GANESAN J.

The Comomn wealth Assurance Company Ltd., Bombay, has preferred this appeal against the order passed by the learned Motor Accidents Claims Tribunal, Chingleput, in M. O. P. No. 46 of 1966 directing the appellant to pay a sum of Rs. 15, 000 as compensation to the respondents who are the legal representatives of the deceased, Shamsir Khan. On May 17, 1966, the lorry involved in the accident and which belonged to one Nagarathinam, the first respondent before the claims tribunal was engaged by Shamsir Khan for transporting mangoes from Vellore to Madras. On the way at about 2 or 3 A.M., on May 18, 1966, the lorry capsized due to the rash and negligent driving of the driver who is said to have slept away while he was driving the vehicle at good speed. As a result, Shamsir Khan was thrown off and was killed.

The respondents who are the legal representatives of the deceased have filed the application in question under section 110-A of the Motor Vehicles Act claiming compensation of the sum of Rs. 15, 000 against the owner of the lorry, Sri P. Nagarathinam, and the appellant, insurance company. The Tribunal has found that the accident was due to the rash and negligent driving of the driver, and this finding is not now challenged in appeal.

The learned counsel for the insurance company contends that the insurance company is not bound under law or under the policy to compensate the legal representatives of Shamsir Khan as the insurance company had not covered such a risk. On a consideration of the relevant section 95 of the Motor Vehicles Act and of the relevant clauses in the insurance policies, I am inclined to uphold the contention of the learned counsel for the appellant.

Under proviso (i)(c) to sub-section (1) of section 95 of the Act, a policy shall not be required to cover liability in respect of the death of a person or passenger being carried in the vehicle if it is a goods vehicle except so far as is necessary to meet the requirements in relation to liability under the Workmen's Compensation Act, 1923. Under proviso (ii) to section 95, the passengers who are carried in the lorry by reason of or in pursuance of a contract for employment will, however, be entitled to compensation.Turning to the insurance policy, we find section II deals with the liability to third parties. Section II(i) provides that, subject to the limits of limits liability, the company will indemnify the insured against all sums including the claimant's costs and expenses which the insured shall become legally liable to pay in respect of--

"(i) death or bodily injury to any person caused or arising out of the use of the motor vehicle.

Provided always that .........

(c) Except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act, 1923, the company shall not be liable in respect of death or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the motor vehicle at the time of the occurrence of the event out of which any claim arises." *

The net result is that the legal representatives of Shamsir Khan will be entitled to compensation only if it is shown that he was a passenger travelling in the lorry by reason of or in pursuance of a contract of employment between and the first respondent, the owner of the lorry. I have already pointed out and it is not disputed that Shamsir Khan had only hired the vehicle from the first respondent, the owner, and was but transporting mangoes from Vellore to Madras at the time of the occurrence. This does not show that he was under any contract of employment with the first respondent, the owner of the vehicle.

The learned counsel for the respondents faintly contends that the contract of employment does not necessarily mean the employment of Shamsir Khan by the first respondent but wo