Orissa High Court
New India Insurance Company Ltd. vs Wholesale Co-Operative Stores And Anr. on 10 April, 1987
Equivalent citations: [1989]66COMPCAS880(ORISSA)
JUDGMENT S.C. Mohapatra, J.
1. The insurer is the appellant in this appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short "the Act ").
2. Asserting that on May 10, 1978, the driver of the van (ORD-2202) registered for private carnage, while in village Kanteikolia, used the reverse gear and hit the young son of the claimant who sustained fatal injuries on account of the accident. She claimed compensation of Rs. 30,000 on account of the loss of the child.
3. The owner of the vehicle denied the occurrence. The insurer claimed that the terms of insurance having been violated, it has no liability.
4. The Tribunal, on consideration of the materials on record, accepted the case of the petitioner-respondent No. 2 that on account of negligence of the driver, the accident occurred and awarded compensation of Rs. 10,000. This order is being assailed by the insurer in this appeal.
5. Mr. P. Roy, learned counsel for the insurer-appellant, challenged the award on the following two grounds :
(a) The earliest version that the child died on account of the fall of the wall should have been accepted; and
(b) on the case of the claimant in the claim application, the insurer is not liable since the vehicle, a delivery van, which was registered and insured as a private carriage, being given on hire violates the terms of insurance.
6. The cause of death is not open to be assailed by the insurer who is to be confined to the grounds available under Section 96 of the Act. Besides, the direct evidence in this case is that the child was hit by the vehicle moving backwards. The driver of the vehicle has not been examined to explain the cause of accident. The Tribunal, on account of materials, came to the conclusion that the vehicle caused the accident. There is no justified ground to reverse this finding. Hence, there can be no doubt that the child sustained the fatal injuries on account of the negligent driving of the vehicle.
7. Now comes the question relating to the liability of the insurer. This is no doubt a question coming within Section 96 of the Act. Mr. Misra, learned counsel for the owner-respondent No. 1, submitted that there is no evidence in this case that the vehicle was used in violation of the terms of the insurance. Even if there is a prohibition under Section 42 of the Act, there is no evidence that the vehicle was carrying passengers although the same was a private carriage vehicle for carrying the goods of the owner. In the claim petition, it is alleged that the vehicle was taken on hire. The claimant has no personal knowledge about the nature of the vehicle and the circumstances under which it came to the village. The person alleged to have hired the vehicle has not been examined in this case. The document of the owner has not been called for by the insurer to prove that the vehicle was given on hire. The owner in this case is a body corporate. It cannot act individually. The insurer could have examined any of the persons having knowledge to prove that the vehicle was used on hire. When no attempt has been made to prove that the vehicle was used on hire, a mere statement in the claim petition by a person having no personal knowledge as to how the vehicle came to the village would not be sufficient to come to the conclusion that the vehicle was brought on hire to be used for the marriage. In the circumstances, on account of paucity of evidence, the insurer cannot succeed in this case. In conclusion:
(i) the driver of the vehicle was negligent in driving the vehicle by which injuries were sustained by the child ;
(ii) the quantum of compensation is just; and
(iii) the insurer is liable under the terms of agreement for payment of compensation.
8. In the result, there is no merit in this appeal which is accordingly dismissed. There shall, however, be no order as to costs.