M.A. Razzaque, J.

1. This appeal by the South India Insurance Co. Ltd. Indore (non-applicant No. 3) under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter called the Act) is directed against the award dated 1.1.1965 passed by the Claims Tribunal Indore in claim Case No. 6 of 1962 awarding Rs. 9600/- as compensation to the dependents of one Chhotelal whose death was caused on account of an accident arising out of the use of a motor vehicle, on 22.6.1961.

2. The facts which are not now disputed before us are that the applicant-Respondents Nos. 1 to 7 are the legal representatives, being widow and children of deceased Chhotelal; that at the relevant time Respondent No. 8 Sardar Balwant Singh (non-applicant No. 1) was the owner of the truck No. MPE 7102 and Respondent No. 9 Mohammad Hussain (non-applicant No. 2) was in his service as the driver of the said truck and the said truck was insured with the Appellant-The South India Insurance Co. Ltd. Indore (non-applicant No. 3) under the Commercial Vehicle Policy (Ex. D. 1), the period of insurance being 4.5.1960 to 3.7. 1961, both dates inclusive. The accident in question occurred on 22.6.1961, i.e. within the period during which the said policy was in force. Chhotelal was a contractor and he had taken a Theka (contract) of repairing the tar road at Mandu. He had hired the said truck from Respondent Balwantsingh for carrying a tar mixture machine belonging to the Public Works Department to Mandu for repairing the road there and the said machine was towed to the said truck. On 22.6.1961, the date of the accident, the truck being driven by the Respondent Mohammad Hussain was proceeding from Dhar towards Mandu and Chhotelal was sitting on the front seat near the driver, while the mixture machine was towed to the truck. Non-applicant Balwantsingh was also traveling in the said truck along with others. When it reached the Alamgir gate at Mandu, it dashed against the wall of the said gate with the result that Chhotelal was thrown out of the said truck sustaining serious injuries resulting in his death instantaneously.

3. The applicant-Respondents 1 to 7, who are the dependents of Chhotelal filed a Claim petition before the Claims Tribunal, Indore against Appellant (non-applicant No. 3) and the owner of the truck Respondent, 8, Balwantsingh (non-applicant No. 1) and his driver Respondent 9, Mohammad Hussain (non-applicant No. 2) alleging that the said truck was being driven rashly and negligently by the driver so that he lost his control over it at the sloppy road near the Alamgir gate and dashed with great force against its walls as a. result of which Chhotelal was thrown out of the truck sustaining serious injuries to which he succumbed instantaneously on the spot. They claimed Rs. 28000/- as compensation from the non-applicants Nos. 1 to 3.

4. They resisted the claim on various grounds. It was denied that the truck was being driven rashly or negligently. According to them the steering rod of the truck was broken near the Alamgir gate and on that account the driver lost the control and the truck dashed against the wall of the said gate as a result of which Chhotelal who was sitting on the front seat received injuries and died on the spot. It was alleged that accident arose for reasons beyond the control of the driver. On behalf of the Appellant, it was further alleged that the policy did not cover the risk of an unpaid passenger like Chhotelal and, therefore, the company was not liable for the claim in question.

5. The Claims Tribunal found that the driver did not apply the brakes when the truck was approaching Alamgir gate, that he did not take turn to avoid the accident and therefore, the truck dashed against the wall of the Alamgir gate. He rejected the defence suggestion that the accident occurred because of the breakage of the steering rod. Accordingly he held that Chhotelal died due to the rash and negligent act of the driver. He further held that Chhotelal was carried by the owner of the truck in pursuance of a contract of employment because Chhotelal had engaged the truck on hire and, therefore, the Appellant-company is liable to pay compensation in view of Clause 2(1)(c) of the Policy (Ex. D. 1) which provides that the company shall be liable in respect of the death of a passenger carried in pursuance of contract of employment. As regards the quantum of damages, he found that the dependents applicants 1 to 7 were getting Rs. 200/- per month from Chhotelal, that he would have remained alive at least for four years and the dependents have been deprived of such amount for a period of four years and, therefore, he awarded Rs. 9600/- as compensation to them. As the accident occurred on account of the rash and negligent act of the driver non-applicant No. 2, who was then in the service of the owner non-applicant No. 1, the Tribunal passed the award against all the three non-applicants.

6. Being aggrieved by this award, the company alone has come up in appeal while the owner of the truck and its driver have not preferred any. In the memo of appeal the findings that the accident occurred due to rash and negligent act of the driver and also regarding quantum of compensation have been assailed. It is further contended therein that the deceased Chhotelal was never in the employment of the insured i.e. Respondent No. 8 Balwantsingh and as such he was not a person or a passenger being carried in pursuance of a contract of employment and hence he was not covered by the term of Clause 2(1)(c) of the Policy and, therefore, the Claims Tribunal was wrong in making the company liable for the claim in question. On behalf of Respondents 1 to 7, Mr. Agrawal supported the award, while Respondents 8 and 9 did not enter appearance at the time of the arguments.

7. During the course of the arguments before us, Mr. Dandwate, the learned Counsel for the Appellant did not seriously challenge the Tribunals findings regarding rash and negligent driving of the truck by the driver Respondent No. 9 as a result of which the truck met with the accident in question resulting in Chhotelal death and also the quantum of compensation awarded by the Tribunal. We have gone through the material on record and are satisfied about the correctness of the findings regarding rash and negligent driving and that the compensation awarded is fair and reasonable. What Mr. Dandwate vehemently challenged was that Chhotelals case is not covered by the terms of the policy as he was not a passenger carried by reason of or in pursuance of a contract of employment and, therefore, the Appellant was not liable. The contention of Mr. Agrawal, the learned Counsel for the contesting Respondents 1 to 7 was that the case is covered by Clause 1 (i) of the said Policy as Chhotelals death was caused by the use of the said truck and the question whether he was a person or a passenger carried by reason of or in pursuance of a contract of employment would not arise. In our opinion, the Appellants contention is sound.

8. Under proviso (i) (c) to Sub-section (1) of Section 95 of the Act, a policy shall not be required to cover liability in respect of the death of a person or passenger being carried in the vehicle if it is a goods vehicle, except so far as is necessary to meet the requirements in relation to liability under the Workmens Compensation Act, 1923. It is also clear that the Companys liability shall be governed by the terms of the Policy. Section II of the Policy in question (Ex. D. 1) relates to liability to third parties. Clause 1 (i) of that section is as under:

Subject to the limits of liability the company will indemnify the insured against all sums including claimants costs and expenses which the Insured shall become legally liable to pay in respect of (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/ or unloading) of the Motor vehicle.

Then it is hedged by provisos (a) to (g) and in this case we are not concerned with all these provisos except proviso (c) which reads as under:

Provided always that:

(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 Workmens 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 a alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises.

Thus from the terms quoted above, it would be clear that Clause (1) does not stand independently by itself, but it is qualified by proviso (c). Proviso (c) contemplates, two types of employees of the insured. One type of employees is that which is covered under the Workmens Compensation Act and the other type is that which does not fall within the ambit of that Act. Thus the company would be liable in respect of both these categories of the employees of the insured, if the death or bodily injury to the said employees is caused by or arising out of the use of the motor vehicle. Thus in order to make the company liable the person or passenger being carried in the goods vehicle should be an employee of the insured falling under one of the two categories mentioned above.

9. The expression by reason of or in pursuance of a contract of employment" has been explained at page 605 of Mathurs Commentaries on Motor Vehicles Act, 1939 (Fifth Edition) as under:

The expression is considerably wider than the expression "arising out of or in the course of the employment." Where an employer places a conveyance at the disposal of his workmen, injuries sustained by them whilst traveling in it fulfill the latter qualification (i.e. arising out of or in the course of the employment), if there is some necessity or obligation upon them to use. This is so notwithstanding that the employer is bound in express or implied term of his contract to provide the conveyance, although if the circumstances of the case render the conveyance the only possible means of transit, there may be implied a condition in the workmans contract to make him use it. Consequently, there may arise cases of injury which do not fall within the ambit of the Workmens Compensation Act when employees travel in a conveyance provided for their use, and this gap is presumably intended to be met by ensuring insurance protection to an employee who is injured in such circumstances, and who recovers damages from the owner or the driver of the vehicle supplied-Hector Hughes Law Relating to Road Users Rights, Liabilities, and Insurance, at page 164.

10. Now the question for our consideration is whether at the time of the incident when the truck in question met with the accident resulting in Chhotelals death, Chhotelal was an employee of the insured Balwantsingh Respondent No. 8 and the latter was his employer. In other words whether the relationship of employer and employee or master and servant existed between them at that time. The learned Claims Tribunal has held that Chhotelal had hired the truck from Balwantsingh for carrying the tar mixture machine from Dhar to Mandu where he had to repair a tar road and while he was traveling in the said truck and carrying the said machine the incident occurred, which resulted in his death. In these circumstances, it is impossible to hold that at the time of the accident there existed the relationship of employer and employee or master and servant between Balwantsingh and Chhotelal. In other words Chhotelal at that time was not a person or passenger who was being carried in the truck in question by reason of or in pursuance of a contract of employment. Accordingly the learned Tribunals conclusions that the deceased was carried in pursuance of contract of employment cannot be accepted.

11. Mr. Agrawal, the learned Counsel for the contesting Respondents 1 to 7 relied on Harries v. Perry and Co. (1903) 2 K.B. 219 and Pratt v. Patrick (1924) 1 K.B. 488 to show that the Appellant would be liable. We do not agree. These cases relate to voluntary passengers. According to these cases there seems to be no doubt that in England, at any rate, a voluntary passenger (other than persons carried in the vehicle in pursuance of a contract of employment) can sue the driver (or his employer or both as the case may be) for injuries sustained by the negligence of such driver. We fail to see how these cases can be made applicable to the present case. We have already said above that the Appellant. Companys liability shall be determined with reference to the terms of the Policy (Ex. D. 1). There is no term in the said Policy that the Company would be liable in case of death of or bodily injury to any voluntary passenger caused by or arising out of the use of the said truck. Accordingly this contention is rejected, as Chhotelal was neither a voluntary passenger nor the policy covers the case of such a passenger.

12. We accordingly hold that Chhotelal since deceased was not a person or a passenger carried by reason of or in pursuance of a contract of employment at the relevant time and, therefore, the Appellant Company is not liable. Hence the award passed against the Appellant is liable to be set aside, though it shall stand against Respondents 8 and 9 who have not come up in appeal against the said award.

13. In the result, the appeal is allowed and the award against the Appellant is set aside. As already stated, it is upheld against Respondents 8 and 9 (non-applicants I and 2). To this extent the award shall stand modified. The Respondents 1 to 7 shall pay the costs of the Appellant and bear their own. Counsels fee Rs. 50/- for each side, if certified. Respondents 8 and 9 who did not enter appearance shall bear their own costs as incurred.