JUDGMENT : H.K. Rathod, J. Heard learned advocate Mr. SB Parikh for learned advocate Mr. RH Mehta on behalf of appellant - New India Assurance Co. Ltd., learned advocate Mr. MTM Hakim with learned advocate Mr. Mohsin Hakim appearing for respondent nos. 1 to 6 and learned advocate Mr. H.J. Trivedi appearing for respondent nos. 7 and 8. 2. The appellant insurance company has challenged award passed by Motor Accident Claims Tribunal, Vadodara in MACP No. 790/87. The said claim petition was filed by claimants u/s 110(A) of M.V. Act. 3. Learned advocate Mr. Parikh raised contention before this Court that claims Tribunal ought not to have entertained present claim petition in view of facts that Claims Tribunal has jurisdiction only to try accident which occurred as result of or out of use of motor vehicles, while present mishap has occurred due to breaking of boom of crane, which incident could under no circumstances be construed as user of motor vehicle as such. 4. Learned advocate Mr. Parikh has also raised further contention that claims Tribunal ought not to have passed any award against present appellant in view of facts that policy issued to opponent no. 2 indemnify said insured only with respect to liability, which may be caused due to use of motor vehicle as such and present mishap has occurred not due to any use of motor vehicle but due to breaking of boom of crane which can not consider to be an accident within preview of contract of indemnity. 5. He also raised contention that claims tribunal ought to have held that risk of accident by user of crane was not required to be covered by Motor accident policy and was not in fact covered by policy, Exh. 22. Therefore, claims Tribunal ought not to have passed any award against present appellant insurance company. 6. He submitted that issue no. 2 decided by Claims Tribunal while committing gross error and present accident was not vehicular accident, covered under insurance policy as per section 95 of Motor Vehicle Act. The claims Tribunal has committed gross error in relying upon reported decision in case of New India Assurance Co Ltd v. Gordhanbhai Ambalal Barot and Ors reported in 1986 (1) G.L.R. 700 , where facts are different, therefore, that decision is not applicable. The claims Tribunal has committed gross error in relying upon reported decision in case of New India Assurance Co Ltd v. Gordhanbhai Ambalal Barot and Ors reported in 1986 (1) G.L.R. 700 , where facts are different, therefore, that decision is not applicable. Similarly, claims Tribunal has committed gross error in relying upon decision in case of Padmanbhan Nair v. Narayanikutty and another reported in 1988 ACJ 58, where facts are altogether different. 7. He raised contention that accident is not occurred by use of motor vehicle. Therefore, claims Tribunal has no jurisdiction to decide claim petition filed by claimants. 8. He referred evidence of driver, para 4 and according to him, accident occurred because of negligence of deceased, but not due to negligence of crane driver. He relied upon decisions reported in case of Shivaji Dayanu Patil and another v. Vatschala Uttam More reported in 1991 ACJ 777 , in case of Gujarat Road Transport Corporation v. Union of India reported in 1987 ACJ 734 , in case of Union of India v. Sushila Devi reported in 1990 ACJ 1 Full Bench decision of Allahabad High Court and in case of Rajpal Singh v. Union of India reported in 1986 ACJ 344, Full Bench decision of P & H High Court & in case of Union of India v. United India Insurance Co. Ltd reported in 1998 ACJ 342 Full Bench decision of New Delhi, which have been considered by this Court. 9. He submitted that if for taxation purpose, crane is considered to be 'motor vehicle', which is having altogether different meaning. According to him, driver has not driven truck but only crane was operated by driver, for which, crane can not consider to be 'motor vehicle' and there was no negligence of driver of crane as per his evidence in para 4. Therefore, he submitted that claims Tribunal has committed gross error in deciding claim petition and awarding compensation with a direction to appellant for payment of compensation with interest to indemnify respondent no. 2. 10. These are submissions made by learned advocate Mr. Parikh before this Court while relying upon aforesaid decisions. Except that, no other submission is made by learned advocate Mr. Parikh. 11. Learned advocate Mr. Hakim appearing for respondent nos. 2. 10. These are submissions made by learned advocate Mr. Parikh before this Court while relying upon aforesaid decisions. Except that, no other submission is made by learned advocate Mr. Parikh. 11. Learned advocate Mr. Hakim appearing for respondent nos. 1 to 6 submitted that in written statement filed by insurance company, such contentions are not raised before claims Tribunal, which are raised in present appeal. He submitted that policy issued by appellant insurance company being motor policy u/s 95 of Motor Vehicle Act, Exh. 48 and that policy was not issued by appellant insurance company in respect to truck. He also submitted that policy issued by insurance company under provisions of Motor Vehicle Act. Therefore, crane is admitted to be 'motor vehicle' covered under definition of section 2(28). 12. He relied upon decisions reported in case of Shivaji Dayanu Patil and another v. Vatschala Uttam More reported in 1991 ACJ 777 , in case of Yadu Sambhaji More v. Shivaji Dayanu Patil reported in 2005 ACJ 1282 , in case of Samir Chanda v. Managing Director, Assam State Transport Corporation reported in 1998 ACJ 1351 and also unreported decision of this Court in FA no. 544/96 in case of GSRTC v. Hiraben C. Patel dated 7/8/97, 18/9/1997 and FA no. 6003/98 in case of GSRTC v. Hiraben Chandubhai Patel dated 8/4/1999. 13. He also submitted that claims Tribunal has considered evidence of driver where claims Tribunal has observed that theory which has been advanced by driver suggested improvement, which was not pleaded in their written statement, Exh. 24. He submitted that there is a clear negligence established on record of driver, who operated crane and equipment is also not proper as crane was 12 years old. He also submitted that sufficient care was not taken by driver or owner of vehicle before operating such heavy crane for risky work carried out in public place. Therefore, not to take sufficient care being reasonable care before operating crane by driver, which clearly established negligence of crane operator – driver. 14. He also submitted that appellant insurance company while issuing insurance policy Exh. 48 in below column, crane is considered to be 'motor vehicle' and use on public place. Therefore, claims Tribunal has rightly examined matter on the basis of record and claims Tribunal has not committed any error which would require interference by this Court. 15. 14. He also submitted that appellant insurance company while issuing insurance policy Exh. 48 in below column, crane is considered to be 'motor vehicle' and use on public place. Therefore, claims Tribunal has rightly examined matter on the basis of record and claims Tribunal has not committed any error which would require interference by this Court. 15. He relied upon decision of Apex Court in case of Kaushnuma Begum v. New India Assurance Co. Ltd reported 2001 ACJ 428 , where it is not necessary to establish negligence of driver when 3rd party is died in accident. 16. Learned advocate Mr. Parikh while giving answer to submission made by learned advocate Mr. Hakim, read over written statement filed by insurance company and also relied upon ground mentioned in memo of appeal and decision which has been relied by claims Tribunal is distinguished in appeal memo by appellant. He is not disputing facts that Exh. 48 - insurance policy issued in respect to crane being motor policy. 17. Learned advocate Mr. HJ Trivedi appearing for respondent nos. 7 and 8 has submitted that crane is motor vehicle and accident was occurred when crane was operated or having actual use by motor vehicle. Therefore, accident is occurred by use of motor vehicle. Exh 57, evidence of driver suggested that before occurrence of accident, he was in actual use of operating crane and heavy jerk was given to jammed pipe to be picked up from earth, at that occasion, boom was broken dashed to on head of deceased. As per evidence of driver in para 5, at that occasion, driver was having concentration only to pick up jammed pipe, meanwhile, all of sudden, boom was broken dashed to head of deceased. 18. Therefore, according to learned advocate Mr. Trivedi, due to negligence of driver, who was operating crane, accident occurred by use of motor vehicle. For that, he relied upon decision of this Court reported in case of Larsen and Tourbo Ltd v. Inspector of Motor Vehicles, Amirgadh & Anr. reported in 2006 (4) GLR 2924 and in case of Crane Owners Association & Ors v. Union of India & Ors reported in 2001 (2) GLR 1189 and in case of Rita Devi & Ors v. New India Assurance Co. Ltd & Anr reported in 2000 (2) GLR 1729 . reported in 2006 (4) GLR 2924 and in case of Crane Owners Association & Ors v. Union of India & Ors reported in 2001 (2) GLR 1189 and in case of Rita Devi & Ors v. New India Assurance Co. Ltd & Anr reported in 2000 (2) GLR 1729 . He submitted that in Gujarat Motor Vehicles (Requisition and Control) Act 1987 and Gujarat Motor Vehicles Act Rules, 'motor vehicle' is defined in Gujarat Motor Vehicles (Requisition and Control) Act 1987, where section 2(a) is having same meaning as assigned to that impression in section 2(28) of Motor Vehicles Act. The Bombay Motor Vehicles Tax Act 1958 is applicable to crane being considered as 'Motor Vehicle' by this Court in aforesaid decision. 19. He submitted that under provisions of Bombay Motor Vehicle Tax Act 1958, crane's tax is to be paid by owner of vehicle to RTO while considering crane as 'motor vehicle'. In short, his submission is that liability of pay tax in respect of motor vehicle is caused upon two persons; one is being registered owner and other person who is having possession or control of vehicle in question. The crane is considered to be 'motor vehicle' and tax is required to be paid by registered owner or person, who is having possession or control of vehicle in question. 20. He submitted that whether tax is payable upon crane or not? that question has examined by this Court in group of SCA no. 9976/99 in case of KD Mehta v. State of Gujarat dated 1/9/2000, 8/9/2000, 29/9/2000, 6/10/2000. He submitted that this Court in aforesaid decision has considered decisions of Apex Court in case of Travancore Co. Ltd v. State of Kerala and ors reported in AIR 1980 SC 1547 , where new Act of Motor Vehicle Act, 1988 in case of 'mobile crane mounted on motor vehicle' is so manufactured and designed as to become a vehicle "adapted for use on roads". 21. He also submitted that word 'motor vehicle' or 'vehicle' as such has not been defined under The Bombay Motor Vehicle Tax Act 1958 but section 2(10) of said Act provides that other words and expression used but not defined, in this Act, shall have meanings respectively assigned to them in Motor Vehicle Act, 1988. 21. He also submitted that word 'motor vehicle' or 'vehicle' as such has not been defined under The Bombay Motor Vehicle Tax Act 1958 but section 2(10) of said Act provides that other words and expression used but not defined, in this Act, shall have meanings respectively assigned to them in Motor Vehicle Act, 1988. Accordingly, u/s 2 (28) of Motor Vehicles Act where 'motor vehicle' or 'vehicle' has been defined, which has been considered by this Court, therefore, he submitted that 'mobile crane' or 'crane' used in present case is 'motor vehicle' covered by definition of Section 2(28) of Motor Vehicles Act. 22. Learned advocate Mr. Parikh while giving reply disputing proposition made by learned advocate Mr. Trivedi. Except that there is no further submission made by any of advocates appearing for respective parties before this Court. 23. I have considered submissions made by all learned advocates. 24. The facts of this case is that deceased Shri Dharamshibhai Thakarsibhai Prajapati, aged about 35 years was husband of applicant no. 1 and father of minor petitioners nos. 2 to 6. He was contractor with regard to contract work in respect of well boring, centering, masonry and plumping work. The monthly income was around Rs. 2000 to Rs. 2200/-. During about incident, he had taken contract work of well boring to be performed at open public place behind Giriraj Society. At Ataladara of Baroda City, work was going on for same under his supervision. On 23/11/1986 as boring pipes got jammed and could neither go down nor come up, they were required to be removed with help of crane, for which, crane vehicle hired. 25. The opponent no. 1 was driver of crane vehicle MRJ 8704 and driver of truck was also operated crane. There are two cabins, one cabin is in truck and another is in crane, where crane is required to be operated by same driver of truck. The driver started work to remove boring pipes. The boom of crane vehicle was put into operation, pipe was gripped by boom of crane vehicle and driver attempted to give jerk to jam boring pipes by operating machine of crane but all efforts failed all through out half an hour. The driver started work to remove boring pipes. The boom of crane vehicle was put into operation, pipe was gripped by boom of crane vehicle and driver attempted to give jerk to jam boring pipes by operating machine of crane but all efforts failed all through out half an hour. He, therefore, arranged for tight grip by boom of crane, of jammed boring pipe and then he gave strained jerk to boom intending to drag jammed boring pipes, but unfortunately, iron chain, by which boom was connected, controlled and operated, broke and fell on ground, on head of deceased Shri Dharamshibhai Thakkarsibhai Prajapati. As a result of which, he sustained fatal injuries and expired. 26. Before claims Tribunal, opponent no. 1 and 2 driver and owner have filed written statement, Exh. 24 denying allegations made in claim petition and also made it clear in written statement that if opponent no. 1 driver was negligent, in that event, crane vehicle is insured with opponent no. 3, therefore, sole liability is of respondent no. 3 not of opponent no. 1 and 2. The appellant insurance company filed written statement Exh. 13 denying averment made in claim petition and accident occurred while functioning or operating of crane, a vehicle in stationary condition would not amounts to vehicular accident and there was no negligence on the part of opponent no. 1 but sole negligence was on head of deceased. Thereafter, issues have been framed vide Exh. 29. 27. Before claims Tribunal, claimant no. 1 Smt. Labhuben widow of deceased Shri Dharamshibhai was examined vide Exh. 30 and one eye witness Shri Ukadbhai Ratanbhai has examined, Exh. 52. The School Leaving Certificate and birth certificate respectively of minor claimants produced on record with copy of panchnama at Exh. 38 and opponent no. 1 Shri Dhirajkumar Chanduala Suthar was examined vide Exh. 57 produced four photos of crane at Exh. 58 to 61. On behalf of present appellant copy of policy is produced at Exh. 48, police report Exh. 49 and panchnama at Exh. 50. The claims Tribunal has considered contention raised by appellant, according to issue no. 2 whether accident was vehicular accident, covered under insurance policy as per section 95 of Motor Vehicle Act or not? 28. The issue no. On behalf of present appellant copy of policy is produced at Exh. 48, police report Exh. 49 and panchnama at Exh. 50. The claims Tribunal has considered contention raised by appellant, according to issue no. 2 whether accident was vehicular accident, covered under insurance policy as per section 95 of Motor Vehicle Act or not? 28. The issue no. 2 decided in para 8 by claims Tribunal, which is quoted as under: "Issue No. 2: The contention of the opponent No. 3 is that in the first instant this is a crane vehicle and in the second instant it was stationary and therefore it is not a vehicular accident and therefore this Tribunal has no jurisdiction to entertain the petition. In other words, in view of opponent No. 3 it was a goods vehicle and not a motor vehicle and moreover that being stationary the incident did not arise out of the use of motor vehicle. In view case of 1986(1), 27(1) GLR 700, it is held that to cover the vehicle as the goods vehicle the goods must be put on the vehicle for its carriage from one place to another. However if machinery is fixed on a vehicle in a sense that it becomes permanently attached with it would not be the goods which place the vehicle within the definition of goods vehicle. Goods vehicle means the goods must be loaded and unloaded and that too for the purpose of carriage. In the case of 1987(1) 29 GLR 432 it is observed that a drilling ring mounted and permanently fixed on the chasis of the vehicle and so fixed that it cannot be easily removed is not covered by the term "Goods Vehicle" defined U/s 2(28) of the M.V. Act. Now therefore when the crane is mounted and fixed on the vehicle to keep there permanently and not to remove and not for the purpose of simply transporting from one place to another, would not bring the crane vehicle within the definition of goods vehicle. In the case of 1988 ACJ 58, the facts were that a cane of petrol was kept in a bus which caught fire and the passengers received burn injuries resulting in his head. It was held that the accident arose out of the use of motor vehicle and the claim Tribunal has jurisdiction to entertain the petition. In the case of 1988 ACJ 58, the facts were that a cane of petrol was kept in a bus which caught fire and the passengers received burn injuries resulting in his head. It was held that the accident arose out of the use of motor vehicle and the claim Tribunal has jurisdiction to entertain the petition. It was further observed that the basic requirements of such claims is only that it so arises out of the motor vehicle. All that is required is that there should be accident that something unexpected and unintended and that too arised out of the user of the vehicle. Now in the present case the crane is used though stationary but for the purpose of removal of the boring pipes. The accident has occurred during said user of the crane vehicle and that being so as the above authorities it can be said that crane vehicle is a vehicle by user of which the accident has occurred. For foregoing reasons the incident was a vehicular accident covered under the Insurance Policy as per Section 95 of the M.V. Act. Answer to Issue no. 2 is therefore given in the affirmative." 29. The claims Tribunal has come to conclusion that accident was occurred by use of motor vehicle covered under insurance policy as per section 95 of Motor Vehicle Act. Thereafter, claims Tribunal has considered evidence of Shri Ukadbhai Ratanbhai, Exh. 52 and Exh. 57 evidence of driver opponent no. 1 Shri Dhirajkumar Chandulal Suthar in para 9, which is quoted as under: "9. Issue No. 3: Eye witness of the petitioners Shri Ukadbhai Ratnabhai Exh. 52 has deposed that when the crane vehicle was put in to operation he was present there as labourer, because deceased Shri Dharmshibhai was engaging his as labourer at the place of his contract work. AS the boring pipes had jammed the crane was ordered which came and started functioning. Himself and deceased Dharamshibhai were standing at a distance of about 10 to 15 ft. from the boring place and at the distance of about 30 ft from the crane. The opponent no. 1 gripped the boring pipe by boom of the crane and tried to jerk the jammed pipe upwards. Many people gathered to see this functioning. Himself and deceased Dharamshibhai were standing at a distance of about 10 to 15 ft. from the boring place and at the distance of about 30 ft from the crane. The opponent no. 1 gripped the boring pipe by boom of the crane and tried to jerk the jammed pipe upwards. Many people gathered to see this functioning. The opponent No. 1 slowly and gradually tried to jerk the jammed pipe upwards giving strain though machine but the efforts for about 1/2 hour did not bring any result. Hence the opponent No. 1 first loosened the chain by which the boom was connected and operated and then he gave a jerk to the boom. By this act the iron chain broke and the boom of the crane fell on ground on the head of deceased Shri Dharamshibhai, who expired because of the fatal injuries. In his cross examination he has deposed that they were at a distance of about 10 to 15 ft. from the boring place. The opponent No. 1 Shri Dhirajkumar Exh. 57 has deposed that he is the driver as well as operator of crane. He himself drives the crane as well as operates the crane as and then necessary. He has then deposed that the operator cabin moves in all the directions. The functioning of the dragging of jammed boring pipe continued for about half and hour. He had given instructions to remain at a distance of about 35 ft when the crane is functioning. He attempted to drag the pipe but failed next time when he give a strained with the help of machine then the pipe was dragged for about 1 to 1½ ft. At that time deceased Shri Dharamshibhai in a happy mood rushed ahead and should to lift the pipe more. He made signs from his operator cabin to go away from there and not to interfere with him when the work is in progress. At that time the iron wire of the boom suddenly broke and the boom fell on the head of deceased Shri Dharamshibhai. He has deposed that therefore, the negligence was on part of deceased. In his cross examination he has deposed that the cause of falling of the boom is braking of iron wire. About 50 to 60 peoples were gathered at the time of operation of the crane. They were standing in a circular around. He has deposed that therefore, the negligence was on part of deceased. In his cross examination he has deposed that the cause of falling of the boom is braking of iron wire. About 50 to 60 peoples were gathered at the time of operation of the crane. They were standing in a circular around. He has admitted in the cross examination that the fact which he deposed in the chief that the deceased suddenly rushed and incident occurred is not told by him to any body till the day on which he came for giving evidence. Thus it is clear that for the first time he advanced the theory when he deposed in the Tribunal. It is pertinent to note that the W.S. Exh 24 was filed on behalf of opponent no. 1 and 2 and in the same the theory now advance during the evidence of opponent no. 1 is not pleaded. Now, therefore, when there is no plea the opponent party concerned is not entitled to lead evidence for which is not pleaded. Reading the examination in chief and cross of eye witness Shri Ukadbhai Ratnabhai Exh. 52 as well as the Chief and cross of opponent no. 1 Shri Dhirajbhai Exh. 57, conjectively and not disconjectively the evidence of Ukadbhai Ratnabhai Exh 52 and not disjectively the evidence of Ukadbhai Ratnabhai Exh 52 creates full confidence and it appears difficult to accept the version of opponent No. 1 Shri Dhirajkumar, Exh 57. From the evidence of both, it appears that deceased Shri Dharamshibhai was at a distance of about 15 ft from the boring place and 30 ft from the crane. However, because of the opponent No. 1 giving a sudden jerk to the boom and thereby breaking of the supportive wire the boom fell on the ground. This clearly appears to be the rash and negligent act on part of opponent No. 1. So far as the negligence is concerned, normally the rule is the party who alleges negligence is required to be proved the negligence. This clearly appears to be the rash and negligent act on part of opponent No. 1. So far as the negligence is concerned, normally the rule is the party who alleges negligence is required to be proved the negligence. However, at time it is difficult for such party to prove negligence with regard to the provisions of Section 100 and 106 of Evidence Act, it is held in the case of 26(2) GLR 1242 as well as 26(2) GLR 1315 that in the accident cases burden of proving with regard to negligence is with defendant and defendant is expected to explain how the accident took place. Hence the doctrine Res-ipsa Loquitur may be invoked. It is observed that as per this rule and accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will be than for the defendant to establish that accident happened due to other cause than his own negligence. As stated herein above the petitioners have proved the negligence on part of opponent No. 1 and considering the above observation of the said authorities if we apply the rule of Res-Ipsa Loquitur the opponents have miserably failed to prove that the accident happened due to other causes than the negligence on part of opponent no. 1. For above reasons the answer to Issue No. 3 is given in the affirmative." 30. The claims Tribunal has come to conclusion that claimant has proved negligence of opponent no. 1 and also considering rule of Res Ipsa Loquitur, opponents have miserably failed to prove that accident happened due to other cause than negligence on the part of opponents no. 1. 31. Before this Court, question of quantum fixed by claims Tribunal and interest awarded by claims Tribunal, are not challenged by appellant. The claims Tribunal has awarded Rs. 3 Lacs with 12% running interest per annum from date of petition till payment and with full costs. The said award was passed by claims Tribunal on 31/8/1989. 32. In light of observations made by claims Tribunal and in view of submissions made by learned advocate Mr. Parikh, this Court is now examining two questions whether crane is considered to be 'motor vehicle' and accident occurred by use of 'motor vehicle' or not? 33. Learned advocate Mr. The said award was passed by claims Tribunal on 31/8/1989. 32. In light of observations made by claims Tribunal and in view of submissions made by learned advocate Mr. Parikh, this Court is now examining two questions whether crane is considered to be 'motor vehicle' and accident occurred by use of 'motor vehicle' or not? 33. Learned advocate Mr. Parikh relied upon decisions of Division Bench of this Court in case of Gujarat State Road Transport Corporation v. Union of India reported in 1987 ACJ 734 . The relevant head notes and observations made in para 25 to 30 are quoted as under: (i) Where it is alleged that motor vehicle driver was solely responsible for the accident, Claims Tribunal can adjudicate upon such claims and if it is found that the motor driver was negligent, can award compensation against driver, owner and insurer of the vehicle, as the case may be; (ii)Where it is alleged that accident is caused not on account of rash or negligent driving of motor vehicle but is solely caused on account of rashness or negligence of any other person/out side agency who may not have used any motor vehicle at the relevant time, the claim petition would not be maintainable before the Claims Tribunal. (iii)Where composite negligence is alleged both against driver of motor vehicle as well as driver of any other vehicle not being a motor vehicle or any other out side agency, such claim petition would be maintainable before the Claims Tribunal and it can pass award fixing just compensation and making it payable by the joint tort feasors jointly and severally and also indicating their inter se liability for completing adjudication and avoiding future litigation for contribution even though some of them may not be drivers of motor vehicles but still they might have contributed along with driver of motor vehicle in causing the accident; and 25. Let us now take stock of the situation. On the aforesaid discussion of the relevant provisions of the Act and various decisions of the High Courts, it appears clear to us that following four types of cases can give rise to claims for compensation: I. Claims for compensation in cases where it is alleged that motor vehicle driver was solely responsible for causing accidental injuries giving rise to the claims for compensation; II. Claims for compensation in cases of accidents where it is alleged that accident is caused not on account of rash or negligent driving of driver of the motor vehicle but is solely caused on account of rashness or negligence of any out side agency who might have rashly or negligently used any vehicle other than the motor vehicle causing the accidental injuries or who might have been solely responsible for the accident even otherwise. III. Claims for compensation in cases where it is alleged that the accident giving rise to the claim is the result of composite negligence not only of the driver of the motor vehicle but also of out side agency or driver of another vehicle which may not be motor vehicle but who might be found negligent contributing to the causing of the accident, meaning thereby, claims for compensation against joint tortfeasors, one of which at least is the driver of a motor vehicle. IV. Cases where it is alleged that accidental injuries have been caused on account of composite negligence of driver of the motor vehicle as well as any other person who might be jointly responsible for causing the accident. But when ultimately, on evidence, it is found by the Tribunal that driver of the motor vehicle was not at all responsible, not even to the slightest extent and that sole responsibility for causing of the accident rested on the shoulders of the vehicle or on the shoulders of any other agency. 26. It becomes at once clear that so far as first type of cases are concerned, it is the Claims Tribunal alone which can entertain such claims under section 110(1) of the Act and can adjudicate upon the same and if ultimately it is found that motor vehicle driver was negligent, proper compensation can be awarded against the driver, owner and insurer of the vehicle as the case may be. But if it is found on evidence that allegations in the petition were not made out and the motor vehicle driver was not negligent at all, then obviously, the claim would fail on merits. 27. But if it is found on evidence that allegations in the petition were not made out and the motor vehicle driver was not negligent at all, then obviously, the claim would fail on merits. 27. So far as second type of cases are concerned, on the very allegation in the claim petition to the effect that the accident is caused solely on account of the negligence of any other person who may not have used any motor vehicle at the relevant time in causing the accident, the claim petition would not be maintainable before the Claims Tribunal as even from the allegations in the claim petition, it would appear obvious that the claim for compensation is not based or any accident resulting out of use or negligent use of any motor vehicle. Such a claim petition will have to be rejected on the threshold, by the Claims Tribunal. 28. So far as third type of cases are concerned, because composite negligence is alleged both against the driver of the motor vehicle as well as driver of any other vehicle or any other out side agency, such claim petition would be maintainable before the Tribunal on the principle that outside parties are allowed to be joined as tort feasors who has contributed the causing of the accident and, their inter se liability can be adjudicated upon by the Tribunal and the Tribunal can obviously pass proper orders fixing just compensation and making it payable by the joint tort feasors jointly and severally and also indicating inter se liability of the concerned joint tort feasors for completing adjudication between the concerned parties so that future litigation inter se joint tort feasors for contribution can be avoided and in such cases, award can be passed against all joint tort feasors even though some of them may not be drivers of motor vehicles but still they might have contributed along with driver of the motor vehicle in causing the accident. 29. 29. So far as last type of cases are concerned, on the allegations in the petition that the accident has been caused on account of composite negligence of the driver of the motor vehicle and driver of any other vehicle or out side agency, application for claim would be maintainable by the Claims Tribunal but ultimately, if after hearing the parties, the Tribunal comes to the conclusion that the accident has been caused not on account of the rash and negligent driving by the driver of rashness and negligence of other person who might have driven the vehicle other than motor vehicle like railway engine, horse-cart or camel cart etc. or solely on account of said finding, the case would get out of provision of section 110(1) at that stage as the Tribunal will have to hold on facts as a consequences of its finding as aforesaid that the accident was not caused on account of any rash and negligent use of any motor vehicle. Once that consequential finding is reached, the Tribunal would lose jurisdiction for passing appropriate orders against such tort feasor who gets out side the network of section 110 (1) and consequently, claim against such outsider meaning thereby, other than driver of the motor vehicle, owner or insurance company, will have to be dismissed as not maintainable at that stage despite the finding of the Tribunal that such outsider is 100% responsible for the accident in question. 30. It, therefore, becomes obvious that cases falling under first and third categories can effectively be tried by the Claims Tribunal and proper awards can be passed against concerned parties while in cases falling under section and fourth categories claim petitions will have to be rejected either at the threshold or on merits on the ground of absence of jurisdiction – either initial jurisdiction to entertain such claim petitions or ultimate jurisdiction to pass awards against such outsiders, as the case may be." 34. In above referred decision, Division Bench of this Court has considered four type of cases while examining question of jurisdiction of claims Tribunal. 35. The second decision relied by learned advocate Mr. In above referred decision, Division Bench of this Court has considered four type of cases while examining question of jurisdiction of claims Tribunal. 35. The second decision relied by learned advocate Mr. Parikh in case of Union of India v. Sushila Devi reported in 1990 ACJ 1, Full bench decision of Allahabad High Court in second head note that "when accident is alleged to have been caused entirely by negligence of an out side agency, whether the Claims Tribunal has jurisdiction to entertain the claim application? Held - "No" - mere involvement of the motor vehicle would not be enough to confer jurisdiction on the claims Tribunal. The decision of Full Bench of P & H High Court in case of Rajpal Singh v. Union of India reported in 1986 ACJ 344 has been followed by Allahabad High Court. The Full Bench of Allahabad High Court has also considered question of jurisdiction whether section 110 (B) – effect of whittling down width and ambit of jurisdiction of Claims Tribunal under section 110 (1) so as to confine it to claims directed only against driver, owner and insurer of vehicle, use of which caused accident. Held – "No" claims Tribunal can entertain petitions for compensation against third parties in addition to driver, owner and insurer. Again followed by Full Bench decision of P & H High Court as referred above. The relevant head notes are quoted as under: Motor Vehicles Act, 1939, Section 110(1)- claims Tribunal-Jurisdiction- "Arising out of the use of motor vehicle" -Interpretation of – Whether the claims Tribunal has jurisdiction to entertain claims for compensation in respect of accident arising out of the use of motor vehicle-Held, yes; use of the motor vehicle should contribute, whether by itself or along with some other joint tort feasors, to the accident; mere involvement of a motor vehicle in the accident by itself, and without more, would not confer on the claims Tribunal jurisdiction to entertain a claim. ( 1987 ACJ 734 (Gujarat) and 1986 ACJ 344 (P&H) concurred: 1983 ACJ 13 (Allahabad) confirmed]. ( 1987 ACJ 734 (Gujarat) and 1986 ACJ 344 (P&H) concurred: 1983 ACJ 13 (Allahabad) confirmed]. Motor Vehicles Act, 1939, Section 110(1)- claims Tribunal-Jurisdiction- "Arising out of the use of motor vehicle" -Interpretation of – Whether the claims Tribunal has jurisdiction to entertain claim application alleging that the accident was caused by the negligence of the driver of the motor vehicle as well as by some outside agency – Held, yes; provided if the Tribunal ultimately finds that the accident was caused wholly by the outside agency and not by the driver of the motor vehicle, it will cease to have jurisdiction to grant any relief to the claimant. ( 1987 ACJ 734 (Gujarat) concurred). Motor Vehicles Act, 1939, Section 110(1)- claims Tribunal-Jurisdiction When the accident is alleged to have been caused entirely by the negligence of an outside agency, whether the claims Tribunal has jurisdiction to entertain the claim application – Held, no, mere involvement of the motor vehicle would not be enough to confer jurisdiction on the claims Tribunal (1986 ACJ 344 (P&H) followed). Motor Vehicles Act, 1939, Section 110(1)- claims Tribunal-Jurisdiction-Whether section 110-B has the effect of whittling down the width and ambit of jurisdiction of the claims Tribunal under Section 110(1) so as to confine it to claims directed only against the driver, owner and insurer of the vehicle, the use of which caused the accident-Held, no, Claims Tribunal can entertain petitions for compensation against third parties in addition to driver, owner and insurer. (1986 ACJ 344 (P&H concurred, 1987 ACJ 17 Madras dissented : 1983 ACJ 13 (Allahabad) confirmed." 36. Learned advocate Mr. Parikh relied upon decision in case of Union of India v. United India Insurance Co. Ltd reported in 1998 ACJ 342 Delhi High Court. In this case Apex Court has considered collision between a train and bus at unmanned level crossing which had no gates or stiles. Learned advocate Mr. Parikh relied upon decision in case of Union of India v. United India Insurance Co. Ltd reported in 1998 ACJ 342 Delhi High Court. In this case Apex Court has considered collision between a train and bus at unmanned level crossing which had no gates or stiles. The relevant head note in respect to jurisdiction of claims Tribunal where Apex Court has considered decision of this Court reported in 1987 ACJ 734 (Guj) which is quoted as under: "Motor Vehicles Act, 1939, Section 110 (1) and 110-B (Sections 165(1) and 168(1) of 1988 Act) – Claims Tribunal– Jurisdiction – Collision between a train and bus on level crossing resulting in death of 40 passengers in the bus sustaining injuries – Claims filed before Motor Accidents Claims Tribunal – Contention that because of specific reference to the insurer, owner and driver, an award cannot be passed by the Claims Tribunal against anybody else – Whether the claims are maintainable before the Claims Tribunal against other persons or agencies in addition to driver, owner and insurer of motor vehicle who are held to be guilty of composite negligence or are joint tort feasors, and if arising out of use of motor vehicle – Held: yes; but it is ultimately found that the accident is due to sole negligence of the other parties/agencies, the claim would go out of purview of section 110(1) (AIR 1974 Gauhati 31, 1987 ACJ 133 (Orissa) and 1974 ACJ 488 (Madras) not correct law: 1983 ACJ 13 (Allahabad), 1986 ACJ 344 (P&H), 1987 ACJ 734 (Gujarat), 1988 ACJ 597 (Kerala) and 1993 ACJ 366 (Rajasthan) upheld)." 37. Learned advocate Mr. Parikh has also relied upon decision of Full Bench of P&H High Court in case of Rajpal Singh v. Union of India reported in 1986 ACJ 344 which has been considered by Full Bench of Allahabad High Court on same subject, where question of jurisdiction has been considered while interpreting arise of use of motor vehicle where accident between motor vehicle and railway engine at a manned level crossing. The relevant head note is quoted as under: "Motor Vehicles Act, 1989, Sections 110 to 110-F-Claims Tribunal – jurisdiction- 'Arising out of the use of motor vehicle'- Interpretation of Accident between a motor vehicle and railway engine at a manned level crossing – Level crossing lying open and no red light to stop traffic on either side of the gate – When the car driver tried to cross the level crossing, a train suddenly approached the engine whereof was without light and struck against the car and the driver sustained injuries and the car was damaged – Claim filed before Motor Accidents Claims Tribunal alleging that accident was caused entirely due to the carelessness and negligence of railway authorities including the driver of the train and gateman – Whether Motor Accidents Claims Tribunal has the jurisdiction to entertain the claim against the railway authorities – Held (Tewatia, J. dissenting) : no. The use of motor vehicle must be the cause of the accident howsoever slight it may be and unless the accident is the effect caused by the use of the motor vehicle it would not be possible to say that it has arisen out of the use of motor vehicle. Further there being no allegation that the motor vehicle in any way contributed to the cause of the accident, it cannot be said that the same had arisen out of the use of the motor vehicle." 38. Except that no other decisions relied by learned advocate Mr. Parikh in support of his submission. 39. Learned advocate Mr. Hakim has relied upon decision in case of Shivaji Dayanu Patil and another v. Vatschala Uttam More reported in 1991 ACJ 777 , where question of collision between truck and petrol tanker and tanker turned turtle, whether it can be considered that accident is occurred by use of motor vehicle or not? 39. Learned advocate Mr. Hakim has relied upon decision in case of Shivaji Dayanu Patil and another v. Vatschala Uttam More reported in 1991 ACJ 777 , where question of collision between truck and petrol tanker and tanker turned turtle, whether it can be considered that accident is occurred by use of motor vehicle or not? The relevant head notes are quoted as under: Motor Vehicles Act, 1939, Sections 2(18) and 92-A (Sections 2(28) and 140 of 1988 Act} – Motor Vehicle – No fault liability – Collision between a truck and petrol tanker and the tanker turned turtle – After 4½ hours of the accident the tanker exploded and caught fire resulting in injuries to and death of several persons assembled near it - Contention 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 was not a 'motor vehicle' as defined in section 2(18) – No material on record to show that the petrol tanker would not be in a position to move after it was put back on the wheels – Whether the petrol tanker was a motor vehicle at the time of explosion and fire and the claimant is entitled to compensation under section 92-A-Held, Yes, petrol tanker which was a motor vehicle when it collided with the truck did not cease to be a motor vehicle after the collision. Motor Vehicles Act, 1939, Section 92-A (Section 140 of 1998 Act) – No fault liability- "Use of motor vehicle' – Collision between a truck and petrol tanker and the tanker turned turtle – After 4½ hours of the accident the tanker exploded and caught fire resulting in injuries to and death of several persons assembled near it – Whether the petrol tanker though lying turtle was in 'use' at the time of explosion and fire and the claimant is entitled to compensation under Section 92-A – Held, yes, the word 'use' in the expression 'use of a motor vehicle' has a wider connotation and covers accidents which occur both when the vehicle is in motion and when it is stationary; use of a vehicle does not cease when it has been rendered immobile on account of breakdown or mechanical defect or accident. (1990 ACJ 1001 (Bombay) and 1991 ACJ 68 (Bombay) confirmed]. (1990 ACJ 1001 (Bombay) and 1991 ACJ 68 (Bombay) confirmed]. Motor Vehicles Act, 1939, Section 92-A (Section 140 of 1998 Act) – No fault liability-'Arising out of use of motor vehicle' -Causal connection between accident and death- Collision between a truck and petrol tanker and the tanker turned turtle- After about 4½ hours of the accident the tanker exploded and caught fire resulting in injuries to and death of several persons assembled near it – Contention that there was no causal relationship between the collision and the explosion and fire which took place 4½ hours later and the explosion and fire was not an accident arising out of use of a motor vehicle – Whether there was casual connection between the accident and the explosion and fire and the accident arose out of the use of motor vehicle and the claimant is entitled to compensation under section 92-A – Held, Yes, collision and escape of petrol which ultimately resulted in the explosion and fire were not unconnected but related events; interval of 4½ hours does not necessarily infer that there was causal relationship between collision and explosion and fire. (1990 ACJ 1001 (Bombay) and 1991 ACJ 68 (Bombay) confirmed)." 40. He also relied upon decision in case of Samir Chanda v. Managing Director, Assam State Transport Corporation reported in 1998 ACJ 1351 where question was, whether there was a negligence on the part of owner or driver of bus or not? and whether accident arose out of use of motor vehicle or not? is considered. He also relied upon decision in case of Samir Chanda v. Managing Director, Assam State Transport Corporation reported in 1998 ACJ 1351 where question was, whether there was a negligence on the part of owner or driver of bus or not? and whether accident arose out of use of motor vehicle or not? is considered. The relevant head note is quoted as under: "Motor Vehicles Act, 1939, sections 110 and 110-A (Sections 165 and 166 of 1988 Act) – Claims Tribunal – Jurisdiction – Claim application – Bomb blast – Passengers sustained injuries when they were alighting from a stationary bus at the bus stop due to bomb blast in the bus – Passengers filed claim before the Claims Tribunal and it passed the award holding that it had jurisdiction to entertain and adjudicate the claim since the bomb had exploded inside the bus – High Court set aside the award on the ground that there was no negligence on the part of the owner of driver of bus – Abnormal situation due to foreigners deportation movement and buses were being plied with police help but on the date of accident there was no police help in the city bus in which the bomb exploded – Whether accident arose out of the use of motor vehicle and claimant is entitled to compensation – Held: Yes; owner/driver was negligent in plying the bus without the police escort. (1995 ACJ 725 (Gauhati) reversed)." 41. Learned advocate Mr. Hakim also relied upon decision in case of Yadu Sambhaji More v. Shivaji Dayanu Patil reported in 2005 ACJ 1282 (Bombay High Court). (1995 ACJ 725 (Gauhati) reversed)." 41. Learned advocate Mr. Hakim also relied upon decision in case of Yadu Sambhaji More v. Shivaji Dayanu Patil reported in 2005 ACJ 1282 (Bombay High Court). The second head note in respect to considering negligence of driver of tanker is quoted as under: "Negligence – Petrol tanker dashed against a truck coming from opposite direction and tanker turned turtle and petrol started leaking – After 4 hours of the accident villagers assembled there to collect petrol, suddenly explosion took place, petrol caught fire and many persons including the claimant sustained injuries and 46 out of them succumbed to their injuries – Tribunal relied upon evidence of respondents on the question of negligence of tanker driver and gave a finding that driver was not negligent but fire was caused as someone threw a burning cigarette – None of the witnesses examined by the respondents including the driver and cleaner know the manner and reason for petrol catching fire and there are several material contradictions and omissions in the statements of driver and cleaner which clearly show that they cooked up a false story – Driver and cleaner and other witnesses of the respondents deposed that they were present at the time of explosion guarding the tanker and preventing people from carrying petrol, but they suffered no burn injury whereas 46 villagers died on the spot due to fire-Tribunal's finding reversed in appeal and held that driver of tanker was negligent." 42. Learned advocate Mr. Hakim relied upon decision of this Court in FA no. 6003/98 dated 8/4/1999, relevant para 2 is quoted as under: "2. The only contention advanced before us is that the wrong committed by the driver of the S.T. bus in the, unfortunate, episode which occurred, on 23.4.1991, near the Railway Station, at Vadodara, as a result of deserting of the bus, leaving the passengers at the mercy of the people who are indulging in violence. The deceased Harishbhai Chandubhai, son of the original claimant No. 1, was done away with by stabbing. In our opinion, the assessment of the evidence and the appreciation of the relevant proposition of law made by the Tribunal in holding the present appellant - owner of the bus, vicariously, liable for the payment of compensation on account of the tortious act of the employee is justified, requiring no interference. In our opinion, the assessment of the evidence and the appreciation of the relevant proposition of law made by the Tribunal in holding the present appellant - owner of the bus, vicariously, liable for the payment of compensation on account of the tortious act of the employee is justified, requiring no interference. The Tribunal has, rightly, placed reliance on the decision of the Apex Court in the case of Shivaji Dayanu Patil v. Vatschala Uttam (1991) 3 SCC 530 . The case on hand is squarely covered by the said decision." 43. He relied upon decision in case of Kaushnuma Begum v. New India Assurance Co. Ltd reported in 2001 ACJ 428 . The relevant discussion made in respect to jurisdiction of tribunal by Apex Court is quoted as under: "Jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? Like any other common law principle which is acceptable to our jurisprudence, the rule of strict liability propounded in Rylands v. Fletcher, 1861 – 73 All ER 1, can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence we are deposed to adopt the rule of strict liability in claims for compensation made in respect of motor accidents. "No fault liability" envisaged in section 140 of the Motor Vehicles Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicle can be claimed under the common law even without the aid of a statute. It is statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicle can be claimed under the common law even without the aid of a statute. The provisions of the Motor Vehicles Act permit that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from section 140 of Motor Vehicles Act, a victim in an accident which occurred while the motor vehicle was in use, is entitled to get compensation from the Tribunal unless any one of the exceptions would apply. Winfield has elaborated seven defences recognised in common law against action brought on the strength of the rule in Rylands v. Fletcher. They are : (1) Consent of the plaintiff, i.e., volenti non fit injuria; (2) Common benefit, i.e. where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape; (3) Act of stranger, i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply; (4) Exercise of statutory authority, i.e. the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise; (5) Act of God or vis major; (6) Default of the plaintiff; and (7) Remoteness of consequences." 44. Learned advocate Mr. Trivedi relied upon decision of this Court in group of SCA no. 9976/99 in case Mr. KD Mehta v. State of Gujarat dated 1/9/2000, 8/9/2000, 6/10/2000 where question has been examined while relying upon decision of Apex Court reported in AIR 1980 SC 1547 in case of Travancore Co. Ltd v. State of Kerala and ors relevant para 5, 6, 7 and observation made are quoted as under: 5. 9976/99 in case Mr. KD Mehta v. State of Gujarat dated 1/9/2000, 8/9/2000, 6/10/2000 where question has been examined while relying upon decision of Apex Court reported in AIR 1980 SC 1547 in case of Travancore Co. Ltd v. State of Kerala and ors relevant para 5, 6, 7 and observation made are quoted as under: 5. However, it has been pointed out that the cranes in question in the present cases are not the mobile cranes and the same are not permanently fitted on the vehicles, but are the cranes which are transported on other heavy long bedded motor carriers at different work sits and in some cases, they are Motor Graders, Wheel Loaders, Vibratory Rollers, Paver and Excavator-cum-Loader as have been stated in para 2 of this judgment herein above. The word, 'motor vehicle' or 'vehicle' as such has not been defined under the Bombay Motor Vehicles Tax Act, 1958, but Section 2(10) of the said Act provides that other words and expressions used, but not defined, in this Act, shall have the meanings respectively assigned to them in the Motor Vehicles Act, 1988. Therefore, we straightway make reference to the Motor Vehicles Act, 1988. Under Section 2(28) of the Motor Vehicles Act, the word 'motor vehicle' or 'vehicle' has been defined as under: "2(28)"motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not a vehicle running upon fixed rails or a of a special type adapted for use only in factory or in any other enclosed premises or a having less than four wheels fitted with capacity of not exceeding twenty five centimeters." This Section, therefore, provides as to what is meant to a motor vehicle or vehicle and further as to what is included in the meaning of motor vehicle or vehicle. It has been specifically provided that, a vehicle running upon a fixed rails or a vehicle of special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding 25 cubic cms. is neither a motor vehicle nor a vehicle. It has been specifically provided that, a vehicle running upon a fixed rails or a vehicle of special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding 25 cubic cms. is neither a motor vehicle nor a vehicle. It is not the case with respect to any of the machines in question that they are vehicles running upon a fixed rails and therefore, none of these machines/vehicles would fall in this exclusionary clause. The other exclusion is with regard to the vehicles of special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding 25 cubic cms. The case of the petitioners is that all these machines are the machines of special type adapted for use in enclosed premises and therefore, they fall in this exclusionary clause and should not be treated as motor vehicle or vehicle. It has been argued that these machines are not adapted for use on the road, they are only equipments for the purpose of carrying out the projects of construction of buildings, roads, dams, highways, and bridges over rivers and only for that purpose they are being carried from one place to another place and that too not on their own wheels as such, but after mounting them on some other registered vehicles which are long bedded. These machines are made to move on the wheels only at the time when they are actually put to use at the site and essentially they are not at all meant for transportation from one place to another place. In fact, these machines are themselves transported from one place to another place and are made use only at the work sites. It has also been submitted that they are essentially special types of vehicles and they are adapted for use at the work sites and their use is to be treated as in a factory or in an enclosed premises for that limited purpose only. It has also been submitted that they are essentially special types of vehicles and they are adapted for use at the work sites and their use is to be treated as in a factory or in an enclosed premises for that limited purpose only. The whole thrust of the argument is based on the words, "vehicle of a special type adapted for use only in a factory or in any other enclosed premises", i.e. part of the exclusionary clause in Section 2(28) of the Motor Vehicles Act, 1988 and this definition of motor vehicle or vehicle as given in the Motor Vehicles Act, 1988 stands incorporated in the Bombay Motor Vehicles Tax Act, 1958 by virtue of the provisions of Section 2(10) of the Bombay Motor Vehicles Tax Act, 1958 to which the reference has already been made herein above. 6. It was pointed out by Mr. Shukla, learned AGP that Chapter 4 of the Motor Vehicles Act, 1988 provides for registration of motor vehicles and while Section 39 provides for the necessity of registration, Section 40 provides for registration where to be made, and, Section 41 provides for registration, how to be made. Subsection (4) of Section 41 of the Motor Vehicles Act provides that in addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification in the Official Gazette, specify and it has been submitted by Mr. Shukla, learned AGP that in exercise of the powers conferred by Sub-section (4) of Section 41 of the Motor Vehicles Act, 1988, it has specified the types vide S.O.436(E) dated 12th June 1989 under the Central Motor Vehicles Rules 1989 for the purpose of Sub-section (4) of Section 41. In the said S.O. dated 12th June 1989, crane and dumper have been mentioned in column 2, i.e. type of motor vehicles against the medium and heavy motor vehicles as mentioned in column 1. In the said S.O. dated 12th June 1989, crane and dumper have been mentioned in column 2, i.e. type of motor vehicles against the medium and heavy motor vehicles as mentioned in column 1. The argument is that crane and dumper having been included as medium and heavy motor vehicles in the said S.O. dated 12th June 1989, there is no scope for excluding the crane and dumper from the definition of the motor vehicle and crane as well as dumper should be taken as medium and heavy vehicles in accordance with the Central Motor Vehicles Rules, 1989. Further reference has been made to S.O.451(E) dated 19th June 1992 which has been issued in supersession of S.O.436(E) dated 12th June 1989 and in the Table given in S.O. dated 19th June 1992, there is a classification of vehicles as transport vehicles and non-transport vehicles. Crane mounted vehicle has been shown at item no. ix as non-transport vehicle and Dumper/Excavator at item no. xxiv has been included as a transport vehicle. The reference has also been made to Rule 60 of the Motor Vehicles Rules, 1989. This Rule 60 of the Motor Vehicles Rules, 1989 is a Rule under Chapter IV, i.e. Registration of Motor Vehicles under the Gujarat Motor Vehicles Rules, 1989. Rule 176 of the said Rules also provides for exemption of road rollers, graders etc. under Chapter VII dealing with construction, repair and maintenance of motor vehicles and according to Rule 176, nothing contained in these Rules shall apply to road rollers, graders and other vehicles designed and used solely for the construction, repair and cleansings of roads or for the construction and maintenance of dams etc. Both these Rules, i.e. Rules 60 and 176 provide for exemption of road rollers, graders, etc. Thus, crane mounted vehicle and dumper/excavator are non-transport vehicles and it is to be seen as to whether these two entries made in this Table under S.O. dated 19th June 1992 really form any basis so as to treat the crane mounted vehicle or the dumper/excavator as a motor vehicle. The question of crane mounted vehicle stands decided by the order of the Division Bench and as per this S.O. dated 19th June 1992, the dumper/excavator has been included as a transport vehicle. This Table shows that the Motor Graders, Wheel Loaders, Vibratory Rollers, Paver etc are neither transport vehicles nor non-transport vehicles. The question of crane mounted vehicle stands decided by the order of the Division Bench and as per this S.O. dated 19th June 1992, the dumper/excavator has been included as a transport vehicle. This Table shows that the Motor Graders, Wheel Loaders, Vibratory Rollers, Paver etc are neither transport vehicles nor non-transport vehicles. Even the crane other than the crane mounted vehicle has not been included either as a transport vehicle or as a non-transport vehicle. Learned AGP has submitted that the exemption under Rules 60 and 176 of the Gujarat Motor Vehicles Rules, 1989 has been withdrawn by the notifications issued in April 2000 and July 2000. 7.(a) Crane is a machine for moving heavy objects both vertically and horizontally. Cranes range in capacity from a few hundred pounds to several hundred tons; motive power may be furnished by hand, by steam or internal combustion engines, or by electric motors. In form, cranes are classified as jib, derrik, or bridge. A jib crane carries a horizontal jib or beam at the top of a vertical pillar. Horizontal motion of the load is obtained by rotation of the jib or the entire crane or by carrying the hoisting tackle over a movable trolley running on the beam. The derrik crane, or derrik, is a cartilever design and consists of a boom, hinged at the base to the bottom of a vertical mast and supported at the tip by tackle from the top of the mast; the mast is braced or counter weighted to keep it from collapsing toward the boom. Horizontal motion is obtained by rotating the derrik and by luffing, that is raising or lowering, the boom. A bridge crane consists of a horizontal beam, running on tracks at both ends for longitudinal motion and carrying a trolley running on the beam for lateral motion. The ordinary bridge crane runs on elevated tracks, while the gantry crane is mounted on legs that run on tracks at ground level. (b) Paver is used for the purpose of uniform distribution of Coal Tar at the time of construction of roads. The ordinary bridge crane runs on elevated tracks, while the gantry crane is mounted on legs that run on tracks at ground level. (b) Paver is used for the purpose of uniform distribution of Coal Tar at the time of construction of roads. For that purpose, even if a paver moves on the road, it cannot be said to be a movement on the road as such because the movement is for limited use for constructing the road and once the road is constructed, on that constructed part of the road, there is no need of movement of the paver nor in fact it moves. (c) Vibratory Roller has hydrostatic ground and vibratory drive on both drums which is used in the process of construction of roads for distribution of coal tar and to press the road level. It is also brought on the roads only for the purposes as aforesaid. (d) Motor Grader has six wheels and flywheel horsepower of 145 HP and it is also used for the purpose of mixing liquid coal tar with concrete to be used as the material for the purpose of construction of the roads and it is brought on the roads for this purpose only at the time when the roads are under construction. (e) Wheel Loader has four wheels and is used for the purpose of digging and shifting sand etc. so as to place it in the trucks. It is used for preparatory work for constructing the roads. "In view of this amendment, any construction equipment is a non-transport vehicle. Even if the driving of the same on the road is incidental and for a short duration at a slow speed not exceeding 50 kms per hour and what has been excluded or not included is the equipments which are purely off highway construction equipment designed and adopted for use in any enclosed premises, factory or mines, other than road work, not equipped to travel on public roads on their own power. Thus, as per this amendment, it is very clear and admits of no further argument or controversy that all or any of the vehicles in question are non-transport vehicles and there is no provision for their exemption from the tax because none of these vehicles fall in any of the exclusions as provided in the Act, i.e. Clause (ca) which is definition of the 'construction equipment vehicle'. It is apparent from the description and use of the vehicles as aforesaid that they are all construction equipment vehicles, i.e. non-transport vehicles and such construction equipment vehicles also fall within the definition of the motor vehicles or vehicles as such and hence, are liable to pay the tax." 45. Learned advocate Mr. Trivedi also relied upon decision of Apex Court in case of Rita Devi & Ors v. New India Assurance Co. Ltd & Anr reported in 2000 (2) GLR 1729 head note (A) is quoted as under: "(A) Motor Vehicles Act, 1988 (LIX of 1988) – Section 163A – Compensation due to "accident arising out of the use of Motor Vehicle" - Driver of auto rickshaw killed by unknown passengers in order to commit an act of felony of staling the auto rickshaw – Death so caused was an accidental murder arising out of use of Motor Vehicle – Owner of the rickshaw liable to pay compensation to his deceased driver – Insurance company liable to satisfy the award." 46. He relied upon decision of Division Bench of this Court in case of Larsen & Toubro Ltd v. Inspector of Motor Vehicles, Amirgadh & Anr reported in 2006 (4) GLR 2924 , relevant head note (A) is quoted as under: "(A) Motor Vehicles Act, 1988 (LIX of 1988) – Sections 2(28) & 41(4) – Bombay Motor Vehicles Tax Act, 1958 (LXV of 1958) – Section 3(2) – Central Motor Vehicles Rules, 1989 – Rule 2(ca) – Bombay Motor Vehicles Tax Rules, 1959 – Gujarat Motor Vehicles Rules, 1989 – Question whether 'Crowler – crane TATA 320' is a motor vehicle within section 2(28) of M.V. Act, 1988 and whether same liable to tax under the Bombay Act of 1958 – Held, decision by this Court in Spl. C.A. No. 9976 of 1999 wherein it is held that construction equipment vehicles including crane fall within definition of motor vehicles or vehicles under Section 2(28) and same liable to tax, concludes the issue and said decision binding to petitioners." 47. He relied upon decision of Division Bench of this Court in case of Crane Owners Association & Ors v. Union of India & ors reported in 2001 (2) GLR 1189 , relevant head note (A) and para no. He relied upon decision of Division Bench of this Court in case of Crane Owners Association & Ors v. Union of India & ors reported in 2001 (2) GLR 1189 , relevant head note (A) and para no. 18 and 19 are quoted as under: (A) Constitution of India, 1950 – Schedule VII, List II, Entry 57, List III, Entry 35 – Bombay Motor Vehicles Tax Act, 1958 (LXV of 1958) – Sections 2(28) & 3 – Tax on "mobile mounted cranes" - Such cranes answer the description of "Motor Vehicle" and hence motor vehicle tax can be levied on them – Contention that tax cannot be levied on cranes as they are mostly used at construction or work sites and only incidentally used on public road negatived." 18. As has been stated above, Section 2(10) as by the Gujarat Act No. 10 of 1991 adopts the definition of motor Vehicle contained in the New Motor Vehicle Act, 1988. Under the New Motor Vehicles Act of 1988 by Section 2(28) `vehicles' adapted for use on roads and not of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than 4 wheels fitted with engine capacity of not exceeding 25 cubic cms are all included in the definition of `motor vehicles'. 19. It cannot be disputed from the common knowledge and explained from various technical dictionaries and diagrams placed before us that "mobile crane mounted on motor vehicle is so manufactured and designed as to become a vehicle "adapted for use on roads". It is also not disputed that mounted cranes are principally used at work sites or in enclosed premises for lifting or moving goods of heavy weights and loading & unloading. Mounted crane on a motor vehicle is capable of being used on the roads as it is required to be sometimes taken from one work site to another. It is a motor vehicle adapted for use upon roads - may be that it is not frequently or regularly used on roads. This Court also cannot accept the proposition that mounted crane is a vehicle of special type adapted for use only in factories or in any other enclosed premises. A mobile mounted crane is capable of being used on roads for its transportation. This Court also cannot accept the proposition that mounted crane is a vehicle of special type adapted for use only in factories or in any other enclosed premises. A mobile mounted crane is capable of being used on roads for its transportation. It is, therefore, not a vehicle of a special type for exclusive use inside the factory or enclosed premises. Its exigibility to tax therefore as a `motor vehicle' cannot be questioned and the point is squarely answered against the crane owners in the case of Travancore Tea Co. Ltd. (Supra)." 48. He also relied recent decision of Division Bench of Jharkhand at Ranchi in case of Baby Devi v. National Insurance Co. Ltd and another reported in 2008 ACJ 1114 , relevant para 6 to 9 are quoted as under: "6. The word 'use' used in the section has a wider sense. It covers all employments of a motor cycle, so that whenever the vehicle is put into action or service, there is a 'user' of the vehicle within the meaning of section 165 of the Act where the vehicle is 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 is sufficient to attract section 165 of the Act. Therefore, whenever any accident occurs causing death or injury to a person because of the vehicle or in the course of its use, the jurisdiction of the Claims Tribunal arises. 7. It is well settled that jurisdiction of the Tribunal is not restricted to decide claim arising out of negligence in the use of motor vehicle. Negligence is only one of the spices of cause of action for making a claim for compensation in respect of accident arising out of use of motor vehicle. The law in this respect has been set at rest by the Supreme Court holding that the words 'use of a motor vehicle' include the period when the vehicle was in stationary position due to breakdown, mechanical defect or accident. 8. In the case of Kaushnuma Begaum v. New India Assurance Co. Ltd., 2001 ACJ 428 (SC) the vehicle involved in the accident was a jeep. It capsized while it was in motion. The cause of capsizing was attributed to bursting of the front tyre of the jeep. 8. In the case of Kaushnuma Begaum v. New India Assurance Co. Ltd., 2001 ACJ 428 (SC) the vehicle involved in the accident was a jeep. It capsized while it was in motion. The cause of capsizing was attributed to bursting of the front tyre of the jeep. In the process of capsizing the vehicle hit against one person who was walking on the road. The Tribunal dismissed the claim holding that rash and negligent driving was not established. The appeal before the High Court was also dismissed and the matter came before the Supreme Court. The Supreme Court elaborately discussed the rules enunciated in Rylands v. Fletcher 1861 – 73 ALL ER 1 and held that the claim before the Tribunal for the grant of compensation is maintainable. 9. Applying the said principle laid down by the Supreme Court, we are of the view that the Tribunal has committed error of law in dismissing the claim application holding that the claim is not maintainable." 49. I have considered recent decisions cited by all learned advocates in support of their submissions. The facts are not much in dispute between parties. In Exh. 13, written statement filed by respondent no. 3, present appellant raised contention in written statement that accident is not occurred in public place and no statutory liability to cover risk arising of such accident can be foisted upon appellant. There is nothing in insurance policy to suggest that appellant had taken any wider coverage on charge of extra premium, even going beyond limits stated by statutory provision of Motor Vehicles Act, 1939 requiring insurance to have compulsory coverage specifying risk caused to third party. Meaning thereby that there was neither any contractual obligation nor any statutory obligation u/s 95(1)(b)(1) to cover such risk by appellant insurance company for payment of compensation to claimants. The accident is not vehicular accident and claims Tribunal has no jurisdiction and this being unfortunate accident can not be called as accident and there is no negligence on the part of anyone and deceased himself was negligent by standing near rope where iron chain was tied. 50. The reply filed by appellant in respect to application filed by claimants for attachment before judgment, Exh. 20. The certificate of registration is given to vehicle crane MRJ no. 50. The reply filed by appellant in respect to application filed by claimants for attachment before judgment, Exh. 20. The certificate of registration is given to vehicle crane MRJ no. 8704 under Motor Vehicles Act 1939, one schedule form G u/s 2(24) proved fact that crane is described as vehicle u/s 2(24) of Motor Vehicle Act 1939. If crane is not considered to be vehicle, question of issuing or obtaining certificate of registration does not arise. Exh 29, certificate of registration itself is very clearly described as vehicle within a meaning of section 2(24) of Motor Vehicles Act 1939. This crane is having weight unloaded 21610 kg and 150 Horse power used in engine diesel and clause of vehicle is crane is also mentioned in certificate of registration. Therefore, crane is considered as 'motor vehicle' under provision of Motor Vehicles Act and due to that only registration has obtained from RTO. For tax purpose also crane is considered to be 'motor vehicle' by Regional Transport authority. Exh 33, evidence of widow, who was not eye witness, gave evidence to prove income of deceased and also prove age of deceased. The important piece of evidence Exh. 48 - insurance policy issued by appellant insurance company. This insurance policy itself is designated as 'motor policy'. The policy covered period of insurance from 17/1/1986 to 16/1/1987 and date of issue is 13/11/1986. The insurance policy issued for use only in public career permit within a meaning of Motor Vehicles Act and policy issued for motor vehicle crane Orhir Mobile Crane, carrying capacity 2 SC, having premium from owner of vehicle for 3rd party unlimited inclusion of liability of public risk, total amount of Rs. 284/- as premium is paid to insurance company. The public place in India within a meaning of Motor Vehicles Act 1939. There is no policy produced on record by appellant in respect to truck where crane is super-imposed. The crane is mobile crane allowed to use on public road, public place to other places where from truck is able to move. The mobile crane is also moved with truck on public road. Therefore, public risk is covered in insurance policy. There is no policy produced on record by appellant in respect to truck where crane is super-imposed. The crane is mobile crane allowed to use on public road, public place to other places where from truck is able to move. The mobile crane is also moved with truck on public road. Therefore, public risk is covered in insurance policy. This is not crane, which is to be used in only private place or in factory premises or establishment premises but this mobile crane is used to work on public place and mode of truck on public road from one place to other place. Therefore, this insurance policy, Exh. 48 is enough to establish facts that crane is 'motor vehicle', otherwise, question of having insurance policy does not arise. The registration mark and number of vehicle is MRJ 8704, it can not consider to be simple vehicle but it is to be considered 'motor vehicle'. However, definition given in Motor Vehicles Act, section 2(28) where 'Motor vehicle' or 'vehicle' is defined having same meaning, which does not include vehicle running upon fixed rails or a vehicle of special type adapted for use only in factory or in any other enclosed premises or vehicle having less than four wheels fitted with engine capacity of not exceeding 25 cubic centimeters. 51. Therefore, definition of "Motor Vehicle" under section 2(28) of Motor Vehicles Act is quoted as under: ""motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a vehicle of a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding (twenty five cubic centimeters);" 52. The aforesaid definition is included vehicle also. Therefore, crane in question, for which, insurance policy obtained by owner of crane from appellant insurance company, which was issued considering crane is vehicle, covered by definition as referred above. Therefore, contention raised by learned advocate Mr. Parikh that crane is not vehicle defined under provision of Motor Vehicles Act can not be accepted. Therefore, crane in question, for which, insurance policy obtained by owner of crane from appellant insurance company, which was issued considering crane is vehicle, covered by definition as referred above. Therefore, contention raised by learned advocate Mr. Parikh that crane is not vehicle defined under provision of Motor Vehicles Act can not be accepted. There is no dispute raised before this Court that truck is not motor vehicle upon which crane is super-imposed. Wherefrom truck being motor vehicle is moved on public road and in public place, crane is also required to move along with truck being super - imposed upon truck. Considering truck being motor vehicle and crane which super-impose upon truck, can not move without truck. Therefore, crane which super-imposed upon truck being part of truck, which are operated while moving on public road in public place. 53. The evidence of respondent no. 1 driver Exh. 57, where four photos of crane Exh. 58 to 61 produced on record which have been considered and seen by this Court. This photographs suggests that crane was super-imposed upon truck having no separate entity for moving from one place to another except it has been moved through truck. For operating system truck driver is having separate cabin similarly, crane driver also having separate cabin, but that does not mean that crane can not consider to be vehicle or motor vehicle. After considering all photographs, Exh. 58 to 61 apparently crane is having 30 fts length of boom and boom as well as cabin of operator are capable to going all sides and accident is occurred while crane was operated by driver. 54. At that occasion as per evidence of driver, he was having concentration for operating crane but he was not taking care for persons, those who were gathered from surrounding area of crane. The driver and owner of crane has not taken sufficient care to cordon reasonable area considering length of 30 ft of boom not to allow any person within that area. So, accident can be avoided. Meaning thereby that, driver and owner has not taken sufficient care or reasonable efforts having been made for cordon area merely about 30 fts keeping in mind length of 30 fts of boom. The evidence of driver has been improved subsequently which has been rightly observed by claims Tribunal. So, accident can be avoided. Meaning thereby that, driver and owner has not taken sufficient care or reasonable efforts having been made for cordon area merely about 30 fts keeping in mind length of 30 fts of boom. The evidence of driver has been improved subsequently which has been rightly observed by claims Tribunal. This improvement is after thought for a purpose of saving liability from said accident. The reasonable efforts have been made for cordoning more than 40 fts area so not a single person can enter in such area and accident may not be occurred while operating crane. This being a legal obligation upon driver of crane and owner of crane to protect public interest at large when crane was operating having risk knowing fully well by driver in public place. So while operating crane, reasonable care and effort was not made while cordoning area which covered length of 30 fts boom which also clearly proved negligence of driver and owner of crane. The owner of crane was not examined before claims Tribunal. The deposition of driver narrated in para 4 is after thought having improvement in his evidence can not be relied on it because there was no cordon covering more than 30 fts area by driver and owner of crane. The driver opponent no. 1 was driving truck as well as also operating crane. In support of evidence of driver no independent witness was examined by opponent no. 1 or opponent no. 2. 55. In cross examination by advocate of claimant, driver admitted that while operating crane more than 50 to 60 persons were near to place of accident and all were standing together seen operation and he has not stated facts which are said in his evidence that deceased was came all of sudden and due to his negligence, accident occurred. The crane was 10 years old and wire lock has been broken and due to that boom has been fell down upon head of deceased. At that time, in cross examination of driver by appellant advocate, he stated that he was having concentration in operating crane for giving jerk to jam boring pipe while operating machine of crane. Thereafter, further gave strain jerk to boom intending to drag jammed boring pipe, but iron chain which was connected with boom controlled and operated broken, and boom fell down on ground on head of deceased. Thereafter, further gave strain jerk to boom intending to drag jammed boring pipe, but iron chain which was connected with boom controlled and operated broken, and boom fell down on ground on head of deceased. Therefore, he was not aware about near presence of deceased when crane was operated by him at relevant time. The attention was only in operating crane. Therefore, not to take care of presence, those who were together about 50 to 60 persons. As per his evidence, sufficient care has not been taken before operating crane and no reasonable area was cordon and there was no other person available, who can keep away all persons those who were together and not to allow any person within area of 35 to 40 ft where crane was operated by driver. 56. This evidence of driver has been rightly appreciated by claims Tribunal in para 9 and come to conclusion that it is clear that for first time driver has advanced theory when he deposed before claims Tribunal. In written statement, Exh. 24, which was filed on behalf of opponent no. 1 and 2, same theory now advanced during evidence of opponent no. 1 is not pleaded when there is no pleading of opponent, party concerned is not entitled to lead evidence for what is not plead. 57. The claims Tribunal has rightly considered evidence of Shri Ukadbhai Ratanbhai, Exh. 52 which creates full confidence and it appears difficult to accept variation of opponent no. 1 Shri Dhirajlimar Exh. 57 that to give strain sudden jerk to boom intending to drag jammed pipe, that is also negligence of driver because in normal practise machinery can be used with strain sudden jerk, so there may be possibility of breaking of supportive wire boom fell on ground, otherwise, question of boom fell down does not arise. The evidence of Shri Ukadbhai Ratanbhai, Exh. 52 when crane vehicle was put into operation he was present there as labourer because deceased Shri Dharamshibhai was engaged him as labour at place of his contract work. The evidence of Shri Ukadbhai Ratanbhai, who deposed before claims Tribunal that they were at a distance of about 10 to 15 ft from boring place suggested that there was no cordon when crane was operated by driver, otherwise, 50 to 60 persons can not together near 10 to 15 ft from boring place. The evidence of Shri Ukadbhai Ratanbhai, who deposed before claims Tribunal that they were at a distance of about 10 to 15 ft from boring place suggested that there was no cordon when crane was operated by driver, otherwise, 50 to 60 persons can not together near 10 to 15 ft from boring place. No person was engaged by driver of crane to keep away this all 50 to 60 persons, those who were together for seen of operation work of crane remained away of 30 to 35 ft from boring place. Therefore, claims Tribunal has rightly appreciated evidence of Shri Ukadbhai Ratanbhai, Exh. 52 and evidence of driver Shri Dhirajkunar Chandulal Suthar, Exh. 57. On the basis of this two evidences, it is proved before claims Tribunal that accident occurred due to rash and negligence in operating crane without taking reasonable care and also without reasonable efforts to see that persons those who were together remained away from 30 to 35 ft from boring place. So accident is occurred due to rash and negligence in operating crane by driver, which is motor vehicle covered under definition of section 2(28) of Motor Vehicles Act. 58. The claims Tribunal has also considered that crane may be stationary with truck but crane has been used for a purpose of removal of boring pipes. The accident is occurred during said use of crane vehicle that being so, which can be said that crane being vehicle is motor vehicle by use of which, accident is occurred. Therefore, incident was a vehicular accident occurred by use of motor vehicle covered under insurance policy as per section 95 of Motor Vehicles Act. The insurance policy, Exh. 48 was obtained by owner of crane under section 95 of Motor Vehicles Act, being a compulsory insurance. The appellant insurance company has also issued insurance policy u/s 95 of Motor Vehicles Act. If crane is not considered to be 'motor vehicle', question of obtaining insurance policy as compulsory insurance under section 95 of Motor Vehicles Act does not arise. This itself is suggested that appellant company has also considered while issuing insurance policy, Exh. 48 that a crane is 'motor vehicle' under provisions of section 2(28) of Motor vehicle Act. Therefore, finding recorded by claims Tribunal based on legal evidence and also based on certain decisions which have been referred in award. 59. This itself is suggested that appellant company has also considered while issuing insurance policy, Exh. 48 that a crane is 'motor vehicle' under provisions of section 2(28) of Motor vehicle Act. Therefore, finding recorded by claims Tribunal based on legal evidence and also based on certain decisions which have been referred in award. 59. The crane is considered to be motor vehicle for taxation purpose as per decision of this Court as referred above delivered by Honourable Mr. Justice M.R. Calla in SCA nos. 9976/99, 7491/99, 7536/99, 9826/99, 10417/99, 342/2000, 419/2000, 524/2000, 619/2000, 801/2000 and 2034/2000 in case of KD Mehta v. State of Gujarat, Honourable Chief Justice Mr. D.M. Dharmadhikari and Honourable Mr. Justice J.M. Panchal ( 2001 (2) GLR 1189 ) and Honourable Mr. Justice J.M. Panchal & Honourable Justice Mrs. Abhilasha Kumari ( 2006 (4) GLR 2924 ). In all three decisions of this Court in terms held that for taxation purpose and for registration, crane is considered to be 'motor vehicle' as defined under provisions of Motor Vehicles Act. The definition of Motor vehicles/vehicles given under Bombay Motor Vehicles Tax Act 1958 are of same as are defined under provisions of Motor Vehicles Act. The section 3 of Bombay Motor Vehicles Tax Act 1958 for levy of tax, on and from first day of April 1958, there shall be levied and collected on all motor vehicles used or kept for use in the State. Meaning thereby that crane is held to be liable for payment of tax under provisions of Bombay Motor Vehicles Tax Act 1958, considering as motor vehicles used in State. Therefore, contention raised by learned advocate Mr. Parikh that crane is not 'motor vehicle' can not be accepted, therefore, rejected. 60. The contention raised by learned advocate Mr. Parikh that accident is not occurred by use of Motor Vehicles can not be accepted in light of decision of Apex Court in case of Rita Devi & Ors v. New India Assurance Co. Ltd & Anr reported in 2000 (2) GLR 1729 , in case of Shivaji Dayanu Patil v. Vatschala Uttam More reported in 1991 ACJ 777 , in case of Samir Chanda v. Managing Director, Assam State Transport Corporation reported in 1998 ACJ 1351 as referred above. Ltd & Anr reported in 2000 (2) GLR 1729 , in case of Shivaji Dayanu Patil v. Vatschala Uttam More reported in 1991 ACJ 777 , in case of Samir Chanda v. Managing Director, Assam State Transport Corporation reported in 1998 ACJ 1351 as referred above. The user of motor vehicles has been considered by Division Bench of Jharkhand High Court at Ranchi as referred that having wider sense as use in section 165 of Motor Vehicles Act. It covers employment of motorcycle so that whenever vehicle is put into action or service, there is user of vehicle within the meaning of section 165 of Act, where vehicle is being driven or repaired or simply park or keep stationary or leave unattended, only sense, vehicle is used whenever vehicle is driven how for any purpose whatsoever. This specification to abstract section 165 of Act. Therefore, whenever any accident occurred causing death or injury of person because vehicle or in course of its use, claims Tribunal is having jurisdiction to decide claim petition. It is well settled law that jurisdiction of Tribunal is not restricted to decide claim arising out of negligence under use of motor vehicles. The negligence is only one specie of causes of action for making claim for compensation in respect of accident arising out of use of vehicle. The word 'use of motor vehicle' included period when vehicle was in stationary possession due to break down, mechanically effect or accident. 61. In case of Khitti Sahu v. Yashwant Kumar Sahu and another reported in 2008 ACJ 1108, relevant aspect in respect to 'use of Motor vehicle' has been considered by High Court of Chhattisgarh at Bilaspur. Relevant observation made in para 6 and 7, which are quoted as under: "6. The second argument of the appellant that 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 sudden the jack slipped and the tractor fell on the claimant resulting into grievous injury. 7. The word 'use' is used in section 165 in a wide sense. 7. The word 'use' is used in section 165 in a wide sense. It covers all employments of a motor vehicles, 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 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, 1991 ACJ 777 (SC), on the decision of Kerala High Court in the matter of Babu v. Remesan, 1996 ACJ 1988 (Kerala) and in the matter of V.G. Sumant v. Shailendra Kumar, 1980 ACJ 248 (MP)" 62. The Apex Court has also considered in case of Kaushnuma Begum v. New India Assurance Co. Ltd reported in 2001 ACJ 428 that cause of capsized was attributed to bursting tyre of jeep. In the bursting capsized vehicle had against one person who was walking on road. The Apex Court has considered case of Rylands v. Fletcher 1861-73 ALL ER 1 and in such cases, Tribunal has jurisdiction to entertain claim petition and such petition is maintainable. Therefore, negligence of driver may not consider to be syne–qa-non for filing claim petition by claimants and in such circumstances also claims Tribunal has jurisdiction to decide claim petition. In case of bursting of front tyre of jeep, question of driver's negligence does not arise, even though, Apex Court in case of Kaushnuma Begam, held that claimants are entitled to file claim petition because of death of person who died while walking on road and claims Tribunal has jurisdiction to grant compensation, which is maintainable. Therefore, contention raised by learned advocate Mr. Parikh relying upon decisions which are referred above in his submission are not applicable to facts of this case. 63. The efforts have been made by learned advocate Mr. Therefore, contention raised by learned advocate Mr. Parikh relying upon decisions which are referred above in his submission are not applicable to facts of this case. 63. The efforts have been made by learned advocate Mr. Parikh to point out to this Court that if in accident other agency except motor vehicle is involved, claims Tribunal has no jurisdiction to decide claim petition. The decisions which relied by learned advocate Mr. Parikh being an accident occurred between railway and motor vehicle in case of composite negligence between train and motor vehicle, claims Tribunal has jurisdiction but if accident is occurred solely having negligence of railway driver or railway employee, then claims Tribunal has no jurisdiction. 64. The decision of Full Bench of Allahabad High Court relying upon decision of Full Bench of P&H High Court deciding same principles that if accident is occurred by other agency not by motor vehicle then claims Tribunal has no jurisdiction to decide claim petition. I have gone through all decisions which are relied by learned advocate Mr. Parikh for ratio laid down in each decision. This Court is accepting principle decided by Division Bench of this Court as well as Full Bench of Allahabad High Court and P&H High Court and Apex Court, but question is that facts based on this decisions are altogether different then of present case. In present case, accident is not occurred by other agency then motor vehicle. The accident is occurred while operating crane means actual use of crane which consider to be motor vehicles under provisions of Motor Vehicles Act and insurance policy also obtained while considering motor vehicle u/s 95 of Motor Vehicles Act. The insurance policy obtained for crane by owner of crane but not obtained policy of truck from insurance company. So, crane is considered to be 'motor vehicles' and on that basis motor policy was issued by appellant insurance company. Therefore, in fact of this case, accident is occurred by use of motor vehicle means crane and there is no other agency or person is involved in said accident. It is a clear case of vehicular accident occurred by use of motor vehicle satisfying requirement of Motor Vehicles Act. Accordingly, claims Tribunal has jurisdiction to decide claim petition. The decisions which are relied by learned advocate Mr. Parikh are not applicable to facts of present case. It is a clear case of vehicular accident occurred by use of motor vehicle satisfying requirement of Motor Vehicles Act. Accordingly, claims Tribunal has jurisdiction to decide claim petition. The decisions which are relied by learned advocate Mr. Parikh are not applicable to facts of present case. Therefore, contentions which are raised based on aforesaid decisions ignoring undisputed positions that accident occurred by use of crane being motor vehicle having insurance policy as motor vehicle being motor policy, even though, stand was taken which is contrary to record by appellant insurance company that claims Tribunal has no jurisdiction to decide claim petition as crane is not motor vehicle and it was not used when accident occurred. Such submissions found to be contrary on record which record has been rightly appreciated by claims Tribunal. For that, claims Tribunal has not committed any error which would require interference by this Court. 65. The negligence of driver is also established from record, considering evidence Exh. 57, and also considering evidence of Shri Ukadbhai Ratanbhai, Exh. 52. The reasonable care which has to be taken by driver of crane not taken and no sufficient safeguard being cordon considering length of 30ft of boom is also ignored and allowed to remain present persons about 50 to 60 near to boring place, which is apparently dangerous covering risk knowing fully well that length of boom is 30 ft and also danger/risky work was carried out by operating crane. Therefore, claims Tribunal has rightly considered evidence of driver which has been improved as in such facts narrated in written statement being pleading and contrary to pleading party is not allowed to lead evidence for what is not pleaded. Therefore, claims Tribunal has rightly come to conclusion that there was a clear negligence proved by evidence of driver as well as Shri Ukadbhai Ratanbhai, Exh. 52 and for negligence is concerned rule is, party who alleged negligence require to prove negligence. However, at this time, it is difficult to prove negligence with regard to provisions of section 100 and 106 of Evidence Act. 52 and for negligence is concerned rule is, party who alleged negligence require to prove negligence. However, at this time, it is difficult to prove negligence with regard to provisions of section 100 and 106 of Evidence Act. It is held in case of Prakashchandra Kantilal & Anr v. Shantilal Rangildas & Ors reported in 1985 (2) GLR 1242 as well as in case of Smt Rafia Sultan widow of Mirza Sultan Ali Baig and Ors v. Oil & Natural Gas Commission reported in 1985 (2) GLR 1315 that in accident case, burden of proving with regard to negligence is with defendant and defendant is expected to explain how accident took place. Therefore, doctrine of Res Ipsa Locquitor is also rightly considered by claims Tribunal and also rightly come to conclusion that opponents have miserably failed to prove that accident happened due to other cause then negligence on the part of respondent opponent no. 1. 66. In view of aforesaid observation made by this Court and after considering decisions which have been relied by all learned advocates appearing for respective parties, according to my opinion, crane which is super-imposed upon truck is 'motor vehicle' defined under provisions of Motor Vehicles Act. The insurance policy issued by appellant insurance company being 'motor policy" under section 95 of Motor Vehicles Act covering risk of 3rd party in public place that proved facts that crane is considered as 'motor vehicles' as defined under provisions of Motor Vehicles Act. The insurance policy, Exh. 48 is issued with respect to mobile crane in question. There is no policy issued by appellant insurance company in respect to truck. The accident occurred by use of motor vehicle and due to negligence of opponent no. 1 driver and claims Tribunal has jurisdiction to decide claim petition filed by claimants, for that, claims Tribunal has not committed any error in passing award in favour of claimants. There is no contentions raised by learned advocate Mr. Parikh in respect to quantum awarded by claims Tribunal. Therefore, this Court is not examining question of quantum. 67. 1 driver and claims Tribunal has jurisdiction to decide claim petition filed by claimants, for that, claims Tribunal has not committed any error in passing award in favour of claimants. There is no contentions raised by learned advocate Mr. Parikh in respect to quantum awarded by claims Tribunal. Therefore, this Court is not examining question of quantum. 67. It is necessary to note while considering decisions of Madras High Court in case of Poomani v. Tuticorin Thermal Power Project, Tuticorin reported in 1990 ACJ 794 , Madras High Court held that while considering section 2(18) read with section 22 crane is considered to be "motor vehicle" as defined while followed by two decision of P&H High Court reported in case of Punjab State Co-op, Supply and Marketing Federation Ltd v. Malkiat Singh reported in 1988 ACJ 553 and in case of Nirmal Bhutani v. Haryana State reported in 1983 ACJ 640. The relevant discussion made by Madras HC in para 9 to 13 are quoted as under: "9. Following facts about the crane, which had caused the accident, emerge from the oral and documentary evidence. According to RW 1, he was the driver of the crane and was driving the crane on the date of the occurrence. According to him, the crane was a mechanically propelled vehicle 60 feet long and 10 feet high and he was seated on the crane and was driving it. It was driven at the time of occurrence on a public road and was being taken from one site of operation to another site of operation. The crane would be used to load and unload goods from lorries and cannot carry either passengers or any articles. Records show that the crane was assigned the number C-11, Exh. A-3, observation Mahazar, shows that the crane had four wheels. The crane would be used to load and unload goods from lorries and cannot carry either passengers or any articles. Records show that the crane was assigned the number C-11, Exh. A-3, observation Mahazar, shows that the crane had four wheels. It has now to be seen whether such a vehicle answers the description of a motor vehicle as defined in section 2(18) of the Act, which is as follows: "'Motor Vehicle' means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises." 10. The concerned crane, even according to its driver, RW 1, was mechanically propelled. It is obvious that had been adapted for use upon roads and was in fact at the time of the occurrence being driven on a public road – Tuticorin – Thiruchendur Road. The crane, therefore, clearly falls within the definition of 'motor vehicle' as found above. 11. The reason given by the Tribunal for holding that the crane is not a motor vehicle under the Act is that the concerned Motor Vehicles Inspector refused to inspect the vehicle, since the crane, according to him, was not a motor vehicle. The Tribunal has also stated that the crane had not been registered under the Act and that, therefore, it would not be a motor vehicle. An observation has also been made by the Tribunal that the crane was obviously made not to be run on public road and that, therefore, the crane was not a motor vehicle and the jurisdiction of the Tribunal was ousted. I fail to see, how one of these factors could be relevant to the question as to definition of motor vehicle answers the definition of motor vehicle given in section 2 (18) of the Act. No doubt, motor vehicles have to be registered under the Act. However, failure to register the same would still make it a motor vehicle, if it falls within the definition found in section 2(18). Admittedly, the crane was being taken from one site of operation to another site of operation through a public road. No doubt, motor vehicles have to be registered under the Act. However, failure to register the same would still make it a motor vehicle, if it falls within the definition found in section 2(18). Admittedly, the crane was being taken from one site of operation to another site of operation through a public road. This for use only in any enclosed premises. The Tribunal, therefore, was in error in holding that the crane was not a motor vehicle. 12. In Harrisons and Crosfield Ltd. v. Kerala State, AIR 1971 Kerala 329, a learned Judge held that a tractor fitted with hydraulically operated shovel, though confined in its operation only to certain factory premises, is a motor vehicle which can be adapted or suitable for use as such vehicle upon the roads, in normal course. The mere fact that the tractor was neither intended to be put to use elsewhere than the factory premises nor was actually used on the roads, is not sufficient to exclude it from category of 'motor vehicle' defined in section 2(18) of the Act. 13. A Division Bench of Punjab and Haryana High Court in Punjab State Cooperative Supply and Marketing Federation Ltd. v. Malkiat Singh, 1988 ACJ 533 (P&H), held that the Combine Harvester being a mechanically propelled vehicle adapted for use upon roads – in the sense of travelling from one place to another - not falling in any of the excluded categories, viz., vehicles running upon fixed rails or being adapted for use only in a factory or other enclosed premises, was a motor vehicle under section 2(18) of the Act. The same court earlier in Nirmal Bhutani v. Haryana State, 1983 ACJ 640 (P&H), held that a road roller was motor vehicle under the Act. I see no difficulty in holding that crane is a motor vehicle as defined under section 2 (18) of the Act and that the Tribunal has jurisdiction to entertain claim." 68. In fact of present case, crane is also registered having certificate of registration produced on record Exh. 29, where certificate of registration has been issued by State of Maharashtra under provisions of Motor Vehicles Act 1939, section 2(24). Therefore, contention raised by learned Mr. In fact of present case, crane is also registered having certificate of registration produced on record Exh. 29, where certificate of registration has been issued by State of Maharashtra under provisions of Motor Vehicles Act 1939, section 2(24). Therefore, contention raised by learned Mr. Parikh can not be accepted when crane is covered by definition as 'motor vehicle' then accident occurred by use of crane is accident by use of motor vehicle and negligence is proved, therefore, claims Tribunal has jurisdiction to decide claim petition filed by claimants. It is necessary to note that learned advocate Mr. Parikh is not able to cite any decisions of any High Court including Apex Court in support of his submission that crane is not considered as 'motor vehicle'. Merely, logical argument made by learned advocate Mr. Parikh is not legal submission, therefore, same are not accepted by this Court. 69. Hence, view taken by claims Tribunal is perfectly justified based on record, for that, claims Tribunal has not committed any error which would require interference by this Court. There is no substance in present appeal filed by appellant insurance company, therefore, present appeal is dismissed. No order as to costs. 70. Registry is directed to sent R & P immediately to claims Tribunal, Vadodara. 71. Learned advocate Mr. Parikh submitted that whatever interim arrangement made by this Court, let it be remained continued for a period of three months. Learned advocate Mr. Hakim appearing for respondent claimants submitted that there is no interim arrangement at all made by this Court between parties. On the contrary, he submitted that in CA no. 8771/2004 in FA no. 68/90, on 2/11/2004, Division Bench of this Court has passed following orders, which is quoted as under: "After hearing the learned counsel for the parties, the Claims Tribunal is directed to release Rs.2 lacs in favour of Labhuben Dharamshibhai Prajapati, wife of deceased, to be used for maintenance of family, on proper verification, through account payee cheque. Remaining amount be invested in F.D.R. in the name of claimants for a period of three years in the first instance, extendable in case appeal is not heard within this period. Remaining amount be invested in F.D.R. in the name of claimants for a period of three years in the first instance, extendable in case appeal is not heard within this period. Interest accruing on the fixed deposit be released in favour of Labhuben Dharamshibhai Prajapati(wife of deceased), quarterly or six monthly, as may be demanded by her from Manager of the Bank, to be used for expenses, maintenance of family, education of children, etc. Civil Application disposed of. Direct Service permitted." 72. In view of aforesaid order Rs. 2 Lacs was disbursed in favour of Labhuben Dharamshibhai Prajapati and remaining amount is invested in FDR in the name of respondent claimants for a period of three years and periodical interest was available to claimants. He submitted that matter is of 1990, more than 19 years have passed, therefore, no direction may be issued to continue interim arrangement for further period or no direction may be issued as prayed by learned advocate Mr. Parikh, so amount which are lying with claims Tribunal may not be disbursed to claimants. 73. I have considered submissions made by both learned advocates and considering order passed by this Court on 2/11/2004 by Division Bench of this Court, which suggests that there is no interim arrangement as suggested by learned advocate Mr. Parikh is continued between parties. On the contrary, Rs. 2 Lacs was disbursed in favour of claimants. Now only Rs. 2 Lacs or some amount is lying with claims Tribunal, matter remained pending before this Court more than 19 years. In such circumstances, request made by learned advocate Mr. Parikh can not be granted and same is rejected accordingly. Appeal dismissed.