An insurance company can be held liable to pay compensation under the common law to the heirs of a deceased conductor of an insured truck who was killed due to the rash and negligent driving of the truck driver, even if the case falls under Section 95(2)(b) of the Motor Vehicles Act.

Gokal Chand Mittal, J.

1. This is an appeal by the insurance company against the award of the Motor Accident Claims Tribunal, Gurgaon, dated 22nd of April, 1971, whereby a sum of Rs. 8,000 has been awarded to each of the three claimants against Ishwar Singh, driver, Randhir Singh, owner of the truck and the appellant-insurance company. Out of the amount awarded Rs. 20,000 was to be paid to the claimants by the insurance company and the remaining by the owner and the driver of the truck jointly and severally.

2. Ram Karan was conductor on truck No. HRG-1170, which belonged to Randhir Singh, respondent, and used to be driven by Ishwar Singh, respondent. The truck was insured with M/s. Indian Mercantile Insurance Co. Ltd., New Delhi, and under the policy there was a special clause that the insurance company would be liable to compensate not only under the Workmens Compensation Act, 1923, but also under the Fatal Accidents Act or at common law in respect of any personal injury to any paid driver (or cleaner or conductor or a person employed in loading and/or unloading). On 12th of March, 1969, while Ram Karan, conductor, was checking the wheels of the truck, the driver started it with the result that Ram Karan was crushed under the wheel of the truck as a result of which he died at the spot. The widow, a minor son and a minor daughter of the deceased-conductor filed a claim petition before the Motor Accident Claims Tribunal, Gurgaon, for awarding Rs. 50,000 as compensation.

3. The application was contested by all the respondents except Ishwar Singh, driver, who did not appear and was proceeded ex parte. The insurance company took the plea that by virtue of Section 95 of the Motor Vehicles Act, 1939 , the Motor Accident Claims Tribunal has no jurisdiction and it was further pleaded that the liability, if any, with regard to a conductor, which was required to be covered under the provisions of the Motor Vehicles Act, was limited up to the liability as fixed under the Workmens Compensation Act. It was also stated that the maximum liability of the insurance company was limited to Rs. 20,000 only, besides taking other pleas that there was no rash and negligent driving by the driver of the truck and for that reason no compensation was liable to be paid. On the contest of the parties, the following issues were framed :

1. Whether the Tribunal has no jurisdiction to try this petition ?

2. Whether the award cannot be passed against the insurance company ?

3. Whether the deceased Ram Karan was a conductor on truck No. 1170-HRG?

4. Whether the deceased was killed as alleged by the applicants and to what compensation are the applicants entitled ?

5. Whether the applicants are the heirs of the deceased ?

6. Relief.

4. The Tribunal held under issue No. 1, on the basis of certain decisions which have been noticed, that it had the jurisdiction and this point has not been raised before me in appeal. As regards issues Nos. 2, 3 and 4 which were dealt with together, it was held that the case was not covered by Section 95 of the Motor Vehicles Act with the result that the Workmens Compensation Act was not applicable and, therefore, the liability of the insurance company was not limited to the amount which could be awarded under the Workmens Compensation Act. The driver of the truck was held guilty of rash and negligent driving and these issues were decided in favour of the claimants. Under issue No. 5, it was held that all the claimants are heirs of the deceased.

5. Before me, Mr. L. M. Suri, wanted to raise his first submission which was also raised before the Tribunal that since the deceased was a conductor on the truck, the case fell under Section 95(2)(b) of the Motor Vehicles Act and the compensation which had to be awarded to the claimants had to be calculated in the manner given in the Workmens Compensation Act. Before this point could proceed further for discussion, Mr. H. S. Sawhney, appearing for the claimants, pointed out from the