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Allahabad High Court · body

2019 DIGILAW 236 (ALL)

Oriental Insurance Co Ltd. v. Momina

2019-01-30

K.J.THAKER

body2019
JUDGMENT : KAUSHAL JAYENDRA THAKER, J. 1. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by Oriental Insurance Co Ltd, being aggrieved by judgment dated 4.8.2004 passed by the Motor Accident Claims Tribunal/Special Judge, NDPS, Act Allahabad in Motor Accident Claim Petition No.474 of 2000. 2. Brief facts as they reveal from the judgment are that the accident in question occurred when the deceased was doing his work. On 15.5.2000 at about 3.30 p.m.(afternoon) driver of Gas tanker stopped his tanker near the shop of one Hari Lal. The driver of the tanker directed the deceased Abbas Ali to join the tanker but the deceased refused as it was filled with Gas and Diesel. The driver conveyed that there was no diesel or Gas and if anything happens it would be his liability. At that point of time, the deceased started repairing the broken mudguard of the vehicle and at that pint of time the diesel starting leaking and it caught fired. The deceased who was doing the work was shifted to Swarooprani Hospital. However, after five days he succumbed to the injuries due to the burn injuries. It is a case of claimant who are the heirs of the deceased. The accident occurred due to the gross negligence on the part of the driver of the vehicle. The deceased was aged about 28 years of age and was doing the work of welding and was earning a sum of Rs. 3,000/- per month. The Insurance Company filed its reply one of the denial. The Tribunal framed about four issues and all of them were held against the appellants. 3. In this case the contention is that the vehicle was parked in workshop where it was repaired and, therefore, the driver cannot be held solely liable as the deceased was also aware about the mis-happening and, therefore, the Insurance Company is not liable to pay. The second contention is that the compensation awarded is on the higher side. The first contention is that the answer by the Tribunal itself and it cannot be said that accident did not occurred due to the use of motor vehicle. The term of motor vehicle as defined in Section 2(28) will mean- "... The second contention is that the compensation awarded is on the higher side. The first contention is that the answer by the Tribunal itself and it cannot be said that accident did not occurred due to the use of motor vehicle. The term of motor vehicle as defined in Section 2(28) will mean- "... motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of 1 Subs. & ins. by Act. 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 or a vehicle having less than four wheels fitted with engine capacity of not exceeding thirty-five cubic centimetres;" 4. Contention of counsel for the appellant will have to be interpreted in light of the term use of motor vehicle. The term has been time and again interpreted to mean arising out of use of motor vehicle. The FIR also proved the same. It is not necessary that the vehicle should be in a running condition when the incident occurred thus it cannot be safely held that the incident occurred when the deceased tried to repair vehicle against his own wish and the incident occurred. Recently the Punjab and Haryana High Court in 2018 ACJ 668 (P&H) has held that where a driver of the truck parked the vehicle on the left side of the road as engine was getting too hot at that point of time other vehicle hit him and he sustainable fatal injures- held, that accident arose out of use of the motor vehicle and insurance company held liable to pay compensation. 5. The contention of Sri Ramesh Singh-Advocate appearing on behalf of Insurance Company is that the accident did not occur out of use of vehicle and it was an incidental death and not out of use of vehicle. As against this Sri Abhishek Kumar-Advocate submits that the accident occurred when the vehicle was being in the use and the deceased died out of use of the motor vehicle. As against this Sri Abhishek Kumar-Advocate submits that the accident occurred when the vehicle was being in the use and the deceased died out of use of the motor vehicle. he further submits that Tribunal has decided the matter in his favour pursuant to the judgment of Apex Court reported in A.P.S. R.T.C. Versus P. Venkat Rao and others, (2001) 3 TAC 465 (AP). 6. The accident arose out of use of motor vehicle as defined in Section 166 of the Act, 1988 and hence will not permit this Court to upturn the finding of fact. The Tribunal has relied the judgment of Apex Court reported in A.P.S. R.T.C. Versus P. Venkat Rao and others, (2001) 3 TAC 465 (AP). Recently the Apex Court has taken a view in case of New India Assurance Company Limited Versus Yadu Sambhaji More reported in, (2011) AIR SC 666, similar view has been taken in the case of Kalim Khan Versus Fimidabee reported in, (2018) AIR SC 3209, 2018 ACJ 2015 (SC) thus the contention of counsel for appellant that the incident did not occur out of use of motor vehicle is rejected. 7. The submission of the counsel that the compensation awarded is excessive. We may recalculate the amount as far as compensation is concerned, the Tribunal has been over conservative. The amount of Rs. 2,68,000/- shows that Tribunal has not properly considered the income of a skilled labourer. The Tribunal has not considered awarding any amount under the head of future loss of income. The amount under the head of consortium, funeral expenses and love and affection is Rs. 9,500/- which shows that the Tribunal has been over conservative in awarding the amount and the rate of interest awarded is also 7% whereas in the year 2014 the normal the rate of interest was 9%. 8. The appeal is dismissed. The judgment and award is confirmed. The record and proceeding, if any, be sent forthwith to the Tribunal. 9. If the amount is already deposited, the same shall be disbursed to the heirs of the claimant without keeping the same in the fixed deposit. 10. It is submitted by learned counsel for the claimants that the Insurance Company has not deposited the interest part which was 7%. The Insurance Company shall immediately deposit the amount within 12 weeks from today.