An insurance company is liable for payment of compensation to the claimants in case of passengers carried for hire or reward by the driver of the truck during the course of his employment.

1. - This is an appeal under section 110-D of the Allocator Vehicles Act, 1939 against the award of learned Motor Accidents Claims Tribunal, Jaipur dated 30.12.1978 awarding Rs. 31,000/- in Claim Petition No. 288 of 1977.

2. Briefly stated the facts of the case are that on 9.5.1977 at about 10 or 11 a.m. truck No. RSM 9285 "belonging to New Sethi Transport Company was driven by Chhotu Ram (respondent No. 1) on Jaipur-Tonk Road. Some persons were travelling in the truck as passengers from village Chainpura. It is further stated that the driver of the truck drove it at very fast speed. Therefore, the passengers shouted and requested the truck driver to stop the vehicle, but he neither stopped the truck nor slowed the speed of the same. It is said that when the truck reached near village Mundiya, the passengers requested the truck driver to stop the truck and let them get down from the same as they were not willing to travel in that truck any more. However, the truck driver did not listen to them, with the result that soon thereafter the driver could not control the vehicle and due to his rash and negligent driving he lost the control and the truck overturned, which resulted in instant death of Koyali Devi and child Ghanshyam and other passengers were also injured. The husband of Koyali Devi and father of Ghanshyam, Badri Narain and others- filed claim for Rs. 3,55,000/- impleading the driver, owner and the insurance company as respondents.

3. In the reply filed on behalf of New Sethi Transport Company and its proprietor Ved Bhushan, it has been stated that they had no knowledge of the incident, hence they were not liable for any claim. The National Insurance Company Ltd. (respondent No. 4) in its reply has stated that the accident did not take place on account of any rash or negligent driving of the driver of the truck and deceased Koyali Devi and her son were travelling as fare paying passengers in the truck and, therefore, the insurance company is not responsible for the claim. The respondent No. 1 driver did not file any reply to the claim petition. The respondent Nos. 2 and 3 (Sic.) driver was independent act and not connected with the servant's employment. Therefore, they cannot be held liable for the claim on the principle of master's liability. They have further pleaded that the vehicle in question was insured at the relevant time with the National Insurance Company Ltd. and the insurance company is liable to pay the amount of compensation under the said award. They have also denied that the accident took place on account of rash and negligent driving of driver of the truck.

4. It may be mentioned that the owner of the truck M/s. New Sethi Transport Company also filed a separate appeal bearing S.B. Civil Misc. Appeal No. 111 of 1979 and raised objection that the learned Tribunal has committed serious error of law in awarding compensation against the proprietor and owner of the truck because the truck driver was not authorised under the Rules to take the passengers. Learned counsel for the appellants in that appeal admitted before this court that the appellant had not taken this objection before the Tribunal either in the written statement or during the, arguments. Learned brother G.M. Lodha, J. has stated in his judgment that the Tribunal has relied upon the oral evidence of Kala and Badri Narain and has come to a finding that the passengers were taken in the truck for the benefit of truck owner and Rs. 2/- per passenger were being charged by the driver on the vehicle and that no evidence had been led by the owner of the truck in rebuttal. It was, therefore, held that the owner now cannot challenge this adverse finding against him as it was open to him to first take the plea in the written statement and then to lead evidence in support of the same. Therefore, the said appeal of the appellant owner was dismissed summarily.

5. Learned Tribunal framed the following issues:

"1- D;k nq?kZVuk fnukad 9-5-1977 dks djhc 10 cts