of the Act and the question that the Bench posed for itself was “Do the provisions of Sub-section (1) of section 96 of the Motor Vehicles Act limit the liability of the insurer qua the insured as also the third party to the one that by virtue of sub-section (2) of Section 95 it is required to recover, even though by charging extra premium the insurer has undertaken a liability greater than the one the provision of sub-section (2) of Section 95 requires it to cover.” The bench answered the question in the negative holding that the liability of the insurer of vehicles covered under section 95 sub-section (2) would extend to the sum assured by the policy of insurance in consideration of the premiums paid. In this regard the following observations of Sandhawalia, C.J who delivered the opinion for the Bench are illuminating:—

“8 Equally, I find substance in the stand taken by the learned counsel for the appellant on the basis of the language of section 96(1) of the Act. This in terms says that the insurer would be liable to pay the person entitled to the benefit of the decree any amount not exceeding the sum assured payable thereunder, as if he were the judgment-debtor. The maxima, is the sum assured under the policy of insurance. The particular language used is any sum not exceeding the sum assured. “I see no reason to construe and read this plain language to mean as any sum not exceeding the sum prescribed in lection 95(2) of the Act Such a construction would in my opinion be doing violence to the plain language of the provision and as shown above is otherwise not warranted on larger principles.

26. It would appear that the precedent of the final court, though not on all fours, seems to me to cover the point substantially by way of analogy. In Pushpabai Purshottam v. Ranjit Ginning and Pressing Co., one of the issues before their Lordships was with regard to the liability of the insurance Company to pay compensation to the passengers carried in a private motor car. The insurance Policy taken out by the insurance expressly covered the risk of liability to such passengers. However, it was the admitted position that there is no statutory requirement whatsoever in Section 95 to cover the risk of injury to passengers carried in a private car. Even in such a case their Lordships held the insurance company directly liable to the third party up to the extent of the sum assured under the award of the Tribunal. It thus flows from this decision that even in a case which is not within the specific and statutory requirements of the insurance policy and the limits of law prescribed under section 95 (2) the insurer would still be liable upto the sum assured in satisfaction of an award made under section 110-B of the Act. Once that is so it would fortiori follow that for matters within the requirements of an insurance policy and the financial limits prescribed therein the insurer would be even more liable to satisfy the award. Merely because the minimum financial limits are prescribed in Section 95 (2) it cannot possibly absolve the insurer from the payment upto the sum assured for which he has specifically contracted in consideration of extra premium paid by the insured. It calls for notice that in Pushpabai Purshottam Udashis's case their Lordships after referring to the various sub-sections of section 95 had then observed as follows:—

“The insurer can always take policies covering risks which are not covered by the requirements of section 95. In this case the insurer had insured with the insurance Company the risk to the passengers. By an endorsement to the policy the insurance Company had insured the liability regarding the accidents to passengers in the following terms:—

“In consideration of the payment of an additional premium it is hereby understood and agreed that the company undertakes to pay, compensation on the scale provided below for bodily injury as hereinafter defendant sustained by any passenger.”

27. After holding as above and construing the insurance policy, their lordships granted an award in favour of the claimants to the extent of Rs. 27,500/- out of which the liability of the insurance Company was restricted to Rs. 15,000/- which was the sum assured under the policy. It would thus be manifest that the aforesaid observations and the decision in a way materially aids the case of the appellants.

28. In view of the aforesaid binding enunciation of the final court, it is unnecessary to advert individually to any earlier High Court cases which may have struck a discordant note. However, in fairness to the learned counsel for the respondent we must notice, the United India Fire & General Insurance Co. Ltd. v. Savar Kanwar, wherein paragraph 75 of the report a conclusion contrary to the ratio in Pushpabai Purshotam Udashi's case seems to have been arrived at. With great respect it appears to us that the view expressed in the aforesaid Rajasthan case cannot now hold the field against the later binding judgment of the Supreme court and I would, therefore, respectfully record my dissent therefrom”.

29. Where the statutory provision in the question merely indicates the requirement about the policy and does not prohibit covering of greater risk by the insurer, it is the policy of the insurance company which could show the extent of the risk that the insurer had sought to cover. Where the insurance company for whatever reasons failed to bring on the record the policy of insurance it cannot be heard to say that it had agreed to indemnify the insured only to extent indicated in the statutory provision in question. In this regard reference may be made to Shyamlal v. New India Ass. Co. Ltd. . 1979 A.C.J 208. United India Fire Genl Ins. Co. Ltd. v. Pallamparty Indiramma . 1982 A.C.J 521. and Jugal Kishore v. Rai Singh . 1982 A.C.J 503..

30. For the reasons aforementioned, we hold that the insurance Company was liable to indemnify the insured in regard to the entire amount awarded against the insured by the learned Single Judge and allow L.P.A No. 374 of 1980 preferred by Ajit Singh to the extend indicated only and dismiss the other L.P.A No. 317 of 1980 preferred by the insurance Company in its entirety. No order as to costs.

R.M.S

Appeal Allowed.