Judgment

KAILASAM, J.- This is an appeal by certificate under Art. 133 (1) (a) of the Constitution granted by the High Court of Madhya Pradesh. The appellants filed a claim for compensation of a sum of rupees one lakh under Sec. 110 of the Motor Vehicles Act before the Claims Tribunal, Jabalpur. The first claimant is the wife and the claimants 2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18-12-1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi-Vad which was 16 miles from Saoner. The car which was a Hindustan Ambassador Saloon was insured with second opponent, Union Fire Accident and General Insurance Co. Ltd. The deceased was aged 58 years at the time of his death and according to the petitioners was earning annually about Rs. 9,000. They claimed a compensation to rupees one lakh. The opposite parties, the owner and the insurance company, opposed the claim. While admitting that the vehicle was proceeding from Nagpur on its way to Pandhurna for the purpose mentioned by the applicants they denied that the vehicle was driven in a rash and negligent manner and pleaded that the vehicle was at the time of accident in perfectly sound condition. It was submitted that the husband of the applicant No. 1 was travelling in the said vehicle on his own responsibility and for his own purpose and absolutely gratis and not on behalf of or at the instance of the opposite party No. 1, or the driver of the vehicle and therefore the claimants are not entitled to any compensation. The opposite parties pleaded that the incident was as a result of inevitable accident and not due to any act of rashness or negligence on the part of the driver. They opposed the claim of the compensation as highly exaggerated.

2. The Motor Accidents Claims Tribunal, Jabalpur, found that the accident of the motor vehicle was a result of negligent driving of the vehicle by the Manager, Madhavjibhai Mathuradas Ved, the driver of the vehicle. It also found that the first respondent, the owner of the company, is liable to pay compensation to the claimants on account of the negligence of their employee Madhavjibhai which caused the death of Purshottam Tulsidas Udeshi. Regarding the compensation payable the Tribunal fixed Rs. 31,209.15 as general damages in addition to Rs. 2,000 as special damages for funeral and post-funeral expenses. The owner, first opponent, preferred an appeal to the High Court impending the claimants and the insurance company as respondents against the award passed by the Claims Tribunal. The High Court did not decide the question as to whether the accident was due to the rash and negligent driving or the quantum of compensation to which the claimants were entitled to as it allowed the appeal by the owner on the ground that the owner cannot be held vicariously liable for the act of Madhavjibhai in taking Purshottam as a passenger as the said act was neither in the course of his employment nor under any authority whatsoever and that there was no evidence that the owners of the vehicle were aware that Purshottam was being taken in the car as a passenger by their Manager, Madhavjibhai. Holding that so far as the owners are concerned Purshottam was no better than a trespasser the High Court held that the owners were not vicariously liable. On an application by the claimants the High Court granted a certificate and thus this appeal has come before this Court.

3. The questions that arise for consideration are whether on the facts of the case the claimants have established (1) that the accident was due to the rash and negligent driving of Madhavjibhai Mathuradas Ved, the Manager of the company, and (2) whether the incident took place during the course of the employment of the driver. In the event the claimants su