Kerala High Court
The National Insurance Co. Ltd vs The National Insurance Co. Ltd on 1 October, 2013
Author: S. Siri Jagan
Bench: S.Siri Jagan, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY,THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935
MACA.No. 1004 of 2007 ( )
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AGAINST THE AWARD IN OPMV 1600/2001 of MOTOR ACCIDENTS CLAIMS
TRIBUNAL,THALASSERY.
......
APPELLANT/3RD RESPONDENT:
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THE NATIONAL INSURANCE CO. LTD.,
KANNUR, REPRESENTED BY ITS MANAGER
MOTOR THIRD PARTY CELL, M.G.ROAD, ERNAKULAM.
BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENT(S)/CLAIMANTS
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1. SREELEKHA V.K., D/O SREEDHARAN NAIR,
W/O LATE K.P.MADHUSOODANAN, KANNOTH HOUSE, KAROTTA
P.O.URUVACHAL.
2. NIDHINA V.K.(MINOR), D/O LATE MADHUSOODANAN,
KANNOTH HOUSE, KAROTTA, P.O.URUVACHAL,
REP.BY MOTHER 1ST PETITIONER.
3. KAMALAKSHI.K.P., W/O LATE BALAN NAMBIAR,
KANNOTH HOUSE, KAROTTA, P.O.URUVACHAL.
4. SHAJI KURUVILA, S/O KURUVILA,
SOOSAMMA VILAS, P.O.KUMARAKAM, KOTTAYAM DISTRICT.
5. V.M.BINU, S/O MADHAVAN, VAZHOPARAMBIL HOUSE,
ATTIPOODIKA, P.O.KUMARAKAM, KOTTAYAM DISTRICT.
6. S.SREEDHARANPILLA, SANDHYA BHAVAN,
PAZHASSI, NELLUNNI, P.O.MATTANNUR.
7. PULLANHIYODAN SUNIL, S/O SREEDHARAN PILLAI,
SANDHY BHAVAN, PAZHASSI, NELLUNNI, P.O.MATTANNUR.
tss
M.A.C.A. NO.1004/2007
8. THE UNITED INDIA INSURANCE CO. LTD., KANNUR.
9. JOSEPH M.ELIAS,
MAZHUVANNAPARAMBIL HOUSE, AMBALAMODU P.O.
R1,R2,R3 BY ADV. SRI.M.SASINDRAN
6,7 BY ADV. SRI.C.P.PEETHAMBARAN
4,5 BY ADV. SRI.STALIN PETER DAVIS
R8 BY ADV. SRI.P.SANKARANKUTTY NAIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01-10-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
tss
S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. C.R.
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M.A.C.A.No.1004 of 2007
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Dated this the 1st day of October, 2013
J U D G M E N T
S. Siri Jagan, J The insurance company in O.P.(M.V.).
No.1600/2001 before the Motor Accidents Claims Tribunal, Thalassery, is the appellant herein. The O.P. was filed by the dependants of deceased Madhusoodanan, who died in an accident involving a vehicle insured with the appellant.
2. The accident occurred in the following manner:
The deceased was waiting for a bus at a bus stop. The bus insured with the appellant did not stop at the bus stop, although, the deceased signalled for stopping the bus to enable him to board the bus. The driver of the bus did not stop at the bus stop but stopped the bus a little ahead. The deceased followed the bus and again the driver drove off the vehicle before the deceased reached the bus. The deceased followed the bus in a jeep M.A.C.A.No.1004 of 2007 2 driven by PW2, overtook the bus, made the driver stop the bus and the deceased started an altercation with the bus driver standing on the middle of the road below the door by the driver's seat and the driver sitting in his seat.
Suddenly the driver opened the door of the bus and pushed the deceased, as a result of which, the deceased fell on the road and the lorry coming from the opposite side ran over the deceased causing his death.
3. The dependants of th deceased, who are the respondents 1 to 3 herein filed the O.P., claiming compensation for the death of their breadwinner, alleging that the accident occurred in the course of use of the bus, on account of the negligence of the driver of the vehicle. The tribunal considered the evidence adduced by the parties and came to the conclusion that the accident occurred because of the negligence of the deceased, the driver of the bus and the driver of the lorry in the ratio 25:50:25. The appellant was directed to pay 50% of the award amount by indemnifying the owner of the bus for M.A.C.A.No.1004 of 2007 3 the compensation payable to the claimants for the death of the deceased on account of the negligence of the driver of the bus. The appellant is challenging that finding making the appellant liable for the compensation as insurer of the bus.
4. The appellant's contention is that the accident did not occur on account of the use of the vehicle, which only would give rise to a liability on the part of the insurance company to indemnify the owner of the vehicle. It is submitted that the bus was stationary at the time of accident. The deceased was not a passenger in the bus, he was standing outside the bus in the middle of the road by the side of the driver's door. The driver pushed the deceased, making the deceased fall on the road, which cannot be stated to be in the course of use of the vehicle. Consequently, the accident did not arise in the course of use of vehicle which alone would make the insurance company liable to indemnify the owner for the death of the deceased is the contention.
M.A.C.A.No.1004 of 2007 4
5. The counsel for the claimants would contend that, the accident to be in the course of use of the vehicle, it need not be while the vehicle was moving. It is submitted that the driver did not have any motive to kill the deceased. Therefore, it was certainly an accident. The driver was still sitting in the bus, the deceased was trying to board the bus from the bus stop, since the driver of the bus did not stop the vehicle at the bus stop, the deceased was exercising his right to know as to why the driver did not stop the vehicle in order to enable the deceased to board the vehicle for which he has a right. The driver did not alight from the bus, he pushed the deceased sitting inside the bus using the door of the bus. All these facts would show that the accident occurred in the course of use of the vehicle itself, although, the vehicle was stationary. Consequently, he would argue in support of the findings of the tribunal.
6. The counsel for the insurer of the lorry would bring to our attention, decisions in support of the M.A.C.A.No.1004 of 2007 5 proposition that the causal relationship between the use of the motor vehicle and accident resulting in death or permanent disablement is not required to be direct and proximate and it can be indirect and less immediate as well. He relies on the decisions of the Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More (AIR 1991 S.C. 1769), New India Assurance Co. Ltd v. Yadu Sambhaji More (2011(2) SCC 416), New India Assurance Co. Ltd v. Kamalamma (2012 (4) KLT
84), Babu v. Remesan (1995(2) KLT 300) and United India Insurance Co. Ltd. v. Thankamma (2011(3) KLT 466).
7. We have considered the rival contentions in detail.
8. The facts are not in dispute before us. The deceased person who wanted to board the bus insured with the appellant was standing at the bus stop, he signalled the driver of the bus to stop the vehicle by extending his hand, the driver did not stop the vehicle at M.A.C.A.No.1004 of 2007 6 the bus stop, he stopped the vehicle a little ahead, the deceased followed the bus and before he could reach the bus the driver again drove off the bus, the deceased followed the bus in a jeep, overtook the bus and made the driver to stop the vehicle, the deceased started an altercation with the driver demanding to know why the driver did not stop the vehicle at the bus stop, the driver sitting in the bus itself, opened the door and pushed the deceased, as a result of which the deceased fell down in the middle of the road and the lorry which came from the opposite side ran over the deceased causing his death. The Supreme Court has considered the question of causal relationship between the injury and the use of the vehicle in the decision in Shivaji Dayanu Patil's case (supra) in paragraph 35 of which, the Supreme Court held that:
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 S.92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation under Section 92- A, the causal 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 M.A.C.A.No.1004 of 2007 7 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 he expression "arising out of the use of a motor vehicle" in S.92-A enlarges the filed of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment(supra).
That was a case where a petrol tanker collided with a truck, as a result of which the petrol tanker went off the road and fell on its left side at a distance of about 20 feet from the highway. The petrol contained in the tanker leaked out and collected nearby. Hours later an explosion took place in the said petrol tanker, resulting in a fire. A number of persons who had assembled near the petrol tanker sustained burn injuries and a few of them succumbed to the said injuries. The dependants of one of those who died in the accident filed a claim, which gave rise to the litigation. The Supreme Court, after laying down the law as quoted above held thus in paragraph 37:
37. Shri Sanghi has also raised a question as to the procedure to be followed by the Claims Tribunal while adjudicating claims u/S.92A of the Act and has submitted that such claims have to be adjudicated upon like other claims u/S.110A of the Act and that claimant must first adduce evidence to establish his/her case and that the owner as well as the insurer of the vehicle in question must have a right to adduce evidence to rebut the same.M.A.C.A.No.1004 of 2007 8
In this context, it may be mentioned that procedure for adjudication of a claim petition u/S.110A of the Act by the Accident Claims Tribunal is contained in Rules 291 to 311 of the Bombay Motor Vehicles Rules, 1989, (hereinafter referred to as 'the Rules'). The said Rules prescribe a form for filing a claim petition and the documents to be filed along with it (R.291), examination of the applicant (R.293), issue of notice to the opposite party (R.297), filing of written statement by the opposite party (R.298), framing of issues (Rule 299), recording of evidence (Rr.300 and 301), local inspection (R.302) and judgment and award of compensation (Rule 306). The same view was reiterated and confirmed in Yadu Sambaji More's case (supra), which in fact arose from the same accident, but at a different stage of the litigation after a decision pursuant to a remand in Shivaji Dayanu Patil's case (supra). In Kamalamma's case (supra) a Division Bench of this court held that, the act of the conductor of a bus in kicking a passenger out of the bus is an accident arising out of the use of the vehicle. In Thankamma's case (supra) another Division Bench of this court held that, "the murder of the driver committed by a passenger in the vehicle pursuant to an altercation between them arises out of use of the motor vehicle". In Babu's case (supra) a Division Bench of this court held that, accident which arose on account of the rope used M.A.C.A.No.1004 of 2007 9 for tying a load in a vehicle touching the electricity wire, while it was being thrown up to the other side of the vehicle causing burn injuries to the workers arises out of the use of the motor vehicle. In paragraph 4 and 5 of that decision relying on Shivaji Dayanu Patil's case (supra) the Division Bench held as follows:
4. Shri G.L. Sanghi, the learned counsel appearing for the petitioners, has urged that in the instant case, it cannot be said that the explosion and fire in the petrol tanker which occurred at about 7.15 a.m., i.e., nearly four and half hours after the collision involving the petrol tanker and the other truck was an accident arising out of the use of a motor vehicle and, therefore, the claim petition filed by the respondent could not be entertained u/S.92A of the Act. Shri Sanghi has made a three-fold submission in this regard. In the first place, he has submitted that the petrol tanker was not a motor vehicle as defined in S.2(18) of the Act at the time when the explosion and fire took place because at that time the petrol tanker was lying turtle and was not capable of movement on the road. The second submission of Shri Sanghi is that since before the explosion and fire the petrol tanker was lying immobile it could not be said that the petrol tanker, even if it be assumed that it was a motor vehicle, was in use as a motor vehicle at the time of the explosion and fire. Thirdly, it has been submitted by Shri Sanghi that even if it is found that the petrol tanker was in use as a motor vehicle at the time of the explosion and fire, there was no causal relationship between the collision which took place between the petrol tanker and the truck at about 3 a.m. and the explosion and fire in the petrol tanker which took place about four and half hours later and it cannot, therefore, be said that explosion and fire in the petrol tanker was an accident arising out of the use of a motor vehicle.M.A.C.A.No.1004 of 2007 10
5. Before we proceed to deal with the aforesaid submissions of Shri Sanghi, it would be relevant to mention that S.92A of the Act forms part of Chapter VII-
A which was introduced in the Act by Motor Vehicles (Amendment) Act, 1982 (Act 47 of 1982). The said Chapter bears the heading "LIABILITY WITHOUT FAULT IN CERTAIN CASES" and contains Ss.92A to 92E. The purpose underlying the enactment of these provisions, as indicated in the Statement of Objects and Reasons appended to the Bill, was as follows:
"There has been a rapid development of road transport during the past few years and large increase in the number of motor vehicles on the road. The incidence of road accidents by motor vehicles has reached serious proportions. During the last three years, the number of road accidents per year on the average has been around 1.45 lakhs and of these the number of fatal accidents has been around 20,000 per year. The victims of these accidents are generally pedestrians belonging to the less affluent sections of society. The provisions of the Act as to compensation in respect of accidents can be availed of only in case of accidents which can be proved to have taken place as a result of a wrongful act or negligence on the part of the owners or drivers of the vehicles concerned. Having regard to the nature of circumstances, in which road accidents take place, in a number of cases, it is difficult to secure adequate evidence to prove negligence. Further, in what are known as 'hit-and-run' accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the Act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions first for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle and, secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown........."
We are of opinion that the common thread of law running M.A.C.A.No.1004 of 2007 11 through fabric of these decisions is applicable to the facts of this case as well. As pointed out by the Supreme Court in Shivaj Dayanu Patil's case, the causal 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 as well. Here, admittedly, the deceased was an intending passenger, who wanted to board the bus from a bus stop, where the driver is expected to stop the vehicle to enable intending passengers to board the vehicle. The driver did not stop the bus at the bus stop, despite the deceased signalling the driver of the bus to stop the bus. The deceased had a right to board the bus from the bus stop and the driver had a duty to stop the bus at the bus stop, since the vehicle was a public transport vehicle. The driver stopped the bus a little ahead, the deceased ran after the bus to board the bus, but the driver again took off the bus, the deceased chased the bus in a jeep, made the driver of the bus to stop the M.A.C.A.No.1004 of 2007 12 vehicle and demanded the driver an answer as to why he did not stop the bus at the bus stop. While so, the driver sitting inside the bus pushed open the door and pushed the deceased causing him to a fall on the middle of the road when the lorry coming from the opposite side ran over him. Although, the causal connection is not direct and proximate, we are of opinion that the accident arose out of the use of the bus. If the driver had stopped the vehicle at the bus stop enabling the deceased to board the bus or at least when the driver had allowed the deceased to board the vehicle after running after the vehicle when the driver stopped the vehicle a little ahead, the accident would not have occurred. It is also clear that, if the driver had not opened the door of the bus to push the deceased, then also the accident would not have happened. The driver of the bus and the deceased has no other relationship other than as a driver and a passenger and the driver had no motive to push the deceased and to harm him. The entire incident was about the right of the M.A.C.A.No.1004 of 2007 13 deceased to board a public transport vehicle, which the deceased had a right to. Therefore the entire chain of events arose in the course of use of the public transport vehicle driven by the driver who pushed the deceased causing his death. The causal connection between the death and the use of the vehicle even if not direct, it is clearly proximate. These facts would conclusively show that the accident arose out of the use of the vehicle, although direct or immediate. Therefore, we do not find any merit in the contention of the appellant and accordingly the appeal is dismissed.
Sd/-
S. Siri Jagan, Judge Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss