J.B.Mehta:-

(1) This appeal is filed by the claimants as their claim of compensation for rs. 30 0 in respect of the death of the deceased gulam hussein was dismissed by the tribunal on the ground that no negligence was established and that the accident was inevitable. Gulam hussein was aged 45 years being born on february 3 1922 the claimants are his widow and five minor children. The deceased was supplying milk from amul dairy anand to the umreth consumers co - operative society. He was bringing about five cans of milk daily and was paid rs. 3/per can per day. On july 3 1967 the deceased was travelling in the motor truck in question which was coming from anand to umreth on this nadiad dakor road which runs west to east. The truck belongs to respondent no. 1 whose driver respondent no. 3 was driving this truck. The truck was insured with respondent no. 2 insurer. The accident happened at about 5 - 0 a. M. In the early morning when this truck which took a turn at a distance of about 239 ft. Had gone into the kutcha road to its left and had dashed with two babul trees in question peeling off their bark and as a result of which the deceased who was carried in this truck was thrown out and he sustained fatal injuries. The deceased was removed to the general hospital where he expired. The claim for compensation having been dismissed by the tribunal the present appeal is filed. [ the hobble court after discussing the evidence held that the deceased died as a result of gross negligent on the part of the truck driver in question. The hobble court also held that the loss amount to be awarded as compensation must be rs. 30 0 which cannot be increased * *

(2) The material question which now arises is as to the liability of the insurance company to satisfy this award. In the written statement at ex. 5 the insurance company has raised a plea that the deceased was not bona fide employee of the opponent no. 1 at the time of the accident and therefore under the policy of insurance ex. 68 the claimants were not entitled to any compensation from the insurer. The insurance policy ex. 68 is commercial vehicle (comprehensive) policy. In sec. I under the heading of liability to third parties clause (1) provides that subject to limits of liability the company will indemnify the insured against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle. The limit of liability under this head in sec. 11 (1) (i) is unlimited. The proviso to this sec. 11 (i) (b) provides that except so far as is necessary to meet the requirements of sec. 95 of the motor vehicles act 1939 the company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment. Sub - clause (c) provides that except so far as in necessary to meet the requirements of sec. 95 of the motor vehicles act 1939 in relation to liability under the workmen's compensation act 1923 the company shall not be liable in respect of or bodily injury to any person (other than a passenger carried by reason of or tn pursuance of a contract of employment) being carried in or upon or mounting or alighting from the motor vehicle at the time of occurrence of the event out of which any claim arises. Clause 3 is the usual drivers extension clause which insures even the permitted driver. In terms of and subject to the limitations of the indemnity which is granted by this section to the insured the company shall indemnify any driver who is driving the motor vehicle on the insureds order or with his permission. The avoidance clause then provides that nothing in the policy or any endorsement hereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the motor vehicles act 1939 sec. 96 but the insured shall repay to the company all sums paid by the company which the company would not have been liable to pay but for the said provisions.

(3) At the outset we will consider the relevant provisions of the act in order to find out whether this commercial vehicle required compulsory policy of insurance under chapter viii of the motor vehicles act 1939 as it stood at the time of the accident before its amendment by act 56 of 1969 sec. 94 (1) in chapter viii provides that no person shall use (except as a passenger) or cause or allow any other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person as the case may be a policy of insurance complying with the requirement of this chapter. The requirements of policies and limits of liability are laid down in sec. 95. Sec. 95 (1) provides that. A policy of insurance must be a policy which

(a) is issued by a person who is authorised insurer (or by a co - operative society allowed under sec. 108 to transact the business) and

(b) 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 many person caused by or arising out of the use of the vehicle in a public place. Provided that a policy shall be required (i) to cover liability in respect of the death arising out 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 a liability arising under the workmen's compensation act 1923 in respect of the death of or bodily injury to any such employee. (a) engaged in driving the vehicle; or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle or

(c) if it is a goods vehicle being carried in the vehicle or (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 or (iii) to cover any contractual liability. (2) subject to the proviso to sub - sec. (1) a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits namely (a) where vehicle is a goods vehicle a limit of twenty thousand rupees 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; (b) 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 in respect of persons other than passengers carried for hire or reward a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all and four thousand rupees in respect of an individual passenger if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger if the vehicle is registered to carry more than six passengers excluding the driver; (c) where the vehicle is a vehicle of any other class the amount of the liability incurred. .

Sec. 95 (5) provides that notwithstanding anything elsewhere contained in any law a person issuing a policy of insurance this section shall indemmify the person or classes of persons specified in the policy in respect of any liability which the policy purported to cover in the case of that person or those classes of persons. Sec. 96 (1) then provides as under : (1) if after a certificate of insurance has been issued under sub - sec. (4) of sec. 95 in favour of the person by whom a policy has been effected judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub - sec. (1) of sec. 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy then notwithstanding e. G. That the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy the insurer shall subject to the provisions of this section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder as if he were the judgment debtor in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest of that sum by virtue of any enactment relating to interest on judgments.

Sec. 96 (2) provides as under : no sum shall be payable by an insurer under sub - sec. (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing or any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds: (a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of sec. 105; or (b) that there has been breach of a specified condition of the policy be in one of the following conditions namely (i) a condition excluding the use of the vehicle (a) for hire or reward where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward or (b) for organised racing and speed testing or (c) for a purpose not allowed by permit under which the vehicle is used where the vehicle is a public service vehicle or a goods vehicle or. .

Sec. 96 (6) provides that the insurer shall not be entitled to avoid his liability otherwise than in the manner provided for in sec. 96 (2). Even though no such defence on the grounds mentioned in sec. 96 (2) (b) and (c) was pleaded in the written statement ex. 6. Mr. Shah has raised a ground that the compulsory insurance policy itself was not necessary in the present case so as to cover much passenger risk under sec. 95 (1) proviso (ii) and therefore there was no question of the liability of the insurance company to satisfy this judgment.

(4) In order to construe the requirements of a compulsory policy of insurance without which the vehicle is prohibited from going on the public road under sec. 94 (1) we will have to interpret sec. 95 (1) with its relevant provisos. Sec. 95 (1) (b) requires compulsory insurance of this third party risk in respect of death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. In view of the wide amplitude of the words any person the proviso carves out an exception in respect of employees risk and in respect of passengers risk. In the first proviso by engrafting an exception to an exception the employee risk has been required to be covered only in respect of certain employees mentioned therein in clauses (a) (b) and (c) i. E. The driver conductor or the ticket examiner in a public service vehicle and an employee carried in goods vehicle and the extent of the employee risk is covered only to the extent of the liability arising under the workmen's compensation act in respect of the death or of bodily injury to the person injured. Therefore besides the limited nature of the risk the coverage by the first proviso in respect of the employees of the insured person is only given to those specified employees. The proviso (1) does not cover even in a goods vehicle employees of the owner or hirer of the goods who would be normally as a business proposition carried on such a goods vehicle. The goods vehicle is defined in sec. 2 (8) of the act as a motor vehicle constructed adapted for use for carriage of goods or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passenger. Rule 118 of the motor vehicles rules 1959 deals with the carriage of persons in goods vehicle. Clause (1) thereof creates a bar that no person shall be carried in a goods vehicle except as is provided in that rule. The proviso enacts for free carriage of the owner hirer or bona fide employees of the owner or hirer or the police officer but the total number so carried must be as per the limits laid down therein. Therefore the goods vehicle is under its permit entitled to carry the owner or hirer or bona fide employee of the owner or hirer of vehicle when he is so carried free of charge to the extent of limits specified. In case of such passengers the relevant second proviso to sec. 95 (1) provides a positive cover by providing liability being covered in respect of the death of or bodily injury to the person being carried in or upon the vehicle at the time of the occurrence of the event out of which the claim arises if the condition laid down in the second proviso is fulfilled. The relevant statutory condition which prescribe positive coverage is to be found in the crucial expression: 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. It should be noted that the legislature has while providing these two provisos deliberately used different language. In the first proviso while covering employee risk limitative words of the relevant conditions are not with reference to the vehicle. The first proviso deals with the employee of the insured and gives positive coverage to the extent of workmen's compensation law to such employee provided the employee fulfil the relevant conditions of being a specified employee viz. The driver of any vehicle conductor or ticket examiner in any public service vehicle or employee conveyed in any goods vehicle. In the second proviso when the coverage is required in respect of passenger risk the limitative condition is not by reference to the passengers but by reference to the vehicle. The adjectival clause which is limitative condition in this section in the second proviso has been expressed in such unambiguous and clear language as is not capable of any other interpretation. The limitative condition in terms states that the vehicle must satisfy the test by answering the statutory description and it is not the passenger who is to answer the statutory description. If the vehicle is a vehicle which is one in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment such vehicle must have passengers risk covered by compulsory insurance policy for the third party risk irrespective of the fact as to what is the class of the passenger who was carried in or upon such vehicle at the time of the occurrence of the event which gives rise to the claim of compensation. The legislature has advisedly not confined this expression only to public service vehicle as defined in sec. 2 (25) which is used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage and stage carriage. It has covered even other vehicles which satisfy this statutory test. It has given the widest coverage by bringing all kinds of vehicles which satisfy this statutory test of being a vehicle in which the passengers are carried for hire or reward or by reason of or in pursuance of the contract of employment. Once the vehicle satisfies the statutory test as to its true character being the vehicle of the specified type the coverage is in wide terms to all persons carried in or upon the vehicle. Even if none is carried on any particular occasion if the vehicle fulfills the statutory test it must have compulsory coverage of passenger risk as the vehicle is one in which the persons would be normally carried for hire or reward or by reason of or in pursuance of the contract of employment as a business proposition. A commercial vehicle is by rule 118 permitted to carry free of charge the owner hirer and bona fide employees of the owner or hirer. The expression hire or reward could never be interpreted as synonymous terms so as to require a concept of a contract of hire. The contract of employment also need not be confined only with the insured but it may be with the owner or hirer of the vehicle. Where therefore persons are thus normally carried by a goods vehicle as passengers when they are lawfully permitted even under rule 118 it would be difficult to hold that such goods vehicle would not be required to be compulsorily insured so far as such passengers carried by it are concerned. It was vehemently argued by mr. Shah that the second proviso deals only with the passenger transport where the question of a passengers risk would arise. This argument is thoroughly misconceived because the goods vehicle is intended also to be covered in the second proviso and that is why the legislature has used the limitation condition of the widest amplitude that 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 whether with the insurer or with the owner or hirer. Any other interpretation would frustrate the salutary object of this compulsory insurance condition enacted with reference to the character of the vehicle. The entire condition shows that it is the use of the vehicle as business proposition or the business flavour that attracts liability of compulsory insurance. The limitative words would hardly be satisfied in the case of passengers who have been given lift by way of social kindness or if casual solitary use is made of the vehicle for carrying a passenger for some small reward whether by way of petrol charges or otherwise. Where however carriage of passengers by vehicle is as a business proposition or business exigencies or business reasons require carriage of these passengers by these vehicles the legislature has rightly made insurance coverage compulsory for such passengers even in a commercial vehicle. It specifies the character of the vehicle as one in which passengers are carried for hire or reward or by reason of or in pursuance of the contract of employment. Unless the goods vehicles were intended to be covered in the second proviso these words of wide amplitude would not have been used and passenger risk would have been made compulsory only for a public service vehicle. The first proviso covers all employees carried in the goods vehicle if they are employees of the insured but it is only the second proviso which covers even the employees of the owners or hirers of goods carried in such a goods vehicle.

(5) Mr. Shah vehemently relied upon section 95 (2) to support his construction that the limitative words were qualifying passengers and not the vehicle and that passenger risk was covered only in respect of certain passengers alone and not by reference to the vehicle. Sec. 25 (2) lays down various limits according to the class of the vehicle. In section 95 (2) (a) limit in respect of employees risk is laid down with reference to the vehicle being a goods vehicle. In sec. 95 (2) (b) limits are laid down in respect of passenger risk by reference to the vehicle where passengers are carried for hire or reward or by reason of or in pursuance of the contract of employment and different limits are laid down by reference to the classes of various passengers. Sec. 95 (2) (c) is a residuary clause which applies to all other vehicles. Therefore sec. 95 (2) (b) could never be pressed into service in this connection; as on the contrary it clearly shows that wherever legislature has used limitative words by reference to the character of the vehicle it is the very language which is used starting with the expression whether the vehicle is a vehicle of the class specified. If the passenger risk in a goods vehicle was not covered the two clauses in sec. 96 (2) (b) (i) (a) and (c) would not have been worded as they are. These two sub - sections provide that such defence could be raised by insurer provided there is specified condition in the policy excluding use of the vehicle for hire or reward where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward; or for a purpose not allowed by the permit under which the vehicle is used where such a vehicle is a public service vehicle or a goods vehicle. Therefore it is obvious that a goods vehicle could also fall within the second proviso provided it answers the statutory description. In izzard v. Universal insurance company ltd. 1937 c. 773 at page 782 lord wright in terms interpreted the language of sec. 35 (1) and sec. 36 of the road traffic act 1930 where also the language is almost in pari materia. There also the relevant sec. 35 (1) made unlawful the use of motor vehicle on the road without the compulsory insurance policy and sec. 35 (2) enacted the terms for an insurance in respect of death or bodily injury to any per son arising out of the use of the vehicle on the road. Then there were two provisos. The first proviso completely excluded the employee risk even though in our act from the very beginning there is a limited employee risk coverage. The second proviso is almost in identical terms as it provides a positive coverage by exception to an exception by the limitative words in the case of a vehicle in which passengers are carried for hire or reward or by reason of or in terms of contract of employment. The policy also contained similar proviso as (b) and (c) which were reproduced and followed statutory terms. At page 782 lord wright pointed out that the second proviso had the general purpose to exclude the persons from the compulsory insurance risk in general with the exception for passengers carried for hire or reward. It came under the heading passenger risk. Thereafter the term contract of employment was interpreted in the widest sense as including the contract with the third party on the ground that persons who are on the insured vehicle for sufficient practical or business reasons and had taken a contract of employment in pursuance of which they were on the vehicle as adequate criterion of such reasons must be covered. There was no sufficient ground for holding that that criterion should be limited to employees of the insured person. A commercial vehicle carrying a contractors or merchants goods would frequently and perhaps even normally have on it an employee of the goods owner to see to loading or unloading or delivering the goods or caring for them in transit. For such a purpose such a man would be carried as a passenger. Various illustrations were given for showing that the insured person in such a case would come under third party liability for such a man who can be described as invitee in the legal sense vis - avis an injured person. The employee of the owner of the goods who go out on the lorry with the goods and return have in the lorry after the goods are delivered may be properly regarded as persons carried in pursuance of a contract with some one other than the insured with the truck. A further illustration was afforded in the facts of that very case where izzard and his mates were being carried for purposes of the trade in which the truck was engaged and as an incident of haulage so far as druce was concerned. The same construction was applied not only to the statute but also to the terms of the policy and therefore the risk so far as izzard and his mates were concerned was held to be required under the compulsory coverage. While considering izzards case we should also keep in mind the significant departure which is made by our legislature in the limitative words in the second proviso by adding words that the vehicle is a vehicle. Therefore so far as our act is concerned the legislature has clarified the legislative intention by making this phrase adjectival to the vehicle and therefore the limitative condition under our act is not qua passenger as in the first proviso but qua vehicle itself. The legislature has used words of the widest amplitude to cover always the passenger risk. Once the vehicle satisfied the statutory test the coverage is not restricted only to employees of the owner or hirer of goods who might be carried on goods vehicle as a matter of business proposition. In fact izzards case had not to interpret the true scope of this limitative condition except for the purpose of holding that even the owners and hirers employees who were conveyed in a commercial vehicle were covered. This limitative condition has been now interpreted by the house of lords in the two recent cases in albert v. Motor insurers bureau 1971 a. E. R. 1345 and in motor vehicles bureau v. Meanan 1971 a. E. R. 1372. In the majority view of lord donovan it was pointed out at page 1352 that the relevant words were an adjectival clause governing a vehicle and must be construed as pointing to the function or one of the functions which the vehicle was used to accomplish. If the parliament had not intended this result it need only have said that the necessary insurance must be provided when the passengers were being carried for reward. It was also pointed out that what was intended was not some fleeting use of the vehicle to carry a passenger on some isolated occasion even though it might be arranged at the outset that he should contribute something towards the expenses but on the contrary some settled plan to carry passengers for reward which had been put into operation with a regularity and frequency both actual and intended - which justified the conclusion that this was one of the vehicles normal functions. A business test was therefore applied and the existence of a binding contract was held to be too narrow a test. The line was therefore drawn which separated social kindness from planned operation for reward which could be easily found. In the next decision it was pointed that the private car had actually become unofficial taxi service and the vehicle had become an asset of passenger carrying enterprise albeit on a modest scale and albeit part - time in return for reward in money as a binding contract was not necessary. It was also held that if the vehicle was such a vehicle which satisfied the statutory test by its business flavour it was wholly immaterial whether at any particular time it was actually carrying passengers or not and whether among any of the passengers it was carrying there were some who were lying carried free. We must also note that sec. 95 (2) would have to be interpreted not only in the context when a compensation claim is made after the accident had happened but in the light of the vital question whether the vehicle can be said to be duly insured as required by a statute because sec. 94 creates a prohibition on pain of penalty against user of the vehicle on the public road without necessary compulsory insurance policy. Therefore it is not material whether on a particular occasion the vehicle is not carrying insureds employees or the employees of the owner or hirer but carries the owner or hirer himself. The vehicle is permitted under rule 118 to carry such passengers like owner hirer or the employees free of charge and it clearly satisfies the statutory test as to the true character of the vehicle or as to its normal function. In consideration of the hire charges of the goods carried there is consideration or reward implicit for free carriage of these passengers. The commercial vehicle would be therefore a vehicle carrying such passengers although not for contractual hire but for some reward in the general sense. In any event such vehicle has the normal function to carry free of charge employees of the owner or hirer due to business reasons and even on that score it fulfilled the statutory test. Therefore the vehicle has the necessary business flavour which compels passenger risk being insured under the act. That is why even the insurer has provided in the use condition that such public carrier could have to be used under a public carriers permit. There is no plea taken in the present case as regards the various statutory defences under sec. 96 (2) so far as the use condition was concerned and it could never have been taken under rule 118. Therefore if the statutory test is by way of a limitation as to the character the vehicle which must fulfil this statutory test it must be held that the present commercial vehicle which was always used to carry owners or hirers goods where passengers would be normally carried as permitted under rule 118 was one satisfying the statutory test.

(6) Mr. Shah however drew our attention to the decisions of the various high courts where it has been held following the izzards case that although passenger risk would have to be compulsorily covered so far as the employees of the owner and hirer are concerned there is no such compulsory obligation so far as the owner or hirer himself is concerned. (see. South india insurance co. V. Heerabai 1967 a. C. J. 65 by the madhya pradesh high court punjab oriental fire and general insurance co. V. Gurudev kaur 1967 a. C. J. 65 by the punjab and hariyana high court parkash vati v. Delhi bagh dairy ltd. 1967 a. C. J. 82 by the delhi high court where the case was of a milk supplier; and the last one by the single judge of the madras high court in common wealth insurance co. V rahimkhan 1971 a. C. J. 295). Mr. Shah had also relied upon the decision in k m. Patel v. K. I. Kasar 1966 a. C. J. 284 by the maharashtra high court by kantawala j. It was a case where passenger was given a lift out of social kindness and so it would not be a relevant decision. The other decisions which were referred to merely lay down that the subsequent part of this condition by reason of or in pursuance of the contract of employment could never be fulfilled by hirer or owner or commission agent. All these decisions are influenced by izzards case where the controversy was only as to these words being narrowly construed to cover only employees of the insured or whether they covered employees of the hirer or the owner of the goods who were there on the commercial vehicle as a business proposition. Except for the punjab full bench decision in the oriental fire and general insurance companys case 1967 a. C. J. 158 where mehar singh c. J. Had given the construction that these limitative words cannot be read as adjectival clause to that the vehicle the question of construction of sec. 95 (1) second proviso has not been considered in other decisions. Therefore no other decision has tried to construe these limitative words. As earlier pointed out by us these words have been held by the house of lords to be adjectival clause qualifying the words vehicle as laid down in the case of albert v. Motor insurers bureau 1971 a. E. R. 1045 and motor insurers bureau v. Meanen 1971 a. E. R. 1972. More so it must be in our case because when our legislature had left no ambiguity by introducing the further clause in this limitative expression adding the words vehicle is a vehicle. Therefore the statutory test has to be satisfied by the vehicle and it has to be ascertained in every case whether the vehicle is a vehicle answering the description given in the second proviso and once the vehicle answers that description the coverage of compulsory passenger risk is in respect of the persons carried by such a vehicle irrespective of the fact whether at the time of the accident the vehicle carried insureds employee or owners employees or owner or hirer himself. Once the vehicle is a vehicle which has been earning some kind of reward and is carrying these persons as a business proposition the vehicle would satisfy the statutory test. It is the necessary business flavour in its normal functioning which would attract this compulsory insurance of the passenger risk. As lord donovan j. Rightly pointed out in such an event the same reason holds good for giving this coverage because the passenger had no choice of the driver when the passenger had to get his goods conveyed by such a transport vehicle where he could not choose the driver. Therefore the legislature had advisedly provided for compulsory passengers risk coverage in such a case even when it is transport vehicle provided it fulfils statutory test because of its business flavour. Mr. Shah next argued that in any event the policy in clause 1 (ii) (c) which clearly provides that coverage is given to the extent so far as it is necessary to meet the requirement of sec. 95. These words of the policy will have be read in accordance with the act. Once the act lays down the compulsory insurance coverage for the vehicle and when the policy in terms states that it has covered all the risk which is required to be covered under sec. 95 of the act it is obvious that the vehicle is compulsorily insured as required under the act. That is why even in the avoidance clause it is in terms argued that nothing in the policy or any other endorsement hereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the motor vehicles act 1939 sec. 96. But the insured shall repay to the company all sums paid by the company which the company would not have been liable to pay but for the said provisions. So far as the extension clause insures the driver who was driving with the permission of the insured on this occasion as per the decision in new asiatic insurance company v. Passumal a. I. R. 1964 s. C. 1736 the company came within the definition of the insurer in sec. 96 even in so far as the insured driver was concerned. Mr. Shah next argued that in any event the companys liability would be for the only statutory limited risk and not to the unlimited extent. Mr. Shah relied on sec. 95 (2) for the purpose. Mr. Shah ignores the fact that the company has undertaken unlimited risk under this policy because of the higher premium. The premium amount in terms includes the third party risk to an unlimited extent and for which higher premium has been charged. In first appeal no. 261 of 1967 decided by the division bench consisting of myself and s. N. Patel j. Decided on december 18 1971 (i. S. Bhavsar and ors. V. Chhotabhai isverbhai patel) wherein it was in terms laid down that if the insurance company gives a wider coverage than minimum required under the act the statutory liability created by the act of this statutory indemnity which has to be satisfied by the insurer would be the liability actually covered by the policy both under sec. 95 (5) and sec. 96 (1) unless it is escaped by the insurer on any of the relevant statutory defences and in the manner specifically provided as laid down in the case of british india general insurance company v. Captain itbar singh a. I. R. 1959 s. C. 1331. In that decision we had in terms relied on the parenthetical clause of sec. 95 (1) where the liability to satisfy the judgment against the insured is in respect of any such liability as is required to be covered by a policy under sec. 95 (1) (b) (being a liability covered by the terms of the policy). This parenthetical clause was held to be by way of the clarification given by the legislature as to the meaning of the liability which is to be satisfied if the judgment in respect of the liability is given in respect of the person insured by the policy. We therefore pointed out that sec. 95 (1) and sec. 96 (1) have the same ambit of statutory indemnity viz. Of the liability which is covered by the terms of the policy. If therefore in any particular policy the insured undertakes a wider coverage than the minimum act liability it would be that liability which he has undertaken to satisfy under the contract of policy which is now crystallized in the statutory indemnity both in sec. 95 (5) and in the duty to satisfy the judgment for that liability under sec. 96 (1). We had also referred to secs. 97 to 99 for this construction. Therefore in view of that decision it would be hardly open to the insurer who had in terms covered the appellants liability to urge that the liability was only the statutory minimum liability. In fact in shekhupura transport com. Ltd. V. N. I. L. Insurance co. A. I. R. 1971 s. C. 1624 at page 1627 where also the question was of the passenger risk their lordships had in terms gone into this question whether the limit or the insurer prescribed in sec. 95 (2) (b) of the motor vehicles act was enhanced by a contract to the contrary. In view of the settled legal position it would not be possible for mr. Shah to escape for the insurers liability to satisfy the judgment of the compensation amount of rs. 30 0 jointly and severally against respondent nos. 1 and 3 with costs and interest pendente lite. S. H. Sheth j.

(7) I concur in all the findings and the final order recorded by my learned brother. However i would like to record a few reasons in support of the construction which has been placed on clause (ii) of the proviso to sub - sec. (1) of sec. 95 of the motor vehicles act 1939 and i shall do it later.

(8) The deceased gulam hussain while travelling by the unfortunate motor truck in which he was carrying milk cans from anand to umreth was killed in an accident with which the truck met on way. It is not in dispute that the deceased had paid hire charges to the truck owner for transport of his milk cans from anand to umreth.

(9) Sec. 94 of the motor vehicles act 1939 requires compulsory insurance of every motor vehicle against the third party risk. The truck in question was insured at the relevant time with skandia insurance co. Ltd. And the insurance had been in force. Compulsory insurance against the third party risk must be one which compls with the requirements of sec. 95. It may have a wider coverage than what sec. 95 requires. Fit is a matter of contract between the insurer and the insured. But it cannot have a narrower coverage than what sec. 95 requires. Let us now see the minimum requirements of sec. 95.

(10) Sec. 95 (1) (a) lays down who can issue an insurance policy. We are not concerned with it in this case. Sec. 95 (1) (b) lays down who shall be insured. Person or classes of persons who are specified in the policy of insurance must be insured. The insurance risk undertaken by the insurer must be to the extent specified in sub - sec. (2). It must extend to the liability which the insured may incur in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. The expression any person has a very wide connotation and amplitude but it is limited by the proviso to sub - sec. (1).

(11) Now the proviso excludes the following kinds of persons from any person used in sec. 95 (1) (b). (1) such employees of the insured as his driver conductor or ticket examiner in case of a public service vehicle and in case of a goods vehicle an employee of the insured carried in the vehicle. If death of such an employee has occurred in a motor accident in course of his employment or if it has arisen out of his employment or if bodily injury has been sustained by such an employee in course of his employment or if such an injury arising out of his employment has been sustained by him the insurer under the scheme of compulsory insurance for third party risk is not liable to indemnify the insured unless the insurer has voluntarily undertaken such a risk or unless the liability attendant upon such a risk has arisen under the workmen's compensation act 1923 therefore clause (i) in the proviso excludes compulsory insurance in respect of the specified employees of the insured except in so far as the workmen's compensation act 1923 requires otherwise. The expression any person used in sec. 95 (1) (b) must include the deceased. The question is whether he has been excluded by the proviso. Clause (i) in the proviso which excludes compulsory insurance in respect of the specified employees of the insured does not exclude the deceased because he was not an employee of the insured. Since he was not an employee of the insured the question relating to coverage of risk in respect of him arising under the workmen's compensation act 1923 does not arise.

(12) Let us now see what clause (ii) in the proviso excludes and what it does not. The expression 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 when read in context of the opening words of the proviso excludes from any person passengers travelling by a motor vehicle. An insurer is not bound to underwrite risk arising out of death of or bodily injury to any such passenger. The deceased prima facie answers the description. If there was no exception to this exception carved out by clause (ii) in the proviso the insurer would not have been liable to indemnify the insured in respect of the accidental death of the deceased. But the exception to this exception provides that the aforesaid exception shall not embrace cases 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. The question is whether the case of the deceased is covered by this exception to the exception and therefore by the scheme of compulsory insurance for third party risk provided by sub - sec. (1). It appears that differing views have been expressed on the construction of the expression where the vehicle is a vehicle in which passengers are carried for hire or reward. The remaining part of this exception or by reason of or in pursuance of a contract of employment has no application to this case because there was no contract of employment between the insured and the deceased nor was the deceased carried on the unfortunate truck by the insured in pursuance of any such contract between them. The first part of this exception is clearly divisible in two parts where the vehicle is a vehicle is the first part and in which passengers are carried for hire or reward is another part. By repeating the word vehicle in the expression where the vehicle is a vehicle the legislature in my opinion has laid emphasis on the vehicle rather than on the expression in which passengers are carried. Instead of using this expression the legislature could have conveyed the same intention if it had used the expression except in case of a vehicle in which passengers are carried for hire or reward. How ever by using the aforesaid expression in which the word vehicle is repeated twice it has laid emphasis on the word vehicle rather than on the word passengers. In other words by enacting this exception to the exception it has in mind the inclusion in the scheme of compulsory insurance of risk arising out of an accident with which a vehicle which carries passengers for hire or reward meets and in which such a passenger loses his life or suffers a bodily injury. It is therefore clear beyond any doubt that the expression in which passengers are carried for hire or reward qualifies the vehicle. It is this kind of vehicle which must have a compulsory insurance of third party risk in respect of any person. In our opinion the minority view of chief justice mehar singh in the case of oriental fire and general insurance co. (1967) a. C. J. 158 is the correct view. In this view of the matter it must be held that any vehicle whether a passenger vehicle or a goods vehicle - which answers this decription must have compulsory insurance in respect of liability arising out of such risk. Merely by virtue of the fact that the truck in question was not a passenger vehicle properly so called within the meaning of the expression public service vehicle given in sec. 2 (25) of the act it can not be said that the exception to the exception enacted in clause (ii) in the proviso is not attracted to it. Even if it is a goods vehicle within the meaning of that expression given in sec. 2 (8) of the act it is permissible to carry on it certain kinds of passengers. The said definition provides as under:

Goods vehicle means any motor vehicle constructed or adapted for use for the carriage of goods or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers.

This definition does not wholly rule out carriage of passengers by goods vehicle in addition to the carriage of goods. Rule 118 of motor vehicles rules 1959 made under the act carries into effect this idea when it permits the carriage of the owner or hirer of a goods vehicle or his bona fide employees or the police officers within the limits laid down by that rule. The expression if passenger has not been defined by the act it therefore must be taken to bear its ordinary meaning. The concise oxford dictionary gives the meaning of passenger in the following terms:

Traveller in public conveyance by land or water or air. A person who travels by a goods vehicle by which he is entitled to travel as permitted by rule 118 is a traveller in a public conveyance. The deceased was certainly such a traveller because he had hired the truck in question for carriage of his milk cans and was therefore as a hirer entitled to travel by it. He therefore answers the description of a passenger within the meaning of clause (ii) in the proviso to sub - sec. (1) of sec. 95.

(13) The last question which we have to answer is whether there was any hire or reward for this carriage. The deceased had hired the truck in question for carriage of his goods. He had indisputably paid the hire charges. The hire charges paid by him ostensibly for the carriage of his goods include consideration for his own travel and it must be so. The tests which we apply to arrive at this conclusion are these: could he have travelled by the truck in question if he had not paid the hire charges ostensibly for the carriage of his goods ? the answer must be in the negative. Did he travel by the truck in question as a matter of right (see rule 118) because he had paid hire charges for the carriage of the goods? the answer to this question must be in the affirmative. The answers to these two questions leave no doubt in our mind that the hire charges paid by the deceased for the carriage of his goods included consideration for his travel by the truck in question. He was therefore a passenger for hire within the meaning of clause (ii) in the proviso. Secondly what a passenger pays for his travel by a public conveyance is generally called fare. What is paid for the vehicle which is hired is generally called hire. Hire therefore relates to the vehicle while fare relates to a passenger. The meanings of fare given in the concise oxford dictionary throw some light on this aspect. There are three meanings of the expression fare which should be noted in this connection.

(a) cost of passengers conveyance (b) passage - money (e) passenger in hired vehicle.

These three meanings clearly indicate that whereas fare has reference to a person hire has reference to a vehicle. Looked at from this angle it is clear that passengers for hire or reward within the meaning of clause (ii) in the proviso are not necessarily passengers who have paid fares for their own conveyance. They include passengers who have paid hire chargers for the vehicle. Therefore if there is a passenger i. E. A traveller in a public conveyance who has paid hire charges for the vehicle by which he travels (as distinguished from fare for his own conveyance) he is a passenger for hire and a vehicle which carries such a passenger must have compulsory insurance in respect of the liability arising out of the risk accruing from his accidental death if such a vehicle meets with a mishap. I have no doubt in my mind that the deceased fell within this category. Therefore the insurer which issued the policy of insurance in respect of the vehicle in question under - wrote the risk arising out of the accidental death of the deceased a passenger for hire carried by a motor vehicle hired by him.

(14) For these reasons i agree with my learned brother that the insurer is liable to indemnify the insured in this case. Appeal allowed.