Insurers are not liable to pay compensation to the heirs of the deceased if the deceased was not being carried in the truck for hire or reward or by reason of or in pursuance of a contract of employment.

, J.

1. This judgment will dispose of two first appeals, one preferred by Oriental Fire and General Insurance Co. Ltd. (No.10 of 1964), and the other by Des Raj (No.28 of 1964) against an award made by the Tribunal under the provisions of the Motor Vehicles Act, hereinafter referred to as the Act, by which a sum of Rs.3,600 was made payable as compensation by the first of them to Kasturi Lal. Des Raj, appellant, was the owner of truck No. PNF.5509 and had insured it with Messrs. Oriental Fire and General Insurance Co. Ltd. Kulwant Rai was his driver. The truck net with a serious accident on the G. T. Road between Panipat and Sonepat on 10th November, 1961, causing the death of Sham Lal who was travelling in the truck at the time. Kasturi Lal, father of deceased, filed an application under Sec.110 of the Act before the Tribunal for grant of Rs.50,000 as compensation. The deceased was carrying the wheat belonging to Messrs. Roshan Lal Kasturi Lal at the time of the accident to Delhi. He is alleged to be one of the proprietors of this firm. The accident is said to have been caused due to negligence of the driver of the truck.

2. The Oriental Fire and General Insurance Co. Ltd. , insurers, pleaded that in terms of the policy they were not liable to pay any compensation to the heirs and the dependents of the deceased, Sham Lal. Des Raj pleaded that the accident was not caused by any negligent act of his driver, Kulwant Rai, who tried his best to avoid the accident but due to sudden dazzling light of the car approaching from the opposite side he lost control of the vehicle resulting in the unfortunate occurrence. He further urged that Sham Lal, deceased, was not one of the proprietors of Messrs. Roshan Lal Kasturi Lal, whose bags of wheat were being carried at the time in the truck. He finally maintained that the insurers were responsible for payment of the compensation, if any, allowed to the applicant.

3. The Tribunal framed the following issues :-

1. Whether the accident was due to the negligence of the driver (PNF-5509) on 10-11-1961 2. What is the quantum of compensation due, if any, and from whom to whom 3. Relief.

4 He came to the conclusion that the driver of the truck was 50 per cent. responsible for the accident and further held that the insurers in terms of the insurance policy and Sec.96 of the Act were responsible for payment of compensation which he assessed at Rs.3,600 to the applicant.

5. The learned counsel for Messrs. Oriental Fire and General Insurance Co. Ltd. urged that in Sec.96 of the Act, the appellants were not liable to pay the compensation to the heirs of the deceased on behalf of the owner of the truck because the deceased was not being carried in the truck for hire or reward or by reason of or in pursuance of a contract of employment. He relied on (1) a Full Bench decision of this court in Oriental Fire and General Instance Co. Ltd. V/s. Gurdev Kaur, [1967] 37 Comp. Cas.577; [1967] P. L. R.461 and (2) New India Assurance Co. Ltd. V/s. Sharfi Devi, F. A. O.128 of 1961 decided on 19th May, 1967 which no doubt support him. The learned counsel for Des Raj, owner of the truck, on the other hand, maintained that Sham Lal, deceased, was no proprietor of Messrs. Roshan Lal Kasturi Lal, consignors, but was in their employment when their goods were being carried on hire in the truck to Delhi at the time of the accident.

6. There is hardly any evidence on the record to substantiate his contention. On the other hand, Kasturi Lal, A. W.6, in his statement unequivocally brought out that the deceased was also a proprietor of the consignor-firm and thus owned the wheat which was being carried in the truck at the time of the accident. This fact was also mentioned by him in clear terms in the application filed before the Tribunal. It is correct that the consignor-firm is styled as Messrs. Roshan Lal Kasturi Lal and not after the name of the deceased. Roshan Lal is the brother of Kasturi Lal and the deceased was th