Judgement

SARMA, J. :- These two appeals, namely, M. A. (F) 12 of 1968 and M. A. (F) 23 of 1968 have arisen out of the order of the Motor Accidents Claims Tribunal at Tezpur dated 30-1-68 passed in Claim Case No. 6 of 1965 instituted on an application filed by Srimati Binu Rani Ao who has been arrayed as respondent No. 1 in both the appeals.

2. In a collision between two vehicles- a jeep No. ASK 2851 owned by M/s. Assam Corporation (hereinafter referred to as the Corporation), a registered partnership firm and a military vehicle No. QC 2453 owned by the Union of India, that took place at Dekargaon a place at a distance of about 4 miles from Tezpur town on 14-2-65 at about 6 P.M. Srimati Binu Rani Ao who was a gratuitous passenger in the jeep received serious injuries as a result of which she had to be hospitalised for a period of one year nine months and has been crippled for life. The injured filed an application under Section 100 of the Motor Vehicles Act before the Claims Tribunal at Tezpur in April, 1965 against the Corporation and the Union of India claiming a sum of Rs. 75,000 as compensation. The respondent No. 4 (in both the appeals) namely, M/s. Hindusthan General Insurance Society Ltd., the insurer of the jeep was also impleaded in the case.

3. The claim was resisted by all the opposite parties on various grounds. After hearing the parties and having made a local inspection of the spot where the accident took place, the learned Tribunal held that the accident took place mainly due to the negligence of the driver of the military vehicle, though the driver of the jeep was also partially responsible. So far as the Insurance Company is concerned, the Tribunal held that the injured being an occupant of the vehicle, namely, the jeep cannot be treated as a third party and as such the Company is not liable to pay any compensation except a reasonable sum not exceeding Rs. 300 as medical expenses incurred by the claimant. He assessed the compensation for the injuries sustained by the claimant at Rs. 30,000 and by his award directed the Union of India to pay Rupees 20,000 and the Corporation to pay Rupees 10,000 to the claimant. The Insurance Company was also directed to pay Rs. 300 to the claimant as indicated above. Being aggrieved by the award of the Tribunal, the Corporation has filed M. A. (F) 12 of 1968 and the Union of India has filed M. A. (F) 23 of 1968 under Section 110-D of the Act. No appeal has been filed by the claimant Binu Rani Ao or the Insurance Company. Srimati Binu Rani Ao and the Insurance Company entered appearance in the appeal through their respective counsel, namely, Shri B. M. Goswami and Shri K. P. Sen and resisted the appeals.

4. There is no dispute about the fact that there was a collision between the jeep No. ASK 2851 owned by the Corporation and a Military Vehicle No. QC 2453 owned by the Union and that the respondent No. 1 Binu Rani Ao received serious injuries as a result of the said collision resulting in her permanent disablement. On the basis of the submissions made before us by the learned counsel of the parties the points which have emerged in the appeals for our determination are:-

(1) whether the claim against the Union of India is barred by limitation?

(2) whether the accident took place due to negligence of the driver of the jeep belonging to the Corporation or of the driver of the Military vehicle or of both? (3) whether the amount of compensation assessed by the Tribunal is excessive?

(4) whether the Insurance Co. (respondent No. 3) can be made liable under the terms and conditions of the policy-Ext. A to pay such compensation which is payable by the insured, namely, the Corporation? and

(5) whether in the absence of any appeals by the claimant against the award of Tribunal any award can be made against the Insurance (Company) now?

5. Mr. G. K. Talukdar, the learned counsel for the Union of India (hereinafter referred to as the Union) submitted before us that the Union was joined as a party to the proceeding by the order of the Tribunal dated 26-7-67 on an application filed by the claimant on 18-7-67 i.e. more than 2 years after the occurrence and as such the application which is required to be filed within 6 months of the occurrence under Section 110-A of the Act is barred by limitation and the Tribunal erred in awarding compensation against the Union on the basis of this barred application.

6. It appears from the record that in column 14 of the claim petition where the name and address of the owner of the vehicle is to be mentioned, the petitioner showed "the Officer Commanding, 315 Local Purchase Section IV Corps, c/o 56 APO" to be the owner of the Military vehicle. This mistake was subsequently rectified by adding "Union of India" in the said column under order of the Tribunal dated 26-7-67, as mentioned above. According to the Tribunal, this was only a formal defect and needed to be remedied and accordingly it allowed the application of the claimant to add Union of India in the said column.

7. Sections 110 to 110-F of the Act provide a self-contained procedure for the disposal of such claim petition. There is no provision in any of these sections or anywhere else in the Act requiring any party to be mentioned as opposite party or defendant in the claim petition. Section 110-A which deals with such claim petition provides, inter alia, as to who should make such application, where it is to be made and what it should contain. sub-section (2) of this section provides that every application under sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurs and shall be in such form and shall contain such particulars as may be provided. The form of application provided under the Rules does not require the claimant to include in the application any party as defendant or opposite party. In column 14 of the form the name of the owner of the vehicle and in column 15 the name of the insurer is to be mentioned. It appears, the scheme of the Act leaves it to be ascertained by the Tribunal which has been entrusted with the duty of finding out all the parties who may be liable to pay compensation, from the particulars supplied in the application. In this view of the case the Bombay High Court in Bessarlal Laxmi Chand Chirawala v. The Motor Accidents Claims Tribunal, 1970 Acc CJ 334 : (AIR 1970 Bom 337) held that a formal defect to mention the appropriate name of the person who would be ultimately liable to pay compensation to the claimant is not entitled to defeat the claim filed under the Act. In this case "B.E.S.T." was mentioned as the owner of the vehicle, though the Municipal Corporation was the owner thereof. It was held that this was a mere misdescription and the claim may not fail on that account and that the mistake could be corrected at any time. Similarly in State of U. P. v. Dayali, AIR 1972 Madh Pra 66 "the U. P. Government Roadways through General Manager" was described as the opposite party instead of the "Uttar Pradesh Govt". It was held by the High Court that the defect was formal and the U. P. Government could be joined as a party even after the expiry of the limitation. The instant case is on all fours with the above cases. In respectful agreement with the view taken in the above cases we agree with the Tribunal that mentioning of the Officer Commanding as the owner of the vehicle instead of the Union of India in column 14 of the application is nothing but a misdescription and it is only a formal defect which could be rectified after the expiry of the limitation.

8. We are now proceeding to decide the next point for determination, namely, whether the accident took place due to the negligence of the driver of the jeep or of the driver of the Military vehicle or of both.

9. On this point we have got the evidence of P.W. 2 Kamala Saikia. P.W. 4 Binu Rani ao - the claimant, P.W. 5 Bendang Ao - husband of Binu Rani Ao, D.W. 4 Ganesh Ch. Saikia and D.W. 6 Bharat Chandra Khilar - driver of the Military vehicle.

10. P.W. 2 saw the occurrence from a nearby shop. He stated that the jeep knocked down a person namely, Kanai Kaivarta who was coming by the side of the road to his left and then swerved to the right i.e. to the middle of the road, when it was struck by the Military vehicle. He said that the right side of the jeep was totally damaged and that the jeep was in high speed while the truck was going at a moderate speed.

Having struck against the jeep, he said, the truck moved towards the east, struck against a coconut tree and then stopped. He further stated that there were stacks of gravels by the side of the road to the west. He denied the suggestion given by the learned counsel for the Corporation that the Military vehicle was in high speed and that it came and dashed against the jeep.

11. P.W. 4 Binu Rani Ao stated that the jeep in which she was travelling was coming in high speed and that it was frequently dodging. She could not see the other vehicle as she became unconscious due to the injuries sustained by her. She further stated that she smelt liquor in the mouth of the driver Suresh. She denied the suggestion given by the counsel for the Corporation that the Military vehicle was responsible for the accident.

12. P.W. 5 Bendang Ao, husband of P.W. 4 who was also travelling in the jeep at the relevant time, stated that when the jeep reached near Dekargaon Railway Station, he noticed one Military vehicle coming from the opposite direction with a very bright light. The jeep was on its left side of the road and it knocked down a pedestrian who was proceeding in the same direction by the extreme left side of the road. After this, he said, the jeep swerved to the right and then the Military vehicle came and dashed against the jeep causing the accident. He stated that till the jeep reached Dekargaon it was driven safely for about 8 miles and that the speed was moderate.

13. P.W.6 Tulsi Kanta Bhattacharjee came to the place of occurrence afterwards. He found some persons in injured conditions and the jeep and a truck standing by the side of the road after a collision. He also noticed a man lying injured at a distance of 10/12 feet from the jeep by the side of the road. D.W. 4 Ganesh Chandra Saikia is a witness for the Corporation. According to him just before the occurrence the Military vehicle was coming in a high speed and the jeep was in moderate speed. He further stated that there was sufficient space by the side of the road to the left of the Military vehicle.

14. D.W. 1 Bharat Chandra Khilar was the driver of the Military vehicle at the relevant time. He said that when his vehicle reached near Dekargaon Railway Station while coming from Tezpur, he saw a jeep coming from the opposite direction at a very high speed without dimming its light. Having seen the jeep crossing one bicyclist, he took his vehicle to the left and in the meantime the jeep came and collided with his vehicle. As a result of this collision, he said, his vehicle turned round and the jeep also turned to the other side. He then took his vehicle to the nearest compound at a distance of about 30/40 yards from the place of accident. He further stated that at that time a truck was seen unloading gravels nearby.

15. This Court is somewhat handicapped for not having a sketch of the place of occurrence in the record. However, from the memorandum of local inspection prepared by the Tribunal it is seen that the road at the place is sufficiently wide i.e. 26 ft. 3 inches from one edge to the other. No doubt the evidence of the witnesses regarding the speed of the vehicles at the relevant time is somewhat discrepant and not very much dependable. But on a consideration of the totality of the evidence it becomes abundantly clear that the accident took place due to rashness and negligence of the driver of the jeep. The collision of the jeep with the Military vehicle is the result of a chain reaction of another accident in which Kanai Kaivarta was knocked down by the jeep causing serious injuries and subsequently resulting in his death, as seen from the evidence of P.W. 2. It is clear from the evidence that after having knocked down this man the jeep suddenly swerved to its right and just then it collided with the Military vehicle. The run down man was lying at a distance of 12/12 from the place where the jeep was standing after the collision, as said by P.W. 6. It is therefore quite clear that no sooner the jeep was swerving to its right, it collided with the Military vehicle, which was coming from the opposite direction. In such circumstances even if the Military vehicle was coming at a moderate speed, it would not have been possible on the part of the driver to avoid the collision. This would have been possible only if the driver of the Military vehicle had seen the jeep swerving from a sufficient distance. It is seen from the evidence of P.W. 2 that Kanai Kaivarta was knocked down while he was proceeding by the extreme side of the road to his left. It is further seen from the evidence of P.W. 4 that the jeep was frequently dodging. There is no evidence that the jeep met with any obstruction before it knocked down the man. All these facts and circumstances go to show that the driving of the jeep was rash and erratic. As already pointed out, the subsequent collision of the jeep with the Military vehicle was the result of a chain reaction of the earlier accident which was undoubtedly due to rashness and negligence of the driver of the jeep. In the circumstances of the case we are of the opinion that the accident took place entirely due to the negligence of the driver of the jeep and no blame can be attached to the driver of the Military vehicle for the collision which he could not avoid, in our opinion, in any case.

16. The learned Tribunal has observed that negligence on the part of both the drivers can be presumed, as the vehicle collided on a public road endangering human life. There is no authority for any such proposition. The Tribunal has also found fault with the driver of the Military vehicle, as his vehicle instead of swerving to its left, swerved to its right i.e. to the east and entered into a private compound where it stopped after dashing against a coconut tree. It is seen from the evidence of P.W. 2 that there were stacks of gravels on the western side of the road. D.W. 1 also stated in his evidence that a truck was unloading gravels on the road at the time. Their evidence in this regard was not challenged nor there is any rebutting evidence. That being the position the driver of the Military vehicle could not evidently swerve his vehicle to further west. It is very likely that after the collision, the driver of the Military vehicle lost control over wheel and in the result the vehicle entered into a road side compound.

17. There is some dispute as to who actually drove the vehicle at the time of the occurrence. P.Ws. 2, 4 and 5 have asserted in their evidence that it was one Suresh, while according to D.W. 2 Saman Lal Gupta-a partner of the Corporation and D.W. 3 who is the son of D.W. 2, it was Bhimsen Bhatia who was driving the jeep at the time of occurrence. The evidence of D.Ws. 2 and 3 is not at all reliable. D.W. 2 was unable to give any description of Bhimsen Bhatia, P.Ws. 2, 4 and 5 stated that they knew Suresh from before. There could be no reason for them to give any false evidence in this regard. It makes no difference for them whether the jeep was driven by Bhimsen or by Suresh. Admittedly, both these persons had valid licence at the relevant time. It was not denied by D.W. 2 that the jeep was used on that day in connection with their business. He said that Bhimsen Bhatia was sent to Rangapara (evidenty with the jeep) in connection with their business. That being the position, the owner of the vehicle, namely, the Corporation must be held vicariously liable for the negligence of the driver whether it was Suresh or Bhimsen Bhatia.

18. The next question for determination is whether the quantum of damage as assessed by the Tribunal for the injuries sustained by the claimant is excessive.

19. The Tribunal has awarded a composite sum of Rs. 30,000 as compensation for the injuries sustained by the claimant without mentioning any basis for the same. The award is, no doubt, very scrappy. In view of the delay in disposal of the case, instead of remanding the case for making a fresh award giving proper reasons, we propose to examine the adequacy of the compensation on the evidence on record.

20. The claimant was treated in the Baptist Mission Hospital at Tezpur. She was treated by Dr. Donald C. Loos, Medical Superintendent of the hospital, who has since left for U.S.A. The certificate issued by him on 9-5-66 was proved by Dr. R. N. Baidya (P.W. 1) and Dr. S. M. Barla (P.W. 2) who worked with Dr. Loos in the hospital and it was marked as Ext. I. The genuineness of this certificate was not challenged by the opposite parties. The certificate is as below:

"Medical Summary on Mrs. Binu Ao, age 24, I. P. No. 5099

This patient was admitted into this hospital on 14-2-65 in critical condition. She had been riding in a vehicle which collided with a military vehicle about 5-30 p.m. on same date. She and her 3 sons were brought to this hospital by an unknown person.

She was in acute distress and bleeding profusely from her right leg which was severely mangled and distorted, B. P. 90/60 and pulse 120/min. There was a deep laceration 3 inches long and extending down to the skull from the forehead back into the hairline.

After X-ray and evaluation, the summary of her injuries are as follows:

1. Displaced fracture of the right midshaft femur.

2. Compound, comminuted fracture of the right distal tibia and fibula with loss of approximately 2 inches of bone length.

3. Severe avulsion of soft tissue (skin, muscle, blood vessels, sub-cutaneous tissue) and crushing of the right lower leg and foot. All tendons and skin over the dorsum of the right foot were avulsed.

4. Crush fracture of the metatarsal bones of the right foot.

5. Deep laceration of the forehead.

Treatment for the above has included:-

1. Five operations including bone grafting and skin grafting.

2. Long term traction.

3. Long term immobilization in plaster.

4. Daily dressing changes.

Complications of her injuries:-

1. Osteomyelitis of the right tibia and fibula.

2. 2 inch shortening of the right leg.

3. Non-union of the right tibia and fibula.

4. Marked stiffness of the right knee joint (lacks 200 of complete extension and 110 of complete flexion).

5. Claw-foot on the right (requiring tendonotomy for partial correction).

6. Loss of movement of the foot and toes of the right foot.

7. Areas of anesthesia on foot due to nerve damage.

Prognosis: It is expected that after 9-12 more months she will be able to walk with the use of a cane if she can secure a special shoe with a lift on it. The following disabilities will be permanent:-

1. Partial claw-foot.

2. Loss of any movement of the right ankle or toes.

3. Partial sensory loss over patchy areas of the foot.

4. Restriction of full movement of the right knee.

5. Shortening of the right leg (2 inches).

6. The osteomyelitis has still not completely subsided and even after resolution it is expected that the chance of reactivation of the osteomyelitis in the future is great.

She was admitted in the hospital on 14-2-65 and discharged on 7-5-66. She will require further out-patient care and may have to be admitted again in the future for further corrective surgery if bony union does not occur in the tibia."

21. The claimant stated in her evidence that she was treated in the hospital for one year and nine months and that she is unable to walk even now without a pair of crutches. Dr. R. N. Baidya stated in his evidence, with reference to the hospital register, that the injured was discharged from the hospital on 7-5-66 and she was re-admitted on 11-5-66 when she had a fall and had to be in the hospital again till 19-8-68.

22. From the medical evidence it is abundantly clear that the claimant has been crippled for life. According to the medical certificate, Ext. I, she was aged 24 years at the time of her admission. Her husband P.W. 5 Bendang Ao stated that the claimant used to work as a teacher and also as a tailor before the accident and earned about Rs. 150 per month and that after the accident she is unable to do any work and cannot even walk without a pair of crutches. He further stated that he is now required to look after her children. The evidence of the Doctors and of the claimant and her husband in regard to the injuries and the effect thereof was not challenged by the opposite parties in cross-examination.

23. From the above evidence it is seen that the claimant was crippled for life at the prime of her youth and rendered incapable of pursuing her avocations. She having been thus crippled at the age of 24 years has lost her capacity to earn for about 41 years, taking the normal span of life as 65 years. Even if her loss of income per month is taken to be Rs. 50 at a very modest rate, her total loss of income comes to Rs. 24,600 during the remainder of her life. Besides this, she is entitled under the law to receive compensation for her pain and sufferings, loss of amenities of life loss of expectations of her life, expenses of her treatment etc. Taking into consideration all these things, by no standard the compensation of Rs. 30,300 awarded by the Tribunal can be said to be excessive.

24. The next and the most important point for consideration is whether the respondent No. 3, i.e. the Insurance Company can be made liable to pay this amount. According to Mr. J. P. Bhattacharjee, the learned counsel for the appellant in M. A. (F) 12 of 1968 (the Corporation), in view of the terms of the policy, Ext. A, which covers risks for death or injuries to any person arising out of the use of the vehicle, vide clause 1 (a) of Section II, if the Corporation is held to be liable to pay any compensation, the insurer will be liable to pay the entire compensation on behalf of the Corporation. Mr. K. P. Sen, the learned counsel for the respondent No. 3, on the other hand, submits that the Insurance Company cannot be made liable for the following reasons:-

(i) In terms of Section 96 (1) of the M. V. Act the Insurance Company is liable to satisfy only such award or decree which is in respect of a liability required to be covered by a policy under clause (b) of sub-section (2) of Section 95 of the Act. As the liability in respect of a gratuitous passenger, like the claimant is not required to be covered by any policy under the said provisions the question of any payment by the Insurance Company pursuant to any judgment by a Tribunal or Court, does not arise at all.

(ii) Even if the Company be liable to reimburse the insured for his liability to any such passenger in terms of the policy, in the absence of any statutory liability under Section 96 (1) and of any privity of the contract between the claimant and the Insurance Company, the claimant is not entitled to recover any such compensation from the Company in any case instituted by her.

(iii) The claimant being a gratuitous passenger in the vehicle cannot be said to be a third party and so she is not entitled to any benefit under the policy Ext. A, which is meant to cover third party risks.

(iv) As Suresh who was said to have driven the jeep at the time of the accident, was not authorised to drive the vehicle by its owner, the latter as well as the Insurance Company cannot be vicariously made liable for the injuries caused to any person.

(v) At any rate Suresh, the driver, being under the influence of liquor at the time of the accident, the Company is not liable to make any payment in view of the general exceptions in the policy, Ext. A.

25. It is not disputed by Mr. Bhattacharjee that in terms of clause (b) of sub-section (2) of Section 95 of the Act liability in regard to a gratuitous passenger is not required to be covered by any policy and as such the Insurance Company is not liable to satisfy any award of the Tribunal under Section 96 (1) of the Act. His contention is that subsection (2) of section 95 prescribes the minimum requirement of an insurance policy and it is always open to the insurer to cover wider risk and if he does, he will be liable for such wider risk. He has further submitted that apart from Section 96 of the Act, the provisions of Sections 110 to 110-F of the Act which provide a self-contained Code for adjudicating upon such claims, impose a statutory liability on the insurer to pay such compensation if the insured is found liable, provided the policy covers the risk.

26. The contention of Mr. Bhattacharjee appears to have sufficient force. Present Section 110 was substituted for the old Section 110 of the Act and Section 110-A to Section 110-F were newly enacted by Act 100 of 1956, long after Section 96 was enacted. These sections provide a complete Code for adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to, persons arising out of the use of the motor vehicle. S. 110 provides for constituting claims tribunals for different areas for adjudicating upon such claims. S. 110-A deals with the application for such compensation. It provides, inter alia, as to who is competent to file such application, where it is to be filed and what it should contain. sub-s. (2) of this section provides, inter alia, that such an application shall be in such form and shall contain such particulars as may be prescribed. Section 110-B deals with the award of the Claims Tribunal and it is in the following terms:-

"On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer."

Section 110-C deals with the procedure and powers of the Claims Tribunal. Section 110-D deals with appeals. Section 110-E deals with the method of recovery of money from the insurer and Section 110-F bars the jurisdiction of the Civil Court in matters relating to any claim for compensation which may be adjudicated upon by a Claims Tribunal.

27. Under Section 111 the Central Government and under Section 111-A the State Government has been given the powers to make rules for the purpose of carrying into effect the provisions of Sections 110 to 110-F and in particular such rules may provide, among other things, the form of application for compensation and the particulars it should contain. The form prescribed by Rule 3 of the Assam Motor Accident Claims Tribunal Rules, 1960 does not require any person to be specifically named as defendant or opposite party. It simply provides for mentioning, among other particulars, the name and address of the owner of the vehicle and of the insurer thereof. Rule 19 of the Rules provides inter alia, that the Tribunal shall make an award specifying the amount of compensation to be paid by the insurer and also the person or persons to whom the compensation shall be paid. As held by the Supreme Court in T. B. Ibrahim v. R. T. A., AIR 1953 SC 79, the rules framed under a statute are part of the statute itself.

28. The provisions of Sec. 110-A, the requirement of clause 14 of the form to mention the name and address of the insurer, the provisions of Section 110-B and of Rule 19 requiring the Tribunal to specify in the award the amount payable by the insurer; the provisions of Section 110-E laying down the procedure of recovery of compensation money from the insurer and the exclusive jurisdiction given to the Tribunal under Section 110-F barring the jurisdiction of the Civil Court to entertain any question relating to any claim for compenensation in respect of accidents involving death of or of bodily injury to person arising out of the use of motor vehicles, which may be adjudicated upon by the Tribunal lead to the irresistible conclusion that the Legislature has imposed a statutory liability on the insurer to pay such compensation which is payable by the insured in terms of the policy, independently of the provisions of Section 96 of the Act. We find no reason to hold that the provisions of Sections 110 to 110-F are controlled by Section 96. Section 96 lays down the statutory liability of the insurer to pay the amount due under the deecree passed against the insured treating the insurer as the J. D. There is no scope under this section to pass any decree or award against the insurer.

29. The view taken by us, on a consideration of Sections 110 to 110-F of the Act, finds support from the decision in K. Gopalakrishnan v. Sankara Narayan, AIR 1968 Mad 436. In that case the learned Judges, on a construction of the provisions of the aforesaid sections held that the Insurance Company is a necessary party in a proceeding before the Claims Tribunal and that an award can be made against the Insurance Company according to the scheme of the provisions of these sections. In this case the learned Judges have gone to the extent of holding that the provisions of Section 96 of the Act are not applicable at all in a proceeding before the Claims Tribunal which is to be guided only by the provisions of Sections 110 to 110-F of the Act and the Rules framed under Section 111 and that Section 96 will operate only in the proceedings before the Civil Court in the areas where no Claims Tribunal has been constituted. This view has, no doubt, been dissented from by the Delhi High Court in Vanguard Insurance Co. Ltd. v. Rohini Bhan, 1970 Acc CJ 11 (Delhi) and by the Calcutta High Court in Hukum Chand Insurance Co. Ltd. v. Subhashini Roy, 1971 Acc CJ 156 (Cal.). For the purpose of the present appeals it is not necessary for us to give any decision on the question as to whether Section 96 is applicable in a proceeding before the Claims Tribunal; nor this point was canvassed before us at the bar. We respectfully agree with the view taken by the Madras High Court in Gopalakrishnans case (supra) to the extent that the Insurance Company is liable to pay compensation to a third party in the scheme of the provsions contained in Sections 110 to 110-F of the Act. Section 96 places no bar for awarding compensation against the insurer in a case where the liability is not required to be covered by a policy under Section 95 (2) (b) as in the instant case. The ratio of the Supreme Court decision in Sheikhupura Transport Co. v. N. I. T. Insurance Co., AIR 1971 SC 1624 also goes to support the view that we have taken. In that case two claim petitions were filed by the legal representatives of two persons who died in an accident while travelling in a bus, before the Claims Tribunal. The Tribunal by its award awarded Rs. 18,000 as compensation to the legal representatives of each of the deceased persons and directed the Insurance Company to pay the entire amount. The High Court, in appeal filed by the Insurance Company, held that the Insurance Company was liable to pay only Rs. 2,000 per deceased passenger which was the limit prescribed under Sec. 95 (2) (b) of the Act. The Supreme Court in an appeal by the insured held:

"The limit of the insurer prescribed under Section 95 (2) (b) of the Motor Vehicles Act can be enhanced by any contract to the contrary. Therefore, we have to see whether the contract of insurance entered into between the appellant and the Insurance Company provided for the payment of the enhanced amount in case the owner of the bus involved in an accident is required by the decree of a Court to pay any higher amount as compensation."

30. With this observation the Court proceeded to examine the terms and conditions of the policy and having found that there was no contract to the contrary, dismissed the appeal by the insured. It is evident that the Supreme Court would have allowed the appeal of the insured had there been any contract to the contrary enhancing the limit of compensation prescribed under Section 95 (2) (b) of the Act.

31. Mr. K. P. Sen, the learned counsel for the respondent No. 3 drew our attention to the decision of the High Court of Punjab and Haryana in Oriental Fire and General Insurance Co. Ltd v. Smt. Gurdev Kaur, 1967 Acc CJ 158 : (AIR 1967 Punj 486) (FB) and to a single Bench decision of our High Court- Mohabir Prosad Agarwalla v. Jiban Chandra Hazarika, 1973 Acc CJ 180 : (AIR 1972 Gauhati 88) where the decision in 1967 Acc CJ 158 : (AIR 1967 Punj 486) (FB) was followed. It was held in these two cases that the Insurance Company was not liable to pay any compensation to a third party in terms of Section 96 (1) when the liability is not required to be covered by a policy under Section 95 (2) (b) of the Act. In both these cases merely on a construction of the provisions of Sections 95 and 96 of the Act, without examining the scheme of the provisions contained in Sections 110 to 110-F which were subsequently enacted, it was held that the insurer was not liable. We also agree with the view that in terms of Section 96 (1) the insurer is not liable in such a case; but in terms of the provisions contained in Sections 110 to 110-E and the Rules made under Section 111-A of the Act, the insurer is liable even if the policy covers any risk beyond the limit prescribed under Section 95 (2) (b).

32. In the instant case there is no dispute that the policy covers wider risk than those prescribed under Section 95 (2) (b) and that the insurer has undertaken to indemnify the insured for his liability in regard to the death of any person. In view of the scheme of the provisions of Sections 110 to 110-F of the Act as mentioned above, the Tribunal is competent to make an award directing the insurer to pay such compensation to the claimant for which the insured is found liable. This is a statutory liability of the insurer and therefore the fact that there is no privity of contract between the insurer and the third party, is of no consequence.

33-33-A. Mr. Sen cited before us a few English decisions, reported in (1945) 1 All ER 427, (1937) 1 All ER 792, (1964) 1 All ER 321, (1946) 1 All ER 202, (1950) 1 All ER 294, in support of his contention. We have gone through these decisions and we find that these have got no bearing on the instant case.

33-B. The contention of Mr. Sen that the claimant being a gratuitous passenger in the jeep was not a third party and as such the policy covering third party risk is of no avail for her need not detain us long. The word third party has not been defined in the Act or in the Rules. So we have got to depend on the Dictionary meaning of the word or on some judicial interpretation of the word. In Strouds Judicial Dictionary, third Edition, Vol. 4, pages 3019-3020, the meaning of the word "Third Party Risk" has been given as below:

"Third Party Risks. (Road Traffic Act, 1930 (20 and 21 Geo. 5, c. 43), S. 35) connotes that the insurer is one party to the contract, that the policy holder is another party, and that claims made by others in respect of the negligent use of the car may be naturally described as claims by third parties. The Privy Council has also thus interpreted the words "Third Party Risk" in Digby v. General Accidents, Fire and Life Assurance Corporation, (1943) AC 121."

We have therefore no hesitation to hold that the claimant is a third party.

34. The contention of Mr. Sen that Suresh was not authorised by the owner to drive the vehicle on that day and as such the owner cannot be held liable is equally without any force. It has not been urged before us by Mr. Bhattacharjee, the learned counsel for the Corporation that Suresh was not authorised. We do not think that the Insurance Company is entitled to take this plea when the owner of the vehicle has not done so. Be that as it may, at no time, the Corporation took the plea that the jeep was taken out on that day without their knowledge or consent. According to D.W. 2 who is a partner of the Corporation they sent Bhimsen Bhatia, who was said to have driven the vehicle on that day, to Rangapara in connection with their business. He denied that his son Suresh drove the vehicle. Disbelieving his evidence in this regard we have held that Suresh was driving the jeep. When admittedly the jeep was sent to Rangapara in connection with the business of the Corporation, Suresh must have driven the vehicle with the consent and authority of the Corporation who is the owner of the vehicle. Whether the vehicle was driven by Suresh or Bhimsen, in either case, it was done with the consent and authority of the owner, in our opinion.

35. The next contention of Mr. Sen is that the driver Suresh having been under the influence of liquor at the time of the accident, the insurer is not liable to make any payment as provided in the general exceptions as appended to the policy.

36. There is no evidence that Suresh was under the influence of liquor. P.Ws. 4 and 5 simply stated that they found smell of liquor in his mouth. None of them saw him taking liquor nor any one of them has said that he showed any sign of drunkenness. P.W. 5, on the other hand, said that Suresh drove the vehicle smoothly for 8 miles prior to the accident. He also stated that the persons sitting in the rear seat were taking liquor at the time. The possibility of the smell of liquor coming from the rear seat cannot therefore be ruled out. Even if Suresh took any liquor that would not disentitle the insured to the benefit of the policy, unless the driver was under the influence of liquor. To take liquor is not the same thing as to be under the influence of liquor. A man may take a peg or two of liquor, yet he may not be under its influence.

37. This brings us to the last contention of Mr. Sen, namely, that in the absence of any appeal by the claimant against the Insurance Company the Court cannot make any award in the present appeals against the Company. According to him the provisions of the C.P.C. are not available in an appeal under Section 110-D of the Act and there is no provision under which the High Court can exercise such wide powers as contained in Rule 33 of Order 41 of the C.P.C. while dealing with an appeal under Section 110-D of the Act.

38. In Manjula Devi Bhuta v. Manjusri Raha, 1968 Acc CJ 1, the M. P. High Court has held that the powers under Order 41, Rule 33 of the C.P.C. may properly be invoked in an appeal under Section 110-D of the Act before the High Court. We respectfully agree with this decision.

39. As a result of the foregoing discussion the award of the Claims Tribunal is liable to be modified. We hold that the appellant in M. A. (F) 12 of 1968, namely, the Assam Corporation is liable to pay the entire amount of Rs. 30,300 and the Union of India is not liable to pay any compensation. In view of the terms of the policy Ext. A we however direct that the entire amount be paid by respondent No. 3-the Hindusthan General Insurance Company. Both the appeals are allowed, as indicated above. In the circumstances of the case we however leave the parties to bear their own costs.

SEN, J.:- I agree.

Appeals allowed.