JUDGMENT - SHARAD MANOHAR, J.:---I am little unhappy about the fact that I am required to allow both these appeals filed by the Insurance Company disowning its liability towards the applicants under the Motor Vehicles Act. 2. The two appeals arise out of the two applications filed by the heirs of the two victims, who died in an accident which took place on 14th June, 1980. Admittedly, the vehicle was a good vehicle, hired by the Government of India. Original Opponent No. 1 was the owner of the vehicle. The United India Insurance Company was the original Opponent No. 2. The vehicle was taken on hire by the Government for carrying of goods. It appears that since some work was being carried on near the Aner Dam, some person clambered into the truck. It is a finding recorded by the Court below, incapable of being interfered with having regard to the nature of the evidence, that all these persons were gratuitous passengers. The truck driver allowed them to clamber into the truck. Some of them sat in the driver's cabin near the driver and others sat upon the heap of goods lying in the back portion of the truck. Out of those gratuitous passengers, we are concerned with two persons, one Vasaram Vanjari and the other Narayan Bhoi. While the truck was on its way, it turned turtle for some reasons. It is un-necessary for us to examine the reasons for the accident. It is the fact found by the Court below that this accident was the result of the negligence on the part of the driver of the vehicle and on that account a decree for Rs. 33,000/- has been passed by the Court below in each of the applications, which will be presently referred to. The owner of the vehicle has not filed any appeal against that part of the decree. Even in the present two appeals filed by the Insurance Company, apart from the question whether the Insurance Company can agitate the question of the owner's liability or not, the question owner's liability has not been agitated by the Company. We therefore proceed upon the finding that because of the negligence of the driver, the truck met with the accident. The point is that in that accident whereas some passengers were injured, the above mentioned two gratuitous passengers, Vasaram Vanjari and Narayan Bhoi died almost instantaneously. We therefore proceed upon the finding that because of the negligence of the driver, the truck met with the accident. The point is that in that accident whereas some passengers were injured, the above mentioned two gratuitous passengers, Vasaram Vanjari and Narayan Bhoi died almost instantaneously. The heirs of these two persons therefore, filed two separate applications against the owner of the vehicle, Original Opponent No. 1, and against the Insurance Company, Original Opponent No. 2, for a sum of Rs. 50,000/- in each of the applications. The application was for recovery of the said amount from the owner as well as from the Insurance Company. 3. Since the owner has not filed appeal against the decree passed against him, it is unnecessary to refer to his defence in his Written Statement. The Insurance Company raised various defences. But we need not go even into all those defences. The only defence relevant for the purpose of the appeal was and is that the two persons who died were gratuitous passengers in the vehicle which was merely a goods vehicle. It was not a passenger vehicle carrying passengers for hire or reward. Section 95, therefore, did not make it compulsory for the policy of Insurance to insure the owner's liability vis-a-vis such gratuitous passengers. As a part of this contention, it was further urged that not only that the statute did not require the policy to insure, such liability towards gratuitous passengers travelling by goods vehicle, but the policy in fact did not contain any clause insuring the owner's liability towards such gratuitous passengers travelling by the goods vehicle. The Insurance Company, therefore, totally disowned its liability towards the applicants. 4. The trial Court negatived the owner's contention relating to the absence of his liability and the trial Court has held that the owner was liable to the applicants in each of the application for payment of Rs. 33,000/- in each case. So far as the Insurance Company was concerned, the trial Court further held that sub-section (1) of section 95 of the Motor Vehicle Act made it incumbent upon the Insurance Company to insure the owner's liability towards 'any person". 33,000/- in each case. So far as the Insurance Company was concerned, the trial Court further held that sub-section (1) of section 95 of the Motor Vehicle Act made it incumbent upon the Insurance Company to insure the owner's liability towards 'any person". According to the trial Court, the question whether any such person travelling in a goods vehicle was travelling gratuitously or not was totally irrelevant so far as the liability of the Insurance Company arising out of section 95 of the Act was concerned. The trial Court, therefore, directed the Insurance Company to pay the said amount of Rs. 33,000/- to the applicants in each of the cases. As stated above, it is only the Insurance Company who has filed appeal against the decree. The owner has not filed by any appeal against the same nor is there any appeal or cross-objection filed by the Original Applicants claiming any amount over and above that which was decreed by the lower Court. 5. Mr. Kudrolli rightly invited my attention to the entire Scheme of section 95 and pointed out that although under section 95(1)(b)(i) the liability of the Insurer extends to "any person", that Clause (i) is specifically subjected to proviso (ii) of the same sub-section (1) of section 95. The relevant portion of section 95(1) runs as follows :-- "95(1). In order to comply with the requirements of this Chapter, a policy of insurance must be policy which--- (a)................ (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (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 out of the use of the vehicle in a public place;" Mr. Kudrolli rightly pointed out the legal position that "any person" does not necessarily mean that all the person travelling by vehicle are required to be insured is indicated also by sub-clause (ii) of section 95(1)(b). Said sub-clause (ii) runs as follows:--- "(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the vehicle in a public place:" Mr. Said sub-clause (ii) runs as follows:--- "(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the vehicle in a public place:" Mr. Kudrolli rightly pointed out that if the word "any person" was so wide that it was not subject to any constraint, then sub-clause (ii), extracted above, was totally redundant. 6. Probably, Mr. Kudrolli is right on this point. Said sub-clause (ii) does indicate that the above mentioned sub-clause (i) is not intended to cover liability of every kind of passenger in every kind of vehicle. But to my mind, this position does not take Mr. Kudrolli's case very far. The fact that sub-clause (ii) of section 95(1)(b) is indicative of the legal position that sub-clause (i) of the same is not all pervasive does not, by itself, mean that the Insurance Policy need not cover the owner's liability towards the category of passengers called gratuitous passengers. 7. But Mr. Kudrolli is on very much stronger ground when he invited my attention to proviso (ii) of said sub-section (1) of section 95. The relevant portion of the said proviso runs as follows:--- "Provided that a policy shall not be required--- (i).................. (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or......" Evidently, the above proviso (ii) constitutes an exception carved in the sweeping provision of sub-section (1)(b)(i). But for the said proviso (ii) even a gratuitous passenger travelling by a goods vehicles would be required to be insured by the Policy in question. But said proviso (ii) makes it clear that unless the vehicle is one in which passengers are carried for hire or reward, the Policy is not required to cover the owner's liability towards persons being carried in or upon the vehicle or towards the persons entering or mounting or alighting from the vehicle at the time of the accident in question. In the present case, admittedly, the vehicle was what is in ordinary parlance called "goods" vehicle, meaning thereby a vehicle in which the goods and not passengers are carried for hire or reward. It was a vehicle running on hire or reward, but it was not a vehicle being driven for carrying of passengers on hire or reward. There is next to no dispute about this factual position. Some caveat is put by Mr. Raghuvanshi, the learned Advocate appearing for the contesting respondent, to this factual position, about which a finding is recorded by the trial Court against the applicants; I will refer to that caveat presently. But for the sake of deciding the question of law, I may state here that the caveat is unacceptable. The position that emerges is that there was this goods vehicle in which the two deceased persons were travelling gratuitously. The law does not require the Insurance Policy to cover the owner's liability toward such gratuitous passenger in such a kind of vehicle. The plain meaning of proviso (ii) which is extracted above, leaves no room for doubt about this legal position. In support of the interpretation of said proviso (ii) of section 95(1)(b) of the Motor Vehicles Act, Mr. Kudrolli placed strong reliance upon the judgement of the Supreme Court reported in A.I.R. 1977 Supreme Court page 1735 (Pushpabai Parshottam Udeshi and others v. M/s Ranjit Ginning and Pressing Co. Pvt. Ltd. and another)1. The above mentioned proviso (ii) has been examined by Supreme Court in para 20 of its said judgement and Supreme Court has held in so many words that the Policy is not required to cover the risk to the passengers who are not carried for hire or reward. The judgement leaves no room for doubt about the interpretation of said proviso (ii), which is already discussed above. 8. Question then arises as to whether the policy in question in fact gave insurance cover to the owner in respect of his liability towards the gratuitous passenger such as the deceased person. In this connection, it is to be noted that the very initial portion of the proviso goes to say that the Policy need not cover any such risk. The proviso nowhere puts an embargo upon the Insurance policy to cover such a risk. In this connection, it is to be noted that the very initial portion of the proviso goes to say that the Policy need not cover any such risk. The proviso nowhere puts an embargo upon the Insurance policy to cover such a risk. If the Policy in facts covers such risk, may be that the owner will be entitled to get protection by virtue of the said cover and a view is possible that the third party who are victims or are the heirs of the victim would be entitled to avail themselves of the benefit of the said cover. But the point is that in the case of the instant policy such cover is specifically excluded. Section II of the policy is relevant in this behalf and proviso (c) to Clause (ii) of sub- section (1) of said section II makes it clear that the gratuitous passenger travelling by such vehicle will not be covered by the policy. 9. The legal and factual position, therefore, is as follow:--- Section 95 does not require the Insurance Policy to cover the owner's risk towards the gratuitous passenger. The Policy itself makes it clear that it has no intention to cover any such risk. There the matter ends. To hold that the Insurance Company is liable to reimburse the owner for the liability incurred by him towards the gratuitous passenger in the goods vehicle is, therefore, unwarranted by any other provision of law. 10. Let me refer now to the caveats put in by Mr. Raghuvanshi. His 1st contention was that the two applicants must have been passengers carried by the driver for reward. If that was so, proviso (ii) would apply and hence the generic provision contained in sub-section (1)(b)(i) must apply. Unfortunately for Mr. Raghuvanshi, the evidence on record does not help him. The applicant's own witness Balkrishna Kashiram Chamber, who gave an affidavit in favour of the applicants stating that the above mentioned deceased persons and others were travelling by the truck as its passengers has stated in so many words in his cross-examination that the driver had not taken charges from anybody in the truck. He has stated firstly that they had not paid any charges to the driver. But this position is further clarified by him by stating that the driver has not taken charges from anybody in the truck. He has stated firstly that they had not paid any charges to the driver. But this position is further clarified by him by stating that the driver has not taken charges from anybody in the truck. The trial Court has relied upon this position and hence the Court has found it impossible to hold that the truck was carrying any passenger for hire or reward. It is impossible for me to accept Mr. Raghuvanshi's contention that in such a case the provision of proviso (ii) would not apply. 11. However Mr. Raghuvanshi relied upon the three Authorities in support of his contention that Insurance Company could not be permitted to escape its liability towards the person such as the two deceased passengers. He first relied upon the judgement of this Court reported in 1986 Maharashtra Law Journal, Page 170 (Raghuvanshi Eknath Hivale v. Shardabai Karbhari Kale and others). I must state plainly that a more inapplicable authority is inconceivable. In that case two pedestrians came under the truck and died on the spot and the question arose as to whether the Insurance Company could escape its liability having regard to the provision of section 96(2)(i)(a) and (c). This Court held that it could not. But the principle laid down by that case has not a ghost of application to the question arising in this case. I plainly fail to see why such an authority is cited at all. The next authority relied upon by the learned Advocate is the judgement of a Division Bench reported in 1983 Maharashtra Law Journal page 647 (Nasibdar Suba Fakir v. Adhia and Company and other)3, to which I myself happened to be a party. It has been held in that case that when a hirer of a goods vehicle accompanies the goods and travel by the vehicle, to that extent the vehicle is a vehicle carrying passengers for hire or reward. The implicit stipulations in an Agreement between the transporter and the owner of the goods, who travels with the goods in the vehicle, were examined in that case an this Court came to the conclusion that an implicit condition must be read into the Agreement of hire, as a consideration for the payment of the hire charges of the vehicle, that the owner or some of his representatives would be travelling with the goods. A justifiable inference could be raised by the Court in such a case, it was held, that the hirer had in fact paid for his own travel in the vehicle along with the goods. If that was so, he was not a gratuitous passenger in the vehicle, but was travelling in the "vehicle for reward or; alternatively, it could be said that the partial object of the hiring was his own travel. Proviso (ii), therefore, would not apply to such a case. In the instant case, on the other hand the two deceased passengers had not been travelling for any reward at all. There is nothing on record to show that the Government who had hired the vehicle in transporting its goods had made any stipulation with the owner of the vehicle that the said passengers or any of them would travel with the vehicle. There is no evidence about this position nor can there be any implication of the same. The passengers in question were, thus, purely gratuitous passenger in the present case, as distinguished from the passenger in the Nasibdar's case. The judgement of the Division Bench, therefore, has no application to the facts obtaining in this case. The 3rd Authority relied upon by Mr. Raghuvanshi is the judgement of the Orissa High Court in the case of (Sushil Kumar etc. v. Binodini Rath and others)4, A.I.R. 1977 Orissa Page 112. But far from supporting any of Mr. Raghuvanshi's contention, the authority goes a long way to support the view expressed by me in this judgement. It has been specifically held in that case that the statutory policy under section 95 which has got to be taken out for plying the vehicle does not cover (meaning thereby, need not cover) any liability which may be incurred by the owner of the vehicle in respect of death etc., of any gratuitous passenger in that vehicle. But the authority states further that if in the said policy there is a further express stipulation to cover the wide risk to liability arising in respect of death etc., to any gratuitous passenger, then the Insurer has to satisfy the claim arising out of the said liability in accordance with the said express stipulation. This is the precise view taken by me as mentioned above. I fail to see as to how this authority helps Mr. This is the precise view taken by me as mentioned above. I fail to see as to how this authority helps Mr. Raghuvanshi to support his contention that the Insurance policy must or does cover the risk of the owner toward even the gratuitous passenger in a good vehicle. 12. The Appeals are, therefore, allowed. The award passed by the lower Court are set aside so far the Insurance Company is concerned. I, however, make it clear that this will not affect the right of the decree-holder vis-a-vis the owner of the vehicle, against whom the decree award was passed by the lower Court for Rs. 33,000/- and against which decrees no Appeal has been filed by the owner. However, in the circumstances of the case there shall be no order as to costs. 10-12-1987. After the appeal were heard and the judgement was pronounced, there has been an agreement between the original applicants and the Insurance Company by virtue of which , the Insurance Company has agreed to pay Rs. 15,000/- to each of the applicants ex gratia in full and final settlement of their claim against the Insurance Company Mr. Raghuvanshi, appearing for the original applicants makes a statement before the Court that his clients are agreeable to this compromise. It is made clear that although my original judgement remains in force, still in view of the agreement arrived at between the parties, the Insurance Company is directed to a pay Rs. 15,000/- (rupees fifteen thousand) to each of the applicant. Mr. Kudrolli, the learned Counsel appearing for the Insurance Company points out that the entire decretal amount has been deposited by the Insurance Company in the Court and the original appellant have even withdrawn a part of the same. How ever, there is no dispute that the amount withdrawn by them is in excess of Rs. 15,000/- each. It is thus agreed between the parties that they will retain the amount Rs. 15,000/- and shall be liable for refund of the balance of the amount which they have withdrawn. The final order contained in my earlier judgement shall , by consent be deemed to have been modified to the above extent. 15,000/- each. It is thus agreed between the parties that they will retain the amount Rs. 15,000/- and shall be liable for refund of the balance of the amount which they have withdrawn. The final order contained in my earlier judgement shall , by consent be deemed to have been modified to the above extent. It is further clarified by way of abundant caution that this will be in full and final settlement of the claim of the original applicants against the Insurance Company only including their claim against the Insurance Company under section 92-A of the Motor Vehicle Act. Appeal allowed. -----