JUDGMENT - KHARCHE S.T., J.:—The legal representatives of deceased Laxman have filed this appeal being aggrieved by the common Award dated 10-12-1993 passed under section 110-A of the Motor Vehicles Act, 1939 (for short the Act) by the member, Motor Accident Claims Tribunal, Yavatmal, in Claim Petition No. 7 of 1989 and other claim petitions, exonerating the respondent No. 2/Truck owner and respondent No. 3-Insurance Company from the liability to pay compensation.

2. Brief facts are as under :

The accident occurred on 13-12-1988 at about 3.00 p.m. on Kalamb- Yavatmal Road. On that day, deceased Laxman along with his goats, she goats and hens was travelling in the truck bearing Registration No. MTV-3512. The truck was being driven by respondent No. 1 in a rash and negligent manner. When the truck reached near the spot of accident, the driver of the truck lost control of the driving and the truck had gone on the wrong side of the road and gave a dash to a tree. Consequently, Laxman and others sustained grievous injuries and Laxman succumbed to the injuries on the spot itself. The legal representatives of deceased Laxman and others had instituted the claim petitions. The learned member of the Motor Accident Claims Tribunal passed a common award exonerating the owner of the motor vehicle and the Insurance Company from the liability to pay compensation and directed the driver of the truck to pay the entire compensation. This award is under challenge in this appeal.

3. On the basis of the factual backgrounds, following two points arise for determination in this appeal.

(i) Whether the owner of the motor vehicle involved in the accident is liable to pay compensation?

(ii) Whether the Insurance Company is also liable?

4. As to Point No. 1 :

It is not in dispute that the truck in question is a goods vehicle as defined under section 2(8) of the Act. Rule 118(1) of the Bombay Motor Vehicles Rules, 1959 (for short the M.V. Rules) framed under the M.V. Act prohibits carrying a passenger in a goods vehicle. The learned Counsel for the claimants contended that the policy of the insurance cover all third party except the passengers who are not carried for hire or reward. In support of his submissions, he relied upon the decision of three Honble Judges of the Supreme Court in the case of (Rikhiram and another v. Sukhirania (Smt.) and others)1, 2003(3) S.C.C. 97. The learned Counsel also contended that the driver being the employee of the truck owner, was rash and negligent in driving the vehicle and, therefore, his master, i.e. truck owner, is liable for all actions of his driver. In support of his submissions, he relied on the decision of the Supreme Court in the case of (Pushpabai v. G P Ltd.)2, A.I.R. 1977 S.C. 1735.

5. The learned Counsel further contended that the driver allowed in the truck the carriage of goats, she goats and hens to protect and secure the live stock and that transported the goods along with its owner and, therefore, the Tribunal has committed an error in exonerating the Insurance Company from the liability to pay compensation. He contended that in such circumstances, the impugned award cannot be sustained in law.

6. The learned Counsel for the truck owner contended that admittedly the truck in question is a "goods vehicle" and the truck driven by the driver though was an employee of the owner, taking the passengers inside the truck was outside the scope of his employment and moreover the owner was not present in the truck at the time of the accident and, therefore, the owner cannot be held vicariously liable. In support of this submission, he relied on the Division Bench judgment of this Court in the case of (Maimuna Begum wd/o Abdul Razzaque and others v. Taju s/o Ahmed Khan and others)3, 1989(1) Bom.C.R. 673.

7. The learned Counsel for the Insurance Company contended that the accident occurred on 13-12-1988 and, therefore, the claim petitions filed by the victims or the legal representatives of the deceased would be govern

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