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Himachal Pradesh High Court · body

2016 DIGILAW 1239 (HP)

Sharestha Devi v. Kishori Lal

2016-07-01

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to judgment and award, dated 29th August, 2009, made by the Motor Accident Claims Tribunal (II), Kangra at Dharamshala, H.P. (for short “the Tribunal”) in MACP No. 31J/2006 titled as Smt. Sharestha Devi and others versus Kishori Lal and others, whereby the claim petition filed by the appellants-claimants came to be dismissed (for short “the impugned award”). 2. In order to determine this appeal, it is necessary to give a brief resume of the case, the womb of which has given birth to the instant appeal. 3. The appellants-claimants invoked the jurisdiction of the Tribunal by the medium of the claim petition for grant of compensation to the tune of 10,00,000/-, as per the break ups given in the claim petition, on the ground that their sole bread earner, namely Parhlad, husband of appellant-claimant No. 1 and son of appellants-claimants No. 2 & 3, became victim of the accident arising out of use of the motor vehicle, i.e. truck, bearing registration No. HP-690747, on 15th September, 2005, at about 10.30 A.M. near 33 Miles, on Pathankot Manali National Highway. 4. It has been averred in the claim petition that when the deceased was unloading marble slabs from the offending vehicle, one of the marble slabs slipped, hit the deceased near the truck, who sustained injuries and succumbed to the said injuries. 5. The claim petition was resisted by the driver, owner-insured and the insurer of the offending vehicle on the grounds taken in the respective memo of objections. 6. The replies filed by the respondents are evasive and not as per the mandate of Order VIII of the Code of Civil Procedure (for short “CPC”). Thus, it is deemed that they have admitted the averments contained in the claim petition. 7. On the pleadings of the parties, following issues came to be framed by the Tribunal on 11th December, 2007:- “1. Whether the death of the deceased had taken place due to the rash and negligent act of the respondent No. 2 by moving the truck No. HP690747 at 33 Miles on Pathankot Manali National Highway as alleged? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the petition is not maintainable in the present form as alleged? OPR 4. OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the petition is not maintainable in the present form as alleged? OPR 4. Whether the respondent No. 2 being driver of the offending vehicle was not having valid and effective driving licence as alleged? OPR3 5. Relief.” 8. Parties have led evidence. 9. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have failed to prove that the accident was outcome of rash and negligent driving of the offending vehicle by its driver. The Tribunal dismissed the claim petition, however, has assessed the compensation and held that the claimants are entitled to compensation to the tune of Rs.5,25,000/-, as per the details given in para 15 of the impugned award. Issue No. 1: 10. The moot question is – whether the Tribunal has rightly determined issue No. 1 and dismissed the claim petition? The answer is in the negative for the following reasons: 11. The appellants-claimants have specifically averred in the claim petition that deceased Parhlad was unloading the marble slabs from the offending vehicle at the relevant point of time, one of the marble slabs slipped and hit deceased Parhlad near the truck, have led evidence to this effect. 12. The appellants-claimants have examined HHC Des Raj as PW1, who has proved the report under Section 174 of the Code of Criminal Procedure (for short “CrPC”), filed before the Court of competent jurisdiction, which has been exhibited as Ext. PW1/A. 13. The Tribunal has made mention of the said report in para 8 of the impugned award. The Tribunal has also held in the same para that there is no dispute about the death of deceased Parhlad. It would be profitable to reproduce relevant portion of para 8 of the impugned award herein:- “8. …..........The responsibility of unloading the material is always that of the owner of the material. Police had reached the Hospital and there they found deadbody of Prahlad. Police conducted proceedings under Section 174 CrPC and the same is Ex. PW1/A. A perusal of it would show that Prahlad was unloading the marvel of his employer and he was working with Shri Shan Singh. xxx xxx xxx There is no dispute qua the death of Prahlad and autopsy report is Ex. Police conducted proceedings under Section 174 CrPC and the same is Ex. PW1/A. A perusal of it would show that Prahlad was unloading the marvel of his employer and he was working with Shri Shan Singh. xxx xxx xxx There is no dispute qua the death of Prahlad and autopsy report is Ex. PW2/A and deceased had died on account of internal injury to trachea filled with blood leading to suffocation causing death due to asphyxia in due course.” 14. Admittedly, the offending vehicle was parked and stationary at the relevant point of time for the purpose of unloading the marble slabs, as has also been mentioned by the Tribunal in para 9 of the impugned award, the relevant portion of which reads as under:- “9. While filing petition, the claimants relied on report prepared by the police which is Ext.PW1/A and it recited that deceased Prahlad was unloading the marvel slabs of his owner Shan Singh and he suffered injuries while unloading........” 15. The said finding has not been questioned by the owner-insured, driver and insurer of the offending vehicle, has attained finality. 16. It is also admitted fact that the offending vehicle was stationery for the purpose of unloading the marble slabs, as discussed hereinabove. Thus, the question is – whether the claim petition was maintainable? 17. The compensation was to be granted irrespective of the fact as to whether the claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short “MV Act”) or Section 163A of the MV Act for the following reasons: 18. The MV Act has gone through a sea change in the year 1994 and in terms of Sections 158(6) and 166(4) of the MV Act, the Tribunal can treat even a police report as a claim petition. 19. The purpose of granting compensation is just to ameliorate the sufferings of the victims of the motor vehicular accident and the niceties, hypertechnicalities, procedural wrangles and tangles and mystic maybes have no role to play and that should not be a ground to dismiss the claim petition and to defeat the rights of the claimants. 20. The same principle has been laid down by the Apex Court in the cases titled as N.K.V. Bros. 20. The same principle has been laid down by the Apex Court in the cases titled as N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354; Sohan Lal Passi versus P. Sesh Reddy and others, reported in AIR 1996 Supreme Court 2627; and Dulcina Fernandes and others versus Joaquim Xavier Cruz and another, reported in (2013) 10 SCC 646 . 21. This Court has also laid down the same principle in a series of cases. 22. It is the duty of the Tribunal/Appellate Court to achieve the aim and object of the granting of compensation. The strict proof is not required and discrepancies or pleadings or loose pleadings cannot be made a ground to dismiss the claim petition. These proceedings are summary in nature, do not require strict compliance of the rules of evidence and pleadings. The Tribunal has to take special care to see that innocent victims do not suffer and it cannot wash its hands of the responsibility and duty by dismissing the claim petition. It is to be kept in mind by the Tribunal that it is dealing with a claim petition which is outcome of social welfare legislation. 23. It is well established principle of law that the Tribunal, while dealing with claim petition, has to keep in mind that it is outcome of a social legislation, has to follow the principles of justice, equity and good conscience and has to apply a more realistic, pragmatic and liberal approach. 24. The Apex Court in a case titled as Madan Gopal Kanodia versus Mamraj Maniram and others, reported in (1977) 1 SCC 669 , held that the Courts should not scrutinize the pleadings with such meticulous care resulting in genuine claims being defeated on trivial grounds. It is apt to reproduce para 13 of the judgment herein:- “13. …... It is wellsettled that pleadings are loosely drafted in the Courts and the Courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. In our opinion the finding of the High Court that there was wide gap between the pleadings and the proof is not at all borne out from the record of the present case.” 25. In our opinion the finding of the High Court that there was wide gap between the pleadings and the proof is not at all borne out from the record of the present case.” 25. Having glance of the above discussions, one comes to an inescapable conclusion that the deceased was unloading marble slabs at the relevant point of time, one of the marble slabs slipped and hit the deceased near the truck. Thus, it is a case of accident arising 'out of use of motor vehicle'. 26. This Court, while dealing with a case of similar nature in FAO No. 537 of 2008, titled as United India Insurance Company Ltd. Versus Sh. Talaru Ram and others, decided on 18th December, 2015, held that claim petition is maintainable. It is apt to reproduce paras 25 to 31 and 33 of the judgment herein:- “25. The Apex Court in the case titled as Shivaji Dayanu Patil and another versus Vatschala Uttam More, reported in 1991 ACJ 777, has interpreted the words and expression 'use of motor vehicle' and held that these have a wide connotation. It is apt to reproduce paras 31 to 36 of the judgment herein:- "31. The words "arising out of" have been used in various statutes in different contexts and have been construed by Courts widely as well as narrowly, keeping in view the context in which they have been used in a particular legislation. 32. In Heyman v. Darwins Ltd., 1942 AC 356, while construing the arbitration clause in a contract, Lord Porter expressed the view that as compared to the word 'under', the expression 'arising out of' has a wider meaning. In Union of India v. E.B. Aaby's Rederi A/S, 1975 AC 797, Viscount Dilhorne and Lord Salmon stated that they could not discover any difference between the expression "arising out of" and "arising under" and they equated "arising out of" in the arbitration clause in a Charter Party with "arising under." 33. In Samick Lines Co. Ltd. v. Owners of the Antonis P. Lemos, (1985) 2 WLR 468, the House of Lords was considering the question whether a claim for damages based on negligence in tort could be regarded as a claim arising out of an agreement under section 20(2)(1)(h) of the Supreme Court Act, 1981 and fell within the admiralty jurisdiction of the High Court. Ltd. v. Owners of the Antonis P. Lemos, (1985) 2 WLR 468, the House of Lords was considering the question whether a claim for damages based on negligence in tort could be regarded as a claim arising out of an agreement under section 20(2)(1)(h) of the Supreme Court Act, 1981 and fell within the admiralty jurisdiction of the High Court. The words "any claim arising out of any agreement relating to the carriage of goods in a ship or to the use of hire of a ship" in section 20(2)(1)(h) were held to be wide enough to cover claims, whether in contract or tort arising out of any agreement relating to the carriage of goods in a vessel and it was also held that for such an agreement to come within paragraph (h), it was not necessary that the claim in question be directly connected with some agreement of the kinds referred to in it. The words "arising out of" were not construed to mean "arising under" as in Union of India v. E.B. Aaby's A/S, 1975 AC 797, which decision was held inapplicable to the "The words" injury caused by or ar ising out construction of S. 20(2)(1)(h) and it was observed by Lord Brandon: "With regard to the first point, I would readily accept that in certain contexts the expression 'arising out of' may, on the ordinary and natural meaning of the words use, be the equivalent of the expression 'arising under', and not that of the wider expression 'connected with'. In my view, however, the expression 'arising out of' is, on the ordinary and natural meaning of the words used, capable, in other contexts, of being the equivalent of the wider expression 'connected with'. Whether the expression 'arising out of' has the narrower or the wider meaning in any particular case must depend on the context in which it is used." Keeping in view the context in which the expression was used in the statute it was construed to have the wider meaning viz. 'connected with'." 34. In the context of motor accidents the expressions 'caused by' and 'arising out of' are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. 'connected with'." 34. In the context of motor accidents the expressions 'caused by' and 'arising out of' are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. This distinction has been lucidly brought out in the decision of the High Court of Australia in Government Insurance Office of N.S.W. v. R.J. Green & Lloyd Pty. Ltd., 1967 ACJ 329 (HC, Australia), wherein Lord Barwick, C.J., has stated : "Bearing in mind the general purpose of the Act I think the expression' arising out of' must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words caused by'. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression 'arise out of' as used in the Act and in the policy." 35. In the same case, Windeyer, J. has observed as under : "The words 'injury by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. 'Caused by' connotes a 'direct' or 'Proximate' relationship of cause and effect. 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence." 36. This would show that as compared to the expression 'caused by', the expression 'arising out of' has a wider connotation. The expression 'caused by' was used in sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In section 92A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under section 92A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be, connected with the use of the motor vehicle but the said connection need not be direct and immediate. This would imply that accident should be, connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in section 92A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment." 26. While going through the judgment (supra), one comes to an inescapable conclusion how the accident and injury/death have relationship with use of motor vehicle. 27. The Apex Court in another case titled as Rita Devi (Smt) and others versus New India Assurance Co. Ltd. and another, reported in (2000) 5 SCC 113 , has discussed the scope of Section 163A of the MV Act and the expression 'death due to accident arising out of the use of motor vehicle' occurring in Section 163A of the MV Act. It is profitable to reproduce paras 9 to 18 of the judgment herein: "9. A conjoint reading of the above two subsections of Sec. 163A shows that a victim or his heirs are entitled to claim from the owner/insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle (emphasis supplied), without having to prove wrongful act or neglect or default of anyone. Thus, it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle, then contention of the Insurance Company which was accepted by the High Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words "death due to accident arising out of the use of motor vehicle". 10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is to kill any particular person, then such killing is not an accidental murder, but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act, then such murder is an accidental murder. 11. In Challis v. London and South Western Rly. Co., (1905) 2 KB 154, the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone wilfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held : "The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words, it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously." 12. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously." 12. In the case of Nisbet v. Rayne & Burn, (1910) 2 KB 689, where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers' workmen, was robbed and murdered. The Court of Appeal held : "That the murder was an accident from the standpoint of the person who suffered from it and that it arose out of an employment which involved more than the ordinary risk, and consequently, that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case, the Court followed its earlier judgment in the case of Challis (supra). In the case of Nisbet (supra) the Court also observed that it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word accident negatives the idea of intention. In my opinion, this contention ought not to prevail, I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet." 13. The judgment of the Court of Appeal in Nisbet case (supra) was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School v. Kelly, 1914 AC 667. 14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of farepaying passengers to transport them to the place of their destination. 14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of farepaying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing theft of the autorickshaw. 15. Learned Counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word "death" and the legal interpretations relied upon by us are with reference to the definition of the word "death" in the Workmen's Compensation Act the same will not be applicable while interpreting the word death in the Motor Vehicles Act, because according to her, the objects of the two Acts are entirely different. She also contends that on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the autorickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts is to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours, we are supported by Sec. 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence the judicially accepted interpretation of the word death in the Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also. 16. In the case of Shivaji Dayanu Patil v. Vatschala Uttam More, (1991) 3 SCC 530 this Court while pronouncing on the interpretation of Section 92A of the Motor Vehicles Act, 1939 held as follows : (SCC p. 532, para 12) "... Section 92A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the Courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose." 17. In that case, in regard to the contention of proximity between the accident and the explosion that took place, this Court held : (SCC pp. 54950, para 36) "36. This would show that as compared to the expression 'caused by', the expression 'arising out of' has a wider connotation. The expression 'caused by' was used in Sections. 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. 54950, para 36) "36. This would show that as compared to the expression 'caused by', the expression 'arising out of' has a wider connotation. The expression 'caused by' was used in Sections. 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under Section 92A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression arising out of the use of a motor vehicle in Section 92A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment." 18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial Court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle." 28. In this judgment, the Apex Court has also discussed the intention, motive and other aspects in order to make a distinction and to arrive at a prima facie finding whether the accident falls within the expression 'use of motor vehicle'. The case in hand is squarely covered by para 10 of the judgment (supra). 29. In the case titled as Union of India versus Bhagwati Prasad (D) and others, reported in AIR 2002 Supreme Court 1301, the Apex Court has discussed the concept of joint tortfeasor and maintainability of claim petition, jurisdiction of the Claims Tribunal and the expression 'accident arising out of use of motor vehicle'. Though, the judgment is not directly applicable to the facts of the case, but the principle is applicable for the reason that the expression 'use of motor vehicle' stands thrashed out. Though, the judgment is not directly applicable to the facts of the case, but the principle is applicable for the reason that the expression 'use of motor vehicle' stands thrashed out. It is apt to reproduce relevant portion of para 3 of the judgment herein:- "3. .......... In our considered opinion, the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of a motor vehicle depends essentially on the fact whether there had been any use of motor vehicle and once that is established, the Tribunals jurisdiction cannot be held to be ousted on a finding being arrived at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the motor vehicle in question. We, are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India v. United India Insurance Co. ltd., 1997 (8) SCC 683 to the effect." It is ultimately found that mere is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Sec. 110(1) of the Act because the case would men become one of exclusive negligence of the Railways. Again, if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided." 30. The Apex Court in another case titled as Malikarjuna G. Hiremath versus Oriental Insurance Co. Ltd. & Anr., reported in II (2009) ACC 738 (SC), has discussed the scope of Section 3 of the Workmen's Compensation Act, 1923 and the expression 'accident arising out of and in the course of employment'. The Apex Court has also discussed the entire law dealing with the principles for grant of compensation, which are applicable in this case also. It is apt to reproduce paras 10 to 19 of the judgment herein:- "10. The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. The Apex Court has also discussed the entire law dealing with the principles for grant of compensation, which are applicable in this case also. It is apt to reproduce paras 10 to 19 of the judgment herein:- "10. The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) AC 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly (1914) A.C. 676 as follows: "I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer." 11. The above position was highlighted by this Court in Jyothi Ademma v. Plant Engineer, Nellore and Anr., V (2006) SLT 457 : III(2006) ACC 356 (SC) : III(2006) CLT 178(SC) : 2006(5) SCC 513 . 12. This Court in ESI Corpn. v. Francis De Costa, 1996 (6) SCC 1 referred to, with approval, the decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig, 1940 AC 190, wherein it was held: (All ER p. 563 ) "Nothing could be simpler than the words arising out of and in the course of the employment . It is clear that there are two conditions to be fulfilled. What arises in the course of the employment is to be distinguished from what arises out of the employment. The former words relate to time conditioned by reference to the man s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment that is, directly or indirectly engaged on what he is employed to do gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified." 13. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Hence the section imports a distinction which it does not define. The language is simple and unqualified." 13. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Ltd., 1903 AC 443 by the Court of Appeal: "I come, therefore, to the conclusion that the expression accident is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed." Lord Lindley opined: "The word accident is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word accident is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events." 14. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.'s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are: (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 15. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. 15. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. 16. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are: (1) stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain. 17. In G.M., B.E.S.T. Undertaking v. Agnes, 1964 (3) SCR 930 referring to the decision of the Court of Appeal in Jenkins v. Elder Dempster Lines Ltd., 1953 (2) All ER 1133, this Court opined therein that a wider test, namely, that there should be a nexus between accident and employment was laid down. It also followed the decision of this Court in Saurashtra Salt Mfg. Co. v. Bai Valu Raja, AIR 1958 SC 881 . 18. In Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak, 1969 (2) SCC 607 , this Court held:- "5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words there must be a causal relationship between the accident and the employment. The expression arising out of employment is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act." 19. The above position was again highlighted in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Anr., VIII (2006) SLT 654 : IV (2006) ACC 769 (SC) : 2007 (11) SCC 668 ." 31. The Apex Court in the case titled as Surinder Kumar Arora & another versus Dr. Manoj Bisla & others, reported in 2012 AIR SCW 2241, held that rash and negligent driving of the driver is sine qua non for maintaining claim petition under Section 166 of the MV Act, which is not the essential ingredient for maintaining claim petition under Section 163A of the MV Act. It is apt to reproduce paras 9 and 10 of the judgment herein:- “9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent No.1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help respondent No.1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163A of the Act, then the dicta of this Court in the case of Kaushnuma Begum (Smt.) & Ors. ( AIR 2001 SC 485 : 2001 AIR SCW 85) (supra) would have come to the assistance of the claimants. 10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co. Ltd. ( AIR 2007 SC 1609 : 2007 AIR SCW 2362) (supra). 10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co. Ltd. ( AIR 2007 SC 1609 : 2007 AIR SCW 2362) (supra). In the said decision the Court stated: "....Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle." 32. …................ 33. The Apex Court has examined the scope of Sections 163A and 166 of the MV Act in the case titled as Oriental Insurance Company Limited versus Premlata Shukla & others, reported in 2007 AIR SCW 3591, and Bimla Devi & Ors. versus Himachal Road Transport Corpn. & Ors., reported in 2009 AIR SCW 4298, and made a fine distinction.” 27. The same question came up for consideration before the Hon'ble Karnataka High Court in a case titled as B. Fathima versus S.M. Umarabba & ors., reported in II (2007) ACC 613 (DB), wherein wooden logs were being unloaded from a lorry at a sawmill, the rope tied as a grip to the said logs was untied negligently, due to which a wooden log fell on the deceased who was near the lorry for the purpose of unloading. It was held that the accident occurred when the lorry was in use, deceased was a third party and the insurer was saddled with liability. 28. The Hon'ble Kerala High Court in a case titled as Rajan versus John, reported in 2009 (2) T.A.C. 260 (Ker.), wherein the claimant sustained injury while unloading marble from a stationed truck, held that any accident arising during loading and unloading is an accident arising on account of use of vehicle and claim petition was maintainable. 29. The High Court of Jammu and Kashmir in the case titled as Oriental Insurance Co. 29. The High Court of Jammu and Kashmir in the case titled as Oriental Insurance Co. Ltd., through its Senior Divisional Manager, Jammu versus Smt. Nirmala Devi and others, reported in 2009 (3) T.A.C. 684 (J&K) has laid down the same principle. 30. Having said so, it is held that deceased Parhlad died 'in the use of motor vehicle'. Viewed thus, the findings returned by the Tribunal on issue No. 1 are set aside and is determined accordingly. 31. Before dealing with issue No. 2, I deem it proper to determine issues No. 3 and 4. Issue No. 3: 32. It was for the respondents, i.e. the owner-insured, driver and insurer of the offending vehicle, to prove that the claim petition was not maintainable, have not led any evidence to this effect, thus, have failed to discharge the onus. Even otherwise, in view of the findings returned by this Court on issue No. 1, the claim petition was maintainable. Accordingly, the findings returned by the Tribunal on issue No. 3 are set aside and it is held that the claim petition was maintainable. Issue No. 4: 33. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence to drive the same and the owner-insured has committed a willful breach. 34. In the given facts and circumstances of the case, the question whether the driver of the offending vehicle was not having a valid and effective driving licence is irrelevant for the reason that at the relevant point of time, the driver was not driving the offending vehicle, but, the same was parked and stationary in order to unload the marble slabs. The question of valid and effective driving licence has no connection with the death of the deceased. Thus, the findings returned by the Tribunal on issue No. 4 are set aside and the same is decided accordingly. Issue No. 2: 35. Admittedly, the deceased was 27 years of age at the time of the accident. The claimants have pleaded that the monthly income of the deceased was Rs.8,000/- per month. The Tribunal, while applying the minimum wages formula, has held that the deceased was earning Rs.3,000/- per month and deducted Rs.500/- towards his personal expenses, which is not legally correct. 36. Admittedly, the deceased was 27 years of age at the time of the accident. The claimants have pleaded that the monthly income of the deceased was Rs.8,000/- per month. The Tribunal, while applying the minimum wages formula, has held that the deceased was earning Rs.3,000/- per month and deducted Rs.500/- towards his personal expenses, which is not legally correct. 36. The claimants have led evidence and have proved that the deceased was a driver by profession. However, by guess work, it is held that he was a labourer and would have been earning not less than Rs.6,000/- per month. One third was to be deducted towards his personal expenses keeping in view the law laid down by the Apex Court in the case titled as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in the case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. Thus, it can be safely said and held that the claimants have loss source of dependency to the tune of Rs.4,000/- per month. 37. The Apex Court in the case titled as Munna Lal Jain & another versus Vipin Kumar Sharma & others, reported in 2015 AIR SCW 3105, held that the multiplier has to be applied while keeping in view the age of the deceased. 38. In view of the law laid down by the Apex Court in Sarla Verma's case (supra) and upheld by a larger Bench of the Apex Court in Reshma Kumari's case (supra), and Munna Lal Jain's case (supra) read with Second Schedule appended with the MV Act, multiplier of 15' is just and appropriate. 39. Having said so, the appellants-claimants are held entitled to compensation under the head 'loss of dependency' to the tune of 4,000/- x 12 x 15 = 7,20,000/-. 40. The appellants-claimants are also held entitled to compensation to the tune of 10,000/- each under the heads 'loss of consortium', 'loss of love and affection' 'loss of estate' and 'funeral expenses'. 41. The question is – who is to be saddled with liability? 42. Admittedly, the offending vehicle was insured at the relevant point of time and the risk of third party was covered. 41. The question is – who is to be saddled with liability? 42. Admittedly, the offending vehicle was insured at the relevant point of time and the risk of third party was covered. As discussed hereinabove, the deceased was unloading the marble slabs and was hit by one of the marble slabs near the truck, is a third party. Thus, the risk was covered and the insurer was to be saddled with liability. Issue No. 2 is decided accordingly. 43. Having glance of the above discussions, the impugned award is set aside, the claim petition is granted, the appellants-claimants are held entitled to compensation to the tune of 7,20,000/-+ 10,000/-+ 10,000/-+ 10,000/-+ 10,000/- = 7,60,000/- with interest @ 7.5% per annum from the date of the claim petition till its realization and the insurer is saddled with liability. 44. The insurer is directed to deposit the awarded amount before the Registry within eight weeks. On deposition, one half share of the same be released in favour of appellant-claimant No. 1 and one half to appellants-claimants No. 2 & 3 in equal shares through payee's account cheque or by depositing the same in their respective bank accounts. 45. The appeal is allowed accordingly. 46. Send down the records after placing copy of the judgment on the Tribunal's file.