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2006 DIGILAW 472 (KER)

New India Assurance Company Ltd. v. Sheeja

2006-07-27

J.B.KOSHY, M.SASIDHARAN NAMBIAR

body2006
Judgment :- Koshy, J. Husband of the first respondent was the driver of taxi KBT-7905. The said taxi was taken to workshop of 5th respondent and while repairing, gas cylinder was exploded and the driver died. Legal representatives of the deceased claimed compensation of Rs.3,72,500/-. Though the Tribunal found that there is no negligence on the part of the workshop owner or the owner of the vehicle and it was an act of God, entire amount claimed was awarded by the Tribunal. This appeal is filed by Insurance company on two grounds. First contention was that the accident is not arising out the use of motor vehicle and therefore claim petition filed under Section 156 will not lie. Secondly, it was contended that after finding that this is the act of God, the owner of vehicle as well as the insurance company cannot be compelled to pay compensation. With regard to first contention whether it is arising out while using motor vehicle, we refer the decision of Supreme Court in Shivaji Dayanu Patil and Another v. Vastchala Uttam More (AIR 1991 SC 1769 SC 1769 or! ((! ACJ 777). In that case there was a collusion between a truck and petrol tanker and the tanker turned turtle. After four and half hours of the accident the tanker exploded and caught fire resulting in injuries to and death of several persons. Contention taken up was that at the time when explosion and fire took place the petrol tanker which was lying turtle was not suitable or fit for use on the road and hence it was not a motor accident. The apex court held in paragraph 12 as follows. “12. It is thus evident that section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose. The same approach has been adopted by this court which construing the provisions of the Act. [See Motor Owners’ Insurance Co. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose. The same approach has been adopted by this court which construing the provisions of the Act. [See Motor Owners’ Insurance Co. Ltd v. Jadavji Keshavji Modi, 1981 ACJ 507 (SC) and Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC)].” In paragraph 36 and 37 the court observed as follows: “36. This would show that as compared to the expression ‘caused by’, the expression ‘arising out of’ has a wider connotation. The expression ‘caused by’ was used in sections 95(1) (b) (i) and (ii) and 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 propose of awarding 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. 37. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that 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 taker and 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 the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle 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 no causal relation between the collision and explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle, viz., the petrol tanker No.MKL 7461.” In that case since negligence of the owner of motor vehicle was not proved, court awarded only compensation under Section 92-A (Equivalent to Section 140 of present Act). In this case taxi was driven by petitioner to workshop for repair and while repairing gas exploded due to pure accident. Therefore, on the same principle, we are of the view that an accident arising out of the use of motor vehicle and the claim will lie. 2. It is contended that since no negligence is proved even it arising out of use of motor vehicle no compensation can be awarded against insurance company or owner of the vehicle except under Section 140. Accident occurred on 13/3/1990 before 163 A was introduced. Therefore provisions of section 163-A also cannot be applied herein. However, it has come out in evidence that deceased was employed by owner of the vehicle and therefore workmen compensation is to be paid by the owner. That liability of the insured is to be indemnified by the insurance company. Now the question is what is the amount of compensation that could be awarded under Workmens’ compensation Act. Tribunal found that he was getting more than Rs.1000/- per month. Maximum monthly wages that could be calculated or workmen compensation during the relevant time of accident was only Rs.1000/-. Since payment was made only after the amendment, interest of 12% is to be paid on the basis of the award. He was 29 years old. Tribunal found that he was getting more than Rs.1000/- per month. Maximum monthly wages that could be calculated or workmen compensation during the relevant time of accident was only Rs.1000/-. Since payment was made only after the amendment, interest of 12% is to be paid on the basis of the award. He was 29 years old. Therefore factor applicable is 209.92 and compensation payable will be 1000 x 209.92 x 40/100 = 83,968/-. That is higher than the amount under section 140. Therefore Rs.83,968/- will be deposited by insurance company within one month from the date of receipt of copy of judgment before the Motor Accidents Claims Tribunal with 12% interest from the date of accident till the date of deposit after deducting the amount if any already deposited. On deposit of the amount it should be disbursed to the first and second respondents in equal proportion. Appeal is allowed.