National Insurance Company Limited v. Kamlesh & Ors.

Mr. Sanjiv Pabbi, Advocate, for the appellant. Mr. Sandeep Chhabra, Advocate, for respondents 1 to 3. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral)

1. The Insurance Company is in appeal challenging the liability on the ground that the claim did not result out of use of a “motor vehicle”. The contention was that the stones or boulders fell on the truck and the vehicle turned turtle and fell into the river ganga. This, according to the insurer, was a death by act of god and the insurer will not be liable. It is contended by the counsel for the appellant that the claimants did not prove that the accident was the result of use of a motor vehicle.

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 accident FAO No.3836 of 2009 - 2 - took place only when the deceased was travelling in the motor vehicle. 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. 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 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.”

3. 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 FAO No.3836 of 2009 - 3 - 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 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 FAO No.3836 of 2009 - 4 - 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 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).

4. 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.

5. 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.3836 of 2009 - 5 - my mind that the accident arose out of the use of the motor vehicle and the insurer is liable.

6. The appeal is dismissed.

26.07.2010 sanjeev (K.KANNAN) JUDGE