Punjab-Haryana High Court
Date Of Decision: November 22Nd vs Shankar Lal And Others on 22 November, 2013
F.A.O. No. 4322 & 4323 of 2011 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. F.A.O. No. 4322 of 2011 [O&M]
Date of Decision: November 22nd, 2013
Saravjeet Kaur and others
.... Appellants
Versus
Shankar Lal and others
.... Respondents
2. F.A.O. No. 4323 of 2011 [O&M]
Date of Decision: November 22nd, 2013
Goga and others
.... Appellants
Versus
Shankar Lal and others
.... Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. Dheeraj Narula, Advocate,
for the appellants.
Mr. H.K.Arora, Advocate,
for the respondents.
VIJENDER SINGH MALIK, J.
The above titled two appeals have been directed against a common award passed on 22.1.2011 by learned Motor Accidents Claims Prakash Som 2013.11.29 11:28 I attest to the accuracy and integrity of this document F.A.O. No. 4322 & 4323 of 2011 2 ..
Tribunal [Fast Track Court], Sirsa. Hardeep singh and Gopal died in a roadside accident that took place on 15.11.2008. On the death of Hardeep Singh, Saravjeet Kaur and others brought claim petition No. 129 of 2009 in which case, FAO No. 4322 of 2011 has been filed. On the death of Gopal, his widow Goga and others filed claim petition No. 130 of 2011 in which case, FAO No. 4323 of 2011 has been filed. Learned Tribunal dismissed the claim petitions on the ground that the deceased himself was negligent in driving the vehicle and the accident is outcome of the rash and negligent driving of the vehicle by the deceased.
Hardeep Singh and Gopal were going to village Panjuana from Odhan by a Maruti car on 15.11.2008. When they were near a canal on Sirsa-Dabwali road, a utility jeep bearing registration No.HP-37-5722 came from the opposite side. It was driven by respondent No.2. It had struck against the car of the deceased as a result of which, their car caught fire and was burnt and the occupants of the car, namely, Hardeep Singh and Gopal were burnt to death in the same. It is further alleged that respondent No.1, the owner of the offending vehicle, came to the spot after the accident and he narrated wrong facts to the police. However, after due investigation, the police found the FIR to be false and accordingly, cancellation report was sent. Claiming that the accident occurred during the use of the offending utility jeep, the claim petitions have been filed seeking compensation in a sum of Rs.4,50,000/- each.
The respondents resisted the claim petitions. Their main plea has been that the Maruti car of the deceased was being driven in a reckless manner. It was mentioned that the same was fitted with LPG Prakash Som 2013.11.29 11:28 I attest to the accuracy and integrity of this document F.A.O. No. 4322 & 4323 of 2011 3 ..
gas cylinder. It is further claimed that the jeep was stopped by its driver for taking water on his correct left side of the road at a hotel and at the said time, Maruti car which was fitted with LPG gas cylinder, came there at a very high speed and in a rash and negligent manner and the said car caught fire and struck against the stationery jeep by going to the wrong side of the road. It is claimed that on account of the fire caught by the car, the jeep was also damaged. It is claimed that there was no negligence on the part of the driver of the jeep in causing the accident.
Learned Tribunal found the petitions to have failed and has dismissed them.
Learned counsel for the appellants has contended that the claim petitions have been filed under section 163-A of the Motor Vehicles Act, 1988 [for short, "the Act"] and to succeed in such cases, the claimants are not required to prove that the accident took place due to rash and negligent driving of the offending vehicle. According to him, it is sufficient to prove, in such cases, that the accident occurred on account of use of the offending vehicle. He has submitted that even a stationary vehicle can be said to have been used on account of which the accident took place. He has cited before me a decision of Hon`ble Supreme Court of India in Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More, AIR 1991 SC 1769, where there was a collision between a petrol tanker and a truck and there was leakage of petrol from the petrol tanker and after an interval of about 4 to 4-1/2 hours, an explosion and fire took place on account of which injuries were caused to the deceased by explosion and fire. It was held that the accident can be said to be arising out of use of vehicle, i.e., petrol tanker. Prakash Som 2013.11.29 11:28 I attest to the accuracy and integrity of this document F.A.O. No. 4322 & 4323 of 2011 4
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Learned counsel for the appellants has further submitted that even if the deceased was negligent in driving the car, still the claim petitions under section 163-A of the Act can be maintained. He has further submitted that for the person sitting with the driver of the car, it is a case of composite negligence and the case of his dependents could not be dismissed on this ground. He has cited in this regard a decision of Hon`ble Supreme Court of India in T.O.Anthony Vs. Karvarnan and others 2008 ACJ 1165.
Learned counsel for the respondents has contended that the accident could be said to have occurred on account of use of the car. According to him, the jeep was stationery and the car had LPG cylinder fitted in it and it had hit the stationery jeep on account of which the car caught fire and Hardeep Singh and Gopal died. He has further submitted that though, the jeep is involved in the accident, yet it cannot be said that the accident has arisen out of use of the jeep. He has submitted that the decisions cited by learned counsel for the appellants do not help the appellants. According to him, the case of the oil tanker can definitely be distinguished and has been distinguished by learned Tribunal. He has further submitted that learned Tribunal has taken the most appropriate view in the matter and the decision rendered by him cannot be interfered with.
In Shivaji Dayanu Patil's case [supra], after meeting with accident with a truck, the petrol tanker was lying. There was leakage of petrol therefrom and after 4 to 4-1/2 hours of the accident, there occurred explosion and fire on account of which the deceased suffered injuries. The leakage of petrol from the tanker and cause of fire can be Prakash Som 2013.11.29 11:28 I attest to the accuracy and integrity of this document F.A.O. No. 4322 & 4323 of 2011 5 ..
related to the use of the vehicle, but this decision does not help the appellants in this case in making the driver of the offending jeep liable for compensation. The jeep was standing on the side of the road. Car fitted with LPG cylinder struck against it and caught fire. The accident can only be said to have arisen out of the use of the car fitted with LPG cylinder and not out of the use of the jeep. The collision between the two vehicles is not on account of the use of the jeep. Parking of the jeep on the side of the road would not amount to use of the jeep and, therefore, the decision in Shivaji Dayanu Patil's case [supra] can definitely be distinguished on the plane of facts from the case in hand.
When the accident is arising out of use of the car and the owner and insurer of the car have not been made party, the case of the dependents of Gopal [deceased] cannot be treated differently by holding that it is a case of composite negligence. The claim has been made only against the owner and driver of the jeep and it cannot be said that the accident has arisen out of the use of the said vehicle. In these circumstances, I find no reason to interfere with the findings of learned Tribunal on this point. Finding no merit in the appeals, the same are dismissed.
(VIJENDER SINGH MALIK) JUDGE November 22nd, 2013 som Prakash Som 2013.11.29 11:28 I attest to the accuracy and integrity of this document