Liability for damages under the Fatal Accidents Act requires proof of negligence, which was established as brake failure in this case, resulting in dismissing the appeal.

1The plaintiffs in a suit for damages under the Fatal Accidents Act are appellants in this case. The suit was dismissed by the lower court holding that the accident occurred not due to rashness and negligence of the driver.

2The material averments in the plaint can be summarised as follows: The first plaintiff is the wife and the other plaintiffs are the children of deceased Bhaskaran alias Sivarajan. He was given a lift by the second defendant, the driver of Lorry bearing Registration No. KLE 2009 on 26-4-1973. The lorry met with an accident and the deceased sustained injuries on his right leg. He was immediately taken to the Kothamangalam Hospital and after first aid was removed to the District Hospital, Ernakulam where his right leg below the knee had to be amputated. However, he died on J4-5-1973. While in the hospital, he suffered pain and the first plaintiff had to spend about Rs.2,500/- for his treatment and also another amount of Rs.500/- towards his funeral expenses. The deceased Bhaskaran alias Sivarajan was a driver in another lorry and it was for the purchase of some spare parts for that lorry he travelled in the lorry which met with the accident. The incident took place as a result of rash and negligent driving of the second defendant and the first defendant as the owner of the lorry and employer of 2nd defendant was vicariously liable for the loss and damage. The plaintiffs restricted their claim to a total sum of Rs.75,000/-.

3Defendants 1 and 2 in their written statement admitted that the accident occurred on 26-4-1973 but contended that the first defendant had not permitted the second defendant to take any passenger in the cabin of the lorry and that the deceased travelled in the lorry at his own risk. The second defendant was giving side to a lorry which came in the opposite direction and at that time the brake of the lorry failed all on a sudden and the lorry capsized and the deceased sustained injury.

4. The 4th defendant, the New India Assurance Company in its written statement averred that it was not correct to say that the lorry bearing registration No. KLE. 2009 was insured with the 4th defendant and the policy of insurance issued in respect of the goods vehicles is not required to cover any passenger carried in such vehicles as per S.95 of the Motor Vehicles Act and in any event the liability of the insurer, is subject to the provisions contained in S.95 (2) of the Motor Vehicles Act.

5It has come out in evidence and is admitted that the lorry bearing registration No. KLE. 2009 driven by the second defendant was insured with the 4th defendant at the material time.

6The questions that fall for consideration in the appeal are:-
1. Whether the accident took place as a result of rash and negligent driving of the 2nd defendant;
2. Whether the policy of insurance covered any passenger carried in the vehicle in view of S.95 of the Motor Vehicles Act;
3. Whether the first defendant is vicariously liable to pay damages to the plaintiffs if the accident bad occurred on account of rash and negligent driving of the 1st defendant; and
4. Quantum of damages if any.
Sri. Ramanujam, Counsel for the appellants strenuously contended that the 4th defendant is liable to pay damages by virtue of the provisions contained in S.95 of the Motor Vehicles Act.

7It will be convenient here to refer to S.95(1) of the Motor Vehicles Act which reads as follows:
"95. Requirements of policies and limits of liability. (1) In order to comply with the requirements of this chapter, a policy of insurance must be a policy which
(a) is issued by a person who is an authorised insurer, or by a cooperative society allowed under S.108 to transact the business of an insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-s.(2)
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising ou