JUDGMENT : K.B. Panda, J.—Miscellaneous Appeals 160 to 163 of 1973 are u/s 110D of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). They arise out of an accident that occurred on 7.8.1971 at about 10.15 a.m. In M.A. 161 of 1973, the father, in 163/73, his wife, in 160/73 his son and in 162/73, the daughter are the Appellants. They were all heard analogously in the lower court as well as in this Court. This common judgment will dispose of them all. 2. The facts in brief are thus: The Appellant in M.A. 161/73 Mr. Arjuna Mohapatra is a practising Advocate of Berhampur Bar. He is also a Law Lecturer in the local Law College. He contacted opposite party No. 1 who is the owner of an Ambassador car bearing registration No. ORP 2710 for going on a pleasure trip with his family to Odagaon and other places. For that he paid Rs. 50/- to opposite party No. 1 as advance. There are two other opposite parties, namely, O.P. No. 2 who is said to be an agent of opposite party No. 1 and opposite party No. 3 is the insurance company with which the vehicle had been insured. 3. The party left for Odagaon and other places on 7.8.1971. The vehicle was being driven by the retained driver of opposite party No. 1. At some place nearing Nayagarh it is alleged by the Petitioner-Appellants that the driver dozed in consequence of which the vehicle dashed against a tree and the four occupants received major injuries. They were hospitalised at Bhubaneswar and underwent treatment for various periods. Finally four claim cases were filed. The father claimed Rs. 10,000/- on various counts but the learned Tribunal computed it at Rs. 5,890/-. For the wife, a claim of Rs. 5,000/-. had been laid and the Tribunal computed it at Rs. 3,000/-; for the son the claim was Rs. 2.000/- and the Tribunal reduced it to Rs. 1,000/-, and for the daughter Miss. Bharati Mohapatra the claim was Rs. 2,000/- which the Tribunal brought down to Rs. 1,000/-. 4. The plea of opposite party No. 1, the owner of the vehicle was that he had not lent his car on hire to the Petitioner-advocate. 2.000/- and the Tribunal reduced it to Rs. 1,000/-, and for the daughter Miss. Bharati Mohapatra the claim was Rs. 2,000/- which the Tribunal brought down to Rs. 1,000/-. 4. The plea of opposite party No. 1, the owner of the vehicle was that he had not lent his car on hire to the Petitioner-advocate. His specific case was that as his driver wanted to take his family to Odagaon he had permitted him to do so; He was not aware that the driver had taken the Petitioners in the vehicle and as such he is not liable Opposite party No. 2, though filed a written statement, did not appear and so was set exparte. In short, his written statement was that he was not in any way connected with the transaction. Opposite party No. 3 pleaded that this was a private car not meant to be used as a taxi on hire. Since it had been unauthorisedly lent for a purpose for which it had no insurance, the company was not liable. 5. On the side of the Petitioners, four witnesses were examined and the opposite party No. 1 examined himself as O.P W 1 The witnesses for the Petitioners are P W 1 the doctor, P.W. 2, the wife, P.W. 3 the daughter-and P.W. 4, the Petitioner-Advocate. Be it stated here that the insurance policy in respect of the vehicle has not been filed 6. The learned Tribunal on an assessment of the evidence held that the accident was due to rashness and negligence of the driver; and the injuries sustained by the Petitioners were on account of the car accident as alleged. Though it reduced the amount of compensation claimed as already indicated, yet finally rejected the petitions on the ground that they failed to prove that they had taken the vehicle ORP 2710 from opposite party No. 1 on hire. 7. Mr. Y.S.N. Murty, learned Counsel for the Petitioner-Appellants contended that the finding of the learned Tribunal that the Petitioners have failed to establish that they had taken the vehicle on hire is erroneous and once that is accepted, the quantum of compensation as determined by the Tribunal would be automatically a liability on the owner opposite party No. 1. Thereafter it would become a dispute between opposite party No. 1 and opposite party No. 3 according to the terms of the policy. 8. Mr. Thereafter it would become a dispute between opposite party No. 1 and opposite party No. 3 according to the terms of the policy. 8. Mr. P. Roy, learned Counsel for opposite party-Respondent No. 3 supported Mr. Y.S.N. Murty that the finding of the learned Tribunal that the Petitioners had failed to establish that the vehicle had been lent on hire is not correct. Further, he contended that it was incumbent on opposite party No. 1 to file the policy which could only indicate the extent of liability of the company, but that not haying been done, a presumption would be drawn against opposite party No. 1 absolving the company of all responsibility. 9. Mr. C V. Murty on behalf of opposite party No. I contended that?(a) in view of the evidence of P.W. 4, the advocate-Petitioner, the finding of the learned Tribunal that the car had not been lent on hire is correct and therefore there is no question of vicarious liability, (b) in view of the comprehensive nature of the policy, the company is liable for any damage or injury to any person in the car; and (c) the granting of damages for mental agony or physical suffering is unwarranted and illegal. 10. The only question that was canvassed before me is whether the car had been lent on hire or not. For that, there is the evidence of P.W. 4 and as against it that of O P.W. 1. The substance of the evidence of P.W. 4 is thus: After discharge from the hospital I again got myself checked at Berhampur. I am a practising Advocate at Berhampur. I am the Associate Public Prosecutor and part-time Law Lecturer. My monthly income is about Rs. 600/- and I am an Income Tax Assessee. This is the receipt showing payment of Income Tax. xx xx xx xx I could not attend College from 6.8.71 to 7.10.71. This is the certificate of the Principal.... My pay as Law Lecturer is Rs. 300/- per month. XX XX XX XX I settled the hire of the car with the owner and paid him Rs. 50/-as advance. Bharat Rao, is the Agent of the owner. I have filed my claim with the owner and insurer. XX XX XX XX It is not a fact that I took the car without settling the terms with the owner. XX XX XX XX I settled the hire of the car with the owner and paid him Rs. 50/-as advance. Bharat Rao, is the Agent of the owner. I have filed my claim with the owner and insurer. XX XX XX XX It is not a fact that I took the car without settling the terms with the owner. Cross-examination by the Insurer: I took the vehicle on hire at the rate of Rs. 1.25 per mile. It was contracted for 2 days. I paid Rs. 50/- as advance. The car was a private car and it was being used as a Taxi. xx xx xx xx Cross-examination: I settled the hire with the owner in the presence of Bharat Rao alone. It is not a fact that the owner had absolutely no knowledge of this hire by me. It is not ' fact that the driver was not negligent. It is not a fact that the accident was vis major. As against this, the evidence of the owner O.P.W. 1 is thus: I have utilised my car for carrying passengers on hire. On 6.8.71,1 did not give my car on hire to Mr. Arjuna Mohapatra Advocate, Berhampur. xx xx xx xx I claimed damages from the insurance company in connection with the accident and my claim was accepted. Cross-examination: I sent my application to the Police through Mr. Bharat Rao. I cannot say as to who has actually given the undertaking to the police for the release of the car. xx xx xx xx I made no enquiry from the driver as to why he carried other passengers. xx xx xx xx I got my car insured as a private car. 11. This is, therefore, a case of oath against oath. The whole question is as to whose evidence has to be accepted. Admittedly the claimants used the car and not gratis. In course of the journey they met with the accident while the car was being driven by the retained driver of the owner and received several injuries for which all of them had to be hospitalised. There is no reason why P.W. 4 would bring a false claim against the opposite parties. To me it seems he had toJd the whole truth or else there would have been no sense in bringing on record opposite party No. 2. There is no reason why P.W. 4 would bring a false claim against the opposite parties. To me it seems he had toJd the whole truth or else there would have been no sense in bringing on record opposite party No. 2. True, the owner as well as opposite party No. 2 disown any relationship, but that is hardly credible. After the accident, for releasing the vehicle from police custody, the owner admits to have sent an application through opposite party No. 2. Thereafter the owner pretends not to know who gave the undertaking for release of the car. Opposite party No. 1 has laid a claim against the insurance company and has got due compensation. The owner, if he admits of having lent the car on hire, stands to lose, or in that case, the insurance company will not take the responsibility of indemnifying the injured persons. Further, the conduct of the owner in not filing the insurance policy speaks volumes againt him. In fact some other policy has been filed on record but not exhibited. Relying on that Mr. C.V. Murty contended, referring to some citations of this Court, as to how "any person" appearing in the policy would mean that the insurance company would be lia-able for injuries of all persons sitting in the car. Though that policy has not been exhibited yet Mr. Roy conceded that it be examined since Mr. Murty was very emphatic. On scrutiny it was found that the policy related to another vehicle ORG 2244 and for the year 1973-74. Thus evidently a spurious document has been smuggled into the record to prop up a dubious defence. The learned Lower Court has drawn an adverse inference against the claimants on the ground that they did not examine the driver. But I think it was the duty of opposite party No. 1, in whose service the driver was, to examine him to establish that it was not due to his rashness and negligence that the accident occurred or that he had no permission to carry passengers. Therefore, non-examination of the driver should not have been utilised against the claimants. On a reading of the evidence of P.W.4 on the one hand and of O.P.W. 1 on the other, together with the broad features indicated above, I have no doubt that the vehicle had been in fact given on hire to P.W. 4. Therefore, non-examination of the driver should not have been utilised against the claimants. On a reading of the evidence of P.W.4 on the one hand and of O.P.W. 1 on the other, together with the broad features indicated above, I have no doubt that the vehicle had been in fact given on hire to P.W. 4. It was too much for the learned Tribunal to expect a receipt for the advance of Rs. 50/- given by the owner to P.W.4. for that would be something abnormal in such a dealing. Nobody demands a receipt in such cases unless it had to be utilised for any official purpose. Here the case of P.W.4 was that he was out to go on a pleasure trip with his family. He could not have foreseen the accident and the claim case to be so fortified. Thus the learned Tribunal to expect a receipt in such circumstances was expecting an unexpected thing. To conclude, therefore, from the evidence and the accompanying circumstances, the finding of the learned Tribunal that the claimants have failed to establish that they had taken the vehicle on hire cannot be sustained. Once the claimants' case of taking the vehicle on hire is accepted, the questions raised by Mr. Roy do not arise for consideration, in-as-much as the owner admits that it is a private car not meant to be given either for hire or for reward. Coupled with it, the fact that the owner purposely did not file the insurance policy is a factor which should be taken against him and no presumption could be drawn that there must be a stipulation that the company had accepted a greater liability in this particular case. 12. So far as the contentions of Mr. C.V. Murty are concerned, he relied greatly on Sitaram Motilal Kalal Vs. Santanuprasad Jaishankar Bhatt, . The learned Tribunal has also relied on it and has quoted para. 30 from the same. Suffice is to say, though that is a leading case on the point of vicarious liability, the approach of the learned Tribunal has not been correct. In fact, he has stumbled on a wrong part of the judgment. That was a case where the owner had given his car to the driver for using the same as a taxi. The driver lent the vehicle to the cleaner for obtaining a driving licence. In fact, he has stumbled on a wrong part of the judgment. That was a case where the owner had given his car to the driver for using the same as a taxi. The driver lent the vehicle to the cleaner for obtaining a driving licence. While giving the test the car met with an accident. The question arose whether in the circumstances the owner would be vicariously liable. It was held: A master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business. It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it. The scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e., in doing the master's business ought always to be present. The principle of vicarious liability which has been much expanded has been laid down in para. 27 supra as follows: The law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be wrongful act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner should not be liable in such circumstances. In the instant case, as already held, the owner lent the car on hire and it was being driven by his own driver. From this the conclusion is inevitable that the master would become vicariously liable for the torts committed by his driver. Even if the plea of the master is accepted, namely, that he had permitted his driver to take his family to Odagaon, the situation is not altered. It presupposes that his driver had got the consent of his master and he was not doing something on a freak of his own. Whether he took his family members or somebody else becomes immaterial. At least, this much is clear, that the owner had knowledge and he had given his consent to his driver taking the vehicle to Odagaon. In the circumstances, it cannot be said that the driver was not engaged in the business of the master but doing something foreign and unknown to his master. Be that as it may, my earlier finding being that it was to the full knowledge of the owner and he had lent it on hire, he cannot escape vicarious liability. 13. Mr. C.V. Murty, learned Counsel for the opposite party No. 1 relied on a decision of this Court, namely Prabhudayal Agarwal Vs. Saraswati Bai and Another, on the point as to what is meant by the expression "any person" appearing in any insurance policy. But in view of the absence of the policy itself, any discussion on that score would become academic. Another point raised by Mr. Murty is that the Tribunal was wrong in computing the mental agony and physical suffering of the claimants. However, he could not cite any decision in support of his proposition. On the contrary in the case of Atlantic (East) Ltd. and Another Vs. Ram Prakash and Another, it is stated thus: I do not think the sum of Rs. 5,000/-on account of general damages is too high. However, he could not cite any decision in support of his proposition. On the contrary in the case of Atlantic (East) Ltd. and Another Vs. Ram Prakash and Another, it is stated thus: I do not think the sum of Rs. 5,000/-on account of general damages is too high. It is a modest sum for the mental pain and suffering which Kapathi had to undergo. He remained in plaster from toe to loin for 11 months. He had to use crutches. His leg has been shortened. He limps, when he came to give evidence before the Tribunal he was in walking callipers. He was present in Court at the hearing before me. He showed me his shortened leg. It is a life long deformity. The doctors said so in their evidence. In the The State of Assam Vs. Urmila Datta and Others it has been laid down in para. 16 thus: We are clearly of the opinion that in the instant case, as a result of the negligence of the driver, Mr. Sarma did suffer from mental and nervous shock and therefore he is entitled to damages on that account. Nervous shock is a form of personal injury for which damages may be recoverable in appropriate circumstances. The curde view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by some physical disturbance in the sufferer's system. In view of the law quoted above, this contention of Mr. C.V. Murty also fails. 14. In the result, therefore, I would set aside the order of the learned Tribunal, allow the appeals and hold that the claimants are entitled to the amount of damages as computed by the Tribunal with four percent interest per annum from the date of institution of the claims till it is paid. Parties to bear their own costs.