S.K.DUBEY.J. - (1.)L . The owner of the vehicle has filed this appeal under section 110 -D of the Motor Vehicles Act,' against the award delivered on 19 -8 -80 by the Member, Motor Accidents Claims Tribunal, West Nimar, Mandleshwar, in Claim Case No. 21/79. The Tribunal awarded an amount of Rs. 13,496/ - for the damage caused to the vehicle No, M.P.O. 2532, owned by the M.P. Electricity Board in a motor accident on 19 -10 -1978. The liability of the Insurance Company was fixed to Rs. 2,000/ -, in accordance with the provisions of Section 95 (2) (d) of the Motor Vehicles Act (for short "the Act").
(2.)SHRI R.S. Garg appearing for the owner of the truck No. M.H.S. 8511, has raised three contentions before me ; -
(i) That the Tribunal erred in holding that the driver of the truck of the appellant was solely liable for the accident which occurred in mid of the culvert or alternatively liability ought to have apportioned for contributory negligence;

(ii) That the Tribunal erred in awarding Rs. 5,000/ - as depreciation value of the truck No. M.P.O. 2532, 1969 Model of M.P.E.B. and

(iii) That the Tribunal erred in fixing the liability of the Insurance Co. to Rs. 2.000/ - only, particularly when the policy was not produced and the Insurance Company did not prove that the liability of the Insurance Co. was limited to the extent of Rs.2,000/ - in such a case the amount awarded for compensation ought to have been ordered to be satisfied by the Insurance Company only.

Shri Garg took me to case pleaded in para 3 of the claim petition, the statement of witness Jeewan (P.W. 6), Ganpat (A.W. 7), the driver of the M.P.E.B. Truck and contended that the accident occurred not at the place which A.W. 7 Ganpat stated, but infact in the midst of the culvert as pleaded in para 3 of the Claim Petition and proved by A.W. 6 Jeewan. The place and circumstances speak that the accident occurred in the middle of the culvert and not about 15 -20 feet away from the culvert. The driver of the M.P.E.B. was responsible for the accident, if not solely responsible, in that case both drivers were equally responsible for the accident and the liability deserved apportionment. In a claim for damage to a truck except the actual cost of repairs, the remote or sentimental damage of Rs. 5,000/ - in the head of depreciation could not have been awarded. His last submission was that the amount of compensation towards the cost of repairs is payable by the Insurance Company, as the Insurance Co. having failed to prove by producing the copy of the Insurance Policy, cannot be allowed to contend that its liability is limited to Rs. 2,000/ - only. Shri Garg in support of his contentions relied upon the decisions in Lotus Line Pvt. Ltd. v. The State of Maharashtra 1966 ACJ SC 200 The State of M.P. v. Saheb Dattamal Lala Ramchandra and Ors. 1967 ACJ 246 and Lionel Edwards Ltd. v. State of West Bengal 1966 ACJ 128

(3.)SHRI B.K. Samdani appearing for the Insurance Company contended that the liability of the Insurance Co. is limited to Rs. 2,000/ - according to the provisions of Sec. 95 (2) (d) of the Motor Vehicles Act, which prescribe a statutory liability to that extent, in case the owner/appellant or the claimant the M.P.E.B. wanted to rely, that the liability is unlimited then the appellant ought to have produced the policy. He supported the contention of Shri Garg that the claim for depreciation cannot be allowed, liability deserves to be apportioned. Besides, claimant is not entitled to interest as the claim was exaggerated. Shri Samdani in support of his contentions relied upon the judgment of the Apex Court reported in National Insurance Co. v. Jugalkishor AIR 1988 SC 719, the case of this Court reported in New India Assurance Co. Ltd v. M.P. S.R.T. Corporation and Ors. 1986 ACJ 1144, a Division Bench decision of this Court in Rajkumar v. Mahendra Singh and Ors. 1986 JLJ 696=AIR 1985 MP 4 1985 ACJ 752, and also the case of the Apex Court National Assurance Co. v. Jugal Kishore (supra). 6. After considering the arguments of the respective parties and careful perusal of the record of the Tribunal, I am satisfied that the appeal filed by the appellant/owner of the truck deserves to be allowed. The cross -objections filed by the M.P.E.B. deserve to be dismissed, the amount of Rs. 5,000/ -in the head of depreciation under award deserves to be disallowed. The liability deserves to be apportioned between the two vehicles equally and the compensation payable by the appellant/owner of the truck, deserves to be paid by the Insurance Company to the M.P.E.B. 7. Regarding contention No. 1: -In para 3 of the application u/s 110 -A of the Act. it is a specific case of the claimant M.P.E.B. that the accident occurred in the middle of the culvert. After the impact both trucks stopped in middle of the culvert. It was not the case of the claimant that after crossing of the culvert, the truck Went ahead about 15 -20 feet on the road, thereafter its driver Ganpat (P.W. 7) stopped the truck towards left side of the road. It is also not the case that as a result of heavy impact, the stationary truck was pushed back to a distance of more than 20 feet in the middle of the culvert. This afterthought, manner of the accident was made out by P.W. 7 Ganpat, the truck driver of the claimant in his statement, while the statement of P.W. 6 Jeewan, who is a witness to spot map also, prepared by Police during investigation, proves the case of the claimant as pleaded in para 3 of application u/s 110 -A of the Act. 8. To prove the story as put forword by P.W. 7 Ganpat his first hand information to police was not produced. No other independent witness was produced. Not only this, the Investigating Officer was also not examined to state the facts which he saw at the time of preparation of the spot map P.W. 6 Jeewan is a witness, who saw the vehicles immediately after the accident. He was a witness to the spot map. He was not declared hostile, as such the claimant was bound by the evidence of its own witness. In the light of the pleadings contained in para 3, and statement of P.W. 6 Jeewan, which is in conformity with the case pleaded. Statement of P.W. 7 Ganpat the driver cannot be accepted, which is in variance with the pleadings. The submission that in claim cases the principle that the pleadings are to be liberally construed, has no application in the present facts and circumstances of the case, as here, the claimant driver is also a tort feaser and based the claim on the facts pleaded in para 3 of the application. The Tribunal erred in holding the accident occurred 15 -20 feet ahead of the culvert. The circumstances and the position of the two vehicles after the accident clearly suggest that none of the drivers took care to stop his vehicle and not to enter the culvert till another incoming truck passes the culvert. If either would have stopped before entering of the truck, the accident could have been avoided. This is enough to hold that both drivers were equally rash and negligent, and either of the two drivers cannot be made solely responsible for the accident but both were equally liable for the accident. 9. Regarding contention No. 2 - The Tribunal has awarded compensation in the head of depreciation to the extent of Rs. 5,000/ -. Admittedly, the truck was of 1969 Model and after repairs the truck came in its original shape and became roadworthy. It is not the case of M.P.E.B. that after the accident it could not be restored to its original position and it was a total loss. Intention behind to claim depreciation allowance is to provide a fund for replacement of machinery when it is worn out and becomes useless. it is also not the case that even after repairs the truck was unusable. There is no date or evidence about its value prior to accident and fall in value after the that case too, it is the duty of the Insurance Company to raise the defence in accident. Merely on a casual statement of P.W. 10 Abdul Samad, the Tribunal erred in awarding Rs. 5,000/ - without proper assessment and evidence of experts. Besides, in a claim for compensation in respect of damage to property u/s 110 of the Act, usually a claim is made to recover expenses which may be or might have been incurred for repairs and restoration of the vehicle to its original condition. The claimant cannot recover pre -collision cost or value on the principle of restitutio in integrum. The mode of assessment is entitlement of the claimant to full compensation for restoring the thing damaged to its original condition, is accepted as a true measure of damages. The demand of M.P.E.B. for depreciation is illogical, remote and is based on sentimental considerations, which cannot be taken into account, while considering the claim of 'damage' to property u/s 110 and 110 A of the Act., See Rajkumar v. Mahendra Singh and Ors. (supra), State of M.P. v. Dattarnal Lala Ramchandra and Ors. (supra), Lotus Line Pvt. Ltd. v. State of Maharashtra (supra) and a Division Bench decision of Calcutta High Court in Lionel Edwards Ltd. v. Slate of West Bengal (supra), The decision reported in State of Himachal Pradesh v. Manoharlal Sharma (supra), relied on by Shri Sujan Jain, Advocate has no application for the simple reason that the facts of the said case were different and further with due respect to Hon'ble Judges, the aspect of 'damage' to property used u/s 110 of the Act was not considered. 10. The claim of M.P.E.B. for damage for the loss of wages to driver and cleaner, who remained with the truck till it was not restored can also be not awarded. The claimant ought to have employed them else where instead of asking them to look after and assist in repairs of the truck till it is repaired. As held by the Division Bench of this Court in the case of Rajkumar (supra) the word 'damage' used in section 110 of the Act means injury to property, it does not include the claim for loss of business on account of vehicle remaining idle during repairs. Loss of business, or payment of wages to driver and cleaner without work or other Claim except the expenses incurred in restoring the vehicle to its pre -accident condition is not a damage or loss to property, but may be a damage or loss to owner of the damaged vehicle. The Tribunal rightly did not award this claim, as was not empowered to award u/s 110 of the Act. 11. Regarding contention No.3 : - The third and important question is of intere se liability between the Insurance Company and the appellant owner. In the beginning I was impressed with the argument of Shri Samdani that the liability of the Insurance Company is limited in accordance with the provisions of Section 95 (2) (d) of the Act. But in the facts of this case and in the light of the case of Apex Court in National Assurance Company Ltd. (supra) the observations in para 10 are very material and relevant, wherein attitude adopted by the Insurance Co has been condemned and it has been laid down that the Insurance Company who is an instrumentality of the State is under an obligation to act fairly. In many cases, even the owner is represented for reasons known to him does not choose to produce policy or a copy of it. In respect of the limit of the liability and to prove it by producing a copy of the policy which admittedly remains in possession of the Insurance Company. The Insurance Co. in the present case neither pleaded the defence nor proved the policy either before the Tribunal or before this Court. In such circumstances, I hold that the Insurance Co. is bound to satisfy the claim under award, which has been modified by me. The report of this Court in the case of New India Assurance Co. v. M.P.S.R.T.C (supra), is of no assistance to the Insurance Co., where the defence in relation to liability was raised and was proved by producing the policy. 12. Lastly, the award of interest at the rate of 4% per annum in the case is neither too low nor excessive. The claimant M.P.E.B. is not entitled to claim the interest at the higher rate, as the claim made by it was highly exaggerated. Refer Vinod Kumar Shrivastava v. Ved Mitra Vohra and Ors. 1979 ACJ 189. Moreover, in cases of damage to property the award of interest is discretionary. 13. The result is that the appeal filed by the appellant owner of the vehicle is allowed and the cross -objections are dismissed. The award is modified to the extent that M.P.E.B. is entitled to Rs. 4248/ - only. i.e. the half of the amount of repairs because of the apportionment of liability in equal propertion. It is also entitled to interest on Rs.4,248/ @ 4% per annum from the date of the application till payment. This amount of Rs. 4,248/ - and interest shall be paid by the New India Assurance Company to satisfy the award so modified within six weeks from today. At this stage while dictating the judgment Shri R.S. Garg stands and submits that as per the order dated 18 -12 -86 of this Court passed on the application for stay of the execution and operation of the award, a sum of Rs. 5,000/ - was deposited by the appellant -owner (Pirchand) which has been withdrawn by the M.P.E.B., i.e. the respondent No.1, be ordered to be refunded by the M.P.E.B. to the appellant. Shri Samdani also brings to notice of this Court that an amount of Rs. 2,546/ - was deposited by the New India Assurance Co. on 8 -12 -80, the said amount has also been withdrawn by the M.P.E.B. In the circumstances, it is ordered that M.P.E.B. shall refund the amount of Rs.5,000/ - to the owner -appellant within six weeks from to day and the New Insurance Co. shall, within six weeks from today, pay the amount of the total liability of Rs. 4,248/ - and interest 4% p.a. after adjusting the amount already deposited by it. This direction is made to avoid unnecessary multiplicity of proceedings of execution and restitution. Parties to bear their own costs.