An insurance company is not liable to indemnify the owner of a motorcycle for damages awarded to a passenger injured or killed in an accident, where the policy excludes liability for injury or death of a passenger on the motorcycle.

, J.

1. This order will dispose of F. A. Os. Nos.129 of 1962, 131 of 1962 and 55 of 1963. The first appeal is by the insurance company, the second by the owner of the motor cycle and the third by the dependants of the deceased.

2. These appeals are directed against the judgment of the Motor Accidents Claims Tribunal awarding a sum of Rs.20,000 as compensation to the claimants against the insurance company and the owner of the motor cycle. The accident took place at about 10-00 P. M. on the 5th April, 1961. The deceased Jagdish Lal and Tara Singh Virdhi, owner of the motor cycle, were riding a motor cycle on the fateful night when they struck against a traffic island with the result that Shri Tara Singh Virdhi suffered injuries whereas Jagdish Lal died on the spot. The legal representatives of Jagdish Lal have made a claim against the insurance company with which the motor cycle was insured and against the owner of the motor cycle. A sum of Rs.2 lakhs was claimed as compensation. The deceased has left behind a widow, three daughters and a son. According to the claimants, the motor cycle was being driven by the owner Tara Singh Virdhi, whereas according to the version of Tara Singh Virdhi, the deceased was driving the motor cycle. The Tribunal has found that Tara Singh Virdhi was driving the motor cycle and that the accident took place because of his rash and negligent driving. The Tribunal assessed the compensation at Rs.20,000. The basis on which the Tribunal fixed this amount was that the annual benefit which the claimants would be deprived of would be about Rs.3,000 per annum. At the time of death the deceased was of about 45 years of age and keeping in view the age of the retirement as 55 years, ten years compensation has been assessed at Rs.30,000. The deceased was insured for Rs.30,000. This amount has been deducted out of Rs.30,000 and it is for the balance that a decree has been passed against the insurance company as well as the owner of the motor cycle. Against this decision the insurance company, the owner of the motor vehicle and the claimants have preferred the aforesaid three appeals.

3. I will first take up the appeal filed by the insurance company. The contention of the insurance company is that the policy does not cover the passenger on the pillion. He was never carried for hire or reward nor was he carried in the course of employment. On this there is no dispute and in support of the contention the learned counsel for the company has placed reliance upon a Full Bench decision of this court in Oriental Fire and General Insurance Company Ltd. V/s. Gurdev Kaur, [1967] 37 Comp. Cas.577 ; (1967) P. L. R.461, and the decision of a Court of Appeal in Coward V/s. Motor Insurance Bureau, [1962] 1 All E R.531 ; [1963] 33 Comp. Cas.552 (C. A. ). In my opinion these decisions conclude the matter in favour of the company. Mr. Sachar relies on Sec.95 (1) (b) in support of the contention that this clause covers a passenger in the insured vehicle even if he is not carried for hire or reward or in the course of his employment; I am unable to agree with this contention. His interpretation will only hold good if the policy of insurance insures such a person against accident. I have referred to the policy in question wherein the following provision is made under the head " Liability to third parties " and clause 1 under that heading reads thus : 1. Subject to the limits of liability the company will indemnify the insured in the event of accident caused by or arising out of the use of the motor cycle against all sums including claimants costs and expenses which the insured shall become legally liable in respect of (a) death of or bodily injury to any person but except so far as is necessary to meet requirements of Sec.95 of Motor Vehicles Act, 1939 , the company shall not be liable where such death or injury arises out of and in the course of the employees (sic) of such person by the insured and excluding liability to any