B.D. Agrawal, J.
1. This appeal is directed against an award of the Motor Accidents Claims Tribunal (III Additional District Judge, Bareilly) dated February 29, 1980.
2. Claimants are the heirs of Rameswar Saran alias Bisheshwar Saran deceased. Appellant No. 1 is his widow and appellants Nos. 2 to 5 are his minor daughters. The deceased was aged about 26 years and carried on a kirana shop in Fatenganj East district Bareilly. The accident took place around 1-15 p.m. on September 20, 1976. Truck No. UTW 2337 belonging to respondent No. 1 was on its way to Bareilly from the side of Tilhar. P. W. Khem Karan and D. W. Pooran Lal were sitting inside the truck at the back portion. At Fatenganj East, P. W. Radhey Raman and the deceased loaded their empty cans and boarded the truck sitting on the tool box located over the cabin of the driver. At a short distance towards the west of village Tiswa, the truck suddenly swerved to the right and dashed against a pakar tree situated to the extreme right. This resulted in injuries to P. W. Radhey Raman and the deceased besides others (including the driver). Rameshwar Saran succumbed to these injuries on September 26, 1976. The claim was filed by the appellants for a sum of Rs. 50,000 which was resisted by respondents Nos. 1 and 3 contending, inter alia, that the driver had to take the truck to the right in order to save a passerby who was on a bicycle.
3. The Tribunal dismissed the claim in toto with the finding that the accident was inevitable and no rashness or negligence may be attributed tothe truck driver. The Tribunal has not entered into the issue pertaining to the quantum of compensation. The claimants have preferred this appeal aggrieved against the rejection of their petition.
4. I have heard learned counsel for the appellants and respondent No. 3. Despite substituted service by publication, respondents Nos. 1 and 2 have not put in appearance before this court.
5. Learned counsel for the appellants urged that the facts established on the record place this case under the principle of res ipsa loquitur and the burden, therefore, lay upon the other side to prove that the accident took place without the truck driver being negligent or despite his taking reasonable care. It is well settled that the maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant ' that a reasonable jury could find without further evidence that it was so caused. ' (Salmond's Law of Torts, fifteenth edition, p. 306). Are the facts established such that the proper and natural inference arising from them would be that the injury was caused by the defendant's negligence In Pushpabai Parshottam Udeshi v. Ranjit Ginning & Pressing Co. Ltd., AIR 1977 SC 1735, the Supreme Court lays down (at page 1739) :
' Where the maxim is applied, the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. '
6. In that case, the car which was under the management of the defendant went to the right extreme of the road, dashed against a tree and moved it a few inches away. It was held that this could not have happened if the driver had used proper care. It was a country road about 15 feet in width with fields on either side. The suggestion that stray cattle may have come into the road did not find favour and the maxim aforementioned was applied.
7. In Smt. Sushila Devi v. Ibrahim, AIR 1974 MP 181, A.P. Sen J. (as he then was), speaking for the Division Bench, stated the law in this respect to be (at page 185) : ' ......that when a motor vehicle suddenly leaves theroad, mounts the pavement or crashes against an offside tree, or falls down an embankment and meets with an accident resulting in death, the fact that it went off the road is, without more, per se proof of negligence.' The maxim was applied similarly by another Division Bench in M. P. State Road Transport Corporation v. Sudhakar, AIR 1968 MP 47, where a bus going ona clear and visible road at high speed, and there being no traffic near the place of accident, took a turn to the left for no apparent cause, went off the road and after dashing against two trees overturned, as a result of which some passengers died and others were injured.
8. Certain material facts of the case before me are not in dispute. The truck in question belonging to respondent No. 1 and under the management of his employee, namely, respondent No. 2, was proceeding from east to west. It was going to its left. It was broad daylight around 2 p.m. The road is admittedly about 20 feet in width with patari of 3 feet on either side. The road was clear with no obstruction or other traffic in view. The pakar tree with which the truck dashed was situate towards the extreme right. In this background, the question arising is what could possibly have led the truck to dash against the tree resulting thereby in injuries and the ultimate death of Rameshwar Saran.
9. The respondents came up with the theory that at the crucial moment there appeared a person riding a cycle from the west and in order to save him, the truck suddenly swerved to the right. I have carefully scanned the evidence but find, as the appellants' learned counsel contends, that this averment is entirely imaginary and based upon afterthought. It is not in dispute that P. W. Radhey Raman was a co-passenger in the truck besides the deceased. Both had boarded at Fatenganj east, both carried empty cans, which they had placed on the truck, and they were sitting side by side close to each other. Sitting as he did on the tool box and since he also was injured, Radhey Raman was in the best position to see how things happened. He refuted categorically that there was any cyclewala in the picture. He has been cross-examined on behalf of both respondents Nos. 1 and 3 and there is nothing to shake his testimony on the point. P. W. Khem Karan had boarded at Tilhar. He too maintains that there was none riding a cycle on the way and it is not correct to say, according to him, that the truck had to dash towards the right in order to save any such person. The Tribunal has placed reliance on D. W. Pooran Lal, who had boarded at Tilhar along with Khem Karan. It was overlooked that this witness, Pooran Lal, had nothing of the kind to suggest at the earliest opportunity. He is the person who lodged the first information report soon after the occurrence. It is not only that in the report he made no mention whatever of any cycle rider being involved in any shape or manner, but he said in the positive therein that it was unknown whether any defect developed in the machine or that the driver was in the wrong and that nothing could be said about it. In case there had been the cycle rider in the picture and the truck had taken to the right in order to save him, there could be no occasion for this witness to have disclaimed any knowledge in this behalf at the relevant and earliest moment. To the same effect was his statementunder Section 161, Criminal Procedure Code, with which he was confronted in cross-examination. No plausible explanation could be assigned by him for the material departure now made. In my opinion, there can be no difficulty in finding, as I do, that the version which he now gives is a figment of his imagination and a subsequent development. The Tribunal also overlooked that the truck driver was not examined in rebuttal. He may have been in a position credibly to throw light in explanation of what is otherwise apparent. But he was not produced, nor has any reason been assigned in this behalf. According to D. W. Pooran Lal himself, the alleged cycle was moving to its left. As said above, the road was clear, sufficiently wide and it is difficult to comprehend what may have led the rider on the cycle to take to his right despite the approaching truck unless he intended to commit suicide nor is it shown that the truck driver had no other escape except to swerve to the extreme right and even dash against the pakar tree. The circumstances existing are clearly consistent with rash and negligent driving on the part of the driver and this cannot be claimed to be a case of unavoidable accident.
10. Before the Tribunal the suggestion was made that the deceased and P.W.-l, Radhey Raman, were taken in gratis and were sitting on the tool box unauthorised. From this it was sought to be contended that no compensation could be claimed for the deceased. P. W. Radhey Raman and D. W. Pooran Lal both are agreed on the point that the former and the deceased, Rameshwar Saran, sat on the tool box on the driver's cabin. Pooran Lal went on to say that this was despite the driver asking them to sit inside. It is significant that no such suggestion was made in cross-examination to P. W. Radhey Raman. It cannot be said to be made out, in the circumstances, that there was a restraint by the driver or that the two sat on the tool box in defiance of what he said. There is nothing uncommon either in the driver acceding expressly or by implication in their occupying the tool box. P. W. Radhey Raman is positive moreover in regard to payment made for the hire. There is no good reason to disbelieve him on the point. Being a hirer in respect of the empty cans, the deceased could be carried also in the goods vehicle, as provided in Rule 92(a) of the U. P. Motor Vehicles Rules, 1940. Nothing was placed on the record from the side of the respondents to make out that the exclusion Clause (e) of Rule 92 is attracted in this case. The claim for compensation set up by the appellants cannot, therefore, be defeated on any of these grounds.
11. For respondent No. 3, namely, the New India Assurance Co. (P.) Ltd., learned counsel argued that assuming that there was rashness or negligence of the truck driver, there is no liability which can be fastened against the insurer because, it is submitted, Section 95(1) does not requirecoverage of such a risk nor does the insurance policy cover the same. This submission has been disputed from the appellants' side. The deceased was, as mentioned above, the owner of the goods and under the Rules he could be taken in as a passenger on hire. Section 95(1) provides the requirements of insurance policy and the limits of liability of the insurer. Clause (ii) of the proviso to Section 95(1)(b) lays down that a policy shall not be required :
' except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of, or bodily injury to, person being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.'
12. The question arising is whether the first part of this proviso (ii) covers such a case so as to require compulsory insurance, and, in the alternative, whether the insurance policy in any case covers the same. This same question arose directly in Abdul Razzak v. Smt. Sharifunisa [1984] ACJ 44; [1985] 58 Comp Cas 426 (All). A Division Bench of this court answered this in the affirmative. The view which found favour considering the purpose and object of Chapter VIII of the Act which provides for compulsory insurance policy to enable the third party to get damages for injuries suffered by them from the insurance company and that since a goods vehicle is permitted under the rules to carry along with the goods, passengers for hire or reward was that the owner of the goods travelling in the goods vehicle along with his goods is also covered by third party risk and in case of death of the owner of goods, the insurer is liable to indemnify his heirs. In that case, Mohd. Nasir, deceased, was owner of the onions which he loaded on the goods vehicle and also boarded the same. The vehicle capsized at some distance resulting in his death. The insurance company was held liable under the first part of the proviso (ii) quoted above. Reliance was placed, inter alia, on the decision in State Insurance Department, State Insurance Officer v. Sosamma Mani [1978] ACJ 504 ; AIR 1979 Ker 15, T. M. Renukappa v. Fahmida [1980] ACJ 86 ; AIR 1980 Kar 25 ; [1982] 52 Comp Cas 634 (Kar), United Insurance Co. Ltd. v. Gangamma [1982] ACJ 357; AIR 1982 Kar 261 and Channappa Channaveerappa Katti v. Laxman Bhimappa Bajentri, AIR 1979 Kar 93 ; [1982] 52 Comp Cas 609 (Kar).
13. For the insurance company, learned counsel referred to a decision of the Madras High Court reported in G. Dhyanand v. Zaamni Bi [1982J ACJ 399. This, no doubt, supports his contention on the point, but I am bound by the decision of the Division Bench of this court, which proceedson a consideration of other cases including the observations of the Supreme Court in Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. Pvt. Ltd. [1977] ACJ 343; AIR 1977 SC 1735.
14. It is not in dispute that the insurer can always take policies covering risks which are not covered by Section 95 and in that event the insurer would be liable to indemnify the owner of the vehicle, vide Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. (P.) Ltd, [1977] ACJ 343 ; AIR 1977 SC 1735. The Division Bench in Abdul Razzak v. Smt. Sharifunisa [1985] 58 Comp Cas 426 (All), considered this aspect also in the light of the terms of the insurance policy and was of opinion that (at page 439) :
' The terms contained in the policy do not necessarily require that the passenger being carried in the vehicle should be travelling in pursuance of a contract of employment, instead the company has undertaken to indemnify the owner for the death of a passenger who may be travelling in the vehicle in pursuance of contract also. Owner of goods is entitled under the rules to be carried in the goods vehicle by reason of his contract of hiring the vehicle for the transport of his goods. His risk is thus covered by the terms of the policy. Under the aforesaid terms, the insurance company has clearly undertaken to indemnify the owner for his liability for the death of owner if travelling in the vehicle as a passenger in pursuance of a contract of hiring. We are, therefore, of the opinion that even if there be any doubt relating to the liability of the insurance company on the interpretation of proviso (ii) to Section 95(I)(b), it is fully liable in view of the express terms and conditions of the policy.'
15. The insurance policy in the instant case is, however, in so far as relevant not in identical terms with Clause (e) of the policy under consideration in the case of Abdul Razzak v. Smt. Sharifunnisa [1985] 58 Comp Cas 426 (All) aforementioned. In the case before me, Clause (c) of the proviso to paragraph 1 (section II Liability to third party) reads as under (at page 438):
' 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 Workmen's 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 alighting from the motor vehicle at the time of the occurrence of the event out of which any claim arises.'
16. In the insurance policy clause reproduced in the case of Abdul Razzak v. Smt. Shari/unnisa [1985] 58 Comp Cas 426 (All), the words upon which the Bench laid considerable stress were ' in pursuance of a contract ofemployment'. This significantly is not so in the present. As reproduced above, the language implied in the present is 'contract of employment'. This may not, therefore, be said to fit into the reasoning adopted by the Bench in Abdul Razzak's case [1985] 58 Comp Cas 426 (All) so far as the interpretation of the terms of the policy is concerned. The fact still remains that in the case before us too the relevant clause of the policy proceeds with the rider ' except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939 '. Since as analysed by the Division Bench in Abdul Razzak v. S. Sharifunnisa [1985] 58 Comp Cas 426 (All), Section 95(1)(b), proviso (ii), in its first part requires coverage of liability by insurance including in regard to the person owning the goods who boards the goods vehicle, it might not be denied that the insurance policy runs subordinate to it even on its own terms. In other words, the policy is not open to be so construed on its own language as to derogate against the mandatory requirement of Section 95(1). There is consequently no escape in any case from the liability of the insurance company also besides the truck owner in the present case.
17. As mentioned above, the Tribunal has not entered into the determination of the quantum of compensation. It would have been appropriate for the Tribunal to give its finding upon the evidence on that aspect also. I am not persuaded, however, to decide that issue at the appellate stage in this case, without requiring the Tribunal to assess the evidence in the first place. The accident being of 1976, this certainly calls for expeditious disposal.
18. The appeal as a result succeeds and is allowed. The award impugned is set aside. The case is remanded to the Tribunal with the direction to redecide the same according to law giving its finding on the quantum of compensation and the apportionment thereof keeping in view the findings recorded herein. This shall be done expeditiously and preferably within three months from the receipt of the record. The record be returned without loss of time. There will be no order as to costs in this appeal.