The proviso (ii) to Section 95(1)(b) of the Motor Vehicles Act, 1939, did not apply to passengers carried for hire or reward in goods vehicles and that such vehicles were not meant for carrying passengers for hire or reward.

( 1 ) THIS is owner's appeal u/s. 173 of the Motor Vehicles Act, 1988 against the award dt. 10-7-1996 in Motor Accident Claim Case No. 10/90 passed by the Vth Addl. Motor Accident Claims Tribunal, Bilaspur.

( 2 ) FACTS giving rise to this appeal are thus : The respondents Nos. 1 to 3 filed an application under Section 110-A of the Motor Vehicles Act, 1939 (the 'act of 1939') on 9-3-1988 before the Claims Tribunal, Bilaspur to claim compensation of Rs. 1,82,000/- for death of Shivprasad aged about 37 years, the husband of respondent No. 1 and father of respondents 2 and 3 who died in motor accident on 1-1-1988 by the use of Truck No. MPL 7112 owned by the appellant, insured by the respondent No. 8 and driven by respondent No. 9 at the relevant time. The deceased hired the Truck on payment of Rs. 300/- for carrying his goods/bundles of cloth to the weekly market in Khodri Bazar. As the driver of the appellant was not available the appellant engaged the respondent No. 9 a duly licensed driver arranged by the deceased to drive the truck. For the safety and security of loaded goods the deceased also travelled in the truck. On the way the truck turned turtle as a result of which Shivprasad died. The appellant and the insurer contested the claim while the respondent No. 9 remained ex parte. The insurer disowned its liability as the risk was not covered under Proviso (ii) of clause (b) of sub-section (1) of Section 95 of the Act of 1939 and also in the terms of the policy as the deceased was not carried in the truck as a result of contract of employment with the owner of the truck.

( 3 ) THE Tribunal after appreciating the evidence on record adduced by the parties held that the accident occurred due to breakage of band-arm, U bolt of front spring and of central bolt. But it was due to negligence of the appellant as the appellant has failed to establish that the mechanical failure had resulted despite all cares and caution on his part and he failed to keep the truck in road-worthy condition. After holding so the Tribunal worked out the compensation in all Rs. 1,37,000/- with interrest thereon at the rate of 12% per annum from the date of application till payment, which was ordered to be paid by the owner and driver jointly and severally. The insurer was absolved from the liability to indemnify the owner and to pay compensation holding that the deceased was travelling in the truck as a passenger with his bundles of cloth. He was not carried in the vehicle for hire or reward in pursuance of contract of employment. Not only this, the driver permitted 10-15 persons to travel with their goods for sale in the market, on payment of fare, which was a breach of contract of insurance Ex. D/1.

( 4 ) SHRI Manish Datt, learned Counsel for the appellant contended that as the truck was hired by the deceased for carrying his goods to the market, and he was travelling along with his goods for their safety and security, hence, in view of the decision of full Bench of this Court in Harishankar Tiwari v. Jugru Laxman Sahu, 1987 MPLJ 594 : (AIR 1987 MP 234), and recent pronouncement of the Supreme Court in B. V. Nagaraju v. M/s. Oriental Insurance Co. Limited, AIR 1996 SC 2054, the Tribunal committed an illegality in absolving the Insurance Company from its liability. The award of compensation was challenged as excessive. It was also submitted that the claim remained pending for no fault of the appellant from 1988 and was decided on 10-7-1996, therefore, the appellant could not have been burdened with interest of the long period of litigation, reliance was placed on a decision of this Court in Oriental Insurance Co. Limited v. Ramsingh, 1995 Jab LJ 342 : (AIR 1995 Madh Pra 171 ).

( 5 ) SHRI S. K. Rao learned Counsel for the respondent-Insurance Company while supporting the finding recorded by the Tribunal for absolving the insurer, submitted that even an owner of goods who hires a goods vehicle and travels with his goods does not become a p