1981 Supreme(MP) 257

G. G. Sohni & K. N. Shukla, JJ.
Abdul Salam v. Kishan.
Misc. A. No. 140 of 1918 (I); Decided on 9-4-1981.

Headnote:(1) Tort - vicarious liability -- driver of goods vehicle giving lift to passenger -- vehicle meeting with accident -- passenger injured -- master of driver liable for damages.

        (2) Master and Servant - vicarious liability -- driver of goods vehicle giving lift to passenger against statutory rules - insurer is not liable for damages in event of accident and injury to passenger.

        (3) Motor Vehicles Act, 1939 -- S. 95 -- liability of insurer -extent of driver giving lift to passenger against statutory rules - insurer is not liable for damages In event of accident and injury to passenger.

        This appeal is directed against the award dated 3rd May 1978 made by the learned Member, Motor Accident Claims Tribunal, Jhabua, in Claim case No. 8 of 1975.

        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 Nararanlal and another v. Rukmanibai and others (MA 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, is was not 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 time 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 is holding that non-applicant No.2 was not vicariously liable to pay compensation to the claimant.

        As regards the liability of the insurance company, it was not disputed before us that the truck in question was not a vehicle in which passengers were carried for hire or reward. Learned counsel for the appellant 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 S. 95 of the Act. The Tribunal was, therefore, right in holding that the insurance company was not liable to pay any compensation. Appeal and cross-objections partly allowed.