G.R. Majithia, J.
1. This appeal is directed against the award dated January 28, 1984, of the Motor Accidents Claims Tribunal, Ambala.
2. Respondent No. 1 and her two sons filed an application under Section 110 A of the Motor Vehicles Act, 1939, against the appellants and respondent No. 3. The deceased, husband of Santosh Kumari and the father of the two minor sons, was working as a salesman in the Sadhaura Marketing Co-operative-cum-Processing Society Limited, Sadhaura. Appellant No. 1 was arrayed as respondent No. 1 in the petition. He is working as a sub-inspector attached to the office of the Assistant Registrar, Co-operative Societies, Naraingarh. On the date of filing of the application, he was posted at Sha-, zadpur, Tehsil Naraingarh, District Ambala. Both Sadhaura and Shazadpur fall in Tehsil Naraingarh, District Ambala, while villages Bhogpur and Bas-satianwala fall in Tehsil Jagadhri, District Ambala. On April 2, 1981, after the close of the office, appellant No. 1 happened to meet the deceased in Sadhaura and offered him a lift on his motor cycle since as he was going to his village, Bassatianwala, he could drop him at village Bhogpur on his way. The deceased used to go to village Bhogpur on his own cycle. At about 8.30/9.00 p.m. , appellant No. 1 was seen driving his motor cycle in a reckless and negligent manner by Gurdial Singh, son of Shri Ram Singh, and Ramji Lal son of Shri Dilla Ram, residents of village Bhogpur, who were sitting on the road side tea stall near Vishal Cinema, Sadhaura, on Sadhaura-Barara Road. They saw the deceased sitting on the pillion of the above said motor cycle. Soon thereafter, some unknown and unrecognisable person informed the persons present at the tea stall that an accident to a motor cycle had taken place just then. Both the above mentioned persons at once started towards the informed site of the accident and found Gurmukh Singh, deceased, lying on the right side of the pucca road in a pool of blood and in unconscious state. The motor cycle and the driver, namely, appellant No. 1, were nowhere in sight. By chance a van happened to pass that way. The deceased was at once removed to the Primary Health Centre, Sadhaura. Before any medical aid could be given, the injured breathed his last. Gurdial Singh lodged the first information report with police station, Sadhaura, on April 2, 1981.
3. Besides earning his salary, the deceased used to attend to his agricultural land measuring four acres and his income from this source was approximately Rs. 1,000 per month. The deceased was hardly spending a sum of Rs. 100-Rs. 150 per month on himself and the balance amount he used to contribute towards the maintenance of his family. The deceased was enjoying very good health and was in the prime of his life. The span of life in the family of the deceased was normally within the range of 70-75 years. Thus, the claimants claimed Rs. 1,00.000 as compensation.
4. The appellants filed a joint written statement, inter alia, pleading that the deceased met appellant No. 1 when he was going on his motor cycle and requested him that he had urgent work in his village. In view of this urgency, appellant No. 1 allowed the deceased to occupy the pillion seat of the motor cycle. Appellant No. 2 is the owner of the vehicle. The exact defence taken by respondents Nos. 1 and 2 is contained in para No. 24 of the written statement which reads as under :
'That para No. 24 of the claim petition is wrong and is denied. The averments made in this para of the claim petition are false and wrong. It is absolutely wrong to say that respondent No. 1 himself asked the deceased to accompany him on the motor cycle. As a matter of fact, as respondent No. 1 was coming on the motor cycle, the deceased requested him saying that he had got some urgent piece of work and that he had to go immediately and he was not likely to have any other conveyance and that if he was late, he would suffer irreparable loss and on the pestering of the deceased that he should be given a lift, respondent No. 1 agreed and gave him the lift. The deceased was sitting on the pillion of the motor cycle. The answering respondent No. 1 was driving the motor cycle on the correct side of the road with a slow speed and at the place of the accident, the truck came at a very rash speed driven in a negligent manner. The truck driver was driving the truck in a rash and negligent manner and hit the truck against the motor cycle on the wrong side of the road as a result of which the answering respondent and the deceased both received injuries. The answering respondent No. l received a number of injuries and fractures. He has become permanently disabled and he cannot walk even properly. He cannot do any agriculture work. The answering respondent No. 1 is not at all at fault. The accident never took place on account of any fault on the part of the answering respondent No. 1 and it was on the repeated requests of the deceased that the answering respondent No. 1 gave him a free lift on his motor cycle out of sympathy and the deceased voluntarily and of his own took a ride on the motor cycle of the answering respondent No. 1 as mentioned above, so that the applicants are not entitled to any compensation from the answering respondents. The answering respondents never asked the deceased to accompany him. All the averments made in this para of the claim petition are false and frivolous and are denied. As a result of serious injuries sustained by the answering respondent No. 1, the truck driver and the truck could not be identified. The applicant, out of greed and at the instance of some interested person, filed the present false claim petition against the answering respondents. Hence, it is prayed that the claim petition which deserves dismissal may be ordered to be dismissed with costs.'
5. The insurance company which was arrayed as respondent No. 3 in the petition filed a separate' written statement and denied its liability on the ground that the deceased was sitting on the pillion of the motor cycle of his own accord. Resultantly, it is not liable to pay any compensation.
6. On the pleadings of the parties, the following issues were framed :
(1) Whether Gurmukh Singh died on account of rash and negligent driving of Surjit Singh, respondent No. 1, on April 2, 1981, at Sadhaura-Barara Road ?
(2) To what amount of compensation are the claimants entitled and from whom ?
(3) Whether respondent No. 3 is not liable because the deceased was merely a pillion rider and a gratis passenger ?
(4) Relief.
7. Under issue No. 1, the learned Tribunal recorded a finding that the accident took place due to rash and negligent driving by appellant No. 1. Under issue No. 2, the learned Tribunal assessed the compensation payable to the* legal heirs of the deceased at Rs. 57,600 payable with interest at the rate of 12 per cent, per annum from the date of filing of the claim application to the date of payment of the amount awarded. Under issue No. 3, the learned Tribunal held that the insurance company is not liable to pay any compensation to the claimants.
8. Learned counsel for the appellant submitted that AW-2, Gurdial Singh, and AW-1, Ramji Lal, are not eye witnesses of the occurrence and if their evidence is ignored, there is no other evidence to record a finding that the accident has taken place as a result of rash and negligent driving of the motor cycle by appellant No. 1.
9.Learned counsel is not correct in his submissions. In the circumstances of the present case, it was for appellant No. 1 to prove the manner in which the accident took place. The exact facts were within his knowledge. He has failed to prove so. In the circumstances of the present case, undoubtedly, the maxim of res ipsa loquitur applies.
10. The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without negligence on the part of the defendant that a reasonable jury could find without further evidence that it was so caused. See Salmond on the Law of Torts, 15th edition, page 306. The following passage from Halsbury's Laws of England, 3rd edition, volume 28, at page 77, is very inceptive :
'An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous.'
11. In Pushpabai Parshottom Vdeshi v. Ranjit Ginning and Pressing Co. Ltd. [1977] ACJ 343 ; AIR 1977 SC 1735 referring to the doctrine of res ipsa loquitur, the apex court, at page 346, observed thus (at page 1739 of AIR) :
'The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself' or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some cause other than his own negligence. It is further observed thus (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.'
12. Some times, a thing may take place in such circumstances as to render it practically impossible for any one to speak to its happening just like in a case of an accident on a highway where there are no witnesses or where persons who could speak to the occurrence are not available for whatever reason. The doctrine of res ipsa loquitur does not dispense with the need to prove a fact alleged by a person. It only affects the mode of proof. With a view to mitigating the rigour of proof of negligence under certain circumstances the common law invoked the aforesaid doctrine. In the present case, AW-2, Gurdial Singh, and AW-3, Ramjit Lal, are the only witnesses who could have knowledge of the accident and the manner of its occur rence. The doctrine of res ipsa loquitur applies to the persons who are opposing the claim of the claimants and could not discharge the onus cast on them on account of the doctrine of res ipsa loquitur. The contrary version set up by the appellants could not be substantiated by them despite numerous opportunities having been afforded to them. The version of the appellant is contained in the application dated September 26, 1981 (exhibit R-2), submitted to the higher authorities. In this application, he mentioned that Darshan Singh, son of Rur Singh, resident of Sadhaura, and Bhupinder Singh, resident of Malikpur (Ambala) witnessed the occurrence. Despite various opportunities afforded to them, they were not produced.
13. The learned Tribunal found that the evidence of AW-2, Gurdial Singh, and AW-3, Ramji Lal, inspire confidence and nothing was brought out in cross-examination to suggest that they were not present at the time of occurrence or that they were inimicafly disposed towards appellant No. 1. In Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120, the apex court held as under (at page 121):
'when there is a conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility, lies, the appellate court should not interfere with the finding of the trial judge on a question of fact.'
14. I do not find any infirmity in the view taken by the learned trial judge. Resultantly, I affirm the finding under issue No. 1.
15. Learned counsel for the appellant strongly contended that respondent No. 3, namely, the insurance company, is liable to pay the compensation amount. He submits that there is no dispute that the motor cycle was owned by appellant No. 2 and at the time of accident, it was driven by appellant No. 1 and was duly insured with respondent No. 3. The insurance company filed a written statement denying all the allegations made in the claim petition. However, the insurance policy (exhibit R-1) was produced at the trial. In the insurance policy, the following provision is made under the heading 'liability to third parties' and Clause I under that heading reads thus :
'1. Subject to the limits of liability, the company will indemnify the insured in the event of accident caused by or arising out of the use of the motor cycle against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of ;
(a) death of, or bodily injury to, any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured and excluding liability to any person being conveyed in or on the motor cycle unless such a person is being conveyed by reason of or in pursuance of a contract of employment.
(b) damage to property other than property belonging to the insured or held in trust by or in the custody or control of the insured or any member of the insured's household or being conveyed by the motor cycle.'
16. This clause clearly excludes a passenger on the vehicle itself. The policy does not cover the passenger on the pillion. He was never carried for hire or reward nor was he carried in the course of employment. This matter came up for consideration before a Fuil Bench of this court in Oriental Fire and General Insurance Co. Ltd. v. Mrs. Gurdev Kaur [1967] 37 Comp Cas 577 ; [1967] ACJ 158, in which it was observed as under (at page 583 of 37 Comp Cas) :
'Apparently, the terms of Clause (ii) of the proviso to sub-section (1) of Section 95 of the Act (4 of 1939) do not cover the case of such passengers because on a public carrier they could not be as passengers and they were on it as owners of the goods carried in it. So they were apparently not on it 'by reason of or in pursuance of a contract of employment' for they had no contract of employment with anybody to be on the truck, and they could not possibly have a contract of employment with themselves. The cases cited support this view. There is an indirect support for this approach from the decision in Izzard's case [1937] AC 773; [1938] 8 Comp Cas (Ins) 91 (HL) as well.'
17. This judgment was followed by D. K. Mahajan J. in Unique Motor and General Insurance Co. Ltd. v. Mrs. Krishna Kishori [1968] ACJ 318 (P & H) and it was held thus : --
'There is no provision in the Motor Vehicles Act, 1939, requiring an insurance company to cover any risk to a person carried on the pillion seat of a motor cycle. Therefore, the company is not liable to pay compensation for the death or injury to a person carried on the pillion seat.
But the position will be different if the injury has to be indemnified by the insurer as in the case of a comprehensive insurance policy.'
18. A similar matter came up for hearing before the Madras High Court in M. Muthu Krishna v. R. Brindha [1982] ACJ (Suppl.) 428, where the Bench was pleased to observe as under (at page 436) :
'The liability of the insurance company has now to be examined. The case of a pillion rider even under a comprehensive policy has been examined by this court in the case of N. Ganapathy v. K. Viswanathan (C. M. A. Nos. 764 of 1977 and 18 of 1978 -- decided on October 29, 1980.) In the said judgment to which one of us (RAMANUJAM J.) was again a party, the relevant decisions have been discussed and the matter has also been considered in the light of the conditions of the private car tariff, which are adopted by all the insurance companies functioning in this country. In the following passage, the legal position has been set out:
Thus, Clause (a) in Section II(i) of motor cycle comprehensive policy does not cover a risk in respect of a person being conveyed in or on the motor cycle unless such person is being conveyed by reason of or in pursuance of a contract of employment. Therefore, the comprehensive policy in relation to a motor cycle specifically excludes the risk to a pillion rider unless such pillion rider is conveyed by reason of or in pursuance of a contract of employment.' In the light of this legal position, the insurance company in the present case is not liable to compensate the death of the pillion rider. Therefore, we do not find it possible to accept the submission of learned counsel for the appellant that the decree has to be passed as against the insurance company also in the present case. As he was a passenger, there is no third party liability here.'
19. This judgment was again followed in New India Assurance Co. Ltd. v. Kuppuswamy Naidu [1988] ACJ 774 (Mad).
20. Learned counsel for the appellant referred to New India Assurance Co. Ltd. v. Smt. Nathiben Chatrabhuj [1982] ACJ 153 ; [1984] 55 Comp Cas 568 (Guj) [FB] to substantiate his plea that the insurance company is liable to pay the amount of compensation. Although this judgment supports learned counsel for the appellant yet I am bound by the Full Bench decision of this court rendered in Gurdev Kaur's case [1967] 37 Comp Cas 577 notwithstanding the contrary view taken in Ambaben v. Usmanbhai Amirmiya Sheikh, [1979] ACJ 292 ; AIR 1979 Guj 9 and New India Assurance Co. Ltd. v. Smt. Nathiben Chatrabhuj [1982] ACJ 153 ; [1984] 55 Comp Cas 568, by the Gujarat High Court. The matter was again referred to a Full Bench of this court in view of the contrary view taken in these decisions but the Full Bench in its judgment in Des Raj Angra v. Oriental Fire and General Insurance Co. Ltd. [1985] 58 Comp Cas 526 ; [ 1985 ] ACJ 401 held that merely because a contrary view has been taken by another High Court, it will not necessitate reconsideration of the Full Bench decision in Gurdev Kaur's case [1967] 37 Comp Cas 577 (P & H). No decree can be passed against the insurance company.
21. Before I part with this judgment, I must record my appreciation for the very able and effective assistance rendered by Shri L. M. Suri, learned counsel for the insurance company.
22. In view of my findings recorded above, this appeal is dismissed. However, I leave the parties to bear their own costs.