Judgment :- 1. All these Civil Revision Petitions and Civil Miscellaneous Appeals arise out of one motor accident that had occurred on 27.6.1983. The Tribunal below rendered separate but identical orders in each case except the quantum of compensation. 2. When these matters were taken up for final disposal, neither the learned counsel appearing for the owner of the vehicle nor the Insurance Company challenged the quantum of compensation awarded to the respective claimants. Therefore, common arguments were addressed on two common issues, namely, (a) Whether the owner of the vehicle is liable to pay compensation in view of the stand taken by him to the effect that the driver had taken the vehicle without the knowledge and consent of the owner or his agent for unauthorised trip, namely, to carry the petitioners/appellants for a funeral ceremony at a nearby village, and (b) Assuming that the owner is held liable, even then can the Insurance company be held liable as the vehicle was not in its authorised use at the time of accident and it was used for a purpose other than the one for which vehicle was intended. 3. Before narrating the facts, I would like to point out that out of over anxiety or otherwise, all the petitioners have uniformly stated in the petition that the accident had occurred when they were in the vehicle as loadmen. Here, it has to be pointed out that in the accident one person died and all others sustained injuries of various nature. The legal representatives of the deceased person have also stated that the deceased died while he was travelling in the vehicle. I am inclined to think that such allegations were made in the claim petitions in order to give a colour as if the accident had taken place in the course of employment. It may also be mentioned that the petitioners/appellants have given up this case at the trial stage and they have all stated in one voice in the evidence that the accident had occurred while they were travelling in the vehicle, to attend the funeral ceremony of their Union Leader by name Jayagopal at Vinayagapuram village. 4. For the sake of convenience, the parties are hereinafter referred to by their ranks in the Tribunal either as claimants or as first or second respondent, as the case may be. 5. 4. For the sake of convenience, the parties are hereinafter referred to by their ranks in the Tribunal either as claimants or as first or second respondent, as the case may be. 5. Let me now briefly set out the allegations in the petition and also in the counter affidavits. The identical allegations in the petitions except in O.P. No. 167 of 1985 against which C.M.A. Nos. 1021 of 1987 and 1119 of 1988 are filed which are relevant for the purpose of these cases, read as follows: “The petitioner was travelling in the lorry as a load-man, in his quarry on 27.6.83 at about 10.30 am the lorry bearing Registration No. TMR 326 near Konthamoor lake i.e. in between Konthamoor and Thensiruvalur in Kunnam-Konthamoor Road. The lorry was capsized, in the road curve, and met with an accident. The accident is solely due to the rash and negligent driving of the driver of the lorry.” As the legal representatives of the deceased filed the claims petition in O.P. No. 167 of 1985, there is a slight change in the averment made in that position. 6. The owner of the Vehicle-first respondent has filed counter affidavits (which are identical) in all cases. The substance of the counter affidavit of the first respondent is to the effect that the petitioners were not on duty as loadmen at the time of accident, that the vehicle itself was not engaged in any work of the first respondent at the time of the accident, that the driver had taken the vehicle without the knowledge and consent of the first respondent or his agent for the unauthorised trip to carry the petitioners and others for a funeral ceremony in the adjacent village, that the first respondent is not responsible for the illegal or unlawful Act of his driver which was done with the connivance of the petitioners and others, and that the action of the driver was highly illegal and for that, the first respondent cannot be held responsible. It was also stated that the petitioners are not entitled to any compensation as they were only travelling in the vehicle which was not engaged in any work of the first respondent. 7. It was also stated that the petitioners are not entitled to any compensation as they were only travelling in the vehicle which was not engaged in any work of the first respondent. 7. The substance of the counter of the second respondent was to the effect that the vehicle insured was not an ordinary type of lorry, but it was a tipper authorised to carry goods alone, that in case of necessity, while the goods are transported, three persons alone are permitted to travel in the cabin, including the driver, and that at the time of accident, the vehicle was not used for transport of goods, but was used unauthorisedly for carrying the quarry workers for the funeral ceremony of one Jayagopal at Vinayagapuram village, and so second respondent was not liable to pay any compensation. The allegation that the petitioners were working as loadmen at the time of accident was false and the same was made in order to have a claim. The petitioners were not the employees of the first respondent. 8. On the side of the claimants, each one of them examined himself in the respective case. On behalf of the first respondent, his agent was examined as R.W. 1. Nobody was examined on behalf of the Insurance Company. The uniform evidence of the claimants was that when they were working at the quarry site on 27.6.1983, Nedumaran, the agent of the first respondent, who was examined as R.W. 1 had informed them that Jayagopal had died and if they want, they can go and pay their last respects to the deceased by taking the tipper. Accordingly they went in tipper and the accident had occurred when the vehicle was just passing Thensiruvalur while negotiating a bend on account of the rash and negligent driving of the vehicle by the driver. The evidence of R.W. 1, the agent of the first respondents the same in all the cases, and it is to the effect that the claimants were not the employees of the first respondent. As a matter of fact, according to R.W. 1, the first respondent was not in the habit of engaging workers directly, but used to engage workers through contractors. Therefore, there was no relationship of employer and employee between the first respondent and the claimants. He was informed about the accident while he was at Tindivanam at about 12-00 Noon on 27.6.1983. Therefore, there was no relationship of employer and employee between the first respondent and the claimants. He was informed about the accident while he was at Tindivanam at about 12-00 Noon on 27.6.1983. Thereafter, he went and saw the driver at Tindivanam Government hospital, and he was informed that all the claimants threatened the driver to take the vehicle to enable them to go to the funeral of Jayagopal, Union Leader, and, therefore, he (the driver) was forced to take the vehicle. According to R.W. 1, he was not earlier aware of the fact that the vehicle was being taken by the claimants by compelling the driver to attend the funeral of Jayagopal. He has stated that the first respondent dismissed the driver and the second respondent has paid compensation for the damage caused to the vehicle. 9. On the basis of the pleadings and oral evidence, and after hearing the arguments of the learned counsel on both sides the tribunal below has come to a conclusion that the accident took place on account of the rash and negligent driving of the vehicle, that the first respondent is vicariously liable for the act of the driver, and that the second respondent-Insurance Company having paid compensation for the damage caused to the vehicle, cannot deny the liability to any compensation to the claimants. On t hose conclusions, the Tribunal has awarded compensation in each case as per the following tabular form:— Case No. O.P. No. Amount Claimed Amount Awarded. CRP 247/87 3387/87 94/84 17,000/- 1,500/- CRP 259/87 3497/86 96/84 20,000/- 1,500/- CRP 3388/86 3497/86 93/84 21,000/- 1,500/- CRP 3391/86 936/86 90/84 17,000/- 1,500/- [The particulars with regard to the other C.R.Ps. omitted Ed.] 10. Mr. K.S. Gurumurthy, learned counsel appearing for the 1st respondent owner of the vehicle who is either petitioner or appellant before me in this batch of cases, elaborately argued the matter and submitted that the finding of the Tribunal that the first respondent is vicariously liable for the accident that occurred on 27.6.1983, and as such, liable to pay compensation, cannot be sustained on facts as well as on law. According to the learned counsel, the claimants have come forward with a false case has been established beyond doubt from the fact that they have given up their case as narrated in the claim petition and have come forward with a different case during trial. According to the learned counsel, the claimants have come forward with a false case has been established beyond doubt from the fact that they have given up their case as narrated in the claim petition and have come forward with a different case during trial. In other words, the learned counsel points out that the case put forward in the claim petition was different from the one spoken to in and the evidence by the respective claimants. Thereafter, on that basis, the Tribunal should have dismissed the claim petitions. He also submitted that the claimants have not established that either the owner of the vehicle or his agent permitted the use of the vehicle to attend the funeral. There is nothing to suggest that the owner or his agent was aware of the use of the vehicle by the claimants to attend the funeral. It is contended by the learned counsel that for the unauthorised use of the vehicle and without the consent of the owner, by the driver, with the connivance of the claimants, the first respondent (owner of the vehicle) should not be made liable to pay any compensation in respect of the accident that occurred. According to him, the question of vicarious liability will arise only when the vehicle was used in the course of employment. In this case, that position having not been established, the order of the Tribunal, making the owner of the vehicle liable to pay compensation, is not sustainable. As pointed out already, no arguments were advanced regarding the quantum of compensation. 11. Mr. Rosi Naidu, learned counsel appearing for the Insurance Company (2nd Respondent before the Tribunal) who has also filed independent appeals and revisions against the awards of the Tribunal, while adopting the arguments of Mr. K.S. Gurumurthy, further submitted that in any event, the Insurance company cannot at all be made liable on the facts of this case. According to him, the vehicle was intended to carry goods only and it cannot be used for carrying passengers. Such use will amount to contravention of terms of policy and also statutory provisions. As the vehicle has been put to use for a purpose other than the one for which it was insured, the insurer cannot be made liable. 12. Mr. Such use will amount to contravention of terms of policy and also statutory provisions. As the vehicle has been put to use for a purpose other than the one for which it was insured, the insurer cannot be made liable. 12. Mr. Balasubramaniam, learned counsel appearing for the claimants in meeting the arguments of the learned counsel for the appellants/petitioners, submitted that the case put forward by the owner of the vehicle in the counter statement was different from the one spoken to by R.W. 1 in his evidence. There was no suggestion in the counter of the first respondent that the claimants went to the residence of the driver at Adhanapatti and compelled him to take the vehicle to enable them to attend the funeral of Jayagopal. It is further pointed out that there is no positive suggestion in the counter statement that the claimants were not the workers of the first respondent. The non-examination of the driver is fatal to the case of the first respondent as pointed out by the Tribunal below. He also submitted that according to several decisions of this court and of the Supreme Court, the owner of the vehicle is vicariously liable for the acts of the driver and the owner cannot escape the liability by stating that the use of the vehicle at the time of accident was not an authorised one. He also submitted that the Insurance Company cannot escape the liability by stating that since the vehicle had been used for a purpose other than the one for which it was insured, the Insurer is not liable. On the other hand, according to the learned counsel the Insurance Company is liable to pay compensation in the absence of a finding that the owner of the vehicle himself had committed breach of any of the terms of the Insurance Policy. 13. Learned counsel on both sides have cited decisions of this court and of the Supreme Court in support of their respective contentions. Let me now consider the decisions cited by them. 14. The Supreme Court has elaborately considered the theory of vicarious liability in the decision in Pushpabai Purshottam Udeshi and others v. Ranjit Ginning and Pressing Co. and another 1. Let me now consider the decisions cited by them. 14. The Supreme Court has elaborately considered the theory of vicarious liability in the decision in Pushpabai Purshottam Udeshi and others v. Ranjit Ginning and Pressing Co. and another 1. After referring to several English cases, their Lordships have held as follows: “Before we conclude we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term in the course of the employment as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 2 where this court accepted the law laid down by Lord Denning in Ormrod and another v. Crosville Motor Services Ltd. and another (supra) that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owners consent, driving the car on the owners business or for the owners purposes. This extension has been accepted by this court. The law as laid down by Lord Darning in Young v. Edward Box and Co. Ltd. already referred to i.e., the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servants liability, has been uniformly accepted as stated in Salmond Law of Torts, 15th Ed., p. 606, in Crown Proceeding Act, 1947 and approved by the House of Lords in Staveley Iron & Chemical Co. Ltd. v. Johnes and I.C.I. Ltd. v. Shatwell . The scope of the course of employment has be extended Navarro v. Moregrand Ltd. & Anr. Where the plaintiff who wanted to acquire the tenancy of certain flat, applied to the second defendant, a person with ostensible authority to conduct the business of letting the particular flat for the first defendant the landlord. The second defendant demanded from the plaintiff a payment of 225 if he wanted the flat and the plaintiff paid the amount. The plaintiff sought to recover the sum from the Landlord under the landlord and Tenant (Rent Control) Act, 1949. The second defendant demanded from the plaintiff a payment of 225 if he wanted the flat and the plaintiff paid the amount. The plaintiff sought to recover the sum from the Landlord under the landlord and Tenant (Rent Control) Act, 1949. The Court of Appeal held that the mere fact that the second defendant was making an illegal request did not constitute notice to the plaintiff that he was exceeding his authority and that, though the second defendant was not acting within his actual or ostensible authority in asking for the premium as the landlord had entrusted him with the letting of the flat, and as it was in the very course of conducting that business that he committed the wrong complained of he was acting in the course of his employment. Lord Denning took the view that though the second defendant was acting illegally in asking for the receiving a premium and had no actual or ostensible authority to do an illegal act, nevertheless he was plainly acting in the course of his employment, because his employers, the landlords, had entrusted him with the full business of letting the property, and it was in the very course of conducting that business that he did the wrong of which complaint is made. This decision has extended the scope of acting in the course of employment or include an illegal act of asking for the receiving a premium though the receiving a premium was not authorised. We do not feel called upon to consider whether this extended meaning should be accepted by this Court. It appears Lord Goddard, Chief Justice, had gone further in Barkar v. Levinson and stated that the master is responsible for a criminal act of the servant if the act is done within the general scope of the servants employment.” Lord Justice Denning would not go to this extent and felt relieved to find that the authorised Law Reports (1951) I K.B. 342, the passage quoted above was struck out. We respectfully agree with the view of Lord Denning that the passage attributed to Lord Chief Justice Goddard went a bit too far.” Para14 In P.M. Rajagopalan v. Mohanan and others 3 a Division Bench of this court had considered the question of liability of the owner in a case where the driver of the vehicle (tempo) had unauthorisedly permitted the deceased to get in and travel in the tempo. In the said decision the Division Bench has held as follow: “Here, the vehicle in question was a goods vehicle and there is a statutory prohibition for persons being carried in the goods vehicle. If the driver of the lorry has permitted the deceased to travel in the goods vehicle, that will be against the statutory provisions and also without due authority from the owner of the vehicle. Therefore, even if the accident has occurred as a result of the rash and negligent driving of the tempo, the owner of the vehicle may not be held liable though the driver of the vehicle can be made liable as the person who had committed the tortious act. We cannot, therefore, agree with the decision rendered by the Tribunal. C.M.A. No. 715 of #1451974 is allowed and the award of the Tribunal is set aside.” Para8 In Abdul Jabbar v. Muniammal 4 , a Division Bench of this Court considered the aspect of vicarious liability, and after referring to the Judgment of the Supreme Court in Pushpa Bai v. Ranjit G. and P. Co. 5 the Bench held as follows:— “On the question as to whether the owner of the lorry is liable for the unauthorised carrying of a passenger in a lorry by its driver, we have the decision in Young v. Edward Box and Co. (1951 I TLR 789) where Lord Justice Denning observed.— “The next question is how far the employers are liable for their servants conduct. In order to make the employees liable to the passenger it is not sufficient that they should be liable for their servants negligence in driving. They must also be responsible for his conduct in giving the man a lift. In order to make the employees liable to the passenger it is not sufficient that they should be liable for their servants negligence in driving. They must also be responsible for his conduct in giving the man a lift. If the servant had been forbidden or is unauthorised to give any one a lift, then no doubt the passenger is a trespasser on the lorry so far as the owner is concerned, but that is not of itself an answer to the claim. In my opinion, when the owner of a lorry sends his servants on a journey with it, thereby putting the servant in a position not only to drive it but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey not only in the driving of it, but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment.” According to Lord Justice Denning, if the driver is proved to have acted in the course of his employment in giving the passenger a lift this fact is sufficient to make the master vicariously liable, this view of Lord Justice Denning has been approved by the Supreme Court in Sitaram Motilal v. Santhanu Prasad Jaishankar 1 and in Pushpa Bai v. Ranjit G & P. Co. 2. As to what are the acts of servant which fell within the purview of the expression in the course of the employment the Supreme Court in the later case has pointed out that the master is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is with the masters consent driving the vehicle, driving the vehicle on the masters business for the masters purposes.” In M. Kanda Swamy Pillai v. Chinnaswamy and another 3, while considering the scope of Ss. 95 and 96 of the Motor Vehicles Act, a Division Bench of this court has held as follows:— “S. 96 fastens a liability on the insurance company and also fixes its liability as equivalent to the liability suffered by the person by whom a policy has been effected with the said insurance company as required by S. 95(1)(b), but not exceeding the sum assured. Thus, S. 96 does not throw any light as to the liability of the Insurance Company in a case where passengers are carried in a goods vehicle besides goods. It is S. 95(1) which provides the requirements of policies and limits of liabilities. The plain meaning of S. 95(1) extracted supra will unmistakably convey that the insurance company will be liable in the following cases notwithstanding the terms in the insurance policy to the contrary. They are (a) The insurance company will be liable in respect of death arising out of and in the course of his employment of the employees of a person insured by the policy. (b) The Insurance Company would be liable in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, if it is a goods vehicle being carried in the vehicle. In either case, the liability arising under the Workmens Compensation Act 1923 in respect of death of, if bodily injury to any such employee is exclude. In this case, it is a lorry exclusively intended to carry goods. The immediate question is whether either the injured or the deceased who travelled in the lorry along with their goods can be said to be employed by a person insured by the policy and either the injury or death arose out of and in the course of his employment. On the evidence in this case, it is not possible to hold that either the injured or the deceased was an employee of the appellant lorry owner who had insured his lorry with the insurance company and that either the injury or the death arose out of and in the course of his employment. We shall emphasise here that on the evidence, it is established that both the injured and the deceased got into the lorry midway. The evidence of P.W. 1 only establishes that both sides loaded their 101/2 bags and 3 bags of chillies respectively in the lorry at Alathur gate on the date of the accident, that they were also travelling in the cabin accompanying their goods, that they proposed to get down at Madapattu, but then the lorry met with accident due to rash and negligent driving near Pilur Village. On the above evidence it is too difficult to infer even an implied contract of employment between the appellant owner of the lorry and either of the injured or the deceased. S. 95(1)(b)(i) refers to cases where the accident involves the death or bodily injury of any person or damage to any property of a third party and is also caused by or arising out of the use of the vehicle in a public place; it is needless to state that the vehicle may be a generic term and will include all types of vehicles visualised under the Act inclusive of goods vehicle or lorry and public service vehicle. The said provision does not cover the death of a person travelling in the vehicle itself. A reference to S. 95(1)(b)(ii) will justify our above view. For, the same specifically refers to death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Thus, we find that the provisions in the Act do not by themselves support the contention advanced by the learned counsel for the appellant. We must add here that the covenant contained in the policy of insurance marked as Ex. B.4 is in consonance with the above provisions. The particular clause provides— Except so far as is necessary to meet the requirements of S. 95 of the Motor Vehicle Act 1939 in relation to liability under the Workmens Compensation Act, 1923, the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the motor vehicle at the time of the occurrence of the event out of which only claim arises. Quite rightly therefore the Tribunal held both in law and under policy of insurance the Insurance Company is not liable to the claims made in these proceedings.” Paras 9 & 10 In Joginder Singh v. Pushpa Rani and others 1 reported in the Punjab and Haryana High Court has held as follows:— “The insurance company was clearly not liable as the deceased was not travelling in the truck in pursuance of any contract of employment. This again is a matter covered by the binding precedent provided by the judgment of the Full Bench in Oriental Fire and General Insurance Co. Ltd. v. Gurudev Kaur , 1967 ACJ 158 (P & H).” Para7 In Vaidyanatha Pillai v. Narasimhan and others 2 Mrs. Padmini Jesudurai, J., after referring to the decisions in New Asiatic Insurance Co. Ltd. v. Passumal Dhanamal Aswani 3, D. Rajapathi v. University of Madurai 4, Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 5 and Guru Govekar v. Filomena 6 has held as follows:— “It therefore follows that unless the insured himself commits breach of any of the terms of the policy of insurance of the nature specified in S. 96(2) of the Act, the insurance company cannot avoid liability. In the instant case, the positive finding of the Tribunal is that, the first respondent drove the vehicle, without the knowledge and consent of the regular driver, R.W. 2. The second respondent had employed a qualified driver R.W. 2, and had entrusted the vehicle to him. He had, therefore, done everything in his power to keep, honour and fulfil the promises of the policy of insurance. He had not committed breach of any of the terms of the policy of insurance, Following the law laid down in the decisions of the Supreme Court, referred to above, this Court has necessarily to come to the conclusion that the third respondent cannot take shelter under the exemption clause and is liable to pay the compensation awarded to the appellant.” Para14 15. In the light of the above contentions and the decisions, let me now consider the two issues that arise in this case. 16. We have seen that the accident had occurred on 27.6.1983 (Monday) at about 10.30 AM From the evidence, I am inclined to hold that the vehicle as well as the claimants were at the quarry when the workers had come to know of he death of their Union Leader Jayagopal and decided to attend the funeral of the deceased leader for which purpose the driver obliged them (workers). I am not able to accept the case of R.W. 1 that the vehicle was at the residence of the driver and the workers went to Adhanapattu and forced the driver to take the vehicle to attend the funeral. For, such a case was not pleaded in the counter. I am not able to accept the case of R.W. 1 that the vehicle was at the residence of the driver and the workers went to Adhanapattu and forced the driver to take the vehicle to attend the funeral. For, such a case was not pleaded in the counter. At the same time, I hold that there is nothing to establish that either the owner of the vehicle or the agent (R.W. 1) gave their consent for the vehicle being used by the workers, to attend the funeral. No such case was pleaded in the claim petition and no such case was established satisfactorily. The fact remains that the accident had occurred on 27.6.1983 (Monday) as a result of which one person died and numerous persons have sustained injuries. The rash and negligent driving also has been established. In view of my finding that the vehicle was at the quarry site before it was taken by the workers who were also there in the workspot to attend the funeral, it must be deemed that the vehicle was engaged in the course of the discharge of normal business when it was stationed at the quarry site. At that time only, the driver had taken the vehicle to enable the workers to attend the funeral. If that be so, the ratio laid down by the Supreme Court in followed by this court in AIR 1981 Madras 112 (supra) 1977 ACJ 343 (supra) will apply, and consequently, the owner is liable even though neither he nor his agent authorised the trip in question. 17. In view of my finding that the owner was not a party to the unauthorised act of the driver and consequently he has not himself committed any breach of the terms of the policy of insurance, applying the principle laid down by Mrs Padmini Jesudurai, J. in A.I.R. 1989 Madras 330 (supra), the Insurance Company also will be liable. Accordingly, I answer both the issues in favour of the claimants. 18. As the quantum is not questioned before me, I hold that the orders of the Tribunal do not call for any interference. 19. In the result, the appeals and the revisions are dismissed. However, there will be no order as to costs.