Orissa High Court
Kanhei Rana And Anr. vs Gangadhar Swain And Ors. on 3 April, 1992
Equivalent citations: 1992ACJ1124, AIR1993ORI89, AIR 1993 ORISSA 89, (1992) 1 ORISSA LR 580, (1992) 2 TAC 208, (1992) 2 ACC 362, (1992) 2 ACJ 1124, (1992) 74 CUT LT 228
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. In this appeal by the unfortunate parents of one Laxmidhar Rana who lost his life on 30-l-l983, a very interesting point of seminal importance is involved. According to them, the deceased and some other labourers went in a truck bearing Registration No. OSC 4871 belonging to Gangadhar Swain and Jagannath Swain (respondents 1 and 2 in this appeal) to load wooden logs at Nrutang, After loading the truck with logs, 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. As a result of the impact, the deceased fell down on the road and left wheel of the truck ran over him. In a serious condition he was removed to Mahanga P.H.C. for treatment but succumbed to the injuries on the way to the hospital. The accident, according to the claimants, was caused due to rash and negligent driving of the vehicle. The owners of the truck appeared and filed written statement denying the allegation of rash and negligent driving of the truck by its driver. The United India Insurance Company Ltd., (hereinafter referred to as the 'insurer') also appeared and filed written statement. Three issues were framed by the Second Motor Accidents Claims Tribunal, Cuttack (in short, the Tribunal'). The relevant issues are as follows:
"(1) If the death of Laxmidhar Rana was due to the rash and negligent driving of the vehicle OSC 4871 by its driver? (2) If the claimants are entitled to get any compensation, if so, to what extent and from whom?"
2. Three witnesses including the appellant No. 1 Kanhei Rana were examined in support of the claim. The Tribunal discarded the evidence of the claimants' witnesses characterising it as untrue, and a nil award was passed. The conclusion of the Tribunal was that the claimants signally failed to prove that there was any use, and/or rash and negligent driving, of the vehicle in question. However, it quantified the compensation at Rs. 15,000/-primarily being of the view that there was no loss of dependency. Being of the view that the accident did not arise out of use of the vehicle, it concluded that Section 110-A of the Motor Vehicles Act, 1939 (in short, the 'old Act) had no application. According to the claimants, the Tribunal was not justified in its conclusion that the accident did not arise out of use of the vehicle. The conclusion of the Tribunal that there was no loss of dependency was also characterised as perverse.
3. The learned counsel for the insurer, however, submitted that Tribunal's conclusions were justified and therefore, no interference is called for. It is urged with some amount of vehemence that the claimants did not come before the Tribunal with clean hands and therefore, their conduct disentitled them from any compensation. It is also submitted that the Tribunal has categorically found that the death was on account of fall of a log when the truck was being loaded with logs. That being the factual finding recorded by the Tribunal on evaluation of evidence, the irresistible conclusion is that the vehicle was not in use when the accident occurred and therefore, the claimants were not entitled to any compensation.
4. Before I deal with the respective stands, it is necessary to refer to certain observations of the Tribunal relating to claim lodged by the claimants. It noticed that a claim petition numbered as Misc. Case No. 144 of 1983 under Section 110-A of the old Act was filed on 13-5-1983 by Mr. S. K. Mohanty, Advocate. The said application was allowed to be withdrawn on 17-6-1986 on the petition filed by Mr. Mohanty, since he was of the view that the Commissioner for Workmen's Compensation was the proper forum. The claimants have disputed filing of any such claim petition through Mr. Mohanty. They have stated that the application which was numbered as Misc. Case No. 212 of 1983 was filed by them and the question of their filing a claim petition earlier and/or authorising withdrawal thereof, did not arise. Mr. Mohanty was examined as a witness and he asserted that he had filed a claim petition being duly authorised by the present appellants. Vakalatnama was exhibited as Ext. B. The application for withdrawal dated 17-6-1986 was exhibited and marked as Ext. D. The claim petition in that case is Ext. C. Mr. Mohanty stated that he had filed the withdrawal application as there was material to show that the deceased met his death while the truck was not in motion and was being loaded with timber, and the cause of death was fall of log on the deceased. He further asserted that on perusal of the first information report and the final report submitted (vide Exhibits - E and F) he was satisfied that the dispute can be better adjudicated by the Commissioner for Workmen's Compensation and not by the Tribunal. Though the Tribunal did not accept the first information report to be conclusive because author of the report was not examined on that aspect, yet on the basis of the evidence of the advocate (O.P.W. 1) it held that the claimants failed to establish that the death of the deceased Laxmidhar Rana was due to rash and negligent driving of the vehicle. It was of the' view that the death was due to fall of a log in the process of loading of the vehicle.
5. I shall first deal with the cases of the respective parties relating to the cause of death. While the claimants' case is that on account of sudden starting of the vehicle which dashed 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 has 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 accident, in my view, the conclusion of the Tribunal is sound. I do not find any reason to differ from the conclusion arrived at by the Tribunal in this regard. On an elaborate analysis of the evidence on record, the Tribunal has arrived at its conclusion which is irreversible.
6. The other aspect which needs adjudication is regarding use of the motor vehicle. The expression "use of a motor vehicle" in Section 92A covers accidents which occur 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 vehicle does not cease to be in use when the vehicle is rendered immobile on account of a breakdown or mechanical defect or accident. It would be relevant to make a conjoint reading of the provisions of Section 95(1) (b)(i) and (ii), Section 96(2)(b)(ii), and Section 92A. While in the former two provisions the expression "caused by" has been used, in the last mentioned provision, the Legislature has used the expression "arising out of". The use of the said expression clearly indicates that for the purpose of awarding compensation under Section 92A, the 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. The legislative intent is clear that the accident should be connected with the use of the motor vehicle. The same, however, need not be direct and immediate. As observed by the Supreme Court in Shivaji Dayanu Patil v. Smt. Vatschala Uttam More, AIR 1991 SC 1769, the construction of the expression "arising out of the use of a motor vehicle" in Section 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. Section 92A 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 used in Sub-section (1) of Section 110 of the old Act.
7. If it is held that the death occurred in the manner as concluded by the Tribunal, it has to be seen whether there was any use of the motor vehicle which had been a casual relationship with the accident which has resulted in the death. There can be no hard and fast rule as to in which case the "use" can be inferred. The learned counsel for appellants submits that even if it is accepted that the death was due to fall of a log, since the same was being loaded to a truck it has nexus with the user of the vehicle. Though the submission is attractive, yet it is not sound. As indicated above, it is impossible to lay out any fixed and rigid guideline. To illustrate, supposing while the truck is being loaded with logs, suddenly the vehicle is started without any caution, and a log falls on a person, certainly it can be held that the accident had nexus with the use of the vehicle. Merely because the vehicle was intended to be used as means of transportation, that would not be decisive. A person does not "use" a motor vehicle unless there is at the relevant time some electment of control, management or operation of the vehicle. (See Brown v. Roberts (1965) 1 QB 1). The first meaning assigned to use in Johnson's Dictionary is to employ to any purpose. It is, therefore, a word of wide significance. The facts as detailed by the Tribunal show that the fall of the log had no nexus with the user of the vehicle not even remotely. There is no material to show that the fall of the log was occasioned due to use of the vehicle. A1 careless handling of goods being loaded on or unloaded from a vehicle has no connectiorrto the vehicle itself. Whether there were any lapses in the process of loading/unloading is not very material here. Therefore, the Tribunal was justified in its conclusion that the insurer has no liability.
8. The next question is whether the insured or any other person can be held liable and if the answer is in the affirmative whether it would be under the old Act or under the Workmen's Compensation Act, 1923. In my opinion, if at all the insured or any other person had any liability, that should be under the latter Act. 1, therefore, dismiss the appeal; but at the same time if the appellants are entitled to any relief under the Workmen's Compensation Act, they may work it out in a proper forum. No costs.