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Madhya Pradesh High Court · body

2011 DIGILAW 1420 (MP)

Union of India v. Bhagri

2011-12-14

SHEEL NAGU

body2011
ORDER 1. Deleted. 2. These miscellaneous appeals assail the common award dated 5.8.2006 passed in three motor vehicles claims cases including motor vehicles claim case No. 115/05, filed for claiming appropriate compensation for the death of Kamal Kishore which occurred on 23.5.2011 when the said deceased while travelling in a BSF truck which was returning from Shrinagar to Jammu, was blown up by a bomb explosion at about 10 a.m. killing majority of persons travelling in it including respondent. 3. These appeals have been filed by Union of India primiarily on the ground that in the absence of proof of negligence on the part of the driver/owner of the said truck belonging to the BSF, the liability of paying compensation cannot be fastened upon the Union of India and also that accident did not arise out of the use of motor vehicle. 4. The counsel for the appellant has placed reliance on a decision of the apex Court in the case of Samir Chanda v. Managing Director, Assam State Transport Corporation reported in 1998 (7) Supreme 66 . In the said case, the apex Court while setting aside the single Bench decision of the High Court of Guhati has held that in a situation where the bomb was planted inside the truck and the truck was blown up leading to the death of several persons travelling in the truck, the owner and driver cannot be absolved of their liability to compensation since they failed to ensure that there was no bomb inside the truck especially when truck was plied in area of high security alert. In these facts, the apex Court rendered its findings in favour of dependents of the deceased dying in the bomb explosion. 5. The counsel for the appellants further places reliance on a single Bench decision of the Orrisa High Court reported in AIR 1993 Orrisa 89 wherein the labourer while loading the logs on a stationary truck died on being crushed by the logs which rolled down for not being properly fastened to the truck. In this factual background, the Orissa High Court held that the accident leading to the death of owner did not arise out of the use of motor vehicle. 6. In the instant appeals, it is not in dispute that the bomb was not planted inside the truck. In this factual background, the Orissa High Court held that the accident leading to the death of owner did not arise out of the use of motor vehicle. 6. In the instant appeals, it is not in dispute that the bomb was not planted inside the truck. It is further not disputed that the bomb was planted under the birdge over which the truck passed at the time when the said bomb blew up. Evidently, the material that has come on record clearly indicates that the fact that the bomb was planted under the bridge could not have possibly come to the knowledge of the owner/driver despite exercise of due care and diligence by them. 7. The further contention of learned counsel for the respondents is that the claim before the tribunal was under section 163-A of the Motor Vehicles Act 1988 and not under section 166 and, therefore, when the award was based on no fault liability then the question of the owner/driver being negligent or not does not arise. 8. In the backdrop of above said factual matrix, perusal of section 165-(I) (explanation) indicates that the claims under section 165/166 include the claim for compensation under section 163-A. For convenience section 165-(I) is reproduced below :- 165. Claims Tribunals - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon, claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation -- For the removal of doubts, it is hereby declared that the expression “Claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section 140 1 [ and secion 163-A]. 9. Plain reading of section 165 elicits that even for no-fault liability claims U/s. 163-A, the factum of occurrence of accident arising out of use of motor vehicle is required to be proved. 10. In the instant appeals, it is not in dispute that the bomb was not planted inside the truck. 9. Plain reading of section 165 elicits that even for no-fault liability claims U/s. 163-A, the factum of occurrence of accident arising out of use of motor vehicle is required to be proved. 10. In the instant appeals, it is not in dispute that the bomb was not planted inside the truck. It is further not disputed that the bomb was planted under the bridge over which the truck passed at the time when the said bomb blew up. Evidently, the material that has come on record clearly indicates that the fact that the bomb was planted under the bridge could not have possibly come to the knowledge of the owner/driver despite exercise of due care and diligence by them. 11. The tribunal while rendering the impugned award has moved on the assumption that the accident has occurred due to the negligence of the driver of the vehicle without considering the aspect as to whether in the given facts and circumstances, death could be said to have been caused by an accident arising out of the use of motor vehicle. 12. From the analysis of the factual matrix and the judicial precedents on the point, this Court is of the considered view that the accident which occasioned the death of the deceased was not caused due to the use of the motor vehicle but was caused due to the reason of explosion of the bomb which did not have the slightest of connection with the use of the motor vehicle. 13. From the law laid down by the apex Court in case of Sameer Chanda v. Managing Director Assam State Transport Corporation, it becomes clear that in case before the Apex Court, the bomb which was planted inside the truck that impelled the apex Court to held that since the owner of the driver was duty bound to ensure that their vehicle was bomb free, the duty which they failed to perform, the accident arising out of the explosion which lead to blowing up of the bomb can be inside the vehicle arise out the use of motor vehicle. The distinguishing feature in this case is that the bomb was not inside the vehicle but was placed under the bridge over which the truck passed at the time of explosion. The distinguishing feature in this case is that the bomb was not inside the vehicle but was placed under the bridge over which the truck passed at the time of explosion. The owner/driver cannot by any stretch of imagination can be held responsible for planting of bomb under a bridge or cannot be also held responsible for ensuring that the road/bridge is free of any bomb for the simple reason that the owner and driver of the truck do not have any control over the construction and maintenance of the bridge and the road. 14. Therefore, the inference of owner/driver being negligent as drawn by the tribunal in the impugned award is untenable, rendering the award to be unsustainable in the eyes of law. 15. Before parting, the Court may hasten to add that the claimants cannot be said to be remedyless as they can very well seek the remedy available to them before the Civil Court by filing a civil suit or by seeking their claim under the Workmen’s Compensation Act if the provisions of the said enactment applies to them. 16. Consequently, these miscellaneous appeals are allowed. Impugned order of the Tribunal dated 5.8.2006 passed in Motor Vehicle Claims Case Nos. 114/05, 115/05 is set aside.