HARISHANKAR Vs. JAGRU

JUDGEMENT

(1.) This Full Bench has been constituted for resolving the conflict between the two Division Bench decisions of this Court in South India Insurance Co. Ltd., Indore v. Heerabai, 1967 Acc CJ 65 and Patharibai v. Firulalji Shankarlal, AIR 1985 Madh Pra 103. Though the learned single Judge had requested the Hon'ble the Chief Justice for constituting an appropriate Bench for disposal of the appeal but only the question has been referred for decision. This opinion will also govern the following question referred in Ramsingh v. Smt. Shantibai, (M.F.A. No. 181/81) :-

(2.) In Misc. First Appeal No. 124/1981 the appellant is the owner of truck No. MPS 9555. Respondent No. 4 was the driver and the vehicle was insured with the respondent No. 5-Insurance Company. The respondents 1 to 3 are the claimants being sons and widow of deceased Laxman Sahu who loaded some bags of grain in the truck for carrying to market and himself travelled with the goods from Amlidih to Bhatapara. Near Simariapara, the truck turned turtle as a result Laxman Sahu died. Claim was preferred by his legal representatives. The Claims Tribunal found the driver to be rash and negligent in driving the truck and awarded compensation of Rs. 8,000/- but held that the Insurance Company was not liable as the deceased was not travelling in pursuance of any contract of employment. In Misc. F. Appeal No. 181/81 the appellant is the owner of truck No. HRJ 1380 which was insured with respondent No. 5-Insurance Company and was driven by respondent No. 6 at the relevant time. The truck was coming from Haryana carrying 6 buffaloes belonging to one Kawar Singh. Deceased Mangal was travelling with the buffaloes in the said truck as care-taker on behalf of owner of the buffaloes. It has come in evidence that Mangal was acting as a care-taker for transporting of buffaloes on behalf of several hirers who were transporting buffaloes by truck and he was receiving remuneration for the job. Therefore, clearly he was acting as an employee of the hirer and even if not an employee, he was a representative of the hirer to take care of the buffaloes. On 9-7-1977 at about 5 p.m. the truck overturned near village Agri Tahsil Bemetara, as a result the buffaloes and the occupants of the truck including Mangal were thrown out. Mangal sustained serious injuries and succumbed after 2 months. His widow and minor children filed the present claim case. The Tribunal found the driver to be rash and negligent and awarded compensation of Rs. 15,200/- against the owner and driver of the truck but held that the Insurance Company was not liable as the deceased was not covered by the terms of the policy since he was not travelling in pursuance of a contract of employment.

(3.) Section 94 of the Motor Vehicles Act makes insurance against third party risk compulsory in respect of all motor vehicles used in a public place. Section 95 provides that in order to comply with the requirements of Chap. VIII of the Act, a policy of insurance must be (a) issued by an authorised insurer and (b) policy must insure the person or classes of persons specified in the policy to the extent specified in Sub-S.(2). For ready reference it will be useful to quote Cl.(b) of Sub-S.(1) of S.95 :-