Kallu Maharaj v. Meenabai

G.G. SOHANI, AG.C.J.

(1.) The order in this case will also govern the disposal of Misc. Appeals Nos. 362 and 363 both of 1982.

(2.) This Full Bench has been constituted on a reference made by a Division Bench of this Court for consideration of the following questions of law :

"(1) Whether persons travelling in a truck not presently loaded with their goods, for the purpose of fetching their goods from another place, would be gratuitous travellers or would be deemed to be travelling for hire or reward within the meaning of Section 95(1) of the Motor Vehicles Act (2) If they are deemed to have been carried for hire or reward, what would be the extent of liability of the insurer"

(3.) The facts giving rise to this reference have been set out in the order of reference and from these facts it is evident that at the time when the accident took place, the deceased with a view to carry their goods from Chourai to Budhagar, were travelling in a truck, which was loaded with goods belonging to other persons and that at the time when the deceased boarded the truck in question they were not hirers of the truck. The Division Bench was of the view that the question as to whether the liability of the insurer would extend to a case where a goods vehicle hired for carriage of goods was used by the hirer or his servant even prior to the goods being loaded on the said truck, was of great public importance and hence the matter was referred to a Full Bench for consideration. That is how this matter has come up before us for consideration.

(4.) Learned counsel for the appellants contended that when a person travels in a goods vehicle with a vew to fetch his goods, he would be held to be a passenger travelling for hire or reward within the meaning of Section 95(1) of the Motor Vehicles Act, 1939, hereinafter referred to as the Act. Reliance was placed on the decisions reported in Harishanker Tiwari v. Jugru, 1987 MPLJ 594 [LQ/MPHC/1986/428] , Nasibdar v. Adhia and Co., AIR 1984 Bom 1 , [LQ/BomHC/1983/41] Abdul Razak v. Sharifunnisan, AIR 1983 All 400 , [LQ/AllHC/1982/301] and Santra Bai v. Prahlad, AIR 1986 Raj 101 [LQ/RajHC/1985/177] (FB).

(5.) Now the decisions reported in Abdul Razak v. Sharifunnisan, Santra Bai v. Prahlad, and Harishanker Tiwari v. Jugru, deal with a case where an owner of goods or his employee travels in a goods vehicle along with his goods. These decisions are, therefore, distinguishable on facts. In Nasibdar v. M/s. Adhia and Co., the claimant was hirer of a goods vehicle travelling in that vehicle for the purpose of fetching his goods from Thane and the vehicle for this purpose was being driven from Bombay to Thane. The claimant was held to be a passenger for hire or reward because the consideration paid by the hirer for transport of his goods was held to include consideration for the individual transport of the hirer and it was in these circumstances that the Bombay High Court held that the tortuous liability of the owner was covered by the insurance policy. As held by a Full Bench of the Bombay High Court in Oriental Fire and Genl. Ins. Co. Ltd. v. Hirabai Vithal Nikam, 1988 ACJ 494 [LQ/BomHC/1988/47] , the decision in Nasibdar v. Adhia and Co., AIR 1984 Bom 1 , [LQ/BomHC/1983/41] was based on the necessity of the hirer to travel with the goods. That decision also is, therefore, distinguishable on facts.

(6.) The vehicle referred to in the clause "a vehicle in which passengers are carried for hire or reward" occurring in Section 95(1) of the Act necessarily means that vehicle which can be lawfully used for carrying passengers for hire or reward. Rule 111 of the M.P. Motor Vehicles Rules, 1974, lays down that no person shall be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle or the owner or the hirer and except in accordance with that rule. It is thus clear that a truck cannot be lawfully used for carrying a person who has not hired the truck but travels with a view to fetch his goods from some other place. Such a person, in our opinion, cannot be held to be travelling for hire or reward. Such a person would be deemed to be a gratuitous traveller and in these circumstances, the insurer, in the absence of any term to the contrary in the insurance policy would not be liable for the tortuous act of the owner as this would not be the requirement of the insurance policy as laid down by Section 95(1) of the Act.

(7.) Our answer to Question No. 1 referred to the Full Bench is that persons travelling in a truck, not presently loaded with their goods, for the purpose of fetching their goods from another place, would be gratuituous travellers and would not be deemed to be travelling for hire or reward within the meaning of Section 95(1) of the Motor Vehicles Act, 1939. In view of our answer to Question No. 1, it is not necessary to answer Question No. 2. The case shall now be placed before the Division Bench for disposal. Parties shall bear their own costs of this reference. Order accordingly.