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UNITED INDIA INSURANCE COMPANY versus AMIR BASHA

High Court of Madras

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United India Insurance Company v. Amir Basha - Civil Miscellaneous Appeal No. 943 of 1996 [2002] RD-TN 1001 (19 December 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 19/12/2002

Coram

The Hon'ble Mr. Justice P. SATHASIVAM

and

The Hon'ble Mr. Justice A.K. RAJAN

Civil Miscellaneous Appeal No. 943 of 1996

United India Insurance Company

Limited, Mettupalayam,

Coimbatore District. .. 3rd Respondent/ Appellant. -Vs-

1. Amir Basha,

2. Sahira Bi.

..Petitioners 1 and 2.

3. Balakrishnan

4. Ravi

5. Amir Bai. ..Respondents 1,2 and 4/Respondents. Appeal under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Award dated 23-8-95 made in M.C.O.P.No. 138/94 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Dharmapurai at Krishnagiri.

For Appellant :: Mr. M.S. Krishnan

For Respondents 1 and 2 :: Mr. D. Shivakumaran for Mr. C.R. Muralidharan:- No appearance for 3rd Respondent.

:JUDGMENT



(Judgment of the Court was made by P. Sathasivam, J.) United India Insurance Company Limited, aggrieved by the award of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Dharmapuri at Krishnagiri dated 23-8-1995 made in M.C.O.P.No. 1 38 of 1994, has preferred the above appeal.

2. In respect of death of one Absar in a motor accident, that had taken place on 7-12-91, the claimants/respondents 1 and 2 herein-parents of the deceased preferred a claim for Rs.1,00,000/- as compensation. Before the Tribunal, the first claimant, father of the deceased got himself examined as P.W.1 and he also examined one Syed Abdul Kalam as P.W.2, besides marking Exs. P-1 and P-2 in support of his claim for compensation. On the side of th e Insurance Company, Insurance Policy has been marked as Ex. R-1. The Tribunal on appreciation of evidence, both oral and documentary and after holding that the Insurance Company of the vehicle in question were liable to pay compensation, passed an award for Rs.71,600/- with interest at 12 per cent from the date of petition till date of deposit. Questioning its liability, the United India Insurance Company has preferred the present appeal. 2. Heard the learned counsel for the appellant as well as respondents 1 and 2.

3. Mr. M.S. Krishnan, learned counsel for the appellant, by drawing our attention to Sections 147 (i) (b) (i) and 165 of the Motor Vehicles Act, 1988 and also to the fact that the death was occasioned only due to fire accident and not when the vehicle was put to use, as contemplated under the provisions of the Motor Vehicles Act, would contend that the direction to the appellant insurance company for payment of compensation amount cannot be sustained. On the other hand, Mr. D. Sivakumaran, learned counsel for respondents 1 and 2, would contend that the deceased sustained fatal injuries due to the fire accident out of the use of motor vehicle; hence the Tribunal is fully justified in fastening the entire liability on the insurance company; accordingly prayed for dismissal of the appeal.

4. We have carefully considered the rival submissions. 5. In order to appreciate the rival contentions, it is useful to refer the relevant provisions of the Motor Vehicles Act, 1988. Section 147 speaks about requirements of policies and limits of liability. "Section 147. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised

insurer; and

(b) insures the person or classes of persons

specified in the policy to the extent specified

in sub-section (2)-

(i) against any liability which may be incurred

by him in respect of the death of or bodily

injury to any person including, owner of the

goods or his authorised representative

carried in the vehicle or damage to any

property of a third party caused by or

arising out of the use of the vehicle in a

public place;

The other section referred to by the learned counsel for the appellant is Section 165 which deals with Claims Tribunals.

"Section 165. Claims Tribunals.- A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death if, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both." By pointing out the language used in both these provisions, learned counsel for the appellant, contended that the accident or injury or death should be due to use of motor vehicles. In other words, according to him, the claimants are entitled to file a claim for compensation only if their son died in respect of an accident due to the use of motor vehicle. In the present case, it is seen from the evidence of P.W.2, Syed Abdul Salam, who is said to be the eye witness, that when the deceased Absar vulcanising a tube, which got punctured, another person was in the process of welding certain parts near a diesel tank. Due to the processing of welding by another person, the diesel tank caught fire, thereby the deceased, who was doing the work of vulcanising the tube, involved in the fire accident and sustained fatal injuries. By pointing out the fact that the lorry was stationary and parked in the road side work shop for doing certain welding work and the deceased had nothing to do with the vehicle, contended that neither the owner nor the insurance company of the lorry was responsible for the same. 6. In the light of the said factual position and the contention raised, the only point for consideration in this appeal is, whether the deceased involved in the accident and sustained fatal injuries arising out of the use of the motor vehicle, namely the lorry? and whether the Tribunal is justified in directing the insurance company to pay compensation in favour of the claimants for the death of their son in the fire accident. 7. We have already referred to the relevant provisions regarding requirements of policies and limits of liability as well as matters to be tried by the Claims Tribunal. Now let us consider various decisions cited before us. The expression "caused by" and " arising out of" under Sections 95 (1)(b)(i) and (ii) and 96 (2)(b)(ii) of the Motor Vehicles Act, 1939 was considered by the Supreme Court in SHIVAJI DAYANU PATIL v. ATSCHALA UTTAM MORE, reported in AIR 1991 Supreme Court 1769. The following conclusion is relevant for deciding the present case: (paragraphs 35 and 36) " 35. This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (ii) and 96 (2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation u/S.92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Sec.92A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.

36. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on slopping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collusion and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker No. MKL 7461." 8. In SHARLET AUGUSTINE v. K.K. RAVEENDRAN, reported in AIR 1992 Kerala 346, a Division Bench of the Kerala High Court had an occasion to consider the expression "arising out of the use of motor vehicle" under Section 110 of the Motor Vehicles Act, 1939. Their Lordships have held that the expression "arising out of the use of motor vehicle" referred to in Section 110 has to be given a wider meaning. In that case, the bus in question dashed against a wayside electric post. A passenger of a bus while he was carrying on rescue operations after coming out of the bus, got electric shock due to stray live wire and died. The Division Bench has held that death of passenger arose out of use of motor vehicle and his legal representatives would be entitled to compensation under Section 110.

9. In the case of BABU v. REMESAN, reported in AIR 1996 Kerala 95, a Division Bench of the Kerala High Court has held that, (para 5) "5. Learned counsel for the Insurance Company tried to distinguish those decisions on the facts by pointing out that the use of the motor vehicles in those two decisions is direct, though the vehicles were stationary whereas in this case the use of the motor vehicle was only indirect though the rope was used for the purpose of keeping the load in the vehicle intact. The said distinction on the facts is not enough to exclude the accident which occurred in this case out of the ambit of the words "use of a motor vehicle." Such use need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance. The expression employed by the Legislature is "accident arising out of the use of a motor vehicle" in the place of "accident caused by the use of a motor vehicle". Evidently the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases. The test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. After all the provisions for dealing with the compensation cases are intended for a sublime social objective. We are, therefore, not inclined to adopt a restrictive interpretation for the word 'use' in the present context." 10. In the case of HIMACHAL ROAD TRANS.CORPN. v. OM PRAKASH, reported in 1992 ACJ 40 (Himal Pradesh), a bomb planted by someone in a bus exploded when the bus had covered a short distance after starting from a bus-stand causing injuries to some and proving fatal to other passengers. A learned Single Judge of the Himachal Pradesh High Court has held that the death of or bodily injuries to persons arose out of the use of motor vehicle and the Claims Tribunal has jurisdiction to entertain claim petitions. 11. It is also relevant to refer a recent judgement of the Supreme Court in KAUSHNUMA BEGUM v. NEW INDIA ASSURANCE CO. LTD., reported in 2001 ACJ 428. In that case, a front tyre of a jeep burst while in motion. The vehicle became unbalanced and turned turtle, crushing to death a person walking on the road. The Tribunal after holding that there was neither rashness nor negligence in driving the vehicle, hence the driver has no liability and as such the owner has no vicarious liability to pay compensation to the dependants of the deceased and ultimately dismissed the claim petition, but awarded compensation under no fault liability. The order of the Tribunal was upheld by the High Court, against which the claimants preferred an appeal to the Supreme Court. Their Lordships following the rule of strict liability propounded in Rylands v. Fletcher, 1861-73 All England Reporter page 1, held that the accident occurred when the vehicle was in use and the rule of strict liability propounded in Rylands v. Fletcher is applicable in claiming compensation made in respect of motor accidents. 12. It is clear from the above decisions and in view of the object of the enactments, both under the Motor Vehicles Act, 193 9 and 1988 the expression "caused by" and "arising out of" have a wider connotation. Though the accident should be connected with the use of motor vehicle, but the said connection need not be direct and immediate. The expression "arising out of use of motor vehicle" as mentioned in Section 92-A of the 1939 Act and Section 165 of 1988 Act enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. From the expression employed namely "accident arising out of the use of a motor vehicle" in the place of "accident caused by the use of motor vehicle", it is clear that the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases; accordingly we are of the view that the test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not forget that these provisions are made in order to help the victims. We are of the view that restrictive interpretation should not be given for the word "use". We are also of the view that the expression "arising out of the use of motor vehicle" has to be given a wider meaning. We are also of the view that "use of motor vehicle" need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance. Accordingly, we hold that the death of Absar arose out of the use of motor vehicle, and the claimants/ respondents 1 and 2 herein are entitled to compensation for the death of their son Absar.

11. In the light of our conclusion, we are unable to accept the contention of the appellant. On the other hand, we are in agreement with the conclusion of the Tribunal holding that the owner and the insurer of the vehicle are liable to pay compensation to the claimants for the death of their son Absar. We do not find any merit in the appeal of the insurance company; consequently the same is dismissed. No costs.

R.B.

Index:- Yes

Internet:- Yes

To:-

1) The Motor Accidents Claims Tribunal( Chief Judicial Magistrate), Dharmapuri at Krishnagiri (with records) 2) The Section Officer, V.R Section, High Court. 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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