JUDGMENT : B.K. Mehta, J. This appeal arises out of the Motor Accident Claims Petition No. 56 of 1973 at the instance of original opponent No. 1, which is a Co-operative Society owning the truck No. GTC-3435 which met with an accident on 16th March, 1973 near village Saroli in Surat district on Pardi-Zankhri-Surat road via Saroli, when Respondent No. 1 herein who was the original applicant was travelling in the truck as he was going with his milk for purposes of having laboratory test at Sumul Dairy for the purpose of ascertaining the fat contents thereof. Respondent No. 1 is a member of the Appellant-Cooperative Society and he was supplying his milk to the Society. On the day of the incident near village Saroli the right hand side front wheel of the truck flew off and got it (sic. itself) free with the result that the truck dashed with a tree and the driver lost his life in the accident. ' Respondent No. 1 herein was also seriously injured and sustained fracture of tibia and fibula on his left leg. He was removed to Civil Hospital, Surat where he was confined as an indoor patient for 15 days. He was also operated upon and as a result of the injury he suffered permanent disability of deformity and shortening of left leg by two inches and restriction in his knee movement by about 30 per cent. He, therefore, filed a claim petition, being Motor Accident Claim Petition No. 56 of 1973, before the Motor Accident Claims Tribunal, Surat, joining the present Appellant as well the United Fire and General Issuance Company as original opponents Nos. 1 and 2 respectively and claiming Rs. 9,999/-by way of compensation. 2. Both the original opponents resisted the claim. The Appellant-opponent No. 1, inter alia, contended that the incident was an accident pure and simple and the Co-operative Society could not be held vicariously liable for the tragic accident, because the deceased driver was in no way rash and negligent in driving the vehicle in question. The original opponent No. 2, insurance company contended that the original applicant had no right to travel by the truck and he was an unauthorised person and, therefore, the insurance company cannot be held liable to make the loss good. The original opponent No. 2, insurance company contended that the original applicant had no right to travel by the truck and he was an unauthorised person and, therefore, the insurance company cannot be held liable to make the loss good. The Tribunal raised necessary issues and on appreciation of the evidence found that the circumstances established in the evidence on record clearly raised a presumption that the deceased driver was rash and negligent in driving the vehicle and the original opponent No. 1 Society was not able to establish from the evidence that the accident was an accident pure and simple which happened due to some latent defect in the vehicle. The Tribunal also found that, having regard to the medical evidence, it was clearly established that the original applicant suffered a permanent total disablement of shortening of his leg and restriction of his knee movement. He, therefore, found that the original applicant would be entitled to higher amount of compensation than what he claimed for, but, having regard to the restricted claim of Rs. 9,999/- made by the original applicant, he held the opponent No. 1 Society liable to pay the same as in his opinion on the evidence adduced by the parties, the original applicant was, with the consent and knowledge of the President and the Secretary of the opponent No. 1 Society who were also travelling in the same truck, allowed to travel in the truck for purposes of the -work of the Society itself. He, therefore, held opponent No. 1-Society liable for the compensation in the sum of Rs. 9,999/-. He, however, absolved the original opponent No. 2, insurance company from the liability under the insurance policy as the original applicant was found by him to be gratuitous passenger and, therefore, the company was not liable to indemnify the insured under Section 95(l)(b) of the Motor Vehicles Act, 1939. He, therefore, by his order of 20th June, 1974 directed the original opponent No. 1 Society to pay to the original applicant a sum of Rs. 9,999/- together with interest and the costs. It is this order of the Motor Accident Claims Tribunal, Surat which is the subject matter of this appeal. 3. Mr. Oza, learned Advocate, appearing on behalf of the Society, raised the following three contentions: 1. 9,999/- together with interest and the costs. It is this order of the Motor Accident Claims Tribunal, Surat which is the subject matter of this appeal. 3. Mr. Oza, learned Advocate, appearing on behalf of the Society, raised the following three contentions: 1. The Tribunal was clearly in error in failing to reach the conclusion that the incident was an accident pure and simple inasmuch as the right side front head wheel got free and flew off in one direction with the result that the control of the truck was lost and it ran off the road and dashed against the tree which resulted in the tragic demise of the driver and injury to Respondent No. 1 herein. 2. In any case, the Tribunal was in error in holding that Respondent No. 1 travelled in the truck on the day of the incident with the knowledge and authority of the Society. 3. In any case, the Tribunal was clearly in error in absolving Respondent No. 2, insurance company from its liability to indemnify the Appellant-society under the insurance policy which clearly covered third party risk. 4. So far as the first two contentions are concerned, I am afraid, I cannot agree with Mr. Oza for the obvious reasons which are as under: It should be noted in the first instance that no evidence has been led by the Appellant-Society either of the Motor Vehicles Inspector or any mechanic or other person who might be conversant with the fitness of the vehicle round about the day of the incident. It is also an admitted position that the fitness certificate of the vehicle in question has not been produced. It is no doubt true, in the written statement, it has been stated that a fitness certificate in respect of the vehicle in question was issued and it was valid upto June, 1973. Now, as stated above, this certificate is not produced nor has it been referred to or mentioned for that matter in the evidence of the witnesses examined on behalf of the Appellant-Society. 5. In Perumal and Ors. v. G. Ellusomy Reddiar and Ors., 1974 A.C.J. 182 a similar defence was negatived by the Madras High Court on the ground that there was no evidence whatsoever for rebutting the presumption which arose in that case on the doctrine of res ipsa loquitur. 5. In Perumal and Ors. v. G. Ellusomy Reddiar and Ors., 1974 A.C.J. 182 a similar defence was negatived by the Madras High Court on the ground that there was no evidence whatsoever for rebutting the presumption which arose in that case on the doctrine of res ipsa loquitur. Ramaswami J. speaking for the Madras High Court observed as under in paragraph 6 of the said judgment: As I said, the Tribunal below held that the accident was a result of the mechanical defect and the accident was not due to any negligence or rashness. But on a careful consideration, I am unable to accept the finding of the Tribunal below on this point. There are two aspects of the question. The first is whether the accident was due to rash or negligent driving by P. W. 1, the driver of the vehicle. The second is, even if the accident was a result of mechanical defect, whether reasonable care had been taken to prevent such breakdown resulting in the accident. The lorry had admittedly gone out of the road, jumped over the pavement and attacked the deceased who was actually standing on the steps of the tea stall. Under such circumstances the doctrine of fes ipsa loquitur would come into play. It is then the burden shifts on to the Respondents to prove that the accident was not due to negligence. The doctrine of res ipsa loquitur means that an accident may by its nature be more consistent with its being caused by negligence for which the Defendant is responsible than by other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence.... I will assume in this case that the coming off of the left front wheel was not due to the impact itself but because of the subaxle nuts breaking or slipping all of a sudden. But the Respondent cannot escape liability by merely showing that the accident was as a result of a mechanical defect. He should further show that he took reasonable care to avoid such mechanical defect. 6. In Bingham's Motor Claims Cases, Seventh Edition, page 220, it has been pointed out to the effect that, if a latent defect is claimed as a cause of action, which could not have been discovered by reasonable care, there cannot be any presumption of negligence. He should further show that he took reasonable care to avoid such mechanical defect. 6. In Bingham's Motor Claims Cases, Seventh Edition, page 220, it has been pointed out to the effect that, if a latent defect is claimed as a cause of action, which could not have been discovered by reasonable care, there cannot be any presumption of negligence. In other words, it would not be sufficient for the truck owner to plead a latent defect by way of defence to an action of negligence. It must further be established that the defect was such that it could not have been discovered with all the reasonable care. 7. In R. v. Spurce, (1961) 2 All E.R. 688 the Defendant was driving a Ford Anglia car along a main road when it gradually moved over to its off-side of the road and collided with a vehicle travelling in the opposite direction. In answer to a charge of driving without due care and attention it was argued in favour of the Defendant who said that she had no recollection of the accident and that it might have been caused by a mechanical defect to which modern mass-produced vehicles were prone to but which it was not possible to specify. The defence was negatived and it was held by the Division Bench that the mere suggestion that modern mass-produced vehicles were prone to mechanical defects did not give rise to a reasonable doubt and was merely fanciful. 8. In the present case before me, therefore, in the first instance, there is no definite case pleaded by the Appellant-society except saying that the incident was merely an accident pure and simple. From the singular fact that the right hand side front wheel got itself free and flew away with the result that the vehicle went off the road and dashed against the tree, even assuming without admitting, as has been done by the Madras High Court in Perumal's case (supra), that the flying of the right hand side wheel due to some sub-axle nuts breaking or slipping all of a sudden, it would not by itself constitute a good defence unless it is established by some satisfactory and cogent evidence that the accident happened as a result of the latent defect inspite of exercise of the reasonable care. In the circumstances, therefore, I do not find any justifying reasons for me to depart from the finding of the Tribunal when it held that the circumstances emerging from the evidence on record before him clearly established that the vehicle went off the road and dashed against the tree and that this would not have happened but for the rash and negligent driving by the driver since no satisfactory evidence has been led to rebut this presumption. 9. The second contention of Mr. Oza should also meet with the same fate, because the evidence of the President and the Secretary, Becharbhai Laxmanbhai and Manibhai Madhavbhai Patei, respectively, discloses that samples of milk supplied to the Society were tested at the Sumul Dairy, Surat and the Society used to get the samples tested. The members supplying milk to the Society have to get their samples tested through the Society. The evidence of the President also discloses that it often happens that members of the Society travel 'by the Society's truck. The President, Becharbhai was sitting by the side of the driver in the truck whereas the Secretary Manibhai and the conductor were sitting in the open part behind the second cabin which is after the driver's cabin. The truck was going to the Sumul Dairy with the samples of the milk supplied by its different members. The President Becharbhai boarded the truck from Sondla Khera stand and Respondent No. 1 the victim Govindji boarded the truck, according to the President Becharbhai, from Karanj which is a bus-stop before Sondla Khera from where the President boarded the truck. Becharbhai also admitted that Respondent No. 1 Govindji was in the truck when he boarded though he did not see him and he saw him only when the accident took place. The Secretary Manibhai has stated in his evidence that the truck had stopped at Karanj buthfejiot know when the applicant had boarded the truck and he found him sitting in the cabin after the driver's cabin at the time when the accident had taken place. From this evidence, the Tribunal reached the conclusion that opponent No. 1 Govindji was given a lift by the Appellant-Society's truck with the knowledge and consent of the President as well as the Secretary. From this evidence, the Tribunal reached the conclusion that opponent No. 1 Govindji was given a lift by the Appellant-Society's truck with the knowledge and consent of the President as well as the Secretary. I have teen taken through the evidence of the said two witnesses and I do not find anything except their bare word to justify the submission made by Mr. Oza that the Tribunal was in error in reaching the conclusion as it did that Respondent No. 1 Govindji boarded the truck with the consent and knowledge of the President and the Secretary of the Society. It should be recalled that the President Becharbhai has clearly admitted in his evidence that the members used to travel by the truck. He has admitted that the samples of milk supplied by the members are to be tested at the laboratory of the Sumul Dairy and the Society was responsible for such tests. It is, therefore, possible, as has been held by the Tribunal, that Respondent No. 1, who was also admittedly a member of the Society and supplier of the milk to the society must have travelled with the truck on the day of the incident, because, as he has stated, he had also his sample to be tested at the laboratory of the Sumul Dairy. In the circumstances, therefore, it cannot be said that he was travelling unauthorisedly and without the knowledge and consent of the Society. In the present case, the President and the Secretary both were present in the truck on the day and their ignorance about the boarding of the truck by opponent No. 1 does not inspire the confidence and I, therefore, agree with the finding of the Tribunal that original Respondent No. 1 travelled with the permission of the Society. 10. However, Mr. Oza was on firm ground when he raised the third contention that the Tribunal was in error in absolving Respondent No. 2 the insurance company from its liability under the insurance policy. The Tribunal has absolved the insurance company for the simple reason that Respondent No. 1 Govindji was a gratuitous passenger in the truck. Mr. 10. However, Mr. Oza was on firm ground when he raised the third contention that the Tribunal was in error in absolving Respondent No. 2 the insurance company from its liability under the insurance policy. The Tribunal has absolved the insurance company for the simple reason that Respondent No. 1 Govindji was a gratuitous passenger in the truck. Mr. Trivedi, learned Advocate, appearing on behalf of the insurance company, however, uiged that Respondent No. 1 was clearly a gratuitous passenger in the truck and, therefore, the insurance company was not under any liability to indemnify the Appellant-Society which has been held liable for paying compensation to Respondent No. 1 Govindji. 11. In Sakinabibi wd/o Belim Gulamhussen Mahamadmiya and Ors. v. Gordhanbhai Prabhudas Patel and Ors., (1974) 15 Guj. L.R. 428 a Division Bench of this Court (Coram: J.B. Mehta & S.H. Sheth JJ) considered this aspect. J.B. Mehta J. speaking for the Division Bench in that case held as under:- "If the vehicle is a vehicle which is one, in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, such vehicle must have the passenger risk covered by compulsory insurance policy for the third party risk, irrespective of the fact as to what is the class of the passenger who was carried in or upon such vehicle at the time of the occurrence of the event which gives rise to the claim of compensation. Whether, therefore, persons are thus normally carried by a goods vehicle as passengers When they are lawfully permitted even under Rule 118, it would be difficult to hold that such goods vehicle would not be required to be compulsorily insured so far as such passengers carried by it are ? concerned. Whether, therefore, persons are thus normally carried by a goods vehicle as passengers When they are lawfully permitted even under Rule 118, it would be difficult to hold that such goods vehicle would not be required to be compulsorily insured so far as such passengers carried by it are ? concerned. The limitative words would hardly be satisfied in the case of passengers who have been given lift by way of special kindness, or if casual solitary use is made of the vehicle for carrying a passenger, for some small reward whether by way of petrol charges or otherwise, where however carriage of passengers by vehicle is as a business proposition or business exigencies or business reasons require [carriage of these passengers by these vehicles, the legislature has rightly made insurance coverage compulsory for such passengers even in a commercial vehicle." S.H. Shelh, J. in his concurring judgment also held that it was clearly beyond any doubt that the expression "in which passengers are carried for hire or reward" qualifies the vehicle and it is this kind of vehicle which must have compulsory insurance for third party risk in respect of "any person" and it must be held that any vehicle whether a passenger vehicle or a goods vehicle which answers this description must have compulsory insurance in respect of liability arising out of such risk; and merely by virtue of the fact that the truck in question was not a passenger vehicle, properly so called within the meaning of the expression "public service vehicle" given in Section 2(25) of the Act it cannot be said that the exception to the exception enacted in Clause (ii) in the proviso is not attracted to it. He further held that, even if it is a "goods vehicle" within the meaning of that expression given in Section 2(8) of the Act, it is permissible to carry on it certain kinds of passengers. 12. He further held that, even if it is a "goods vehicle" within the meaning of that expression given in Section 2(8) of the Act, it is permissible to carry on it certain kinds of passengers. 12. In view of this legal position as laid down by the decision of the Division Bench of this Court, I do not think that the Tribunal was right in absolving the insurance company from its liability to indemnify the Appellant-Society from its liability to pay compensation to the passengers who might have been carried in its truck in any view of the matter, whether one considers Respondent No. 1 Govindji as a gratuitous traveller or entitled as a matter of right to travel in the vehicle even as a member-supplier of the milk to the Society, the conclusion is inescapable in view of the decision of the Division Bench of this Court in Sakinabibi's case (supra) that the Respondent-insurance company was liable to indemnify the Appellant-Society. It should be recalled that the Tribunal has held and in my opinion rightly, that Respondent No. 1-Govndji was allowed to travel in the truck by the office-bearers of the Society viz. the President and the Secretary, for purposes of taking the samples of milk for testing at the laboratory of the Sumul Dairy in Surat. He was, therefore, entitled as a matter of practice to travel in the truck. In that view of the matter, therefore, the conclusion of the Tribunal that the Respondent insurance company was not liable to indemnify the Appellant-Society must be reversed and it must be held that insurance company is also equally liable to pay compensation and, therefore, indemnify the Appellant-Society. 13. The result is that this appeal is partially allowed and it is ordered that opponents Nos. 1 and 2 both would be liable to pay to Respondent No. 1 the amount of compensation as directed by the Tribunal. There should be no order as to costs in this appeal having regard to the facts and circumstances of this case.