Kamlesh Sharma, J.
1. These six appeals [F.A.O. (MVA) Nos. 104, 106, 107, 108, 109 and 110 of 1990] and three cross-objections (CO. Nos. 170 of 1990, 133 and 134 of 1991) are being disposed of by a common judgment as these arise out of the same accident and a common award dated 2.4.1990 whereby the Motor Accidents Claims Tribunal (1), Mandi, Kullu and Lahaul Spiti Districts at Mandi (hereinafter called as 'the Tribunal') has determined the compensation payable to the respondents-claimants by the driver as well as the owner of the ill-fated truck No. HID 1405 and Oriental Insurance Co. Ltd., Mandi, with which the said truck was insured at the time of the accident. The liability of the owner as well as the driver and the insurance company has been held joint as well as several. Only the insurance company has filed these appeals challenging its liability to indemnify the insured, i.e., the owner of the truck on the ground that the deceased, whose legal representatives are the respondents-claimants in the appeals, were gratuitous passengers or passengers travelling with their goods in the goods vehicle, who could not be termed as passengers in the vehicle for hire and reward within the meaning of proviso (ii) to Section 95 (1) of the Motor Vehicles Act (hereinafter called as 'the Act') to fasten the statutory liability on the insurer. Another ground raised by the appellant insurance company is that in the alternative, the deceased have been wrongly treated as coolies or labourers travelling in the truck for the purpose of loading and unloading of the goods being carried in the truck to fix its liability in accordance with the terms of the insurance policy.
2. We have heard learned counsel for the parties and gone through the record. In the claim petitions the case set up by the respondents-claimants was that they had hired the truck in question at Manali for carrying their goods/articles to Sunder Nagar, which met with an accident near Hanogi Mata Temple and fell down in the river Bias. In their common reply the owner and driver of the truck not only admitted that the truck was hired by the deceased along with other persons for carrying their goods/articles to Sunder Nagar but also added that they were travelling in the truck for the purpose of loading and unloading. But the appellant insurance company, which was arrayed as respondent No. 3 in the claim petitions, raised preliminary objection that the deceased were travelling as gratuitous passengers for whom the insurance company was neither liable under the Act nor under the terms and conditions of the insurance policy. Keeping in view the defence of the insurance company, the issues framed, inter alia, were whether the deceased persons were gratuitous passengers as alleged in its reply and whether insurance company was not liable to indemnify the owner for the compensation awarded to the respondents-claimants. We find from the evidence on record that the Tribunal has rightly held that the deceased persons were travelling in the truck at the time of the accident as owners of the goods but in view of the law laid down by the Supreme Court in its latest judgment in Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), they are not the passengers in the vehicle for hire and reward within the meaning of proviso (ii) to Section 95 (1) (b) of the Act and the appellant insurance company cannot be held liable to indemnify for the compensation awarded to the respondents-claimants. In this judgment the view of Full Bench of Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa), has been held to be correct and the contrary view expressed by other High Courts has been regarded as incorrect. In the said Full Bench judgment of Orissa High Court the conclusion arrived at by the learned Judges was that proviso (ii) to Section 95 (1) (b) did not apply for the passengers carried for hire or reward in a goods vehicle and it is restricted to passengers carried in a public service vehicle. Referring to proviso (ii) to Section 95 (1) (b) the learned Judges of the Orissa High Court have held in para 22:
Thus, to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough; it shall have to be found out as to whether he was the owner of the goods, or an employee of such an owner, and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy.
and in para 23:
There is another aspect of the matter which had led us to differ from the Full Bench decision of the Rajasthan High Court. The same is what finds place in Sub-section (2) of Section 95. That Sub-section specifies the limits of liability and Clause (a) deals with goods vehicle; and insofar as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. This is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, Clause (a) would have provided a limit of liability regarding such persons also.
3. Therefore, by applying the law laid down by the Supreme Court in Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), we have no alternative but to hold that the appellant insurance company is not held liable to indemnify the owner of the truck in question.
4. Now the question arises whether the deceased persons have been rightly held to be coolies or labourers, who were travelling in the truck for the purpose of loading and unloading of the goods belonging to them, whose risk was covered under the terms and conditions of the insurance policy. As per the submissions made by the learned counsel for the appellant insurance company a passenger travelling in a vehicle may load and unload the goods belonging to him but he will not be termed as coolie or labourer travelling in the vehicle for the purpose of loading and unloading of the goods being carried therein; accordingly the deceased who were admittedly travelling along with their goods being carried in the truck were only gratuitous passengers and cannot be termed as coolies or labourers by any stretch of imagination as held by the Tribunal. On the other hand, learned counsel for the respondents has supported the findings of the Tribunal that the deceased persons were travelling in the vehicle as coolies or labourers for the purpose of loading and unloading the goods belonging to them on the basis of the reply of the owner of the truck and his statement in the court. It is also urged that in the alternative they were travelling by reason of or in pursuance of a contract of employment with the insured as his employees and their risk was covered statutorily.
5. No doubt in his reply the owner of the truck has taken a specific stand that the deceased were travelling along with their goods for the purpose of loading and unloading and the driver of the truck, who has appeared as RW 1, has also supported this version to the extent that the deceased were travelling in the truck to take care of their goods but the question arises whether they were travelling by reason of or in pursuance of a contract of employment with the insured as his employees and their risk is covered under the exception provided under proviso (ii) to Sub-section (1) of Section 95 of the Act for which the limit of liability is also provided under Subsection (2) of Section 95 of the Act or in the alternative they were coolies or labourers whose risk was covered under the insurance policy. The relevant provision of Section 95 is:
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 the 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 arises, or
(iii) to cover any contractual liability.
6. No doubt the perusal of proviso (ii) to Sub-section (1) of Section 95 of the Act, prima facie, shows that if in a vehicle passengers are carried by reason of or in pursuance of a contract of employment, their risk is covered by the insurance policy. But on further examination it is not found so. The words 'by reason of or in pursuance of a contract of employment' fell for consideration before Full Bench of Punjab and Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Gurdev Kaur 1967 ACJ 158 (P&H;), and after referring to the judgment in Izzard v. Universal Insurance Co. Ltd., (1937) AC 773, the learned Judges have pointed out in para 6:
(6) The decision in this case settled that the expression 'contract of employment' in Clause (ii) of the proviso to Sub-section (1) of Section 95 of Act 4 of 1939 refers not only to a contract of employment with the insured but also to a contract of employment of a person who is on the insured vehicle for sufficient or business reasons, and has taken a contract of employment in pursuance of which he is on the vehicle as the adequate criterion of such reasons. He need not, therefore, be under a contract of employment with the insured so long as he was on the insured vehicle by reason of or in pursuance of his contract of employment, in other words, when because of his contract of employment he was on the vehicle....
and concluded:.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 travel 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 lizard's case as well.
It is also pointed out in para 9 that the words in proviso (ii) to Sub-section (1) of Section 95 of the Act 'are carried for hire or reward' or 'are carried by reason of or in pursuance of a contract of employment' go with the word 'passengers' and not with the 'vehicle', because if these words are to be read with the word 'vehicle', the reading of proviso (ii) would not make correct grammatical sense or any other sense. The normal and ordinary meaning and the scope of the expression 'a contract of employment' points to a person being employed to do something or to carry out something for another person. It has the element of the rendition of some service in one shape or another for the employer. So it cannot refer to the hiring of a goods carrier as a contract of employment or to the owner of such a carrier as the person with whom a contract of employment has been made.
7. Therefore, it cannot be said that by entering into a contract of carrying the goods belonging to the deceased, they were travelling by reason of or in pursuance of contract of employment. In the present case it cannot be said that the deceased were having contract of employment with themselves as they were carrying their own goods. The learned Judges of Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa), which judgment has been approved by the Apex Court in Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), have also referred to the judgment of the Punjab and Haryana High Court in Gurdev Kaur's case 1967 ACJ 158 (P&H;), and have concluded in para 25 that, 'what applies to the owners of the goods mentioned above in paras 22 and 23 (as quoted hereinabove) would apply to the employees of the owners of the goods'.
8. Another question for our consideration is whether the deceased could be treated as coolies and the appellant insurance company can be made liable under the insurance policy, Exh. R-1, which admittedly covers the risk of four coolies? As per Webster's Third New International Dictionary, Vol. I, the word 'coolie' has a Dravidian origin akin to Tamil Kuli wages, hence means unskilled labourer, carrier or porter but in the absence of specific plea taken by the respondents-claimants that they were travelling for the purpose of loading and unloading the goods belonging to them, they cannot be held as coolies merely on the basis of the stand taken by the owner of the truck in his reply filed jointly with the driver. The owner of the truck has not appeared as his witness to support his stand, whereas the driver of the truck has simply stated that they were travelling in the truck to take care of their goods, which does not show that they were travelling as coolies for the purpose of loading and unloading of their goods. Even if the deceased were travelling in the truck for the purpose of loading and unloading of their goods, by no stretch of imagination they can be termed as coolies. We find substance in the submission of the learned counsel for the appellant insurance company that a passenger who carries his goods and does loading and unloading thereof himself does not come in the category of 'coolie'. Therefore, the findings of the Tribunal that the deceased were travelling as coolies and the appellant insurance company is liable to pay 4/5th of the compensation awarded to their legal representatives are upset.
9. In the result, these appeals are accepted and the impugned award is set aside to the extent that appellant insurance company is held liable to indemnify the owner of the truck in question for the compensation awarded to the respondents-claimants. Order accordingly. As a result, the respondents-claimants are held entitled to get compensation, as awarded by the Motor Accidents Claims Tribunal from the owner and driver of the truck in question who have not challenged the award.
10. We find that the appellant insurance company has deposited the award amount in the Registry of this court, out of which some amount stands disbursed in favour of the respondents-claimants. When orders for release of the award amount were passed the law laid down by this court in the judgment New India Assurance Co. Ltd. v. Usha Rani 1990 ACJ 785 (HP) and other judgments was in favour of respondents-claimants, as such, they must have utilised the same taking it as their right, therefore, it will not be in the interest of equity and good conscience to direct them to refund that amount to the appellant insurance company. But so far the balance award amount lying in fixed deposit is concerned, it is ordered to be refunded to the appellant insurance company along with up-to-date interest. The appellant insurance company may recover the amount already disbursed in favour of the respondents-claimants from the owner as well as driver of the truck in accordance with law.
11. So far the Cross-objection Nos. 170 of 1990 and 133 of 1991 in F.A.O. (MVA) No. 106 of 1990 and No. 134 of 1991 in F.A.O. (MVA) No. 107 of 1990 are concerned, these are admittedly not maintainable in the appeals filed by the insurance company. Hence, these are dismissed. No costs.