K. Ramaswamy, J.
1. The appellant is the first respondent owner of the vehicle. The lower Tribunal awarded a sum of Rs. 5,000/- towards mental pain and suffering and a sum of Rs. 18,000 towards loss of dependency due to the death of one Ramayya, the husband of the first respondent and the father of respondent Nos. 2 to 8. As against this award the present appeal has been filed. The second respondent is the driver. While he was driving the lorry APT 6837 when it reached Yelkatta village between 4/6 and 4/8 miles at about 3 p.m. the deceased Ramayya was returning to his village Mogaligidda from Shadnagar; he was taken for hire and was seated in the body of the lorry. The vehicle was driven by the second respondent rashly and negligently and the deceased received grievous injuries when the lorry turned turtle and several other occupants of the lorry were also injured. The deceased died subsequently in the hospital. Therefore, respondents/dependants laid a claim for a sum of Rs. 50,000/- and has stated that the lower Tribunal awarded a total sum of Rs. 20,000 after making deductions of Rs. 3,000/-. The lower Tribunal also dismissed the application as against the insurance company.
2. It is contended for the appellant that it is a lorry carrying goods, it is not authorised to carry passengers; the driver, second respondent, is not authorised to carry passengers; therefore, the driver outstepped the limits during the course of his employment. On account of the unauthorised act the occurrence has taken place and the deceased died, therefore, the owner is not vicariously liable for the payment of the amount awarded. It is also further contended that it is for the claimants to establish as a fact that the driver was expressly authorised to carry the passengers. There is no proof that the appellant authorised the driver to carry the passengers. Therefore, vicarious liability cannot be fastened on the appellant. His another contention is that the liability of the insurance company is co-extensive with that of the owner when the insurance company is absolved of its liability under the statute equally the appellant also is absolved from the liability to pay the compensation for tortious act of the servant. But this contention is given up.
3. I am unable to agree with the contentions of the appellant. It is true that the vehicle is a goods vehicle and it is not authorised to carry passengers as stage carriage for hire or reward. But in fact, the lower Tribunal found accepting the evidence of PW 2 that one Chand Pasha was the Manager of the appellant-owner. Manager and driver, took the marriage party containing 35 members after taking hire or reward of a sum of Rs. 40/-from them and PW 2 is one of the passengers that travelled along with the party and the deceased travelled on paying hire. This evidence was accepted by the lower Tribunal and I do not find any compelling reason to disbelieve the evidence of PW 2 Once the evidence of PW 2 is accepted and in fact, I accept the same, the necessary conclusion is that the driver and one Chand Pasha who claims to be the Manager of the appellant were traveling in the lorry, they run the lorry as stage carriage and carried the passengers for hire and reward and the deceased is one such passenger. Once that finding is recorded it is not expected of the claimants to adduce as to what is the understanding and how the understanding arose between the master and servant with regard to the use of the lorry either as a goods vehicle or as a stage carriage. Therefore, they need not establish the negative fact which is not within their knowledge that the master has not permitted the driver to run the vehicle in the manner spoken to by the witnesses.
4. The next question is whether the master namely the appellant is vicariously liable for the tortious act of the driver. It is true that in a given case where the driver out-stepped his limit in the course of his employment and unauthorisedly carried the passengers gratuitously and an accident has occurred during the course of which injuries are received and the person died, the owner may not be liable for the tortious act of the servant. In fact in one case I took that view. Each case has to be considered on its own facts. In this case, I have already confirmed the finding of the lower Tribunal that the vehicle was used as a stage carriage for hire or reward. Therefore, though it is an unauthorised act of carrying passengers for hire or reward, not permitted under the permit issued in this behalf, it being carried by the driver during the course of his employment assisted by the manager ostensibly with the concurrence and for the benefit of the owner, the owner must be held liable for the tortious act of the driver.
5. The lower Tribunal recorded as a fact that the counterpart of the appellant's counsel has conceded that the insurance company is not liable for the payment of amount. Under Section 95(2) of the Motor Vehicles Act, insurance company is liable for damages for death or injury only in a case of goods carriage carrying the servants of the owner of the vehicle to a maximum of six. Therefore, the deceased not being a servant but a passenger carried for reward, the insurance company is not liable for the payment of compensation and it is rightly rejected by the lower Tribunal. The lower Tribunal has awarded a minimum amount and it does not warrant interference in the appeal even with regard to the quantum. Therefore the appeal fails and is accordingly decided but in the circumstances without costs.