Under the Motor Vehicles Act, 1988, insurance policies must cover liability for death or bodily injury to any person caused by or arising out of the use of the vehicle in a public place, including passengers in the vehicle.

D. C. DALELA, J.

( 1 ) BRIEF facts of the case are that on 6. 8. 1993 a car No. RNQ 900 turned down and met with accident while going from Jaipur to Jodhpur near Beawar in which an occupant Prakash Rai died. The car was driven by the respondent No. 5 and owned by the respondent No. 6. The vehicle was insured with the appellant national Insurance Co. Ltd. Legal heirs of the deceased claimant-respondent Nos. 1 to 4, preferred a claim petition before the learned Motor Accidents Claims Tribunal, beawar (for short the Tribunal ). The respondent Nos. 5 and 6 contested the claim petition and contended that the accident was due to vis major. The learned Tribunal framed five issues and after taking the evidence and hearing both the sides, awarded a total compensation of Rs. 7,69,000 with rs. 1,500 expenses and interest at the rate of 12 per cent per annum vide award dated 28. 1. 95. The liability to pay the compensation was made jointly and severally of the appellant and the respondent Nos. 5 and 6. Being aggrieved by the impugned award, the appellant has preferred this appeal.

( 2 ) BOTH the sides have admitted at Bar before me that the insurance policy in question was act only policy, and, it covered the third party risk only according to the Motor Vehicles Act, 1988.

( 3 ) THE learned counsel for the appellant has argued that the deceased was a gratuitous passenger, and, as such, cannot be said to be a third party and that the insurance company cannot be held liable to pay compensation. The learned counsel has relied upon the decisions of the Himachal pradesh High Court in Kaushalya devi v. Dr. Lakhbir Sood, 1994 ACJ 12 (HP), and, of Gauhati High Court in Rashbihari prasad v. P^bati Kedia, 1994 ACJ 532 (Gauhati), to support his argument that the insurance company is not liable to indemnify the claim with regard to the death of gratuitous passenger travelling in the car. The learned counsel for the appellant has also referred to a decision of this court passed in National Insurance Co. Ltd. v. Paras, 1994 ACJ 563 (Rajasthan), in which it was held that the passengers who are carried gratis are not compulsorily required to be covered by the policy under the provisions of section 95 of the motor Vehicles Act, 1939, and, as such, the insurance company is not liable to pay the amount of compensation awarded.

( 4 ) THE learned counsel for the respondents, on the other hand, has contended that the decisions cited by the learned counsel for the appellant, are with regard to the provisions of the old Motor Vehicles Act, 1939, and, in the present case in hand, the accident took place in 1993 when the old Act was repealed, and, the new Motor vehicles Act, 1988, was in force. According to the learned counsel, section 147 of the new Motor Vehicles Act, 1988, has completely changed the position of law which was occurring in section 95 of the old Motor Vehicles Act, 1939. According to the learned counsel, the provisions which were occurring in proviso (ii) to section 95 (1) (b) of the old Motor Vehicles Act, stand omitted in section 147 of the new Motor vehicles Act, 1988. According to the learned counsel for the respondents, the insurance company is not absolved from the liability in respect of the person carried in or upon the vehicle. According to the learned counsel, the term any person used in section 147 (1) (b) (i) of the new motor Vehicles Act, 1988, includes every person who incurs death caused by or arising out of the use of the motor vehicle and passenger in the vehicle is covered by the third party risk. He has cited a decision of this court in the case of Abdul Jabbar v. Kesar, 1998 (1) TAG 187 (Rajasthan ). A perusal of section 147 of the new Motor vehicles Act, 1988, and, the corresponding section 95 of the old Motor Vehicles Act, 1939, would show that in the new Act the clause which excludes the coverage for death of or bodily injury to a person carried in or upon the vehicle, has been dropped. This means that such perso