The main legal point established is that the liability of the insurance company in a motor vehicle accident is determined based on the evidence of systematic carrying of passengers for hire or reward in the vehicle.

JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Heard Advocates for the appellants and respondent No. 2. None present for the respondent No. 1 though served. Perused the records.

2. The appeal arises from the judgment and order dated 31-10-1987 passed by M.A.C. Tribunal, Solapur in M.A.C. Petition No. 103 of 1986. The grievance of the appellants is that though the claim petition has been allowed and compensation has been awarded in favour of the appellants/claimants, the Insurance Company has been exonerated from its liability to pay the compensation on the ground that the agreement between the parties provided for exclusion of liability of Insurance Company in relation to the passengers travelling in the goods vehicle.

3. The facts relevant for the decision are that on 15th May, 1985 the deceased who was the husband of claimant No. 1 and the fathers of claimant Nos. 2 to 6 was travelling in a truck bearing No. CAA 4309 from Solapur to Shrinal. The truck met with an accident on the way to Shrinal and in the process the driver having lost control over truck, the same fell into a ditch and as a result the husband of claimant No. 1 died on the spot. The deceased was aged 35 years at the time of accident and as a labourer, was earning sum of Rs. 500/- per month. The claimants claimed compensation of Rs. 60,000/-. After hearing the parties, the M.A.C. Tribunal, allowed the claim for compensation to the tune of Rs. 42,600/- but held the owner of the vehicle to be liable to pay the same thereby exonerating the insurance company from liability to contribute any amount towards compensation on the basis of the terms of the Insurance Agreement in relation to the vehicle in question. Reliance was placed in the decision of Madras High Court in (United India Fire and General Insurance Co. Ltd., Madurai v. M.S. Duraire)1, A.I.R. 1982 Mad. 287. Upon hearing of the Counsel for the parties and perusing the records, the only question which arises for determination is whether in the facts and circumstances of the case, disclosed from the evidence on record, Insurance Company can be held to be liable to contribute towards the compensation awarded in favour of the claimants.

4. The facts on record, apparently disclose that at the relevant time deceased was travelling by goods vehicle i.e. truck in question. There is no evidence on record even to suggest remotely that the vehicle in question was being used for carrying passengers regularly and for hire. It is not in dispute that the case is governed by the old Act i.e. the Motor Vehicle Act, 1939, as the accident had occurred prior to coming in force of the new Act i.e. Motor Vehicle Act, 1988. The Apex Court in the case of (Mallawwa v. Oriental Insurance Co. Ltd.)2, 1999(2) Bom.C.R. (S.C.)515, while approving the view taken by the Full Bench of Orissa High Court in (New India Assurance Co. v. Kanchan Bewa)3, 1994 A.C.J. 138(Ori.)(F.B.) has held that while interpreting section 95(1)(b)(i) and proviso (ii) under the old Act only a vehicle which is used for systematically carrying passengers can be said to be a vehicle in which passengers are carried for hire or reward, hence, persons travelling in a goods vehicle, whether owners of the goods or passengers on payment of fare or gratuitous passengers, could not be covered by proviso (ii) thereof and hence, the insurer of the goods vehicle is not liable to pay compensation.

5. Considering law laid down in the said decision of the Apex Court in the absence of any evidence that the vehicle in question was being used for systematic carrying of passengers for hire or reward and in view of admitted fact that the deceased was travelling at the relevant time in a goods vehicle, no fault can be found with the impugned judgment passed by the M.A.C. Tribunal rejecting the claim of the appellant against Insurance Company.

6. Reference was sought to be made by the learned Counsel for the appellant to the decision in (New India Assurance Co. Ltd. v. Asha Rani and others)4, 2001(6

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