1981 Supreme(MP) 319

G. G. Sobani & K. N. Shukla, JJ.
Mangubai v. Kishan.
Misc. A. No. 215 of 1978 (I); Decided on 29-4-1981.

Headnote:Motor Vehicles Act, 1939 -- Ss. 95 and 110-A -- application for compensation -- deceased given lift in truck -- owner and driver liable to pay compensation -- insurance company not liable.

        The question that arises for consideration is whether non-applicant No. 2 the owner of the truck, could be held liable to pay compensation. Now, the facts found by the Tribunal and which were not disputed before us are that non-applicant No. 1 was at the material time employed as a driver of the goods vehicle and that at the time when the accident took place, goods were being carried in the truck. The Tribunal held that non-applicant No. 2 was not liable to pay any compensation because non-applicant No. 1 the driver, had acted outside the scope of his employment in giving onto the deceased. We have, therefore, to determine the correctness of the finding given by the Tribunal in this behalf.

        Held : The question as to whether the Act of a driver of a vehicle in giving lift to a person in disregard of any statutory rule or prohibition, while driving the vehicle in execution of the owners business, can be held to be the performance by the servant of an act for which the owner of the vehicle can be held vicariously liable, came up for consideration before a Full Bench of this Court in Narayanlal and another v. Rukhmanibai and others (M. A. No. 18 of 1973). The Full Bench, by its judgment dated 16th October 1978, held that the act of the servant employed to drive a vehicle in giving lift to a person, in disregard of a statutory rule or prohibition, while driving the vehicle in execution of the owners business, is an act for which the owner is vicariously liable. In the instant case, it has been found by the Tribunal that non-applicant No. 1 was not expressly prohibited by non-applicant No. 2 from giving lift to anyone. Even assuming for the sake of argument that there was such a prohibition, it was not disputed that at the material rime non-applicant No. 1 was driving the vehicle in execution of the business of non-applicant No. 2. In view of the aforesaid decision of the Full Bench, it must be held that the Tribunal erred in holding that non-applicant No. 2 was not vicariously liable to pay compensation to the claimants.

        As regards the liability of the insurance company, it was not disputed before us that the truck in question was not a vehicle is which passengers were carried for hire or reward. Learned counsel for the appellants failed to satisfy us that the insurance company could be held liable either by virtue of the provisions of section 95 of the Act or by the terms of the insurance policy. There is nothing on record to show that the policy of insurance covered the liability in question even though it was not required to be covered under the provisions of section 95 of the Act. The Tribunal was, therefore, right in holding that the insurance company was not liable to pay any compensation. Appeal partly allowed.