M. G. MUKHERJI, NRIPENDRA KUMAR BHATTACHARYYA

( 1 ) THIS Rule being Civil Rule No. 422 (M) of 1992 has been issued by a Division Bench of this Court asking the respondent opposite parties who are the claimants before the Motor Accident Claims Tribunal to show-cause as to why the implementation of the award dated 16. 9. 91 in MAC Case No. 166 of 1990 of the Motor Accident Claims Tribunal at Midnapore should not be stayed till the disposal of the appeal and such further order/orders should not be made as to the Court may deem fit and proper.

( 2 ) BY an order dated 13. 3. 92 the implementation of the award in MAC Case No. 166 of 1990 was stayed. We have heard Mr. Ajit Bhusan Majumdar for the appellant petitioner and Mr. P. B. Sahu for the respondent and Mr. Biswajit Chowdhury, Senior Advocate as amicus curiae.

( 3 ) THERE is an application for analogous hearing of the present appeal along with FMAT 176 of 1992 filed by the appellant where Parvati Dehari filed a claim on account of the death of her son Danga Dehari in the self same accident. Another claim was filed by Chabi Khamroi claiming compensation for the death of her husband Badal Khamroi in the said accident. In each of the three cases the Tribunal made an award at the rate 25,000/ -. National Insurance Co. Ltd. has filed three separate appeals being FMAT 176 of 1992, FMAT 177 of 1992 and FMAT 178 of 1992 contending inter alia that as the victims were gratuitous passengers in the truck and had no insurance coverage, the Insurance Company had no liability to bear the compensation as awarded by the Tribunal below. We allow the application for analogous hearing of all the three appeals being FMAT 176 of 1992 and FMAT 178 of 1992 to be heard along with the present appeal being FMAT 177 of 1992 since common questions of fact and law are involved in all the three appeals, the FIR, charge-sheet and investigation report are also identical covering all the three cases and the insurance policy as also the witnesses are also identical in respect of all the three cases.

( 4 ) BY an order dated February 18, 1992 a Division Bench of our Court directed the appellant Insurance Company to put in 50% of the amount of the award that is Rs. 12,500/- with the Registrar, Appellate Side by as account payee cheque and we are given to understand that a sum of Rs. 12,500/- was deposited on 19. 2. 92 by Mr. A. B. Majumdar, Advocate by C. D. Challan No. 1344 with the Account Section.

( 5 ) MR. Ajit Majumdar contended that even though Rs. 12,500/- was deposited by the appellants in the present case the same amount should not be allowed to withdraw by the claimants-respondents. We have heard Mr. P. B. Sahu, the learned advocate for the claimants respondent in this context who urged us to disburse the same amount of Rs. 12,500/- to the claimant respondents contending infer alia that it was a no-fault liability of the Insurance Company.

( 6 ) MR. Majumdar placed before us a Division Bench Judgment of the Orissa High Court in Jibanananda Mohanty v. Artatrana Misra and Ors. reported in 1992 Accidents Claims Journal 851 for the proposition that as regards the third party risk which the Insurance Company is to bear under section 95 of the Motor Vehicles Act, 1939 or under section 147 of the Motor Vehicles Act, 1988, it will not mean and include a gratuitous passenger. A passenger who is not carried for hire or reward in a goods vehicle is not a third party and the Insurance Company is not liable on that account. Mr. Majumdar in this context also relied upon a Supreme Court Judgment in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. Pvt. Ltd. , reported in 1977 Accidents Claims Journal 343: AIR 1977 SC 1735, where it was held that under section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured and the Insurance Company is not liable under the requirements of the Motor Vehicles Act.

( 7 ) MR. Chowdhury as amicus curiae also placed

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