HANSARIA, J.:- This 5-Judge Bench has been constituted to consider whether certain observations made by a 3-Judge Bench of this Court in Hira Devi v. Bhaba Kanti, AIR 1977 Gauhati 31 need reconsideration in view of the later pronouncement of the Supreme Court in Pushpabai v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735. It may be stated that the case of Hira Devi had to be placed before a Full Bench of 3 Judges because of a reference by a Division Bench which was of the view that there is a difference of opinion expressed in Assam Corporation v. Binu Rani, AIR 1975 Gauhati 3 and Asha Rani v. The Commonwealth Assurance Company Ltd. (MA (F) 41/69 disposed of on 21-2-1974) on the question as to whether an insurer is liable to pay compensation in case of dealth or bodily injury to a gratuitous passenger. What is required to be determined by this Bench is whether an insurer can be asked to indemnify an insured who has been made liable to pay compensation in respect of death or bodily injury to gratuitous passenger.

2. To answer the above question, we shall have to apply our mind mainly to the provisions contained in section 95 of the Motor Vehicles Act, 1939, hereinafter re