R.C. Lahoti, J.
1. Two of my learned brothers, Dr. T. N. Singh and K. K. Verma, JJ. have, while disposing of M.A. No. 97/85, differed in their opinions on the question of enhancement of compensation payable to claimant/respondent for his son Pappu's death and Hon'ble the Chief Justice has been pleased to constitute this Bench for hearing . the appeal.
2. A single accident gave rise to three claim petitions. All were disposed of by a common order by the Claims Tribunal. The owner and the driver preferred three appeals registered as M.A. No. 90/85, 97/85 and 98/85. In all the three cases, the respective claimants preferred cross-objections seeking enhancement. The three appeals, with respective cross-objections were heard by the Division Bench and disposed of by a common order, the two learned Judges recording separate opinions. They agreed in conclusion in so far as M.A. No. 90/85 and M. A. No. 98/85 were concerned. This M. A. No. 97/85 has survived for consideration of the questions as to whether Ramchandra (claimant)'s cross-objection has to be allowed and compensation awarded to him for his son's death enhanced; which of the defendants would be liable to compensate the claimants and to what extent. Facts relevant for the disposal of this appeal alone shall be noticed hereinafter.
3. The appellant No. 2 is owner of the truck No. CPC 1996 which met with an accident on 28-2-1982. Pappu, aged 2 years, the minor son of the claimant /respondent No. 2 was one of the victims who died. The victims were travelling in the truck as passengers for hire. The truck had overturned.
4. Ramchandra, the respondent No. 2, filed claim petition No. 31/82 claiming Rs. 1,02,000/ - as compensation for the death, of his son. The owner and driver filed written statements denying the facts averred by the claimant and pleading that the deceased persons were not passengers in the truck but they were sitting by the side of the road where the accident occurred on account of the brakes of the truck having failed. The insurer, respondent No. 1; took a plea, inter alia, that the vehicle was a goods vehicle which could not have carried the passengers for hire or reward and a material term of the insurance policy having been violated the insurance company stood exonerated.
5. The Tribunal awarded an amount of Rs. 4,000/- as compensation for the death of minor Pappu. The driver and the owner made liable jointly and severally but the Insurance Co. was held excluded. The owner and driver have preferred the appeal while the claimant Ramchandra has filed cross-objections claiming an award of Rs. 50,000/- against the owner, the driver and the insurer.
6. With effect from 1-10-1982, came into force Section 92-A of the Motor Vehicles Act, 1939. No such claim was laid before or considered by the Tribunal. During the hearing of the appeal before the Division Bench, the claimant/respondent was permitted to amend the claim petition and cross-objection too, claiming no fault compensation.
7. At this stage, it is not disputed that the driver was a duly licensed driver, Pappu was travelling in the truck as passenger, and the truck driver had taken money from the passengers for carrying them as such, of whom three including Pappu died in the accident. The tribunal has arrived at a finding that the accident was the result of rash or negligent driving of the driver. The finding has been confirmed by the Division Bench. One of the terms and conditions of the insurance policy in question is that it does not cover use of the insured vehicle for the conveyance of passengers for hire or reward.
8. The order of the Division Bench has since been published in 1990 Ace CJ at page 495. It will still be useful to notice and highlight the salient features of how, on what points, and upon what reasoning, the two learned Judges have differed on the quantum of compensation and the liability of the insurance company to satisfy the award.
9. K. K. Verma, J. on scrutinising the reasons given by the Claims Tribunal, in the light of rather meagre and inadequate evidence of the claimant on quantum of compensation, held, vide para 59, that no case for enhancement was made out and the cross-objection to that extent was liable to be dismissed. As to the plea for compensation under Section 92-A, K. K. Verma, J. held that in view of the finding that the Insurance Co. was liable as a judgment-debtor to satisfy the judgment against the appellants under Section 96, it was not necessary to examine and consider the plea under Section 92-A. Question of enhancement of compensation with the aid of Section 92-A was not therefore considered by him.
10. As to the liability of Insurance Co. K. K. Verma, J. placed total reliance on Skandia Ins. Co. Ltd. v. Kokilaben Chandravadan, 1987 Acc CJ 411 : (AIR 1987 SC 1184). He quoted the statutory provisions contained in Sections 94, 95 and 96 of the Motor Vehicles Act as also Rule 111 of M. P. Motor Vehicles Rules, 1974. He analysed threadbare the facts of Skandia's case and law as propounded therein by their Lordships, quoting extensively from the decision. His conspectus of the law enunciated in Skandia's case is found to be contained in para 37. In susbtance, he concluded that breach of the terms and conditions of the Insurance policy exonerating the insurer should be a breach on the part of the insured himself and not his employee. The steps in the stairs of his reasoning are as under:--
(i) Concept of infringement or violation of the promise which, the expression 'breach' conveys is violation or infringement on the part of the promisor and a wilful one. If the insured is not at fault and has not done anything which he should not have done and/ or is not amiss in any respect, he has not committed a breach;
(ii) There is an implied mandate to the licensed driver to not to commit breach of statutory obligation. What is prohibited by law must be treated as a mandate (by the owner) to the employee and should be considered sufficient in the eye of law for excusing non-compliance with the conditions;
(iii) The insured will have to establish that the insurer is guilty of an infringement or violation of a promise contained in the policy of insurer. (See paras 32, 34 and 35)
He concluded by saying that Rule 111 prohibits being carried as passengers in a goods vehicle. Other than a bona fide employee of the owner or the hirer of the vehicle or the owner of the hirer; and that the breach of the rule by the driver could not be taken as a breach on the part of the insured himself. The driver having incurred the liability in tort on account of the accident, the owner was vicariously liable and the insurer was bound to indemnify the owner in view of the statutory provisions.
11. Dr. T. N. Singh, J. refused to subscribe to the abovesaid view. He observed that the owner having not chosen to enter the witness-box in face of the insurer's defence specifically taken in its written statement, it could not be said that the owner had taken all care within his means to avoid breach of the terms and conditions of the policy by positively instructing the driver. Moreover, the plea taken in the written statement filed by the owner was to the contrary where he had even denied there being any passengers in the truck. Whether or not the insured had done everything in his capacity to prevent the 'breach' of any condition of the policy could not be left to surmises and conjectures. In the absence of pleading and proof by the owner of a specific case denying protection to the insurer, merely on account of his being vicariously liable, the insurer could not be held liable to indemnify. Dr. T. N. Singh, J. vide para 64 inferred that Skandia's case (AIR 1987 SC 1184) was inapplicable to the facts of the instant case and then proceeded to hold that the insurer's liability could still be secured with the aid of Section 92-A. Vide para 65, he referred to his own earlier decision in Shamsher Khan's case, 1988 Acc CJ 394 (MP), holding that Section 92-A could not be given retrospective effect and also noticed another Single Bench decision rendered at Indore in Rukmabai v. Ramlal, 1988 Acc CJ 351 (MP) holding Section 92-A to be retrospective in operation. Vide para 69 he held that there was no provision in that Act debarring enforcement of a claim under Section 92-A in respect of an accident taking place prior to its enactment. In doingso, he took aid from Section 93 defining 'liability'. Vide para 70, he referred to the liability under Section 92-A as pre-existing liability of an owner and insurer of a motor vehicle, adding that it was only the procedural duty ofthe Court/tribunal created, to which presumption against retrospective operation ofthe statute is not extended. Vide paras 72 and73 he held that Section 92-A had an overriding and pervasive effect on which the insurer'ssuccess or failure in establishing its defenceunder Section 96(2) would have no effect and thereliance on Section 96(2) must be restricted tothe determination of the claim under Section 110-A forhigher amount. In his opinion, Skandia's casedid not have applicability also for the reasonthat Section 92-A was not interpreted thereinnor impact thereof on Section 96(2) wasconsidered in that case. He concluded byholding that the claimant was entitled to anamount of Rs. 15,000/- liable to be paid byInsurance Co. also. At the very outset videpara 55 he had stated by referring to twoearlier decisions of this Court that loss ofhuman life without regard to age and stationin life of the deceased had to be compensatedby a minimum award of Rs. 15,000/-. -Hefixed up the liability of insurance company, byreference to Chapter VII-A of the Act insertedby Amending Act of 1982.
12. Having heard the learned counsel for the parties and having carefully read the two opinions recorded by the learned Judges constituting the Division Bench, the following questions arise for determination:--
(i) What would be just compensation within the meaning of Section 110-A of the Motor Vehicle Act, 1939 awardable to the claiman consequent to the death of minor Pappu aged 2 years?
(ii) Who would be liable to pay the compensation i.e. whether the liability would be that of the driver as a tort feasor, that of the owner vicariously and also of the insurer under the law and under the terms of the policy?
13. Section 92-A of the Motor Vehicles Act, 1939 is not retrospective in operation, is a position which is no more res integra. In this very case, the order of the Division Bench disposing of the other two connected appeals was sought to be challenged by the insurer National Insurance Co. Ltd. by filing special leave petitions Nos. 14593-94 of 1989. The petitions were dismissed by the Supreme Court by a common order dated 20-12-1989, copy whereof is available in the record. To quote their Lordship's order :
'Heard Mr. Sharma in support of the Special Leave, petitions. We accept his submissions that in view of the fact that the accident took place prior to insertion of Section 92-A into the Motor Vehicles Act of 1939, the High Court had no justification to refer to that provision for fixing liability for the compensation on the insurer.'
Mr. Sharma has at the commencement ofhis submissions stated that the insurer is notchallenging the quantum of Rs. 15,000/- inrespect of each of the death but it is interestedin having the legal position in regard to theinsurer's liability to compensate settled inrespect of persons carried in goods vehicle asnon-fare paying passengers. This question isbeing examined in a matter pending in thisCourt and since Mr. Sharma is not challenging the quantum, we see no justification toentertain these SLPs. The dismissal of thepetitions, however, would not be taken assupporting the view that in law the insurer hasliability. The insurer, if so advised, may sue toowner for apportionment as the decree wasjoint.'
14. In R. L. Gupta v. Jupiter General Ins. Co., (1990) 1 SCC 356 the following passage occurs in the decision of their Lordships while determining the quantum of compensation:
'This is keeping in view the quantum of nofault liability now provided by the statuteprospectively.'
15. In Padma Srinivasan v. Premier Insurance Co. Ltd., AIR 1982 SC 836 also their Lordships had held (Para 6):
'The liability must mean liability as determinable under Chap. VIII at the relevant time, that is to say, at the time when the liability arises. Since the liability of the insurer to pay a claim under a motor accident policy arises on the occurrence of the accident and not until then, one must necessarily have regard to the state of the law obtaining at the time of the accident for determining the extent of the insurer's liability under a statutory policy.'
16. Section 92-A came to be enacted in the background of the call made by the Apex Court in N. K. V. Bros. (P.) Ltd. v. M. Karumal Ammal, 1980 Ace CJ 435 : (AIR 1980 SC 1354) that the State must seriously consider 'no fault liability' by legislation. The Statement of Objects and Reasons to the Amendment Act, states inter alia:--
'It is, therefore, considered necessary to amend the Act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions first for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle and, secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown. (See 1983 ACJ 'Article and Statutes Section' p. xv.)'
Thus a new liability under the concept of 'No fault liability, hitherto unknown to common law, was brought statutorily into existence for the first time, creating a corresponding right in favour of heirs of the deceased in a motor accident and persons suffering permanent disability in an accident.
17. The substantive law defines remedy and right while the law of procedure defines the modes and conditions of the application of one to the other. The law of procedure may be defined as that branch of law which governs the process of that action. In civil law the rules as to measure of damage pertain to the substantive law, not less than those declared what damages is actionable. (See Salmond on Jurispurdence, XIth edition, Chapter XII, at pages 503-504).
18. A new head of liability having been created and a new measure of damages having been brought into existence, taking a long march in the field of law of torts, the amendment is certainly within the domain of substantive law and not procedural law. The common law recognised concept of liability in road accidents only on proof of negligence and hence enactment of 'no-fault liability' cannot be termed a 'pre-existing liability'. Section 92-A cannot be read as providing procedure merely for enforcement of such liability.
19. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressed or by necessary implication made to have retrospective operation. The rule in general is applicable where the object of the statute is to affect the vested rights or to impose a new burden or to impair the existing obligations. Unless there are words in the Statute sufficient to show the intention of the Legislature to affect the existing rights, it is deemed to be prospective only. (See G. P. Singh on Principles of Statutory Interpretation, 4th Edn. p. 271).
20. The golden rule of construction is that in the' absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so considered as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. Garikapati v. N. Subbaiah Choudhary, AIR 1957 SC 540 para 25. On the well established principles of interpretation of statutes Section 92-A does not have any retrospective applicability. Nothing can be read in the language of the Amendment Act giving retrospective applicability to the amendments made thereby, either expressly or by necessary implication.
21. The learned counsel for the claimant placing reliance on the following passage from para 21 in Mithilesh Kumari v. Prem Behari Khare, AIR 1989 SC 1247:
'A statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing.'
contended that Section 92-A of the Act would apply to the present case without being retrospective. The contention cannot be accepted . Mithilesh Kumari's case (supra) related to the applicability of Benami Transactions (Prohibition) Act, 1988 to pending actions. Their Lordships have specifically held that Act to be retrospective in its application and hence applicable to pending action too though the action had commenced much before the enforcement of the Act. The solitary passage relied on by the learned counsel for the claimant cannot be applied to the present case where not 'a part of the cause of action' and not 'a mere part of the requisites for its action' is drawn from the antecedent time, but the entire cause of action and entire requisites for its action relate to a time antecedent to the commencement of Section 92-A.
22. It follows consistently with the law laid down by the Apex Court in the three decisions noticed hereinabove that the quantum of compensation and the liability of insurer to indemnify the insured by placing implicit reliance on Section 92-A of the Act cannot be fixed because the date of the accident was anterior to the date of enactment of Section 92-A.
23. Though I have taken the view that Section 92-A does not have applicability to the facts of the case still Section 92-A does not become totally irrelevant. It's enactment is a positive indication of the legislative intent that in case of death the compensation to be awarded shall be not less than Rs. 15,000/-.
24. Human life is invaluable. Any effort at assessing its loss in terms of money is an exercise nearing an impossibility. In C. K. Subramonia Iyar v. T. Kunhikuttan Nair, AIR 1970 SC 376 their Lordships observed (Para 14):--
'There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority.'
25. Section 110-B of Motor Vehicles Act, 1939, enacted the concept of 'just compensation'. The Court must only award a just or fair compensation, yet not full compensation and can never achieve a result which is perfect. Traditionally the damages have been divided into 'General' and 'Special' damages; the 'General damages' being those which the law presumes to flow from the event. Though an attempt is always made to plead and prove the factors affecting determination of quantum of compensation, ordinarily the Court has to arrive at a just figure of general damages. Much is left to the judicial experience of the Judges, the measure being vague and uncertain depending on vast variety of factors, it being impossible to frame any well defined rules for judging the pecuniary value of loss.
26. Thirty-five years after the independence, in the year 1982, the Parliament in its legislative wisdom thought fit to assess the value of life of its subject at Rs. 15,000/-minimum. The precedents available on quantum of compensation shall be presumed to have been in the knowledge of the framers of law. India is still a developing country and its people poverty stricken. Compensation for loss of life is not a restitution but only an effort at minimising the misery. The cause of action provided by death should not and cannot be a windfall or an occasion for rejoicing. All this must have been in the knowledge of the framers of law when they arrived at a figure of Rs. 15,000/-. The country's will vocalised through Parliament should be accepted as a guideline by the Courts assessing the loss of life at that minimum without regard to the age, expectation, future prospects and imponderables in life. The figure of compensation under, no fault liability clause does away with the necessity of proving general and special damages distinctly in so far as that minimum is concerned.
27. In R. L. Gupta's case, (1990 (1) SCC 356) (supra) though the date of the accident is not mentioned in the report, the compensation as originally assessed at Rs. 8,000/- for the death of two persons was enhanced by their Lordships to Rs. 20,000/- each for the two in the absence of any specific evidence, keeping in view the quantum in 'no-fault liability' now provided by the statute prospectively. The consistent view of this Court as noticeable from Shamsher Khan v. M.P.E.B., 1987 Jab LJ 721; Devji v. Anwar Khan, AIR 1989 Madh Pra 101 and Karurarh v. Omprakash, AIR 1989 Madh Pra 105 has been that without regard to the fact that the provisions of 'Section 92-A may not be retrospective in operation, it would serve as a legislative guideline for determining the compensation in cases of fatal accidents, which would not be less than Rs. I5,000/-. These decisions and also the similarly taken Bombay view in Oriental Fire and General Insurance Co. v. Shantabai, AIR 1987 Bom 52; Kerala view in Villasini v. K.S.R.T.C., AIR 1989 Kerala 95 have all been noticed, expressing full agreement therewith, by this Court recently in Sardar Ishwarsingh v. Himachalpuri, AIR 1990 Madh Pra 282 (para 4), I am of the opinion that without regard to the age of the deceased and in the absence of adequate evidence being available on record, the minimum compensation awardable in case of death ought to be Rs. 15,000/-, not because Section 92-A is retrospective in operation but because this Court should pay heed to the legislative guideline manifested in Section 92-A, in the wake of call for social justice to the representatives of the victims in road accidents.
28. Coming to the question of liability of the Insurance Company, I am unhesitatingly of the opinion that the insurer respondent No. 1 would be liable to satisfy the award on the authority of Skandia's case (AIR 1987 SC 1184) and on that point I express my full and complete agreement with the view taken and opinion recorded by K. K. Verma, J. in paras 37 to 40, 48 and 49 on the point.
29. Even at the risk of partial repetition I would like to place on record by reading aloud how I read Skandia's case (AIR 1987 SC 1184) (supra). Their Lordships opened with a note of sorrow noticing the conflict in judicial opinion and observing that widow of a victim of a motor vehicle accident can recover the amount of compensation awarded to her from the Insurance Company in similar facts and circumstances in the States of Andhra Pradesh and Gujarat but cannot do so in the States of Assam, Madhya Pradesh and Orissa. Their Lordships concluded by approving the Gujarat and Andhra Pradesh view and, termed the Orissa, Patna and Madhya Pradesh view as erroneous and held that the exclusion clause did not exonerate the Insurance Company from liability. The problem posed before their Lordships was whether the Insurance Policy providing a condition excluding driving by a person disqualified for holding or obtaining a driving licence or by a person not duly licensed could not act as immunity to the insurer. The contention of the Insurance Company was that once it was established that the accident occurred when an unlicensed person was at the wheels, the Insurance Company would be exonerated from the liability. Vide para 12, their Lordships assigned 3 reasons for rejecting the defence of the Insurance Company built on the exclusion clause. Having examined the relevant legal provisions from the Act, their Lordships laid down the law in para 14, from where the following extracts deserve to be reproduced (at pp. 1190 and 1191) :--
'It is, therefore, abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is not duly licensed will have to be in charge of the vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he had committed a breach? It is only when the insured himself places 'the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise.'
'When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver, the express or implied mandate to drive himself it cannot be said that the insured is guilty of any breach, and it is only in case of a breach or a violation of the promise on the part of the insured that the injured can hide under the umbrella of the exclusion clause.'
'In view of this provision(Section 84) apart from the implied mandate to the licensed driver not to place a non-licensed person in charge of the vehicle, there is also a statutory obligation on the said person not to leave the vehicle, unattended and not to place it in charge of an unlicensed driver. What is prohibited by law must be treated as a mandate to the employee and should be considered sufficient in the eye of law for excusing non-compliance with the conditions. It cannot therefore in any case be considered as a breach on the part of the insured. To construe the provision differently would be to re-write the provision by engrafting a rider to the effect that in the event of the motor vehicle happening to be driven by an unlicensed person regardless of the circumstances in which such a contingency occurs, the injured will not be liable under the contract of insurance. It needs to be emphasised that it is not the contract of insurance which is being interpreted.'
'What the legislatute has given, the Courtcannot deprive by way of an exercise ininterpretation.'
30. In my opinion, in the facts and circumstances of the case, merely because the insured/owner chose not to appear in the witness-box in face of the plea in defence taken by the insurer, the claimant cannot be made to suffer. It was for the insurer to have adduced evidence or brought out circumstances on record to infer that the responsibility for breach could be fastened on the insured so as to exonerate from its liability under the insurance policy. The case has to be examined not so much from the point of view of the insurer as from that of the claimant, as emphasised in Skandia'a case (AIR 1987 SC 1184). The tribunal having found that it was licensed-driver-employee who was in charge of the vehicle and it was the driver and not the owner who had committed a breach of law and thereby the terms of the policy, the presumption would be, in absence of evidence, that the owner had mandated the driver to abide by law.
31. A number of cases to the contrary have been cited by the learned counsel for the respondent insurer. They are all distinguishable and the view taken therein is liable to be distinguished and dissented from on the singular reasoning that Skandia's case has not been read there in its entirety. None of the decisions to the contrary have revetted their attention to what has been stated in paras 12 and 14 of Skandia's case noticed in the opinion of K. K. VermaJ. and also in para 29 above.
32. In all fairness to learned counsel for the insurer three Full Bench decisions cited by him and insisted on being dealt with, in support of his submission that risk as to passenger travelling for hire or reward in goods vehicle is not required to be statutorily covered under Section 95 by an insurer and as the policy too does not in terms cover such a risk. The insurer should be deemed to be exonerated may be noticed.
33. Kallu Maharaj v. Meenabai, 1989 Jab LJ 490 : (AIR 1989 Madh Pra 167) is a Full Bench decision of this Court wherein two questions were referred for opinion of the Full Bench. The Full Bench confined its attention to the question 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. The Full Bench opined that they would be deemed to be gratuitous travellers. The relevant question, answer to which would have assisted this Court in deciding this case was the question No. 2: 'If they are deemed to have been carried for hire or reward what would be the extent of liability of insurer?'
Vide para 7 of the report, the question has been left unanswered as unnecessary in view of the answer to question No. 1.
34. The decision of Full Bench of Rajas-than High Court in Santra Bai v. Prahlad, 1985 Acc CJ 762 : (AIR 1986 Rajasthan 101), with respect to the learned counsel, I am afraid, far from assisting him, has the effect of diluting the strength of his submission. The question, which faced the Full Bench, was whether an insurer is liable to indemnify the owner of the goods when he himself suffered injuries or death while accompanying goods or without goods in a goods vehicle hired by him. Several observations made by the Full Bench while reviewing the authorities available on the point to answer the questions referred to it, lead to an inference that goods vehicle, though not a public service vehicle carrying passengers for hire or reward, would be a vehicle covered by Clause (ii) of Section 95(1)(b) because Rule 133 of Rajsthan Motor Vehicles Rules, 1951 permitted carriage of persons in goods vehicle though to a limited extent. Clause (ii) to the Proviso to Sub-section (1) of Section 95 being an exception to an exception would fall within the purview of the main provision meaning thereby that it is a statutory liability of the insurer to cover the risk. Rajasthan Full Bench has referred to the definition of 'goods vehicle' and 'public carrier' and also referred to the views taken by Allahabad, Kerala, Karnataka and Gujarat High Courts vide paras 14 to 18 of the report. The case of owner of the goods travelling in the goods vehicle hired by him has been equated with the case of a passenger being carried for reward. Vide para 32, the Full Bench while summing up its conclusions has held inter alia:
'In case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the insurance company is liable.'
It is noteworthy that the provision parallel to Rule 133 of the Rajasthan Rules is to be found contained in Rule 111 of M.P. Motor Vehicles Rules, 1974, permitting carriage of persons in goods vehicle though to a limited extent.
35. The Oriental Fire & General Insurance Company v. Heerabai, (1988) 2 ACC 435: (AIR 1988 Bom 199), is a Full Bench decision of the Bombay High Court. Vide para 8, the Full Bench has observed that the except