MATHUR, J. - (1.) THESE Special Appeals are directed against the judgment dated 31. 1. 1997 passed by the learned Single Judge dismissing the appeals of the claimants.
(2.) BRIEF facts giving rise to this group of Special Appeals are that on 8. 11. 1986 at about 5. 30 to 6. 00 A. M. , a goods truck bearing No. RJC 4009 capsized and turned turtle killing twelve labourers who were being carried in it. It is claimed that these labourers used to work with one Gopikishan Taparia, Contractor, and they were going back to resume their work after enjoying Diwali holidays. It was also claimed that they were being carried under a contract between Gopi Kishan Taparia and the owner of the truck. The Insurance Company denied the liability because of the breach of the term of policy. The Insurance Company also contended that it did not have any statutory liability to pay the compensation. The Tribunal held the owner and the driver responsible but absolved the Insurance Company holding that the deceased persons were gratuitous passengers in the truck. The Award of the Tribunal was challenged by the claimants. A question was posed before the learned Single Judge as to whether the Insurance Company should have been held liable for compensating the claimants in respect of the accident to a goods vehicle in which the deceased were being carried at the time of the accident? The learned Single Judge held that the Insurance Company was not liable statutorily or contractually and, accordingly, dismissed all the appeals. The learned Single Judge, how-ever, allowed the cross objection of the Insurance Company so far as the award of the Tribunal for reimbursement by the owner against the Insurance Company to the extent of Rs. 15,000/-as against the no fault liability was concerned. The learned Single Judge while accepting the cross objection of the Insurance Company, held that the Insurance Company was not liable when it was not statutorily or contrac-tually liable for meeting the no fault liability. It is contended by the learned counsel for the appellants that there is ample evidence on record to show that the truck in question was hired by the contractor for carrying the deceased labourers to the work site and, as such, it must be held that the deceased persons were travelling as passengers in the goods vehicle carried for hire or reward within the meaning of proviso (ii) to Section 95 (1) of the Motor Vehicles Act, 1939 and, therefore therefore, the Insurance Company is liable to indemnify the insured i. e. the owner of the Vehicle. On the other hand, Mr. Mehta has supported the judgment of the learned Single Judge that the deceased persons were gratiutous passengers in the goods vehicle, which met with the accident and, therefore, the owner of the vehicle alone is liable to pay the compensation. It is also submitted that the Insurance Company is not liable to pay compensation in respect of death or bodily injury to any person travelling in a goods carriage as passenger whether as a hirer or otherwise as under the insurance policy, there is no extra coverage in respect of a passenger like a owner or hirer travelling in the vehicle. It is emphasized that the Insurance Company is not liable to pay compensation to the claimants either on the ground of fault or no fault liability. Mr. Mehta further submits that the controver-sy has now been settled by a three Judges Bench decision of the Apex Court in Mallawwa & Ors. vs. Oriental Insurance Co. Ltd. & Ors. (1) wherein it is held that a goods vehicle does not come within the fold of proviso (ii) of Section 95 (1) (b) of the Motor Vehicles Act, 1939 and, as such, the Insurance Company is not liable for death or injuries sustained by persons carried in the goods vehicle alongwith their goods or after paying the fare or gratuitously. As the accident had taken place in the year 1986 i. e. prior to coming into force of 1988 Act, we have to consider the position of law as it stood then i. e. under the provisions of the Motor Vehicles Act, 1939. The High Court in the Country have expressed divergent views on the que-stion whether a passenger can be said to have been carried for hire or reward, when the travels in the goods vehicle either on payment of fare on alongwith his goods. It is not necessary to refer-to all those decisions as the Supreme Court in Mallawwa's case (supra) has approved the view taken by the Orissa High Court, in New India Assurance Co. Ltd. vs. Kanchan Bewa (2) The primary reason for accep-ting the Orissa view is that in order to find whether goods vehicle can or cannot come within the fold of proviso (ii), it shall have to be found out as to whether the deceased was the owner of the goods or an employee of such an owner and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. In the opinion of the Apex Court, the position would become very uncertain and would vary from case to case and the production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy. The additional reason given by the court is that sub-section (2) of Section 95 specifies the limits of liability and clause (a) deals with the goods vehicle and in so far as the person travelling in the goods vehicle is concerned, it has confined the liability to the employees only. This is an indicator and almost a sure indicator of the fact that the Legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicles, otherwise, clause (a) would have provided a limit of liability regarding such person. The third reason gi-ven by the court is the owner of the goods vehicles cannot claim indemnification from the insurer without any extra payment having paid just because once in a year the goods vehicle had carried passengers for hire or reward alongwith the goods. This would perhaps robe the third proviso dealing with the coverage of contractual liability lame. Following the ratio laid down by the Apex Court in Mallawwa's case (supra), we find no merit in this group of Special Appeals and, therefore, these are dismissed. .;