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2012 DIGILAW 1480 (BOM)

New India Assurance Company v. Janglu

2012-08-07

M.N.GILANI

body2012
Judgment : Being aggrieved by the judgment and award dated 20.4.2000, passed by the Chairman, Motor Accident Claims Tribunal, Nagpur, in Claim Petition No.336/1992, the appellant/original respondent no.4 has preferred this appeal. 2. Auto-rickshaw bearing registration No.MZW-1029 is owned by respondent no.5. The jeep bearing registration No. MUK 9459 is owned by respondent no.3. Both these vehicles were insured with the appellant. Since the auto-rickshaw was out of order, it was required to be carried to mechanic. The incident occurred on 28.2.1992 on Nagpur – Jabalpur road near village Potgowari. While auto-rickshaw was being toed with the help of jeep, a truck coming from opposite direction dashed against auto-rickshaw. Dilipdeceased who was made to sit in the autorickshaw sustained injuries and died. The respondent no.1 and 2 are his parents. They claimed compensation of Rs.1,20,000/-. 3. The respondents no.3 to 5 filed joint written statement. It is denied that there was any negligence on the part of the driver of the jeep. He came with the defence that while the auto-rickshaw was being toed with the help of the jeep one truck going towards Nagpur dashed against auto-rickshaw. This was the cause of accident. It is further pleaded that while auto-rickshaw was being toed all precautions were taken like using strong rope to tie both the vehicles. 4. The appellant raised preliminary objection. Although the appellant admitted that the auto-rickshaw was insured with them, insurance of the jeep was denied by them. It was further pleaded that in breach of terms of insurance policy the auto-rickshaw was driven. Deceased Dilip had no driving licence. It is further pleaded that insurance company with whom the jeep was insured ought to have been joined as party – respondent. 5. Respondent no.1 entered the witness box. The appellant did not examine any witness. After considering the notional income of the deceased the Tribunal awarded compensation of Rs.95,000/-. The Tribunal held that the accident occurred because of rash and negligent driving of both the vehicles i.e. jeep and auto-rickshaw and therefore saddled the responsibility for paying compensation on the respondent no.3 to 5 and the appellant. This very judgment and award is assailed in this appeal. 6. Shri Pophaly, the learned counsel for the appellant contended that the Tribunal committed an error while passing the award without recording any finding as to driver of which vehicle was at fault and negligent in causing accident. This very judgment and award is assailed in this appeal. 6. Shri Pophaly, the learned counsel for the appellant contended that the Tribunal committed an error while passing the award without recording any finding as to driver of which vehicle was at fault and negligent in causing accident. Straightway the Tribunal saddled the responsibility particularly on the appellant. Further the finding of fact that jeep was insured with the appellant is totally contrary to the evidence on record. A categorical defence was raised by the appellant that the jeep was not insured with them. 7. Mr. Padhye, the learned counsel appearing for the respondent no.1 and 2 contended that no fault can be found with the judgment and award impugned in this appeal. Since the autorickshaw was being toed, the fact that the deceased was not possessing valid licence becomes insignificant. According to him the deceased was made to sit in the auto-rickshaw while it was being toed. As such auto-rickshaw met with an accident while it was in use and in that view the appellant cannot seek exoneration from its liability to satisfy the award. 8. None appeared for the respondents no.3 to 5. 9. The claimant who entered the witness box categorically stated that the jeep was insured with the appellant and also furnished the policy number. This has been specifically pleaded in the petition. In cross examination on behalf of the appellant, no suggestion was put to him that jeep was not insured with the appellant. From the record it appears that in the list dated 21.11.1996 one xerox copy of the insurance policy has been produced which was issued on 18.4.1991 and was covering period from 19.4.1991 to 18.4.1992. It is in respect of the jeep MUK 9459. In that view of the matter, the learned Tribunal was right in observing that both the vehicles were insured with the appellant. 10. Next issue which needs to be addressed is the effect of the deceased not possessing valid driving licence while driving auto-rickshaw. From the documents produced at Exhibit 50 which are police papers it is clear that auto-rickshaw was being toed with the help of the jeep. After investigation, the police submitted a charge sheet against respondent no.5 who at the time of accident was driving the jeep. From the documents produced at Exhibit 50 which are police papers it is clear that auto-rickshaw was being toed with the help of the jeep. After investigation, the police submitted a charge sheet against respondent no.5 who at the time of accident was driving the jeep. He was charged for driving the jeep rashly and negligently and allowing the deceased to drive the auto-rickshaw although the latter was not holding a valid driving licence. It is further mentioned that some unknown truck gave dash to the auto-rickshaw. 11. The plea raised by the appellant that deceased was not holding valid driving licence, in my view is not significant in the facts and circumstances of the present case mainly for the reason that auto-rickshaw was not at all being driven. In a breakdown condition it was being toed with the help of the jeep. Therefore the question of the deceased possessing valid driving licence does not arise. To put it differently, the auto-rickshaw was not being driven with the help of its engine. Section 140 of the Motor vehicles Act creates a liability of the owner of the vehicle and if there are more than one vehicle, owners of such vehicles and such liability is joint and several. Such liability arises out of use of motor vehicle. Although auto-rickshaw was not being driven with the help engine since it was being toed with the help of jeep, it can still be termed as it was being used on the public road. The test to be applied to find out, whether the particular vehicle was involved in an accident should be, whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. In this connection reference can be made to a judgment in case of Babu..vs.. Remesan reported in 1996 ACJ 988 wherein the claimants were the workmen engaged in loading goods vehicle. In the process of tying rope, accidentally the rope which was wet in the rain, came in contact with overhead transmission line. The workmen were electrocuted and sustained severe burn injuries. Dealing with their claims, it was held: “The expression 'use of a motor vehicle' covers accidents which occur both when the vehicle is in motion and when it is stationary. The workmen were electrocuted and sustained severe burn injuries. Dealing with their claims, it was held: “The expression 'use of a motor vehicle' covers accidents which occur both when the vehicle is in motion and when it is stationary. The word 'use' has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. Such use need not necessarily be so intimate and closely direct as to make it 'a motor accident' in the sense in which that expression is used in common parlance. The expression employed by the legislature is 'accident arising out of the use of a motor vehicle' in the place of 'accident caused by the use of a motor vehicle'. Evidently the legislature wanted to enlarge the scope of the word 'use' and not to restrict it for denying compensation in deserving cases. The test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then.” 12. Evidence has been led to the effect that the deceased who was not the regular driver of the auto-rickshaw, but was working as a cleaner on the truck, was made to sit in the auto-rickshaw, while it was being toed. Even assuming that some unknown truck dashed against the auto-rickshaw this would not take out owners of both the vehicles, jeep and auto-rickshaw, from the ambit of the joint tort feasors. The broad fact that the truck did not collide with the jeep, but it collided with the auto-rickshaw, itself suggests that no proper care was being taken while toeing the auto-rickshaw. Thus the respondents no.3 to 5 being joint tort-feasors and the appellant being the insurer of both the vehicles, no fault can be found with the award passed by the learned Tribunal. The appeal is dismissed. There shall be no order as to costs.