Orissa High Court
Kanhei Rana And Ors. vs Gangadhar Swain And Ors. on 19 June, 1996
Equivalent citations: 1996(II)OLR494, 1997 A I H C 207, (1996) 2 ORISSA LR 494
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT S. Chatterji, A.C.J. 1. The present A. H. 0: is at the instance of the unfortunate parents who have lost their son as their claim application was dismissed by the Tribunal and the judgment being affirmed by the learned single Judge of this Court. 2. It transpires from the materials on record that one Laxmidhar Rana lost his life on 30-1-1933. It transpires further that the deceased and some other labourers went in a truck bearing Registration No. OSC 4871 belonging to Gangadhar Swain and Jagannath Swain being Respondents 1 and 2 in Misc. Appeal No. 346 of 1989 to load wooden logs at Nrutang. After loading the truck the deceased was, standing on the left side of the road and at that time the driver of the truck suddenly started the vehicle without using its horn and/or without focussing the light and dashed against the deceased. The claim petition was filed before the M. A. C. T., Cuttack being Misc. Case No. 212 of 1983. 3. The " ribunal framed there issues as follows : (i) If the death of Laxmidhar Rana was due to the rash and negligent driving of the vehicle OSC 4871 by its driver ? (ii) If the claimants are entitled to get any compensation, if so, to what extent and from whom ? (iii) To what relief, if any, the petitioners entitled ? 4. The Tribunal held, inter alia, that two competitions had been filed under Section 110-A of the Motor Vehicles Act for the same cause of action. First one on 13-5-1983 and the second one on 30-7-1983. The former case had been withdrawn while the petitioners preferred to proceed with the fatter. On an analysis of the evidence on record, the Tribunal found that the petitioners had failed to establish that the death, of the deceased Laxmidhar Rana was due to the rash and negligent driving of the- vehicle OSC 4871. On the other hand, it was more probable of a log fell on him when the truck was being loaded with logs. Issue No. 1 was answered against the petitioners. 5. Regarding Issue No. 2, the Tribunal held further that the accident did not arise out of the use of the motor vehicle and hence the petition under Sec, 110-A of the Motor Vehicles Act, 1939 could not be maintained. 6. Regarding Issue No. 3, it was held that in view of the findings on Issue Nos. 1 and 2, the claim petition was dismissed and the petitioners were not found entitled to any relief. 7. Being aggrieved by and dissatisfied with the findings of the Tribunal Misc. Appeal No. 346/89 was preferred. By Judgment dated 3-4-1992 the learned single Judge of this Court has since dismissed the appeal observing inter alia, that if the appellants are entitled to any relief under the Workmen*' Compensation Act, they may work out it in a proper forum. 8. The learned single Judge has first dealt with the case of the respective parties relating to the cause of death. It is observed that while the claimants' case is that on account of sudden starting of the vehicle and its dashing against the deceased the accident occurred, the stand of the Insured was that the deceased was working as a coolie in the truck and after loading of logs the deceased suddenly went to the front side of the truck as a result of which the accident occurred. However, the Tribunal had recorded a positive finding on analysis of the evidence that the death of the deceased was due to fall of a log on him when the truck was being loaded with logs. on consideration of the rival stands relating to the cause of death, the conclusion of the Tribunal was found to be sound and the learned single Judge has., concurred with such finding of the Tribunal. The other aspect was considered regarding use of the motor vehicles. 9 The expression "use of a motor vehicle" in Section 9-2-A covers accident which occurs both when the vehicle is in motion and when it is stationary. The word "use" has a wider connotation to cover the period when the vehicle is not in motion and is stationary. The learned single Judge has observed that a vehicle does not cease to be in use when it is rendered immobile on account of break-down or mechanical defect or accident. Attention of the learned single Judge was drawn to the decision of the Supreme Court in the case of Shivaji Dayanu Patil and Anr. v. Smt. Vatschala Uttam More : (IR 1991 SC 1769). The learned single Judge has further recorded that Section 92-A deals with liability to pay compensation in certain cases on the principle of no-fault. The expression "arising out of the use of a motor vehicle" was also there in Sub-Section (1) Section 110 of the old Act. By analysing the said reported decision and also referring to the decision in the case of Brown v. Roberts : (1965) I QB 1, it was held that the first meaning assigned to 'use' in Johnson's Dictionary is to employ to any purpose. It would be construed as a word of wide significance. The facts as detailed by the Tribunal show that the fall of the log had no nexus with the use of the vehicle not even remotely. A conclusion has accordingly been drawn that since the vehicle was not in use, the claim cannot be sustained and ultimately the appeal was dismissed by affirming the judgment of the Tribunal. 10. The unfortunate appellants (parents of the deceased; have not lost their hope and they have filed the present A. H. O. 11. A point has arisen before us that while the truck, though in a stationary position, permitted the logs to be loaded and in course of loading of the stationary vehicle the accident has occurred whether the claim petition should be sustained and/or it should be dismissed holding, inter alia, that the Motor Vehicles Act does not permit entertainment of such claim and the parties should seek the relief in any other forum. 12. It is needless to observe that the, decision in the case of Shivaji Dayanu Patil (supra) is directly on the point. It has been observed : "As compared to the expression "caused by" the expression "arising out of" has a wider connotation, The expression "caused by" was used in Section 95(1)(b)(i) and.(ii) and Section 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 under Section 9 -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 Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment, in the instant" case 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 sloping 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 these, circumstances, it could be said that the collision between he tanker and the other vehicles 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 collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was causal relation between explosion and fire." 13. Apart from detailing the facts in the aforesaid case before the apex Court, the principle was propounded is that the concept under Section 92-A must be very clear that the use of vehicle must not be confined during its mobility. The exmession "use of the vehicle" may also be applicable when a vehicle is stationary or remains static. The control, running and dimension of the vehicle are nothing synonymous to the use of the vehicle within the concept of the claim as envisaged under the Motor Vehicles Act. If the vehicle although being stationary is used to be loaded with the legs, as done in the instant case, one cannot lose sight of conceiving the idea that the vehicle as actually in use being permitted to be loaded by the logs as the business being permitted. 14, Looking at the decision at length as aforesaid, we are afraid, the ratio of the decision reported in 1390 ACJ (1) 1 (Union of India v. Sushila Devi and Ors) loses its importance. The Allahabad High Court in this case does not permit us to take a different view regarding the use of the vehicle while the vehicle remains stationary and not mobile. 15. The learned counsel for the Insurance Company opposing the contention of the appellants has very elaborately and painstakingly argued that unless there is a claim within the scope, reference and ambit of Section 92-A, the Court can neither entertain any contention of the parties asking for the relief nor can confer any right upon the parties to seek relief if no proper claim has been made and if no relief has been sought for as the provision of law permits, we have tried to appreciate the points raised in this behalf, as argued before the trial Court, that the petitions though filed under Section 110 of the Motor Vehicles Act, 1939, in the absence of mentioning of the provision of Section 92-A, the relief cannot be granted. With great respect to the learned single Judge and with greater amount of caution we remind ourselves the settled principle of law as set down by the Apex Court andjdifferent High Courts that non-mentioning of any provision of law, wrong quotation or mis-quotation of law will not prevent a bona fide litigant to seek relief. If an application is filed, it is for the Court to apply the law to grant relief. A Court does not sit to deny justice. The Court sits to grant relief if the litigant bona fide deserves to obtain the same. In the instant case, we find that the death is admitted, accident is admitted and the facts are also admitted. When the cases had been filed, non-mentioning of Section 92-A of the Motor Vehicles Act would be a ground to debar the unfortunate parents to get compensation for the death of the son is unthinkable, unwarranted and uncalled for. This Court cannot shut its eyes. Law has to serve the purpose of life. Life does not always follow law, rather law has to follow life. We have considered the arguments advanced by the iearned counsel for both sides. We appreciate the ingenuity of the argument, but we cannot persuade our judicial conscience that due to mete non-mentioning of Section 92-A the claim of the parents will be . defeated in-a motor accident claim case, when the accident is admitted and the death of their non is admitted. " The entire approach of the Tribunal is erroneous and the learned single Judge with his wisdon has not probably appreciated the same. We differ from the view expressed by him that in the absence of the use of the vehicle the claim cannot arise within the scope of the Motor Vehicles Act and the matter will have tote sent to the Workmen's Compensation Court to make a research work as to whether a claim will arise or not. 15.Our attention has also been drawn to a decision reported in 1988 ACJ 671 (Oriental Insurance Co. Ltd. v. Jevaramma and Ors) where a Division Bench of the Karnataka High Court deciding the case on 17-2-1988 by considering the scope of Section 30 of the Workmen's Compensation Act. 1923 and Section 95(1)(b) and Section 95(2) (a) of the Motor Vehicles Act concluded that the accident in the said case took place when the vehicle was not in motion and the Insurance Company was liable to meet only the compensation payable for the risk covered and not the penalty. We are afraid, we cannot agree with the ratio of the said decision. After the Supreme Court judgment in AIR 1991 SC 1769 (supra) the concept has been very clear and if the principle is applied to the facts of the present case, we cannot but hold that the vehicle was in actual use in course of the loading of the vehicle the user of the same is not ruled out and the liability of the owner remains. If there is any negligence in course of loading and unloading of the stationary vehicle that liability of the owner does not cease vis-a-vis the liability of the Insurance Company, and the risk is convered. 16. Our attention is further drawn to a recent decision reported in 1992 (2) TAC 217 (Gouri Bi and Ors. v. V. Khemraj and Ors.) where a Division Bench of the Karnataka High Court by referring to Section 110 of Motor Vehicles Act, 1939 held that the claim petition for the purpose of finding out the maintainability and jurisdiction, in the background of the wider meaning given to "arising out of the use of motor vehicle", there could be no doubt that the accident as set lip by the claimants is "arising out of the use of motor vehicle". Though we have dealt in great detail with regard to the contention raised by the learned counsel for the Insurance Company relating to Section 92-A., in effect the provision of the said Section is relatable to interlocutory stage and broader meaning has been conferred arising out of the use of a motor vehicle. The apex Court in the case of Shivaji Dayanu Pati (supra) has held that a vehicle can be regarded to be in use' even if it is not in motion. The concept of movement being not intrinsically or inherently connected with the use and the term 'use' having been connotatively expanded, we are in no doubt that the same can also be extended to the arena/sphere of a claim advanced under Section 110 of the Motor Vehicles Act, 1939. Heavy onus is cast on the driver to avoid negligence while the vehicle is in use. If the term 'use' in its conceptual sweep engulfs no motion or no movement or stationariness, then by logical corrolary it is made essential that the driver or for that matter any agent of the owner should be careful and non-negligent. Negligence in driving is regarded as a factor that the vehicle is in motion. But the definition of 'use' having been expanded in its broader canvass, it has to clothe in its sweep other categories of negligence. To elaborate, when a vehicle remains static, it cannot constitute that the driver is negligent because of his rash and negligent driving. On the contrary it has to embody some other different types of negligence. Of course that would depend upon the facts and circumstances of each case. We are conscious, the apex Court in AIR 1991 SC 1769 (supra) was dealing with the negligence so far as it was concerned with Section 92 of the Act, but as the language of Section 92-A and Section 110 of the old Act uses the same phraseology and there is absence of any etymological distinction, we are persuaded to give the same meaning to the said expression under Section 110. Thus, there remains no iota of doubt that in the instant case there was causal relationship with the accident which has resulted in death of the claimant. 17. For regarding reasons, we find sufficient merit in the present A. H. O. Consequently we set aside the order of the learned single Judge as well as the order of Tribunal. We have scrutinised the materials on record. In the trial Court regarding the quantum of compensation the evidences have been adduced. An argument has been made on behalf of the Insurance Company that in view of Section 92-A the statutory amount of Rs. 15,000/- may be granted as made by the Supreme Court in the case reported in AIR 1991 SC 1769(supra). We accept the principle as found by the Hon'ble Supreme Court in the aforesaid decision. But the facts of the present case are quite different. In the instant case, we have held unequivocally that the vehicle is deemed to be in use and there is an act of negligence on the part of the owner. There is a covering by the Insurance Policy and there is no bar and/or impediment for the Tribunal to grant the relief. When there is no bar and/or impediment to grant the relief and the compensation claimed was only Rs. 40,000/- at the time of filing of the application, the liability of the Insurance Company cannot be minimised. We direct accordingly that the Insurance Company should pay the said amount together with all statutory interest as permissible under law. It is submitted with all fairness that the Insurance Company will pay the amount within three months from the date of receipt of the order. No order as to costs. Dipak Misra, J.
I agree.