J.V.Gupta, J. - (1.) A common question of law has been referred by the learned Single Judge in these First Appeal from Order Nos. 239 of 1973 and 226 of 1974, and the same will be answered hereunder.
(2.) THE question of law referred for decision by a larger Bench is trial whether in the case of a comprehensive policy of insurance, the insurance Company is liable to pay only those amounts the liability for which arises under the provisions of the Motor Vehicles Act or it also includes the passengers in a private car who meet with an accident. The learned Single Judge has relied on a judgment of D.K. Mahajan, J. (as his to lordship than was), reported as Unique Motor and General Insurance Co. Ltd. v. Mrs. Krishna Kishori and Ors. : 1968 A.C.J. 318, while making the reference but, now the question referred to above stands fully answered by the Supreme Court in Pushpabai Parshottam Udeshi and Ors. v. M/s Ranjit Ginning and Pressing Co Pvt. Ltd., A.I.R. 1977 S.C. 1733, Para 20, thereof which fully answers the question, is reproduced hereunder: Sections 95(a) and 95(b) (i) of the Motor Vehicles Act adopted the previsions 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 person and the insurer is negative 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 to the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle it the time of the occurrence of the event out of which a claim arises. Therefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act.
(3.) WHILE so holding it has been further made clear by their Lordships of the Supreme Court that the insurer can always take policies covering risks which are not covered by the requirements of Section 95, and whether in a given case the particular policy covers the said risk or not, will be a question of fact in each case to be decides on the terms of the policy.;