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2019 DIGILAW 487 (CAL)

National Insurance Co. Ltd. v. Adari Karmakar

2019-04-11

HARISH TANDON, SUBHASIS DASGUPTA

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JUDGMENT : Harish Tandon, J. Authored By : Harish Tandon, Subhasis Dasgupta 1. Apathy or sympathy when pitted against the statutory right cannot be a factor in determining the compensation claimed under the Motor Vehicles Act, 1988. It is not the duty of the Court to legislate and incorporate something into the statute book which is conspicuously absent therein. It is a primary duty of the Court to interpret the legislative provisions firstly from the use of the words and expressions and given it to its normal meaning or the specific meaning in the event such word or expressions are defined therein. The canon of interpretation has expanded its horizon in bringing the external aid which is again dependant upon avowed purpose and object of the Statute. While interpreting the expression or word it is a paramount duty of the Court to bear in mind the nature of the legislation and its extended benefit. The welfare piece of legislation always receives interpretation of the words and expressions used therein to the benefit of the class of the people for which the same is enacted. The strict interpretation which frustrates the object and purpose of such beneficial or social welfare legislation should be guarded against. 2. Keeping in mind the broad prospect underlining the concept of interpretation adopted by the Court, let us examine whether the claim petition under Section 163A of the said Act deserves to be allowed or not. 3. The undisputed facts evident from the claim petition filed by the claimants/respondents are that the victim driver died in the driver's cabin of the truck while coming to Kolkata in sleeping condition and his body was recovered by the Police on the next morning. The post mortem report was conducted and post mortem report revealed the cause of death to be intra cerebral hemorrhage which is ante-mortem in nature. It is the uniform stand of the parties that the deceased driver was sleeping in a driver's cabin of the truck parked in a petrol pump and was found dead on the floor of the driver's cabin. 4. The appellant, Insurance Company took the defence that the death was not caused due to accident arising out of the use of motor vehicle but was ante-mortem and, therefore, it does not fasten any liability on the Insurance Company to honour the insurance policy issued in respect of the said truck. 5. 4. The appellant, Insurance Company took the defence that the death was not caused due to accident arising out of the use of motor vehicle but was ante-mortem and, therefore, it does not fasten any liability on the Insurance Company to honour the insurance policy issued in respect of the said truck. 5. Such being the facts, it is nearly impossible to bring any eye witness to such incident and entire claim petition is, in fact, decided on the interpretation of the expression "accident arising out of the use of the motor vehicle" appearing in Section 163A of the Act. The Tribunal though noticed the judgment of the Apex Court rendered in case of Manorama Devi & Ors. Vs. Oriental Insurance Company Limited & Ors. Reported in 2003 ACJ 278 and Rita Devi & Ors. Vs. National Insurance Company Limited reported in 2000 ACJ 801 , but surreptitiously jumped to the conclusion without recording any reasons and independent findings that the death was caused due to use of motor vehicle and, therefore, the claimants/respondents are entitled to compensation to the extent to Rs. 2,73,500/- from the Insurance Company. 6. At the very outset, we must record that the findings of the Apex Court in case of Manorama Devi (Supra) as quoted in the impugned Tribunal does not sufficiently lead to an inference that the death of such nature can be brought within the periphery of accident arising out of the use of motor vehicle, but we feel to consider the aforesaid decision of the Apex Court if any support to the ultimate decision of the Tribunal can be supported therefrom. 7. Both the Act i.e., Workman's Compensation Act and the Motors Vehicles Act, 1988 are beneficial and welfare piece of legislation aiming at the compensation to be paid. Though the primary object can be found to be identical yet they operate in a different fields. Section 167 of the M.V. Act provides election to claim compensation either under the Workman's Compensation Act or under the Motor Vehicles Act and not under both. The moment the compensation is filed under the Motor Vehicles Act, 1988, the claimants cannot fall back to the provisions of the Workman's Compensation Act, which is now renamed as Employees Compensation Act. Section 167 of the M.V. Act provides election to claim compensation either under the Workman's Compensation Act or under the Motor Vehicles Act and not under both. The moment the compensation is filed under the Motor Vehicles Act, 1988, the claimants cannot fall back to the provisions of the Workman's Compensation Act, which is now renamed as Employees Compensation Act. It is further apparent from the harmonious reading of Sections 163A and 166 of the Motor Vehicles Act that even when both the Sections bestowed power upon the heirs to claim compensation, an embargo has been created under Section 163B of the Act which further provides election to be made by such claimants. Section 163B provides an option to the heirs as claimant either to claim compensation under Section 140 and 163A or Section 166 of the said Act and not under both. The Section 163A denudes the Insurance Company to take any plea of the negligence on the part of the owner or the driver and in fact is founded on 'no fault liability'. Such special defenses are available to the Insurance Company when a claim is made under Section 166 of the Act. We need not dwell upon interpreting the nuances of both the provisions and their operations in the respective fields as the claimants have chosen to claim compensation under Section 163A of the Act. 8. The Insurance Company has argued as indicated above that in the event the driver died in the vehicle which was stationary, it does not confer any right on the heirs to claim compensation under the aforesaid provision taking recourse to an expanded interpretation of the expression "accident arising out of use of motor vehicle". 9. The aforesaid expressions received the interpretation from the Supreme Court in case of Shivaji Dayanu Patil and another Vs. Vatschala Uttam More reported in (1991) ACJ 777. Though the Apex Court interpreted the expression "arising out of" to be of wider connotation and it is not necessary that the Motor Vehicle should be mobile but the compensation can be granted even if it was stationary to which we feel that the facts involved therein needs to be understood. The facts emanates from the said decision relates to a collision between a petrol tanker and a truck on the national highway. The facts emanates from the said decision relates to a collision between a petrol tanker and a truck on the national highway. As a resultant effect, the petrol tanker went off the road and overturned at a considerable distance from the national highway and because of the leakage of the petrol, an explosion took place causing severe injuries to the persons assembled near the petrol tanker out of which some of them succumbed to such injuries and the heirs of such persons approached the Tribunal for compensation under the Motor Vehicles Act, 1988. An argument was advanced before the Apex Court that since before the explosion, the tanker was lying stationary and there was a considerable gap between the collision and the explosion of the tanker, which cannot be within the circumference of "accident arising out of motor vehicle." It is held that narrow interpretation of the word used in the expression "use of motor vehicle" if applied only when the motor vehicle is mobile, would offend the purpose and object of such beneficial piece of legislation. The Apex Court held that a wider meaning which should be given to the aforesaid expressions, more particularly to the word "use" appearing therein and the benefit of such Section can be given even when the motor vehicle was stationary in these words:- "26. These decisions indicate that the word 'use' in the context of motor vehicles, has been construed in a wider sense to include the period when the vehicle is not moving and is stationary, being either parked on the road and when it is not in a position to move due to some breakdown or mechanical defect. Relying on the above-mentioned decisions, the Appellate Bench of the High Court has held that the expression "use of a motor vehicle" in section 92A covers accidents which occur both when the vehicle is in motion and when it is stationary. With reference to the facts of the present case the learned Judges have observed that the tanker in question while proceeding along National Highway No. 4 (i.e., while in use) after colliding with a motor lorry was lying on the side and that it cannot be claimed that after the collision the use of the tanker had ceased only because it was disabled. We are in agreement with the said approach of the High Court. We are in agreement with the said approach of the High Court. In our opinion, 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. In the circumstances, it cannot be said that the petrol tanker was not in use at the time when it was lying on its side after the collision with the truck." 10. The expression "arising out of" appearing in Section 163A of the Act was also considered in the said judgment being indicative of the casual relationship between the use of motor vehicle and accident resulting in death or permanent disablement which is not required to be direct and proximate and it can be less immediate. What has been held by the Apex Court is there must be some proximity and/or nexus with the use of the motor vehicle which may not sometimes be direct and immediate. The relevant observations are quoted hereunder:- "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 92-A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under section 92-A, 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 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment." 37. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between the collision and explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle, viz., the petrol tanker No. MKL 7461." 11. In case of Rita Devi (Supra), the Apex Court considered a case where the auto rickshaw driver was murdered after the hijack of the auto rickshaw by some miscreants and a compensation was claimed. In the backdrop of the aforesaid facts the expression "accident arising out of motor vehicle" was interpreted in the following:- "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 simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any felonious act then such murder is an accidental murder." 12. In the case of Nisbet v. Rayne and Burn, (1910) 1 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, 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." 15. 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." 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 definition of the word 'death' in Workmen's Compensation Act, the same will not be applicable while interpreting the word 'death' in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto-rickshaw. 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 are 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 Chapters 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 Section 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 judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also." 12. The Division Bench of this Court in case of Hasnahara Sk. & Ors Vs. New India Assurance Co. The Division Bench of this Court in case of Hasnahara Sk. & Ors Vs. New India Assurance Co. Ltd. & Anr reported in 2008 ACJ 2280 awarded the compensation to the heirs of a Khalasi of a vehicle who died of an indiscriminate firing by some unknown persons at the petrol pump when admittedly the truck was parked there. It was held by the Division Bench that if the service obligation mandates the Khalasi to remain present in the vehicle during duty hours, the death caused with such indiscriminate firing results into accidental death due to involvement of his vehicle. 13. In all the above decisions cited before us, there is a common thread that the death was occasioned due to accident even when the motor vehicle was immobile. The point is still begging an answer because of the peculiar fact present in the instant appeal as to whether the death of a driver in a driver's cabin was the result of an accident or even a natural death in the motor vehicle shall come within the ambit of the expression "arising out of use of the motor vehicle." No ambiguity can be seen from the ratio decidendi of the above quoted decisions that the word "use" appearing in Section 163A of the Act cannot be given a narrow or limited meaning but the same must be construed in wider sense and imbibe within itself the accident relatable to the motor vehicle even if it was found stationary or immobile. The Judgment should not be read as a Statute. Additional or special facts appearing therein may invite the decision as has been taken and it is no gain saying that a little difference or an additional fact may invite diametrically opposite decision. The ratio of a judgment can only be culled out from the facts involved therein and it is a primary duty of the Court while interpreting the provisions of law to find out the ratio there from. It is no doubt true that the word "use" or the expression "arising out of motor vehicle" are of wide amplitude yet the important factor which is required to be seen is whether the death was caused due to accident or not. 14. It is no doubt true that the word "use" or the expression "arising out of motor vehicle" are of wide amplitude yet the important factor which is required to be seen is whether the death was caused due to accident or not. 14. Admittedly, the driver was found dead in the driver's cabin and the cause of the death as revealed in the post mortem report is intra cerebral hemorrhage which is also ante mortem in nature. It is a duty of the driver to keep safety and security of the vehicle entrusted to him by the owner and it would not take us to interpret the said provisions if the death was caused due to accident. The 'accident' has not been defined in the Statute and, therefore, the ordinary and grammatical meaning is required to be understood. 15. The 'accident' means an unexpected event, chance, fortuitous mishap and also includes unusual and not essential. The Apex Court in case of Union of India vs. Sunil Kumar Ghosh Reported in (1984) 4 SCC 246 defined the accident as occurrence or an event which is unforeseen and startling, happening of which is not inherent in the normal course of events and is not ordinarily expected to happen or occur. In relation to Employees State Insurance Act, 1948 the popular and ordinary sense of the word 'accident' is interpreted as mishap or an untoward happening not expected or designed to have an occurrence (see Regional Director, ESI Corporation vs. Franis D'Costa reported in (1993) Supplementary 4 SCC 100). 16. What can be seen from the above observation that though the accident is a mishap or untoward happening, not expected but such happening is not inherent in the normal course of events. The death or the permanent disability can be relatable to the happening of the event which comes within the circumference of the 'accident' even when the motor vehicle is stationary or immobile. We do not find any sound reason to restrict the meaning of the phrase "use of the motor vehicle" but what can be seen is that the injury or the death must be in any way a consequence of the use of vehicle as a motor vehicle. The use is a related event and must be read in juxtaposition with the accident. The Apex Court in Kalim Khan Vs. The use is a related event and must be read in juxtaposition with the accident. The Apex Court in Kalim Khan Vs. Fimidabee Reported in (2018) 7 SCC 687 emphasized on the intervention of a human being into an act in relation to an accident in these words: "27. It may be reiterated here that the causal relationship should exist between violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident. The Court has to bear in mind that the phraseology and this Court taking note of the beneficial provision has placed a wider meaning on the same. There has to be some causal relation or the incident must relate to it. It should not be totally unconnected. Therefore, in each case what is required to be seen is whether there has been some causal relation or the event is related to the act." 17. As indicated above, the driver died due to intra cerebral hemorrhage and was found dead in the driver's cabin. The post mortem report is categorical that it is ante mortem in nature and such an unfortunate event cannot be brought within the purview of "accident arising out of the use of motor vehicle." The Tribunal did not advert to the provisions of Section 163A of the Act and erred in holding that the claimants are entitled to compensation. 18. The impugned award is thus set aside. 19. The claim petition is dismissed. 20. However, there shall be no order as to costs. Subhasis Dasgupta, J. I agree. Later After delivery of this judgment in open Court, it is informed to us that pursuant to this order passed in this instant appeal the Insurance Company has deposited the entire awarded sum along with statutory deposit, which was directed to be invested by the Registrar General of this Court in an interest bearing Fixed Deposit Scheme. Liberty is given to the Insurance Company to apply before the Registrar General of this Court for releasing the aforesaid amount. It goes without saying that the Registrar General shall release the said amount along with accrued interest. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties, on priority basis.