A hirer of a vehicle is not considered under a 'contract of employment' within the meaning of Proviso (ii) to Section 95(1)(b) of the Motor Vehicles Act, 1939, and therefore, the insurance company is not liable for an accident involving the hired vehicle.

( 1 ) THIS is an appeal from an order of the learned Judge, Motor Vehicle Accident Claim Cases Tribunal, Burdwan dated the 31st August 1966. The petitioners before the Tribunal were the sons, daughters and the widow of one Mohammad Ahsan who had died in an accident on the 11th January, 1966. The case of the petitioners was that the truck No. BRN 4761 was being driven rashly and negligently as a result of which it met with an accident near Rani Bundh on the Grand Trunk Road as a result of which the said Mohammad Ahsan received severe injuries. He was removed to Rani Bundh Primary Health Centre and he died on the same date. If was the case of the petitioners that the deceased was a contractor by occupation and his monthly earnings came to about Rs. 500 which was the only source of maintenance for his family. The petitioners claimed Rs. 30,000 by way of compensation before the Tribunal,

( 2 ) THE owner of the truck did not appear or contest the claim. The claim was however contested by the appellant with whom the truck was insured. The learned Tribunal rightly held that since the owner of the truck did not contest the claim, the evidence on the question of rash and negligent driving was necessarily ex parte and the Insurance Company was not entitled to challenge that evidence.

( 3 ) THE only question that the appellant before us could and did agitate before the Tribunal was that it was not liable under the policy of insurance for the claim on behalf of the deceased. The learned Tribunal however came to the conclusion that the petitioners were to get a sum of Rs. 12,000 as compensation and the appellant was to pay the amount

( 4 ) IT is against this order that the appellant Insurance Company has come before us on appeal.

( 5 ) MR. Sunil Krishna Dutt, the learned advocate on behalf of the appellant contended that the Insurance Company was not liable to the deceased or his heirs for the accident resulting in the death of the deceased. This contention was based on the provisions of Section 95 of the Motor Vehicles Act 1939 (IV of 1939) (hereinafter referred to as the Act ). Section 95. in so far as it is material for our purpose, is in the following terms :--"95. (1 ). . . . . (b ). . . . . Provided that a policy shall not be required- (i ). . . . . (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. . . . . "

( 6 ) ACCORDING to Mr. Dutta Proviso (ii) of Section 95 (1) (b) exonerates the appellant from any liability in respect of the accident or the death of the deceased in the present case. It is clear from a reading of the Proviso (ii) to Section 95 (1) (b) of the Act but it deals with the cases where the Insurance Company shall not be liable on the policy. Proviso (ii) however engrafts an exception to this exemption from liability. The first part of the Proviso (ii) speaks of a vehicle in which passengers are carried for hire or reward. This would obviously refer to passenger transport or what is otherwise known as stage carriages where passengers are carried from place to place for a consideration. The truck in the instant case clearly did not answer to that description. The next part of the Proviso speaks of a vehicle in which passengers are carried 'by reason of or in pursuance of a contract of employment'. If the deceased was being carried as a passenger by reason of or in pursuance of 'a contract of employment' the appellant Insurance Company would clearly be liable for the accident.

( 7 ) MR. Rabin Mitra, the learned advocate appearing on behalf of the respondents, who are the heirs of the deceased, contended that the deceased was being carried on the vehicle under a contract of