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2006 DIGILAW 463 (CHH)

Khitti Sahu v. Yashwant Kumar Sahu

2006-10-06

D.MISHRA

body2006
JUDGMENT Dhirendra Mishra, J. 1. The appellant-non-applicant No. 1, Khitti Sahu has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988, against the order dated 1.8.1998 passed by Additional Motor Accidents Claims Tribunal, Mahasamund in Claim Case No. 10 of 1996 whereby the learned Tribunal while deciding preliminary issue No. 7 regarding maintainability of the claim petition before the Claims Tribunal has held that the claim petition was maintainable. 2. That respondent No. 1 herein had filed a claim case under Section 166 of the Motor Vehicles Act claiming compensation of Rs. 5,00,000 on the pleading that he was working as a tractor mechanic in the shop of appellant herein where respondent No. 2 herein brought his tractor-trolley for being repaired and while respondent No. 1 herein was fitting the bearing in the wheel of the tractor by removing the same and the tractor was standing over the jack, all of a sudden the tractor slipped from the jack and the tractor-trolley fell on the respondent No. 1 as a result of which he sustained serious injuries on the backbone. It was claimed by respondent No. 1-applicant that he was working under the directions of the appellant-non-applicant No. 1 and the accident occurred during the use of motor vehicle as a result of negligence of the appellant-non-applicant No. 1 as he did not take proper care. 3. Learned Counsel for the appellant submits that the application for compensation under the Motor Vehicles Act can be preferred under Section 166 arising out of the accident of the nature prescribed in Section 165(1). He further submits that the appellant-non-applicant No. 1 was neither the owner of the tractor nor there is an allegation in the petition that he was driving the tractor at the time of the accident and, therefore, the application for compensation under the Motor Vehicles Act is not maintainable and the only course available to the claimant was to move an application under the provisions of the Workmen's Compensation Act as he claims to be the employee of the appellant-non-applicant No. 1. He further submits that the alleged accident did not arise out of the use of motor vehicle as admittedly it occurred outside the premises of the appellant-non-applicant No. 1 on a road near Prakash Medical Stores, Basna and respondent No. 1-applicant went there to repair the same as per the instructions of the appellant-non-applicant No. 1 and at that moment the jack slipped and as a result of which the tractor-trolley fell over the claimant. Thus from the pleadings of the appellant-non-applicant No. 1 itself it would be evident that the accident occurred because of the negligence of the claimant himself and in the aforesaid circumstances no liability of compensation can be fastened on the appellant-non-applicant No. 1 under the Motor Vehicles Act and as such the claim petition was not maintainable. 4. On the other hand, learned Counsel for the respondents submits that as per the averments made in the claim petition the claimant was the employee of appellant-non-applicant No. 1, he had gone to repair the tractor as per the instructions of the appellant-non-applicant No. 1 and the accident occurred during his employment and the claimant sustained bodily injuries due to accident arising out of the use of motor vehicle. Referring to Section 167 of Motor Vehicles Act it is contended that where the death of or bodily injury to any person gives rise to a claim of compensation under the Motor Vehicles Act of 1988 and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of these Acts and since the respondent No. 1-applicant has opted for compensation under the provisions of Motor Vehicles Act, the same can be entertained. Reliance is placed on the decision of the High Court of Madhya Pradesh in the judgment of Oriental Insurance Co. Ltd. v. Gouri Bai and on the decision of High Court of Andhra Pradesh in the matter of Mandulova Satyanarayana v. Bodireddy Lokeshwari . 5. I have heard learned Counsel for the parties and perused the material available on record including the order impugned. 6. Ltd. v. Gouri Bai and on the decision of High Court of Andhra Pradesh in the matter of Mandulova Satyanarayana v. Bodireddy Lokeshwari . 5. I have heard learned Counsel for the parties and perused the material available on record including the order impugned. 6. So far as the objection of the appellant-non-applicant No. 1 that the claim under Section 166 of the Motor Vehicles Act is not maintainable in view of the fact that the appellant was neither the driver nor the owner of vehicle is concerned, from perusal of the claim petition it is found that the claimant has stated in his claim petition that he is the employee of the appellant-non-applicant No. 1 and he went to repair the tractor in question on the instructions of the appellant himself and the accident occurred when the claimant was repairing the tractor and as such the accident occurred during the course of employment and, therefore, the petition under the Workmen 's Compensation Act was maintainable at the instance of the claimant. 7. The second argument of the appellant mat admittedly the alleged accident did not arise due to the use of motor vehicle, from the pleadings it is evident that the accident occurred when the tractor was stationary and the claimant was repairing the same and while changing the bearing all of a sudden the jack slipped and the tractor fell on the claimant resulting in grievous injury. 8. The word 'use' is used in Section 165 in a wide sense. It covers all employments of a motor vehicle, so that whenever the vehicle is put into action or service, there is 'user' of the vehicle within the provisions of Section 110 of the 1939 Act, whether the vehicle was being driven, or repaired or simply parked or kept stationary or left unattended. In that sense the vehicle is used whenever the vehicle is driven out for any purposes, whatsoever. This without anything more, is sufficient to attract Section 165. It is not the purpose for which, or the person who employs or uses the vehicle that matters. Therefore, whenever, any accident occurs causing death of or injury to persons because of the vehicle or in the course of its user the jurisdiction of the Claims Tribunal arises. This without anything more, is sufficient to attract Section 165. It is not the purpose for which, or the person who employs or uses the vehicle that matters. Therefore, whenever, any accident occurs causing death of or injury to persons because of the vehicle or in the course of its user the jurisdiction of the Claims Tribunal arises. Reliance is placed on the decision of the Apex Court in the matter of Shivaji Dayanu Patil v. Vatschala Uttam More , on the decision of Kerala High Court in the matter of Babu v. Remesan and in the matter of V.G. Sumant v. Shailendra Kumar 1980 ACJ 248 (MP). 9. Once it is held that the claimant sustained bodily injury in an accident arising out of the use of motor vehicle, then the instant petition under the Motor Vehicles Act is also maintainable and, therefore, as per the provisions of Section 167 of the Act it is open to the claimant to opt for compensation either under the provisions of Motor Vehicles Act, 1988 or under the provisions of Workmen's Compensation Act, 1923. 10. Thus, in the light of aforesaid discussion, this Court is of the opinion that the court has not committed any illegality or infirmity in deciding the issue No. 7 and holding that the claim petition under the provisions of Motor Vehicles Act is maintainable. 11. In the result, the appeal being devoid of substance is hereby dismissed.