( 1. ) IN this appeal under section 110-D of the Motor Vehicles Act, the appellant insurance company claims to be exonerated from the liability fastened on it for payment of compensation to the respondent No. 1 for injuries sustained by him on account of use of truck No. U. H. V. 0207 owned by the respondent No. 2 and at the relevant time driven by respondent No. 2s driver Ghanshyam (respondient No. 3 ).

( 2. ) AT this stage, it is not in dispute that the truck was owned by respondent No. 2. On 16-4-1984, it was in charge of respondent No. 3 who in the process of carrying coal in the truck to Allahabad, also took with him Ashok Kumar. On the way, the truck met with an accident as a result of which Ashok Kumar sustained fractures of tibia and febula bones of both the legs. After trial, the Accidents Claims Tribunal assessed Rs. 12,000/- as damages for the injuries sustained. In addition, Rs. 1,000/- have been awarded for pecuniary damages for amount spent on treatment and yet another amount of Rs. 1,000/- for mental and physical agony. As admittedly truck was insured with the appellant insurance company, it has also been made liable jointly with the owner and the driver of the vehicle.

( 3. ) THE appellant contends that on the claimants (Ashok Singh) own showing, he was a gratuitous passenger and, therefore, the appellant cannot be held liable either under statute, i. e. , section 95 of the Motor Vehicles Act, 1939 or under the contract of insurance.

( 4. ) UNFORTUNATELY, the claims tribunal remained completely unmindful of the capacity in which Ashok Singh was travelling in the truck when he sustained injuries. Consequently, it has returned no finding in this behalf. We find that the claimant himself has pleaded that on the drivers invitation, he travelled with him in the truck. fnukad 16and4and1984 dks vukosnd - 2 Vd pkyd ?ku;ke usvkosnd ls dgk fd og Vd ysdj bykgkckn tk jgk gsa ;fn og[kkyh gks rks mlds lkfk pysa vkosnd mlds Vd esa csbx;ka Explaining these allegations, the owner and the driver, in their joint written statement, submitted that as driver Ghanshyam was not well, therefore, he took the claimant Ashok Singh as an additional driver in the truck on the assurance that Ashok Singh shall be paid his wages by the owner. As against this, the appellant insurance company raised a specific plea that the claimant was a gratuitous passenger in the goods vehicle and, therefore, the insurance company was not liable. The claims tribunal formed no specific issue on this controversy despite such pleadings. This appears to be the precise reason why it has neither referred to nor decided this controversy. We, however, find from the oral testimony of claimant Ashok Singh that in examination-in-chief, he stuck to the allegations made in the claim petition. In cross-examination by counsel for the driver and the owner, he stated that on the drivers asking he came on the truck as a helper driver. The appellant did not cross-examine the claimant on this count. The owner did not examine himself. Ghanshyam driver stated in examination-in-chief that he took the claimant as a helper driver on an assurance that he will be paid his wages by the owner. From this evidence, it is possible to infer that the claimant was taken in the truck by the driver Ghanshyam as a helper driver. The question nevertheless would be whether the driver had such an authority from the employer viz. , the owner of the truck. There is no such plea raised either by the owner or the driver of the truck. Although Ghanshyam has deposed that payment to claimant was assured, yet there is no evidence at all that any such amount was either paid or agreed to be paid by the owner. It was for the owner to have entered into the witness box and depose that he had authorised the driver Ghanshyam to take any helper driver in case of need and that he undertook to remunerate any such helper. Faced with this difficulty, learned counsel for the owner and the driver submitted that th