M. Srinivasan, C.J.
1. The insurance company is the appellant. The accident occurred on 25.11.1986. The deceased was travelling in the truck owned by the respondent No. 6 herein. The driver of the truck also died in the accident. The deceased was an employee of another person as a driver of another truck No. HIS 6017. The claimants are his widow and children. In the original petition it was alleged that the deceased travelled in the truck, which got involved in the accident, on a request made by the driver of the truck in order to find labourers for the said truck to load cargo of apple boxes in the said truck. It was alleged that on account of rash and negligent driving of the truck, the vehicle got involved in the accident resulting in the death of the driver of the said truck as well as the deceased. A claim was made for a sum of Rs. 5,00,000/- (five lakh) by way of compensation.
2. The appellant as well as the owner of the vehicle contested the proceedings. In the reply filed by the appellant, one of the objections raised was that the vehicle was insured only with respect to specific persons, namely, driver, cleaner and four labourers travelling in the truck as it was goods vehicle and that the deceased was an unauthorised and gratuitous passenger. It was stated that the appellant was not, therefore, liable to make good the liability even if the owner is held to be liable. Other pleas were also raised by the appellant to the effect that the application was barred by limitation and that the amount claimed by way of compensation was highly excessive.
3. The Tribunal held that the accident occurred on account of rash and negligent driving of the driver of the truck owned by the respondent No. 6 herein and awarded a total compensation of Rs. 2,13,000/- in favour of the claimants. Issue No. 4 was 'whether the deceased was a gratuitous passenger in the truck in question and if so its effect'. Issue No. 5 was whether the vehicle in question was being driven in violation of the Motor Vehicles Rules? The Tribunal held that there was no evidence to show that the deceased was travelling as a gratuitous passenger in the truck in question and that the vehicle was being driven in contravention of the Motor Vehicles Act or the Rules. Accordingly, the Tribunal held that the appellant was liable for the entire amount awarded as compensation.
4. In this appeal, it is contended by the appellant that when the insurance policy is expressly limited to certain persons named therein who alone could travel in the truck which was a goods vehicle, the appellant cannot be made liable for the death of any other person who happened to be in the vehicle at the time of accident. Our attention is drawn to the terms of the policies marked Exh. R2 and Exh. R3. It is also contended that the evidence on record is not sufficient to show that the deceased travelled in the vehicle on a request made by the driver of the vehicle for the purpose of securing labourers for the said vehicle to load apple boxes in the vehicle.
5. It is contended on behalf of respondents that the insurance company would be liable as there is coverage of risk towards third parties and the deceased being a third party, the appellant has been rightly made liable to pay the amount of compensation and at any rate the appellant will be liable to the maximum amount specified in the policy, namely, Rs. 1,50,000/-.
6. A perusal of the evidence adduced on behalf of the claimants shows that there is absolutely no evidence to prove that the deceased was travelling in the vehicle on a request made by the driver of the vehicle. No doubt, the driver of the vehicle is dead and the deceased who was the person to whom a request was said to have been made is also dead and there cannot be any person who can speak about the said request having been made by the driver, but nothing has been brought out in cross-examination of the owner as to whether there was a need for loading apple boxes in the truck in question and whether there was any authorisation by him to the driver to secure labour for the purpose of such loading of apple boxes. In the absence of such circumstantial evidence the ipse dixit of the owner of the truck HIS 6017 in which the deceased was a driver that the driver of the vehicle which got involved in the accident requested his employee to help him in securing the labour and, therefore, the deceased travelled in the truck, cannot be accepted. Even the evidence of the owner of said vehicle HIS 6017 is only to the effect that he gathered that he was requested by the driver of the vehicle which got involved in the accident to arrange labour. On the face of it, it is hearsay evidence and he does not disclose the source of his information. In such circumstances, we have no hesitation to hold that there is no legal or acceptable evidence on record that the deceased was requested by the driver of the vehicle involved in the accident to arrange labour and that is why he travelled in the vehicle.
7. Even assuming that the deceased was not a gratuitous passenger or that he was requested by the driver of the vehicle which got involved in the accident to arrange for labour and that was the reason why he travelled in the vehicle which got involved in the accident, even then the question will be whether the insurance company will be liable in view of the express condition set out in the policy. Exh. R2, is the insurance cover note dated 21.8.1986. It is stated in the said cover note that there would be six passengers, namely, one driver, one cleaner and four labourers. Thus, the persons who could travel in the vehicle are expressly stated in the cover note. Exh. R3 is the policy dated 25.8.1986. Though in the column relating to passengers at the top of the policy it is stated as 'passengers including the driver 2+4=6', it has been clarified and elucidated further at the bottom where the premium is mentioned as driver + cleaner + four labourers. The amount is stated to be Rs. 48/-. Thus, the persons who could travel in the vehicle in order to get the benefit of insurance cover have been specified as driver, cleaner and four labourers. The deceased cannot be said to be one among them. He was certainly a passenger in the vehicle. Whether he was gratuitous passenger or not it does not matter for the purpose of the policy.
8. The contention that the deceased being a third party, the insurance company would be liable as such is not acceptable in view of the provisions of Section 95 of the Motor Vehicles Act, 1939, as well as the terms of the insurance policy. Section 95 in so far as it is relevant reads thus:
Provided that a policy shall not be required:
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) If it is a goods vehicle, being carried in the vehicle, or
(ii) 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 persons 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 raises....
9. In the policy at page 5, under Section 2 relating to liability to third parties it is stated as follows:
(1) Subject to the limits of liability the company will indemnify the insured against all sums including the claimant's costs and expenses which the insured shall become legally liable to pay in respect of
(i) death or bodily injury to any persons caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle,
(ii) damage to property caused by use (including the loading and/or unloading) of the motor vehicle.
Provided always that
(a) xxx xxx xxx(b) xxx xxx xxx (c) 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 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 of which any claim arises.
Thus, it is seen that in the said clause, the passenger other than a passenger carried by reason of or in pursuance of a contract of employment is expressly excluded. Hence the insurance company, by virtue of terms of the policy, cannot be said to be liable for the liability incurred towards a person who travelled in the vehicle not as a driver or a cleaner or as a labourer.
10. The question has been, in a way, considered by a Division Bench of this Court in Rajan Bus Service Pvt. Ltd. v. Parhalad Chand Sharma 1998 ACJ 804 (HP), with reference to the terms of the insurance policy when the question was with regard to the maximum liability of the insurance company. A similar contention was raised and rejected by the Division Bench, to which one of us (the Chief Justice) was a party. The relevant observation is found in para 13 of the judgment, which reads thus:
(13) The second contention of the learned Counsel for the appellant that the liability of the insurance company was comprehensive and the company is liable to indemnify the entire amount of compensation to the appellant and that the finding of the learned Tribunal fixing the liability of the insurance company to the tune of Rs. 15,000/- only is perverse and illegal. We have given our best consideration to the contention and are of the opinion that the same deserves to be rejected. The owner of the vehicle did not choose to step into the witness-box or produce the original insurance policy of the vehicle. The insurance policy, Exh. R-1, was tendered in evidence by the company and the liability to public risk was Rs. 492/- covering 41 passengers. The premium which had been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of Rs. 15,000/- per passenger. Limits of amount of the company's liability under Section II-(i) in respect of any one accident was such amount as is necessary to meet the requirement of the Motor Vehicles Act, 1939. The said liability is clearly referable to the statutory liability of Rs. 15,000 per passenger under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special contract between the appellant company and the insurance company to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express provision the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the appellant in any manner that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. For the purpose, a specific agreement is necessary which is absent in the present case. The insurance company, therefore, has rightly been held liable to pay an amount of Rs. 15,000/- per passenger. In this conclusion, we are supported by the judgments of the Supreme Court in M.K. Kunhimohammed v. P.A. Ahmedkutty 1987 ACJ 872 (SC); National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC); and New India Assurance Co. Ltd. v. Shanti Bai 1995 ACJ 470 (SC).
11. Reliance is also placed by the learned Counsel for the appellant on the judgment of a single Judge of the Gujarat High Court in Diwaliben Bhalabhai Pardhi (deceased through heirs) v. United India Insurance Co. Ltd. 1997 ACJ 452 (Gujarat). In that case the owner of the goods vehicle permitted carrying of 68 persons along with their goods in the vehicle on payment. The vehicle met with an accident due to negligence of its driver resulting in the death of nine persons and 59 sustaining injuries. The goods vehicle, a public carrier, was not covered by any permit on the date of accident. The liability arising out of use otherwise than under a public carrier's permit was not covered by the terms of the policy. The policy did not also cover use for carrying passengers except employees not exceeding six excluding the driver. It was held by the Court that the insurance company was not liable. In that judgment the learned Judge also referred to two earlier judgments of that Court rendered by Full Bench and another Division Bench judgment in which it was held that in view of the fact that the vehicle was a goods vehicle and the contract of the insurance did not cover use of the said vehicle for conveyance of passengers for hire or reward, the insurance company was not liable to pay the amount of compensation. The reasoning in those cases will certainly apply in the present case.
12. In the present case, the vehicle is a goods vehicle. It is not expected to carry anybody other than the persons who are necessary for the purpose of loading and unloading goods and driving the vehicle. The insurance company has taken care to specify in the contract the persons who could travel in the vehicle as the driver, cleaner and four labourers. In such circumstances, the company cannot be made liable for liability arising out of death of a person who travelled in the vehicle when he is one other than the persons mentioned in the contract of insurance.
13. Hence, it is held that the appellant is not liable for the amount awarded as compensation by the Tribunal. The appeal is allowed. It is made clear that the award passed against the owner of the vehicle who is the respondent No. 6 in this appeal, will remain intact. No costs.