Orissa High Court
The National Insurance Co. Ltd. vs Durdadahya Kumar Samal And Ors. on 31 August, 1987
Equivalent citations: I(1988)ACC204
JUDGMENT S.C. Mohapatra, J.
1. Insurer is the appellant to this appeal under Section 110-B of the Motor Vehicles Act, 1939, (in short 'the Act'). Cross-objection has been filed by the claimant for enhancement of the compensation.
2. It is not in dispute that on 31-5-1980 at about 11 a.m. the truck bearing registration No ORU 1220 caused the accident as a result of which the claimant sustained extensive injuries including fracture of right leg and ankle bones. He was removed to Kendrapara hospital where he was an indoor patient from the date of occurrence for long.
3. Case of the claimant is that on account of accident he became invalid sustained a loss of Rs. 600/- per month which he was earning. Accordingly, he made a claim for compensation of Rs. 50,000/-.
4. The owner disputed the negligence in driving. It is his claim that the vehicle was requisitioned by the Collector for election duty and accordingly, he would not be liable to pay the compensation if at all it is awarded.
5. The Collector, Cuttack, who requisitioned the vehicle did not appear in spite of valid service of notice and remained ex parte. The insurer claimed that under the terms of the policy it would not be liable to pay the compensation when the vehicle had been requisitioned by the Government.
6. The driver of the vehicle has not been examined in this case. The nature of the injuries on the claimant is such that the driver would have been the best person to explain how the claimant sustained the injuries. In the absence of the examination of the driver for explaining the cause of accident, it can be safely concluded that on account of negligent driving of the vehicle the claimant sustained the injuries and he is entitled to compensation.
7. Under Section 110-B of the Act, the Tribunal is to specify the amount which would be paid by the insurer or the owner of the driver of the vehicle involved in the accident The word "owner" in this case is to be liberally interpreted. When a vehicle had been requisitioned, the Collector for the purpose of liability becomes the owner of the vehicle. In a vehicle requisitioned, the driver remains under the control of the Collector and by such driving the vehicle he can be accepted to have been employed by the Collector. Thus, the Collector would be vicariously liable for the act of the driver in the present case.
8. The short question is whether there was requisition. In the written statement of the owner it has been clearly stated that the vehicle was requisitioned by the Collector. PW 1 has stated that the vehicle contained the ballot boxes when the accident took place. Thus, it is clear that the vehicle bad been requisitioned for the purpose of election duty. The Collector would, therefore, be liable for the compensation.
9. Insurance under the Motor Vehicles Act is a guarantee to the owner of the vehicle that in case of any claim with respect to the vehicle concerned, the insurer shall discharge the liability of the owner under the terms of the policy. It is a contract between the parties. It is not a universal guarantee for the vehicle whosoever becomes the owner. Therefore, the Collector having not been insured in respect of the requisitioned vehicle, there will be no liability of the insurer in respect of the accident during the period of requisition. Besides, the term of the policy which has been prayed to be accepted as additional evidence by the insurer which is not challenged by any party, clearly proves in the General Exceptions that during the period of requisition by the Government the insurer will not be liable. It reads as follows:
"General Exceptions The Company shall not be liable under the policy in respect of (1) to (6) (7) any accident lost damage or liability caused, sustained or incurred during the period of requisition or commandeering by the Government for any purpose:
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10. Coming to the cross-objection for enhancement of compensation, the Tribunal has fixed Rs. 12,000/- as a just compensation. Mr. R.N. Mohanty, the learned Counsel for the claimant, submitted that from the nature of injuries it can be legitimately inferred by any reasonable man that the injured suffered pain and suffering on account of the accident and thereafter. Besides, fracture of the leg has made the claimant a lame man and he would have the mental feeling of deficiency at all times. The evidence of the doctor about the incapacity of the claimant has been relied upon in support of the same. Mr. Mohanty, therefore, submitted that on this account some amount or compensation should have heen awarded to the claimant. In paragraph 5 at page 4 of the claim petition, the claimant has stated: "The petitioner claims a modest claim of Rs. 50,000/- for mental shock, physical pain and injuries, total loss of income, future expectancy of life and expenses for his medical treatment "Issue No. 3 has been settled to the effect; "Is the claim excessive and exhitrary ?"
11. In answering this issue, the Tribunal found the expenses fof treatment at Rs. 1,000/-. It has also found on the evidence of the Doctor that he can pedal cycle after cure and the loss in the income would be about 10%. He has determined total loss of income for the years at Rs. 400/- per month. Taking the entire circumstances into consideration, the Tribunal determined the just compensation to be Rs. 12,000/-. In the evidence of PW 3, the claimant himself has not stated anything about the mental pain he is suffering. In such circumstances, when the claimant has not made out a case of mental pain himself, I am not inclined to enhance the compensation on that account.
12. In the result, the appeal of the insurer is allowed and the liability is fixed on the Collector. The amount of compensation of Rs. 12,000/-, if paid within two months from today shall carry interest at the rate of 5% per annum from the date of application till payment. In case, the amount with aforesaid interest is not paid within two months, it shall carry interest at 10% from the date of application till payment or realisation. No costs.