The insurer is not liable for the injuries sustained by passengers in a goods vehicle who are not carried for hire or reward.

PASAYAT, J.

( 1 ) ON a reference being made by a learned single Judge, these appeals have been placed before a Division Bench to clarify as to who is a "third party" within the meaning of S. 95 of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act' ).

( 2 ) THE appeals before the learned single Judge are directed against the awards given by the Second Motor Accidents Claims Tribunal, Cuttack (in short 'the Tribunal' ). Facts of the case as found by the Tribunal are as follows : on 16-6-1980, a delivery van bearing registration No. OSC 8024 was moving towards Cuttack from Athgarh carrying goods and some passengers. On the way near Dihasahi Kadamba bridge, the vehicle met with an accident while the driver was trying to overtake a bus bearing registration No. ORD 2957. It went off the road on the right side of the road, knocked down a pedestrian named Dhabaleswar Panda and capsised. The vehicle belonged to one Jibanananda Mohanty (hereinafter referred to as 'the insured') and was insured with the Oriental Fire and General Insurance Company Limited (hereinafter referred to as 'the insurer' ). The bus belonged to the Orissa State Road Transport Corporation (hereinafter referred to as 'the Corporation' ). As a result of the accident several passengers and the pedestrian sustained injuries, and were hospitalised at the S. C. B. Medical College Hospital, Cuttack for treatment. The pedestrian Dhabaleswar Panda succumbed on the date of accident, and the other passengers of the vehicle were discharged from hospital after long periods of treatment.

( 3 ) SEVERAL claim petitions were filed before the Tribunal. Disposing of five cases that were lodged before it, the Tribunal essentially came to hold that the driver of the delivery van was the tort-feasor and there was no contributory negligence from the side of the bus. Referring to S. 95 (2) (a) of the Act, the Tribunal held that the liability of the insurance company is limited to Rs. 50,000/ -. It observed that the insurance policy indicated that the same had been taken by treating the vehicle as a goods vehicle with the understanding that the vehicle was to be used only under a public carriage permit within the meaning of the Act. R. 95 of the Orissa Motor Vehicles Rules, 1940 (in short 'the Rules') permits transportation of hirers, labourers and employees numbering six by a goods vehicle. It noticed that the liability of the insurer can be enforced only where the occupants were hirers and not simple passengers, since transporting passengers by a goods vehicle is prohibited under the said rule. It dealt with case of each individual claimant separately in its common judgment. Accordingly, the claim petitions were disposed of. In both the appeals the insured has assailed the award on the ground that he had no liability whatsoever and therefore, the Tribunal was not justified in fastening part of the liability on it.

( 4 ) THOUGH several contentions were raised before the learned single Judge, we are concerned with the question as a sequel to the reference made whether the insurer was bound to indemnify the insured, as according to the latter the injured persons were covered within the expression "third party", and had also paid money for travelling in the delivery van, and therefore were not gratuitous passengers. Reliance was placed on several decisions of various High Courts including one of this Court in Dhaniraj Agarwalla v. Manorama Bai, AIR 1988 Orissa 254. The insurer's stand is that the offending vehicle being a goods vehicles, the driver was not permitted under the Act to carry passengers on hire and the insurance policy did not cover them even though they might have sustained injuries. Reliance was placed on decisions of several High Courts, and one of the apex Court in Pushpabai Purshottam Udeshi v. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd. , AIR 1977 SC 1735.

( 5 ) FOR resolution of the dispute, it is necessary to refer to S. 95 of the Act so far as it