JUDGMENT
Sohani, J.
1. The order in this case will also govern the disposal of Miscellaneous Appeals Nos. 55, 56, 57 and 58, all of 1983 ; and Civil Revisions Nos. 853, 1041, 1045, 1049 and 1058 of 1983.
2. The material facts giving rise to these appeals and revisions, briefly, are as follows:
On August 29, 1978, a truck bearing registration No. RJB 779, owned by the respondent, Wardhman, and driven by the deceased, Ramjankhan, fell into the river between Dohad and Kushalgarh while crossing a bridge. As a result of that accident, Mahendrakumar, whose goods were being carried in the truck, succumbed to the injuries caused to him in that accident. The legal representatives of the deceased, Mahendrakumar, submitted an application (Claim Case No. 6 of 1979) before the Motor Accidents Claims Tribunal, Jhabua, claiming compensation for the death of Mahendrakumar, alleged to have been caused as a result of rash and negligent driving of the truck by the deceased, Ramjankhan. As the truck was insured with the National Insurance Co., that company was impleaded as non-applicant No. 3. The claim was resisted by the non-applicants but the Tribunal found that, at the material time, the truck was being driven rashly and negligently by the driver who was in the employment of respondent No. 1, that the death of Mahendrakumar was caused as a result of that accident and that the non-applicants were, therefore, liable to pay compensation. The Tribunal held that the legal representatives of Mahendrakumar were entitled to receive the compensation amounting to Rs. 65,000 but as the deceased, Mahendrakumar, was guilty of contributory negligence, because he did not get down from the truck when the driver was attempting to cross the bridge overflowing with water, the claimants were entitled to a sum of Rs. 32,500 only, by way of compensation and a sum of Rs. 20,000 for pain and suffering. The Tribunal thus awarded a sum of Rs. 52,500 to the claimants. Aggrieved by that award, the insurance company has preferred this appeal which has been
registered as Miscellaneous Appeal No. 57 of 1983. In that appeal, cross-objections have been filed by the legal representatives of the deceased, Mahendrakumar, praying that the Tribunal erred in holding that the deceased, Mahendrakumar, was guilty of contributory negligence. The owner of the truck, respondent No. 8, has also filed cross-objections contending that the amount awarded was excessive.
3. The legal representatives of one Abdul Hamid, who was also travelling as a gratuitous passenger in the aforesaid truck and who succumbed to the injuries caused to him in the same accident, filed Claim Case No. 7 of 1979. The Tribunal awarded a sum of Rs. 10,000 to the legal representatives of the deceased, Abdul Hamid, by way of compensation. Aggrieved by that award, the insurance company has filed an appeal which has been registered as Miscellaneous Appeal No 55 of 1983.
4. Sureshkumar, son of Hansmukhlal, carrying on business under the name and style of M/s. Kamlesh Kumar Rakesh Kumar, also filed an application before the Tribunal (Claim Case No. 8 of 1979). The claimant’s case was that his goods, which were being carried in the aforesaid tr-uck, were lost as a result of the aforesaid accident and the claimants were, therefore, entitled to compensation in that behalf. The Tribunal awarded a sum of Rs. 4,468 to the claimants by way of damages. Aggrieved by that award, the insurance company has preferred an appeal which has been registered as Miscellaneous Appeal No. 56 of 1983.
5. M/s. Mahendrakumar Hansmukhlal, a partnership firm, also lodged a claim before the Tribunal against the respondents (Claim Case No. 12 of 1979), contending that the goods of that firm, which were being carried in the aforesaid truck, were lost as a result of the accident and the claimants were entitled to compensation. The Tribunal awarded a sum of Rs. 8,000 by way of compensation. Aggrieved by that award, the insurance company has preferred an appeal which has been registered as Miscellaneous Appeal No. 58 of 1983.
6. Non-applicant No. 1, Wardhman, the owner of the truck in question, has preferred a revision petition (Civil Revision No. 853 of 1983) directed against the order passed by the Tribunal, refusing to modify the award by directing the insurance company to pay the amount of costs and interest on the amount of Rs. 50,000.
7. Civil Revisions Nos. 1041 of 1983, 1045 of 1983, 1049 of 1983 and 1058 of 1983 are directed against the order passed by the Tribunal on August 25, 1983, in execution case directing that the amount awarded against non-applicant No. 1 be recovered only after the statutory liability of the insurance company was discharged.
8. The main contention advanced on behalf of the insurance company was that the Tribunal erred in holding the insurance company liable to pay compensation when under the terms of the insurance policy, that liability was not covered. Reliance was placed on the Division Bench decision of this court in South India Insurance Co. Ltd. v. Heerabhai and Co. [1967] ACJ 65 (MP), Saleem v. Leelabai (Miscellaneous Appeal No. 226 of 1976) and the single Bench decision in New India Assurance Co. v, Mehrunnissa [1983] JLJ 21, On behalf of the respondents, reference was made to the decision of the Rajasthan High Court in Santra Bai v. Prahlad [1985] ACJ 762; [1986] 59 Comp Cas 714 (Raj) [FB] and to the other decisions referred to therein and it was contended that the insurance company was rightly held liable to pay compensation as the deceased, Mahendrakumar, was the owner of goods, which were being carried in the vehicle, which met with an accident causing the death of Mahendrakumar.
9. Now, the Division Bench decision of this court in South India Insurance Co. Ltd. v. Heerabhai and Co. [1967] ACJ 65 and in Saleem v. Leelabai (M. A. No. 226 of 1976), laid down that in the absence of any term in the insurance policy, the insurance company would not be liable to pay compensation for the death of the owner of the goods carried in a vehicle as the owner is not a person or a passenger carried by reason of, or in pursuance of, a contract of employment. Learned counsel for the respondents contended that these decisions do not lay down correct law, because the effect of the proviso (ii) to Section 95(1) of the Motor Vehicles Act and the provisions of Rule 111 of the rules framed thereunder are not considered. Now, so far as the rules are concerned, even though the rules may permit any person to travel in a goods vehicle, the liability of the insurance company will have to be decided in accordance with the provisions of Section 95 of the Act and the terms and conditions of the insurance policy in question. The provisions of Section 95 of the Act came up for consideration before the Supreme Court in Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. Pvt. Ltd., AIR 1977 SC 1735. The Supreme Court held that, under Section 95 of the Act, the risk to a passenger, who is not carried for hire or reward or in pursuance of contract of employment, is not required to be covered by the policy of insurance. The insurer can no doubt always take policies covering risks which are not covered by the requirements of Section 95 of the Act. But, in the instant case, it is admitted that the insurance policy in question does not cover that risk. In the insurance policy, it is clearly stated as follows:
” (c) Except so far as is necessary to meet the requirements of Section 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 death of, or bodily injury to, any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the motor vehicle at the time of the occurrence of the event, out of which any claim arises. ”
10. In the instant case, neither Mahendrakumar nor Abdul Hamid were being carried in the truck in pursuance of any contract of employment. Learned counsel for the respondents, however, strenuously contended that the decision of the Rajasthan High Court in Santra Bai v. Prahlad [1985] ACJ 762; [1986] 59 Comp Cas 714 (Raj) [FB] should be followed in preference to the decisions of this court.
11. It is true that there-is divergence of opinion between different High Courts on the question as to whether an insurer is liable for compensation when the owner of the goods transported in a vehicle receives bodily injury or dies while accompanying the goods in a truck. All these decisions are referred to in Santra Bai v. Prahlad [1985] ACJ 762 ; [1986] 59 Comp Cas 714 (Raj) [FB]. In Santra Bai v. Prahlad [1985] ACJ 762 ; [1986] 59 Comp Cas 714 (Raj) [FB] it has been held by the Rajasthan High.Court that where the owner of goods travels along with the goods in a goods vehicle, such person would be held to be a passenger carried in the vehicle for reward. Apart from the fact that in the instant case, the insurance policy does not cover liability in respect of death of a passenger carried for hire or reward, the decision of this court in South India Insurance Co. Ltd. v. Heerabhai and Co. [1967] ACJ 65 and Saleem v. Leelabai (Miscellaneous Appeal No. 226 of 1976), run counter to the propositions laid down in Sanlra Bai v. Prahlad [1985] ACJ 762 ; [1986] 59 Comp Cas 714 (Raj) [FB] and till these decisions are overruled, we see no cogent reason to take a view different from that taken in the aforesaid decisions of this court. Moreover, in the instant case, there is no material on record for holding that the deceased, Mahendrakumar, had hired the truck in question. All that has emerged from the evidence on record is that the goods of the deceased, Mahendrakumar, were being transported in the goods vehicle along with the goods of other persons who had paid transportation charges. There is no material on record for holding that the charges for transporting the goods of the deceased, Mahendrakumar, would have been less than those recovered from Mahendrakumar, had Mahendrakumar not accompanied the goods. Under the circumstances, it cannot be held that the deceased, Mahendrakumar, was being carried as a passenger for reward. The insurance company cannot, therefore, be held liable to pay compensation for the death of Mahendrakumar and Abdul Hamid caused by the accident. Miscellaneous Appeals Nos. 57 of 1983 and 55 of 1983 deserve to be allowed.
12. As regards the cross objections preferred by the legal representatives
of the deceased, Mahendrakumar, in Miscellaneous Appeal No, 57 of
1983, learned counsel for the respondent-owner of the. truck fairly con
ceded that Mahendrakumar could not be held guilty of contributory
negligence, The award, therefore, deserves to be modified. So far as.
the cross-objections preferred by the owner of the vehicle are concerned,
the Tribunal, in our opinion, was not justified in awarding separately
compensation for mental ; anguish and suffering. The award, there
fore, deserves to be modified and the claimants should be held entitled
to receive from non-applicants Nos. 1 and 2 compensation amounting to
Rs. 65,000 (sixty-five thousand).
13. Regarding the liability of the insurance company for the loss of goods, learned counsel for the respondent-owner fairly conceded that the insurance company could not be held liable in that behalf. Clause (d) of Section II of the insurance policy clearly provides as under:
“(d) The company shall not be liable in respect of damage to property belonging to or held in trust by or in the custody or control of the insured or a member of the insured’s household or being conveyed by the motor vehicle. ”
14. The appeals preferred by the insurance company in that behalf,
therefore, deserve to be allowed.
15. As regards the revision petitions, in view of the fact that we have held the insurance company not liable to pay any compensation. Civil Revision No. 853 of 1983 deserves to be dismissed. Regarding other revision petitions, the impugned order passed by the Tribunal in execution of the award cannot be sustained in law. These revision petitions, therefore, deserve to be allowed.
16. For all these reasons, Miscellaneous Appeal No. 57 of 1983 is allowed. The Tribunal, in our opinion, was not justified in holding that the appellant-insurance company was liable to pay any compensation. The award to that extent is modified and the appellant-insurance company (non-applicant No. 3) is held not liable to pay any amount of compensation. In the circumstances of the case, parties shall bear their own costs of this appeal. As regards the cross-objections preferred by respondent No. 1, the Tribunal, in our opinion, erred in awarding Rs. 20,000 to the claimants by way of compensation for mental anguish and suffering. Similarly, the cross-objections preferred by the legal representatives of the deceased, Mahendrakumar, deserve to be allowed as the Tribunal was not justified in deducting a sum of Rs. 32,500 from the amount of compensation for contributory negligence. The award is, therefore, modified and non-applicants Nos. 1 and 2 are held liable to pay to the claimants the amount
of Rs. 65,000 (sixty-five thousand) with costs and interest thereon at the rate of 6% (six per cent) per annum from February 28, 1979, till realisation. The award is, therefore, modified and non-applicants Nos. 1 and 2 are directed to pay the amount of Rs. 65,000 (rupees sixty-five thousand) to the claimants, with costs and interest thereon at the rate of six per cent per annum from February 28, 1979, to the date of realisation. Parties shall bear their own costs of the appeal and cross-objections.
17. Miscellaneous Appeal No. 55 of 1983 is allowed. The Tribunal, in our opinion, was not justified in holding the appellant-insurance company liable to pay any compensation. The award to that extent is modified and the appellant-insurance company is held not liable to pay any amount of compensation. The rest of the award is affirmed. In the circumstances of the case, parties shall bear their own costs of this appeal.
18. Miscellaneous Appeal No. 56 1983 is allowed. The award is modified and the appellant-insurance company is held not liable to pay any amount of compensation to the claimants. The rest of the award is affirmed. In the circumstances of the case, parties shall bear their own costs of this appeal.
19. Miscellaneous Appeal No. 58 of 1983 is allowed. The award is modified and the appellant insurance company is held not liable to pay any amount of compensation to the claimants. The rest of the award is affirmed. In the circumstances of the case, parties shall bear their own costs of this appeal.
20. Civil Revision No. 853 of 1983, filed by the owner of the truck, is liable to be dismissed as the insurance company is held not liable to pay any amount of compensation. Accordingly, Civil Revision No. 853 of 1983 is dismissed. Parties shall bear their own costs of this revision petition.
21. Civil Revisions Nos. 1041 of 1983, 1045 of 1983, 1049 of 1983 and 1058 of 1983 are all allowed as the insurance company is held not liable to pay any amount of compensation to the claimants. The order dated August 25, 1983, passed by the Tribunal in execution of the award is set aside. In the circumstances of these eases, parties shall bear their own costs of these revision petitions.