Chattisgarh High Court
Umasharan And Another vs Indra Bai And Others on 28 September, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No.766 of 2010
1. Umasharan S/o Bhanuram Lodhi, R/o Village Beltukri, P.S. Nandghat,
Tahsil Navagarh, District Durg (CG) (Driver of the vehicle)
2. Kamlanarayan S/o Bhanuram Lodhi, Rajput, R/o Village Beltukri, P.S.
Nandghat, Tahsil Nawagah, District Durg (CG) (Owner of the vehicle)
Versus
1. Indra Bai Widow of Dharmendra Banjare, Caste Satnami, Housewife,
R/o Village Patnakapa, P.S. Nandghat, Tahsil Nawagarh, District
Durg (CG)
2. Ku. Heena D/o Late Dharmendra Banjare, Minor through her natural
guardian mother Indra Bai, R/o Village Patnakapa, P.S. Nandghat,
Tahsil Nawagarh, District Durg (CG)
3. Panchram S/o Samaru Satnami, R/o Village Patnakapa, P.S.
Nandghat, Tahsil Nawagarh, District Durg (CG)
4. Phulbasa Bai W/o Panchram Satnami, Occupation Housewife, R/o
Village Patnakapa, P.S. Nandghat, Tahsil Nawagarh, District Durg
(CG) (Claimants)
---- Respondents
For Appellants : Mr. Bharat Rajput, Advocate
For Respondents : Mr. Vaibhav A. Goverdhan, Advocate
Hon'ble Shri Justice P. Sam Koshy
Judgement On Board
28.09.2022
1. The present is a owner's appeal under Section 173 of the Motor Vehicles Act. The challenge is to the award dated 30.04.2010 passed by the Additional Motor Accident Claims Tribunal, FTC, Bemetara, in Claim Case No.52/2009. Vide the impugned award the Tribunal has quantified an amount of Rs.3,18,100/- as compensation with interest 2 @ 6% per annum from the date of application. Since the alleged tractor which is said to have been involved in the accident was not insured, the entire liability of payment of compensation has been fastened upon the appellant-owner.
2. The brief facts relevant for adjudication of the present appeal are that the appellant No.2 Kamlanarayan was the owner of the Tractor bearing registration No. MP 23/G/3852 and the appellant no.2 was the driver of the said tractor. The date of accident in the instant case is 30.01.2009. The deceased in the instant case is Dharmendra Banjare. The respondents are the claimants who are the parents, wife and children of the deceased Dharmendra Banjare.
3. It is said that on 30.01.2009, the tractor belonging to appellant no.2, driven by appellant no.1 brought a tyre tied with the tractor to the shop of the deceased Dharmendra Banjare for filling of air. The tyre that was brought was tied at the back of the tractor. The said tractor was parked outside the shop of the deceased. The appellant no.1 instructed the deceased to fill the tyre with air. It is said that in the course of filling of air in the said tyre tied at the back of the tractor, the same got burst as a result of which the disc attached to the tyre and the nut-bolts by which it was attached hit the deceased on his head causing instantaneous death of Dharmendra Banjare. The claimants thereafter filed a claim application under Section 166 of the Motor Vehicles Act before the Claims Tribunal at Bemetara where it was registered as Claim Case No.52/09.
4. The appellants herein who were the respondents before the Tribunal entered appearance and submitted their reply. In the reply they took specific objection in respect of the maintainability of the claim case as 3 also the death of the deceased not having arisen out of the use of a motor vehicle. Initially the objection was raised by the appellants under Order 7 Rule 11 of CPC so far as the maintainability part is concerned. The Tribunal rejected the said objection vide order dated 17.09.2009 which led to the filing of a revision petition by the appellants before the High Court vide Civil Revision No.91/2009. The said civil revision was disposed of with a direction to the Claims Tribunal to frame questions on the maintainability aspect after the pleadings are complete and on framing of specific issues and thereafter to decide the same. Accordingly, the Court below framed issues after the pleadings were completed. Issue No.2 was "whether the accident did not occur arising out of the use of a motor vehicle". Similarly, issue No.11 was "whether the claim application under Section 166 of the MV Act was maintainable before the Tribunal". Subsequently, there was yet another application moved by the appellants to consider issue No.11 first so far as the maintainability of the proceedings under Section 166 of the MV Act is concerned. The Tribunal again rejected the said preliminary objection vide order dated 04.12.2009 and ordered for deciding the matter on its own merits based upon the pleadings and evidences.
5. The rejection of the preliminary objection was again challenged before the High Court by way of another Civil Revision No.10/2010. The High Court vide order dated 25.01.2010 dismissed the Civil Revision to the extent of the challenge to the order dated 04.12.2009 of the Tribunal so far as issue No.11 is concerned. However, the High Court, while dismissing the Revision so far as issue no.11 is concerned, had at the same time ordered that so far as issue no.2 is 4 concerned, the Tribunal would decide the same on its own merits in accordance with law after recording evidence of the parties. This order of the High Court in Civil Revision No.10/2010 decided on 25.01.2010 makes it emphatically clear that the issue as to whether the so called accident on 30.01.2009 had arising out of the use of the motor vehicle was left open to be considered by the Tribunal after the evidences are led.
6. In the course of evidence, some of the admitted factual matrix as would be evident is that the appellant no.2 was the owner of the said tractor bearing registration No. MP 23/G/3852. On the relevant date the vehicle was driven by appellant no.1. The other admitted fact from the pleadings and evidence is that the appellant no.1 on 30.01.2009 got a tyre of a trolley of the tractor tied at the back of the aforementioned tractor owned by appellant no.2 for filling air in it. For the said purpose, appellant no.1 brought the tractor and parked it outside the shop of the deceased. The deceased thereafter was instructed to fill air and in the course of filling of air in the said tyre which was tied at the back of the tractor it got burst causing injury to the deceased to which he later on succumbed. Issue no.2 that was raised before the Tribunal was "whether the accident resulting in the death of deceased Dharmendra was arising out of the use of a motor vehicle or not?
7. From the factual matrix and the evidence which has come on record undisputedly the tyre in which air was being filled was not the tyre of the said tractor. The tyre was not affixed either on the trolley or the tractor. It was rather tied at the back side of the tractor. The tractor was parked in front of the shop of the deceased and was in a 5 stationary condition. No such accident as such has arisen from the said tractor or the use of the tractor. As apparently it is when the deceased was filling air in the tyre that was tied at the back of the tractor which got burst causing injury to the deceased.
8. One of the core issues that has been raised by the appellants is that the finding of the Tribunal so far as issue no.2 is concerned is bad in law and needs to be considered first as it touches the root of the maintainability aspect.
9. Learned counsel appearing for the claimants, however, submits that on account of dismissal of Civil Revision No.10/2010 on 25.01.2010, the issue of maintainability cannot be reopened again as the finding of the High Court while dismissing the Civil Revision was that there is no jurisdictional error committed by the Tribunal in the course of entertaining the application and rejecting the preliminary objection raised by the appellants.
10. Nonetheless, the aforesaid fact and the order of High Court is not in dispute. However, what needs appreciation is the fact that the Civil Revision No.10/2010 and the dismissal of it was primarily so far as the issue no.11 is concerned. However, the High Court in the very same order has further made an observation that so far as issue No.2 is concerned, the Tribunal would be free to decide the same on its own merits taking into consideration the pleadings and the evidence which would come on record. Under the circumstances, the objection of the counsel for the claimants does not have any force. Since issue no.2 deals with the fact whether it is a case which has arisen out of the use of the motor vehicle and the decision on the said issue touches the root of the maintainability of the claim case, this Court 6 proceeds to decide the said issue first.
11. It would be relevant at this juncture to take note of the provisions of Section 165 of the MV Act, 1988 which for ready reference is reproduced hereinunder:
"165. Claims Tribunals - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) 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 of, 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."
12. What is to be considered at this juncture is "Whether the death of the deceased arose out of the use of motor vehicle or not?"
13. The vehicle involved in the present case i.e. the tractor bearing registration No. MP23/G/3852 was brought to the shop of the deceased for filling of air in a tyre that was tied at the back of the tractor. To make out it specific it was not the tyre of the tractor in which air was to be filled. It was a tyre of different trolley which was not in use. It was only the tyre which was brought to the shop of the deceased for filling air. In the course of filling of air the tyre got burst causing injury and death of the deceased.
14. Now in this context it is necessary to visualize as to whether firstly there was an accident and secondly whether the accident arose out of the use of motor vehicle.
15. Undisputedly, an accident did occur. The tyre in which the deceased was filling air got burst resulting in the splashing of disc and 7 nut-bolts with which the disc was affixed and hit the deceased. Except for the fact that the tyre was attached to the tractor at the relevant point of time admittedly neither did the accident arise out of or in the course of use of the vehicle. This accident could have occurred even if the tyre had been offloaded from the tractor and air would have been filled up inside the shop of the deceased. It is to indicate that there was no use of the vehicle or the accident to have arisen while the vehicle was being used. It further reflects that except for the transportation of tyre on the tractor there was no causal connection in the use of vehicle. The tractor did not have a direct or an indirect nexus to the incident or accident.
16. The Hon'ble Supreme Court in the case of Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More, AIR 1991 SC 1769 [(1991) 3 SCC 530] dealing with the said issue so far as the term arising out of the use of motor vehicle is concerned has in paragraph 13 held as under:
"13. The expression "arising out of the use of motor vehicles" was also used by Parliament in sub-section (1) of Section 110 of the Act wherein provision was made for constitution of Motor Accidents Claims Tribunals for speedy and expeditious adjudication of claims of compensation in respect of accidents involving death or bodily injuries to persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Furthermore, by sub-section (1) of Section 94 of the Act an obligation was imposed that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter VIII of the Act. Section 95 prescribed the requirements of such insurance policies as well as limits of liability. In clause (b) of sub-section (1) of Section 95, it was laid down that the policy of insurance required must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against () any 8 liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place and (a) the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. While construing the expression "arising out of the use of a motor vehicle" in sub-section (1) of Section 92-A of the Act, regard will have to be had to the fact that expressions to the same effect were also contained in Sections 95 and 110 of the Act."
17. The said judgment was considered and decided by the Hon'ble Supreme Court under the old act i.e. the Motor Vehicles Act, 1939 wherein Section 110 was pari materia to the present Section 165 under the present Act of 1988. The Hon'ble Supreme Court in the very same judgment further in paragraphs 33 to 35 has held as under:
"33. In the context of motor accidents the expressions "caused by" and "arising out of are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of c proximity of such relationship. This distinction has been lucidly brought out in the decision of the High Court of Australia in Government Insurance Office of N.S.W. v. RJ. Green case", wherein Lord Barwick, C.J. has stated: (CLR p. 433) "Bearing in mind the general purpose of the Act I think the expression 'arising out of must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words 'caused by. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression arise out of as used in the Act and in the policy."
34. In the same case, Windeyer, J. has observed as under: (CLR p. 447) "The words 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. 'Caused by connotes a 'direct' or 'proximate relationship of cause and effect. 'Arising out of extends this to a result that is less immediate; but it still carries a sense of consequence."
35. This would show that as compared to the expression "caused by", the expression "arising out of" has a wider 9 connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (i) and 96(2)(b)(4) of the Act. In Section 92-A. Parliament, however, chose to use the expression "arising out of which indicates that for the purpose of award ing 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 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."
18. The plain reading of the observations & the principles laid down by the Hon'ble Supreme Court in the said judgment of Shivaji Dayanu Patil (supra) would reflect that it is emphatically held by the Supreme Court that there has to be a clear causal connection between the accident resulting in the injury and the accident also being in the course of the use of the motor vehicle.
19. In the instant case, except for the fact that the tyre in which air was being filled was brought on the tractor, there was no other sign of any use of the vehicle or the accident to have been arising while using the said motor vehicle.
20. So far as the judgment relied upon by the learned counsel for the claimants in the case of Holu Ram Nishad & another Vs. Ishak Mohmmed & others, 2004 (2) CGLJ 351 is concerned, the factual matrix in the said case itself would clearly distinguish it from the facts of the present case. In the said case, while the materials loaded in the truck the accident occurred which clearly gives a causal connection of the use of the said vehicle and the accident arising from the use of the vehicle. Hence, the said judgment is distinguishable on its facts itself. Similar is the facts of the judgment of the Kerala High 10 Court relied upon by the claimants in the case of Babu Vs. Remesan & others, 1996 ACJ 988 wherein again in the course of loading goods on the said vehicle and in the course of tying it with a rope, the incident or accident had occurred which would again give a strong causal connection and relationship between the accident and the use of the vehicle. Whereas in the instant case this causal connection of the use of the vehicle or the accident arising out of the use of the vehicle is missing. The only thing for which the vehicle was used was for bringing a tyre to the shop of the deceased and thereafter there was no nexus between the tractor and the tyre in which air was being filled. The nexus was only between the deceased and the tyre tied to the tractor.
21. It would be relevant at this juncture to take note of the judgment of the Hon'ble Supreme Court in the case of Regional Director, E.S.I. Corporation and another Vs. Francis De Costa and another, (1996) 6 SCC 1. Though the said judgment was under the provisions of the Workmen Compensation Act but the issue decided by the Constitution Bench by the said judgment was in respect of the term arising out of and in the course of employment. The Hon'ble Supreme Court has in very clear terms held that both the ingredients have to be simultaneously met and there has to be a direct causal connection between the two i.e. for a case to be made out under the Workmen Compensation Act and there has to be an accident first and the accident should not only be in the course of the employment but it should also arise out of the nature of employment carried out by the employee. In paragraph-29 of the said judgment, the Supreme Court has dealt with the said issue which for ready reference is reproduced 11 hereinunder:
"29. Although the facts of this case are quite dissimilar, the principles laid down in this case are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a causal connection with the employment and (3) the accident must have been suffered in the course of employment. Int he facts of this case, we are of the view that the employee was unable to prove that the accident had any causal connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment."
22. Similarly, if we apply the same analogy in the instant case also for making out a case under Section 166 of the MV Act, the ingredients that are otherwise envisaged under Section 165 have to be met i.e. firstly there has to be an accident and secondly that accident should arise out of the use of the motor vehicle. This in other words means that an accident has to occur in the course of operation of the said vehicle or an accident involving the said vehicle.
23. In the instant case, neither is there an accident involving the tractor nor is there an accident in the use of the tractor except for the tyre which was tied at the back of the tractor in which when air was being filled, the incident occurred.
24. This Court therefore is of the view that the finding of the Tribunal, so far as issue no.2 is concerned, was not proper, legal and justified. Keeping in view the judgment of the Hon'ble Supreme Court in the case of Shivaji Dayanu Patil (supra) it is held that the incident in which the deceased received injuries and died was not arising out of the use of the motor vehicle and therefore, the claim application 12 under Section 166 of the MV Act would not be maintainable.
25. The appeal so far as the appellants herein are concerned deserves to be and is accordingly allowed to the aforesaid extent. The impugned award dated 30.04.2010 passed in Claim Case No.52/2009 stands set aside. The claim application is ordered to be rejected.
Sd/-
(P. Sam Koshy) Judge Khatai