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2019 DIGILAW 791 (GAU)

Lalhmunmawii v. Samuel Ramdinmawia

2019-06-25

MICHAEL ZOTHANKHUMA

body2019
ORDER : Heard Mr. Johny L. Tochhawng, learned counsel for the appellants as well as Mr. Roshan Subedi, learned counsel for the respondent No. 2. No one appears for the respondent No. 1. 1. The petitioner being aggrieved by the dismissal of her claim petition i.e., MACT No. 14/2018 by the MACT, Aizawl, vide judgment and award dated 27.11.2018 has filed the present appeal. 2. The facts of the case is that the appellant's son, David Lalneihtluanga, was a Handleman in a Truck bearing registration number MZ-01-K-4096, owned by one Samuel Ramdinmawia and driven by Emmanuel Remruotsang. While they were proceeding towards Smart Brick, Lailapur, at around 6:30 a.m. on 18.9.2015, the top of the Truck came into contact with an electric wire, which was hanging very low across the road. The truck stopped and the appellant's son, David Lalneihtluanga, thereafter got up to the top of the Truck and tried to remove the wire from the truck. In the process David Lalneihtluanga got electrocuted, as the wire that he tried to remove was a live electric wire. David Lalneihtluanga was thereafter taken to Dholai PHC, wherein the Doctor declared him as brought dead. The appellant thereafter filed a claim petition under section 163A of the M.V. Act, 1988. 3. The learned counsel for the appellant submits that during the stage of the claimant's evidence, the learned Tribunal suddenly dismissed MACT Case No. 14/2018, vide the impugned judgment and award dated 27.11.2018, by holding that the deceased had died due to electrocution and not due to any motor accident. Accordingly, the learned Tribunal held that the claim petition under the MV Act, 1988 was not maintainable and observed the appellant should have filed a claim under the Workmen Compensation Act. 4. The appellants counsel submits that the learned Tribunal has dismissed the appellants claim petition on a wrong understanding of the facts and the law, inasmuch as, though the death of the deceased has been caused by electrocution, the same is connected with the use of the motor vehicle, as the electric live wire, which was hanging across the road, had become stuck on top of the truck. He submits that the accident is connected with the use of the motor vehicle and accordingly, the learned Tribunal could not have dismissed the appellants claim for compensation, made under section 163A of the MV Act, 1988. 5. Mr. He submits that the accident is connected with the use of the motor vehicle and accordingly, the learned Tribunal could not have dismissed the appellants claim for compensation, made under section 163A of the MV Act, 1988. 5. Mr. Roshan Subedi, learned counsel for the Insurance Company submits that there is no infirmity with the decision of the learned Tribunal, inasmuch as, the deceased died due to electrocution and not due to any motor vehicle accident. He accordingly prays for upholding the impugned judgment and award dated 27.11.2018. 6. I have heard the learned counsels for the parties. 7. There is no dispute with the facts of the case, which is to the effect that while the truck was travelling along the road towards Smart Brick, Lailapur, it came into contact with a low hanging live electric wire, which got stuck on top of the truck. The truck thereafter stopped and the deceased got up on top of the truck to remove the electric wire. In the process, the deceased got electrocuted and he succumbed to his injury. 8. In the case of Shivaji Dayanu Patil v. Vatschala Uttam More (Smt.), (1991) 3 SCC 530 , the question that was to be decided by the Apex Court involved the interpretation of the expression “arising out of the use of a motor vehicle” contained in section 92A of tire Motor Vehicles Act, 1939, which corresponds to the present section 140 of the Motor Vehicles Act, 1988. 9. Section 140 of the Motor Vehicles Act, 1988 states as follows: “140. Liability to pay compensation in certain cases on the principle of no fault.— (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under subsection (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (2) The amount of compensation which shall be payable under subsection (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.” 10. In the case of Shivaji Dayanu Patil (supra), due to a collision between a petrol tanker and a truck, the petrol tanker went off the road and fell on its side. As a result of the overturning of the petrol tanker, the petrol leaked and collected nearby. After about 4 hours after the petrol tanker had overturned, an explosion occurred, which resulted in a number of persons who had assembled near the petrol tanker sustaining bum injuries and a few of them succumbing to their injuries. A claim petition was made in respect of one of the deceased persons. 3 out of the 4 issues raised by the owner of the petrol tanker and the Insurance Company were as follows: “1. A claim petition was made in respect of one of the deceased persons. 3 out of the 4 issues raised by the owner of the petrol tanker and the Insurance Company were as follows: “1. that the petrol tanker was not a motor vehicle, as defined in section 2(18) of the Act, at the time when the explosion and fire took place because at that time the petrol tanker was lying turtle and was not capable of movement on the road; 2. that since before the explosion and fire the petrol tanker was lying immobile it could not be said that the petrol tanker, even if it be assumed that it was a motor vehicle, was in use as a motor vehicle at the time of the explosion and fire; and 3. that there was no causal relationship between the collision which took place between the petrol tanker and the truck at about 3 a.m. and the explosion and fire in the petrol tanker which took place about four-and-half hours later and it cannot, therefore, be said that the explosion and fire in the petrol tanker was an accident arising out of the use of a motor vehicle;” 11. In respect of issue No. 1 raised by the owner of the petrol tanker and the Insurance Company that the petrol tanker was not a motor vehicle at the time of the explosion and fire because the petrol tanker was lying turtle and incapable of movement on the road, the same was negatived by the Apex Court, by agreeing with the formulation of law laid down by the English Courts, as reflected in the judgment, by holding that if there was no reasonable prospect of the vehicle ever being made mobile again, a vehicle has ceased to be a mechanically propelled vehicle. However, it cannot be held that the petrol tanker had ceased to be a motor vehicle after the said collision and that the collision with the truck had damaged the same to such an extent that there was no reasonable prospect of the vehicle ever being made mobile again. 12. However, it cannot be held that the petrol tanker had ceased to be a motor vehicle after the said collision and that the collision with the truck had damaged the same to such an extent that there was no reasonable prospect of the vehicle ever being made mobile again. 12. With regard to the second issue raised by the owner of the petrol tanker and the Insurance Company that even if it be assumed that the petrol tanker was a motor vehicle, the same could not be said to be in use as a motor vehicle at the time of the explosion and fire, as it was immobile, the Apex Court held that 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. It, thus, held that in the circumstances, it could not be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck. 13. In respect of die third issue, as to whether there was any causal relationship between the collision, which took place between the petrol tanker and the truck, and the explosion and fire which took place after four and half hours, the Apex Court in the above case of Shivaji Dayanu Patil (supra) held that the expression “arising out of” has a wider connotation. Parliament, however, chose to use the expression “arising out of” which indicates that for the purpose of awarding compensation under section 92A, which corresponds to the present section 140, 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 the accident should be connected with the use of the motor vehicle, though the said accident 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. 14. 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. 14. In the present case, the death of the deceased is not directly connected with a motor accident per se, as we understand it in common parlance. However, the death of the deceased occurred due to the electric live wire being stuck on top of the truck, while it was moving. The truck thereafter stopped and the handle-man got electrocuted while he tried to remove the live wire from the truck. The above facts clearly show that the death of the deceased was proximate and due to the effect of the electrical live wire being caught on top of a moving truck, which shows that death arose out of the use of a motor vehicle. This court is, thus, of the view that the accident arose out of use of the truck. 15. In the case of Baldev Kaur v. Nazar Singh, 1997 ACJ 1159 , the Punjab & Haryana High Court had to decide an issue with regard to whether the claim for compensation for the death of the deceased Onkar Singh, due to electrocution, who was sitting in one of the 5 Tractors which was pulling out the stuck Harvester Combine, which then struck against an electric wire and electric current had passed from the electric wire to the Harvester Combine and then to the Tractors, could be said to be a case maintainable under the MV Act, 1988. The Punjab & Haryana High Court held that the claim petition with respect to the deceased would be maintainable under the MV Act, 1988. 16. In the above case of Baldev Kaur (supra), the facts of the case was as follows: “2. The case of appellant as pleaded in their claim petition is that on 22.10.1989, Bharat Harvestor Combine belonging to respondent Nos. 2 to 5 was engaged for harvesting paddy crop in the fields of Jugraj, son of Shri Ujjal Singh. The same got stuck in the field and in order to pull it out, five tractors were engaged. One of those tractors was of Hamek Singh on which Onkar Singh deceased was sitting. 2 to 5 was engaged for harvesting paddy crop in the fields of Jugraj, son of Shri Ujjal Singh. The same got stuck in the field and in order to pull it out, five tractors were engaged. One of those tractors was of Hamek Singh on which Onkar Singh deceased was sitting. The other tractors belonged to Kaur Singh, Jugraj Singh, Jana Singh, Harminder Singh and Harwinder Singh. The driver of combine was Nazar Singh, respondent No. 1. While the tractor were pulling out Combine, the driver of the same rashly and negligently drove it and struck against an electric wire, as a result of which electric current passed in the Harvestor Combine and thereafter in all the tractors. As a result of the impact of Harvestor Combine with the naked electric live wire, Onkar Singh fell down and was electrocuted. The respondent-Punjab State Electricity Board was also negligent as the electric wire was naked and was hanging very low. The vertical distance of the cable was only 10 feet, whereas according to Indian Electricity Rules, it should be 15 feet and, thus, it was in clear violation of the Rules. The accident has been caused due to the negligence of the respondents as a result of which Onkar Singh died. It was also pleaded that it was a case of composite negligence of Onkar Singh and the respondents are jointly and severally liable for payment of compensation to the claimants.” 17. The learned Tribunal dismissed the claim petition by holding that the death of Onkar Singh was not caused due to motor vehicle accident, but was due to electrocution when the live electric wire touched the Harvester Combine and current passed into it and tractors with which the same was being pulled out. It held that the claim petition under the Motor Vehicles Act was not maintainable and the Tribunal had no jurisdiction to entertain the same. Consequently, the learned Tribunal found that the death of Onkar Singh had not been caused due to rash and negligent driving of Combine No. PCI-4344 by respondent No. 1 and the claim petition was not maintainable under the MV Act. 18. Consequently, the learned Tribunal found that the death of Onkar Singh had not been caused due to rash and negligent driving of Combine No. PCI-4344 by respondent No. 1 and the claim petition was not maintainable under the MV Act. 18. The Punjab & Haryana High Court, however, did not agree with the decision of the Tribunal and held that if the death of a person has got direct connection with the negligence of the driver of a motor vehicle, a claim petition under the provision of the Motor Vehicles Act is maintainable. The Punjab & Haryana High Court further held that the death of Onkar Singh was due to rash and negligent act of the driver of the Harvester Combine, as the driver of the Harvester Combine had struck an electric wire, electric current passed in the Harvester Combine and thereafter to the Tractors, which were pulling the Harvester Combine, due to which the deceased Onkar Singh fell down and was electrocuted. It, thus, held that a claim petition under the MV Act was maintainable. This court respectfully agrees with the finding of the Punjab & Haryana High Court, which has been made at para 16 of the judgment in Baldev Kaur (supra), which is as follows: “16. In the light of law enunciated in the above cited authorities which has a direct bearing on the facts of the case, I am of the considered view that the order of the learned Tribunal cannot be sustained. The claimants in their claim petition had made clear averment that on account of rash and negligent driving of Harvestor Combine by Nazar Singh respondent No. 1 it struck against an electric wire, as a result of which electric current passed in the Harvestor Combine. On account of impact of the Harvestor Combine with the naked electric live wire, Onkar Singh deceased fell down and was electrocuted. The claimants in their petition had made a clear averment that had the driver of the Harvestor Combine controlled the Vehicle, tragedy would have been averted. On account of impact of the Harvestor Combine with the naked electric live wire, Onkar Singh deceased fell down and was electrocuted. The claimants in their petition had made a clear averment that had the driver of the Harvestor Combine controlled the Vehicle, tragedy would have been averted. The rash and negligent driving of Harvestor Combine has got direct connection with the death of Onkar Singh and once it is held in the context of the factual position as has been noticed above that Nazar Singh was negligent in driving, it can safely be held on a point of law that claim petition under section 166 of the Motor Vehicles Act is maintainable. If the view of the tribunal is to be upheld, it would inevitably follow that whatever be the extent of negligence of the driver of a vehicle, a sufferer under no circumstances can get the claim only because the death of person was not caused due to the motor vehicle accident. In my considered view, the Tribunal has gone wrong in holding that the claim petition was not maintainable as the death of Onkar Singh was not caused due to the accident of a motor vehicle. As had been observed above, if the death of person has got direct connection with the negligence of the driver of a motor vehicle, a victim if he is injured or his legal representatives if he dies, are entitled to maintain the claim petition under the provisions of the Motor Vehicles Act. In this view of the matter, I am of the considered opinion that in case the claimants are able to prove that the driver of the Harvestor Combine was rash and negligent in driving Harvestor Combine, the Tribunal would have no option but to accept the claim petition. The claim petition would be maintainable and the Tribunal would have jurisdiction to entertain and dispose of the petition according to procedure.” 19. In the present case, it is quite clear that the truck got entangled with the low hanging live electric wire, while it was under movement. The facts stated above show that if the driver of the truck had been more vigilant and had noticed the low hanging electric wire earlier, the wire may not have got stuck on top of the truck and he may have avoided the truck coming into contact with electric wire. The facts stated above show that if the driver of the truck had been more vigilant and had noticed the low hanging electric wire earlier, the wire may not have got stuck on top of the truck and he may have avoided the truck coming into contact with electric wire. However, the electric wire did get stuck on top of the truck and the handleman was electrocuted when he tried to remove the electric wire. There is a direct connection between the movement of the truck and the live electric wire being stuck/entangled on top of the truck. Further, the accident resulting in the death of the handleman is proximate to the electric wire getting stuck on top of the moving truck. As this court finds that there was a connection between the death of the deceased and the live wire coming into contact with the moving truck, the learned Tribunal erred in holding that compensation claim was not maintainable under the M.V. Act. This court accordingly finds that there was a causal relationship between the use of the truck and the electrocution which was direct and proximate. This court reiterates its finding that the death of the deceased occurred due to an accident arising out of the use of a motor vehicle. Further, it has to be kept in mind that the Motor Vehicles Act, 1988 is a beneficial enactment and this court is of the view that the expression “arising out of the use of a motor vehicle” has to be used in a wider connotation by enlarging the field of protection to be made available to the victims of a motor vehicle accident. This court, thus, finds that the claim petition is maintainable under the M.V. Act, 1988. Accordingly, the present case is remanded back to the learned Tribunal to decide the case on merit. 20. Consequently, the impugned judgment and award dated 27.11.2018 passed in MACT Case No. 14/2018 stands set aside. Sent back the LCR.