Rajo Devi & Ors. v. Shiv Kumar & Ors.

Judgment

1. The appeal is by the claimants whose claim petition was dismissed. The Tribunal found that the narration of facts given by the claimants did not prove that the accident was the result of use of a motor

vehicle. It was contended by the claimants that the deceased, who was a driver of the truck, got killed by the goods carried in the trailer when the wooden logs broke loose and fell on his head. The Tribunal held that the death was by the fall of the wooden logs and it was not shown that the vehicle was in motion when the wooden logs had fallen and, therefore, dismissed the claim of the representatives of the workman. FAO No.1263 of 2009 - 2 -

2. In this case, it must be noticed that the status of the deceased as a workman was not denied. It was not also denied that the wooden log had fallen on the driver when he was still on the driver's seat and when he had applied the brakes, the logs were reported to have rolled down from the heap and crushed him dead. That the death was in the course of an out of employment is a fully acknowledged fact. The only matter that has to be still seen is whether the accident was by the use of the motor vehicle. A similar situation arose in a case from Bombay High Court in United India Insurance Company Limited Versus Forest Department- (1991) 2 TAC 132, where the truck of the Forest Department met with an accident due to wrongful action of the occupants of the pick-up van who threw logs on the public road with a view to obstruct the chase by the patrolling party, it was held that the accident arose out of the use of the vehicle of the pick-up van and therefore, claim for compensation made by the occupants of the truck for personal injuries and damage to the truck was found maintainable.

3. The conventional understanding of this expression “use of the motor vehicle” would be that the vehicle should have been at the time of the accident mechanically propelled for use upon road. The definition of the motor vehicle referred to above ought not to be misunderstood to rule out a stationary vehicle, which is capable of causing mischief, if it had been parked in a place without any lights resulting in a collision. Courts have given expansive meaning to various situations that a motor vehicle may have been 'involved' as meaning user of the vehicle to found the cause of action for damages. The Supreme Court said, while dealing FAO No.1263 of 2009 - 3 - with a case of collision between a bus and a train at an unmanned level crossing: “the words “use of the motor vehicle” are also to be construed in a wide manner. The above words were interpreted by this Court in Shivaji Dayanu Patil Versus Vatschala Uttam More-(1991) 3 SCR 530: 1991 SCC (Cri) 865, in the context of section 92-A. The Court in that connection referred to the Australian case in Govt. Insurance Office of N.S.W. Versus R.J.Green & Lloyds (P) Ltd.-(1965) 114 CLR 437 and to the observations of Barwick, C.J. that those words have to be widely construed. It said, “We may also refer to the observations of WINDEYER, J. in the same case to the following effect”: “.....no sound reason was given for restricting the phrase, 'the use of a motor vehicle in this way. The only limitation upon it... that I can see is that the injury must be one in any way a consequence of a use of the vehicles as a motor vehicle.”

4. The death of a cleaner working underneath a stationary vehicle was said to have met with an accident out of use of vehicle in The Oriental Fire and General Insurance Company Limited Versus Sripat 1998 ACJ 388. Therefore it does not cease to be a motor vehicle merely because its mechanical propulsion is not in actual action (Sardul Singh v Kallobai 1981 ACJ 343). A truck that is pushed, when the self- starter is in trouble meeting with an accident invites liability under the Act (1981 TAC 232) . A stationary vehicle carrying school children which was by hit by another speeding vehicle was said to be an accident by the use of a motor vehicle and the insurer of the stationary vehicle was found to be liable (Peter Maris Lobo v Sonal Maganlal Shingala FAO No.1263 of 2009 - 4 - 1991 ACJ 215). A conductor dying in sleep in a parked bus during night stay is said to die when the vehicle is in use as a motor vehicle to make the insurer liable, although the foundation of liability might well be under the Workmen's Compensation Act (United India Insurance Co v S.S.Gopalakrishnan 1989 ACJ 794). It is not necessary that there should be an impact of the motor vehicle in the physical sense. Thus a road roller moving close by to a house that caused damage to the building by tremor caused to the ground was said to have caused an 'impact' and hence actionable (United India Insurance Co v Pushpalaya Printers 2004 Supreme Today 206). An accident that resulted when an oil tanker parked in a public place exploded and killed a passer-by would also be an accident out of user of a motor vehicle (Oriental Fire and General Insurance Co v Suman Navnath Rajguru 1985 ACJ 243). In a similar situation in Shivaji Dayanu Patil Verus Vatschala Uttam More (Smt.) (1992 ACJ 777), there was a collision between an oil tanker and another the other vehicle which had occurred earlier and by the escape of petrol from the tanker, it ultimately resulted in an explosion and fire. The latter events, the Supreme Court said, were not unconnected but related events and merely because there was an interval of about four to five and half hours between the said collision and the explosion and fire in the tanker, it could not be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, the court said that it must be held that the explosion and fire resulting in the injuries which led to the death of respondent's son was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker and insurer. Death due FAO No.1263 of 2009 - 5 - to burns from boiling radiator water is also an accident arising out of the use of a motor vehicle (Krishna Roadways, Nathwara v Madan Lal 1984 ACJ 263) . When a bomb planted in a motor vehicle explodes or when militants board a passenger bus and injure passengers by shooting, the accident arises out of the use of a motor vehicle (Mundulova Satyanarayana v Bodiredroy Lokeshwari 1996 ACJ 902). Even an explosion in a parked vehicle is an accident that gives rise to an action under the MV Act (Sharlet Augustine v K.K.Raveendran (1991) 2 ACC 231).

5. Rita Devi Versus New India Assurance (2000) 5 SCC 113, perhaps represents the farthest end of the tether, where a passenger who was last seen in an auto-rickshaw had been found murdered later. The auto-rickshaw was however not traced. The Supreme Court said that death must be construed as having been caused by an 'accident involving the use of motor vehicle' and made the insurer liable. Imagine a case where a person is kidnapped in a motor vehicle for ransom, killed later and dumped in a place. Ii is just well possible by the way the expression is used and understood in the several judgments and particularly in the last judgment cited, if the vehicle had been traced and the dead body was found not in the vehicle, it might not be said that the accident arose out of use of a motor vehicle but if the vehicle were not traced, the death would be stated to be out of user of a motor vehicle!

6. Having regard to the expansive interpretations given to the expression 'use of motor vehicle' resulting in an accident by the Hon'ble Supreme Court and the several High Courts in India, I have no doubt in FAO No.1263 of 2009 - 6 - my mind that the Tribunal ought to have therefore found that the driver died in the course of the accident by the use of the motor vehicle and consequently the workman ought to have granted compensation in the manner sought for by the representatives of the deceased. The application has been filed under Section 163-A of the Motor Vehicles Act and it cannot be taken to be a case of an accident by any act of negligence of the driver himself. The driver could not have been therefore called a tort feasor to deny to him the compensation under Section 163-A. The compensation payable for the deceased who had an annual income of Rs.40,000/- under schedule-II shall be Rs.6,40,000/-, after providing for 1/3rd deductions and adding the conventional heads of claim for loss of consortium and loss to estate, the total compensation payable would be Rs. 4,27,166, rounded off to Rs.4,27,000/-. There shall be an award for the said amount against the respondents with interest at 7.5% from the date of the accident to the date of the payment. The 1st claimant is the widow and claimants 2 to 5 are his children. 6th claimant is the dependent mother and 7th claimant is the father. The 1st claimant is awarded Rs.1,00,000/-, and claimants 6 and 7 are awarded Rs.37,500/- each. The balance of amount shall be paid to the claimants 2 to 5 equally but held in FD in a nationalized bank and the interest shall be released quarterly every year during their minority.

7. The appeal is allowed to the above extent.

14.07.2010 sanjeev (K.KANNAN) JUDGE