JUDGMENT
Manisana, J.
1. This appeal arises from the award dated 28-7-75 of the Motor Accident Claims Tribunal Jorhat in M.A.C. Case No. 16/71.
2. The facts of the case may briefly be stated. On 26-5-71 at about 9 p.m., a goods vehicle bearing registration No. ASJ 7383 (Dodge) met with an accident at Borhola-Na-Ali near Dangdhora Chariali. The appellant Brijmohan was the owner of the vehicle. The goods vehicle was carrying logs (fire-woods). Kamal Das, husband of the claimant Prema Prova, was travelling in the vehicle which met with an accident and died in the accident. The Tribunal made an award for Rs. 15,000/- payable by the owner of the vehicle by holding that the death and accident was due to the negligence of the driver of the vehicle; hence this appeal to this Court by the owner of the vehicle.
3. As regards the accident and negligence of the driver, it is clear from the evidence of PW 2 Abdul Monia that accident was due to the negligence of the driver. In fact, this fact has also not been challenged seriously before me. As regards the quantum of compensation, there is no cross-objection against the award. In a motor accident, compensation is awarded to the surviving dependants as they are deprived of the benefits of the earnings of the deceased in addition to the consequent mental and emotional agony, and loss of companionship. Although the Tribunal has not discussed about the mental and emotional agony, and the loss of companionship, considering the probable income and age of the accused, the compensat on of Rs. 15,000/- appears to be just and reasonable.
4. The learned Counsel for the appellant and the respondent-1 have submitted that respondent-2, the National Insurance Company Ltd, is to indemnify the owner of the vehicle. Mr. N. Chakravarty, the learned Counsel for the respondent-2 has submitted that the company is not liable under Sections 95 and 96 of the Motor Vehicles Act.
5. The Tribunal has held that the company was not liable as the vehicle was hired by the deceased, and the policy did not cover the risk if the vehicle was hired. The question then is,–Whether the owner of the vehicle hired out the vehicle to the deceased ? In the examination in-chief, the claimant (PW 2) has not stated that the vehicle was hired by her husband. However, in her cross-examination, she stated that the truck was taken on hire by her husband to carry the logs. But the evidence of the owner is that he did not hire the vehicle out to the deceased. PW 2 Abdul Monia stated that he had no knowledge about the arrangement made between the deceased and the owner of the vehicle. The insurance company has, in its written statement, not stated that the truck was hired by the deceased. No receipt showing the payment for hiring has been filed. In the claim petition also there is nothing to indicate the hire. It was no body’s case that the vehicle was hired by the deceased. In this view of the matter, I reject the statement made by the claimant about the hire in her cross-examination and conclude that there is no material and evidence to show that the owner hired out the vehicle to the deceased.
6. The evidence of the owner of the vehicle is that he sent the vehicle with the driver to bring fire-woods for his brick-field. The driver was not examined. The evidence of PW 2 Abdul Monia is that he was an employee of the deceased and was working, at the relevant time, as Chawkidar. The fire-woods/logs carried in the vehicle were collected from the forest coupe which was settled with the deceased at that time. He was also travelling in the vehicle with the deceased. The deceased was sitting over the logs. In view of the evidence of the owner and the deceased could not have been in the vehicle without the authority of the driver. There is no evidence to the contrary. Therefore, it is concluded that the driver was driving the vehicle in the course of his employment to collect fire-woods; and that the firewoods were collected from the forest coupe of the deceased; and that the deceased was carried in the vehicle by the driver.
7. The next question which arises for consideration is why the driver carried the deceased. The vehicle was loaded with logs or fire-woods from the forest coupe of the deceased. The evidence of PW 2 that the deceased had a quarrel with the Ranger at Forest Beat Office shows that the fire-woods were required to pass through the Forest Checkpoint as they were directly collected from the forest coupe. The deceased also would get monetary benefit from the sale of the fire-woods/logs. Therefore, in all probability, the service of the deceased was used by the driver for passing fire-woods/logs through the Forest Check-point. There is also no evidence to the contrary. “Employ” means to engage in one’s service. Therefore, the deceased was employed by driver for the aforesaid purpose, and the deceased was carried by the driver by reason of or in pursuance of the contract of employment. In such a situation, the act was done on owner’s business and/or the driver was impliedly authorised. The driver was, with the owner’s consent driving the vehicle on owner’s business and/or for the owner’s purpose. There is no evidence to the contrary. Therefore, in the absence of the evidence to the contrary, it is held that the driver had authority to carry the deceased by reason of or in pursuance of a contract of employment and was acting in the course of his employment; and that the owner who was the master of the driver was vicariously liable for the acts of his servant (driver) acting in the course of his employment.
8. The next question which arises for consideration is whether the insurance company is liable to pay the compensation in respect of death of deceased passenger carried in the goods vehicle by reason of or in pursuance of a contract.
9. Under Chapter VIII of the Motor Vehicles Act, a Policy of Insurance of Motor Vehicles against Third Party Risks complying with the requirements of the Chapter is required. Sections 94 and 95 of the Motor Vehicles Act provide for requirements of policies and limits of liability. But the insurer can always take policy covering risks which are not covered by Section 95 of the Motor Vehicles Act if the requirements of Section 95 are satisfied. It is for the reason that ‘insurance” is a contract whereby the insurer undertakes to compensate the insured for loss, or to indemnify the insured against loss, damage or liability, under the terms and conditions stipulated in the contract. In the present case, the insurer had the insured with the insurance company the risk to the passenger carried by reason of or in pursuance of a contract. Section II of the policy (Ext. A) deals with insurer’s liability to third party. Clause I of Section II runs:
Subject to the Limits of Liability the Company will indemnify the Insured against all sums including claimant’s cost and expenses which the Insured shall become legally liable to pay in respect of
(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle
(ii) damage to property caused by the use (including the loading and/ or unloading) of the Motor Vehicle.
Exceptions are, however, provided in the proviso. Clause (c) of the proviso is relevent in this case. Clause (3) of the proviso reads:
Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act 1939 in relation to liability under the Workmen’s 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 any claim arises.
10. A reading of Clause (c) indicates that the company shall not be liable in respect of death of or bodily injury to the passengers specified in that clause other than a passenger carried by reason of or in pursuance of a contract of employment. Thus the policy covers liability in respect of death of a person carried in the vehicle by reason of or in pursuance of a contract.
11. There is no evidence to show that the deceased was carried in breach of the terms of the policy or any law. In the absence of such evidence to the contrary, it is taken that there was no breach of any of the terms of the policy or any law. Therefore, under the terms of the policy, the insurer cannot say that the company will not indemnify the liability of the insured, viz. the owner of the vehicle. In this view of the matter, it is held that the National Insurance Company Limited (respondent-2) is liable to pay the compensation of Rs. 15,000/-. It may be mentioned here that the limits of liability under the policy was Rs. 50,000/- and the accident took place on 26-5-71 during the period of insurance which was from 13-4-71 to 12-4-72.
12. As regards the interest, the Tribunal has not awarded interest. In Jasbir Singh v. General Manager (1986) 4 SCC 431 and Chameli Wati v. Municipal Corporation (1986) 4 SCC 503 : AIR 1986 SC 1191, the Supreme Court awarded interest at 12% p a. from the date of application for compensation to the date of payment. Therefore, the claimant is entitled to interest at 12% p.a. from the date of application, i.e., 15-6-71 to the date of payment.
13. For the foregoing reasons, the award is modified as follows. The National Insurance Company Limited (respondent-2) shall pay a sum of Rs. 15,000/- (Rupees fifteen thousand only) to the claimant Smt. Prema Prabha Das with interest at 12% per annum from the date of application for compensation, i.e., 15-6-71 to the date of payment. Appeal is disposed of with the above directions and observation. No costs.