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2021 DIGILAW 1074 (GUJ)

NEW INDIA INSURANCE CO LTD v. MAMAD OSMAN SUMRA

2021-11-26

NIRAL R.MEHTA

body2021
JUDGMENT 1. Being aggrieved and dissatisfied with the judgment and award dated 31.10.2012 passed in MACP No.157 of 2009 by MAC Tribunal (Main) Kutch at Bhuj, the appellant – original opponent No.3 has preferred this First Appeal under Section 173 of the Motor Vehicles Act (for short ‘the MV Act’), wherein the learned Tribunal has awarded compensation of Rs.4,60,500/- under various heads to the respondents – original claimants as under : Amount Particulars Rs.4,56,000/- Loss of dependency Rs.2,000/- Funeral Expenses Rs.2,500/- Loss of estate Rs.4,60,500/- Total 2. On the fateful day i.e. on 28.2.2009, the deceased, who was 19 years old and serving as a Cleaner on the Luxury Bus bearing No.GJ-18- U-9998, met with an accident due to electrocution while he was on duty. While cleaning the roof of the bus, he came in contact with a live electric wire passing overhead the bus. On account of electrocution, the deceased suffered burn injuries. He was shifted to the J.K.Hospital at Bhuj where he was kept under treatment for 2 days and later, on 2.3.2009, succumbed to the injuries. 3. The claimants being the legal representatives of the deceased i.e. father, mother and two sisters respectively, approached the learned MAC Tribunal under Section 163-A of the MV Act and claimed Rs.5,31,200/- towards compensation. Upon service of notice, the original opponent No.1 – driver appeared and filed his written statement vide Exh.17, denying, inter-alia, negligence on his part. However, he admitted the fact that the deceased was cleaning the roof of the bus and at that time, due to electrocution, the unfortunate incident took place. Further, the original opponent No.2 – owner, though duly served with the notice, had chosen not to appear and thereby, the facts of the claim petition remained uncontroverted qua him. Whereas, the original opponent No.3 appeared before the Tribunal and filed written statement at Exh.25, denying, interalia, negligence on the part of driver, involvement of the vehicle since there is no accident caused by the vehicle insured by the appellant – Insurance Co., the age and income part as claimed by the claimants was also denied and also took contention that the vehicle is not covered by the policy. 4. The learned Tribunal, after having considered the evidence produced on record, came to the conclusion that the claimants are entitled to the compensation of Rs.4,60,500/- under various heads. 5. 4. The learned Tribunal, after having considered the evidence produced on record, came to the conclusion that the claimants are entitled to the compensation of Rs.4,60,500/- under various heads. 5. Thus, being aggrieved by the aforesaid, the present First appeal came to be filed by the appellant – Insurance Co. before this Court, challenging the legality and validity of the impugned judgment and award. 6. I have heard Mr.G.C.Majmudar, learned advocate for the appellant – Insurance Co., Mr.Nishit P. Bhalodi, learned advocate for respondent Nos.2, 3 and 4 – original claimants and Mr.Kirtidev R. Dave, learned advocate for the respondent No.1. The respondent Nos.5 and 6, though served, have chosen not to appear. 7. Mr.G.C.Majmudar, learned advocate for the appellant – Insurance Co., has mainly submitted that the accident was not caused as a result of use of motor vehicle and, therefore, the claim under the MV Act is not maintainable. To substantiate his contention that there is no use of motor vehicle, learned advocate has relied upon the A.D. Report. Further, the learned advocate for the appellant has submitted that the accident was caused due to the negligence on the part of the deceased himself or of the electricity company. It is clarified that however, the Insurance Co. has not pleaded either before this Court or before the learned Tribunal with regard to non-joinder of electricity company as a party. 8. The learned advocate for the appellant has relied upon the judgment rendered by the Apex Court in the case of Mamtaj Bi Bausab Nadaf & Others v. United India Insurance Co. Ltd. & Others, reported in 2010 ACJ 2661 . Learned advocate for the appellant – Insurance Co. has submitted that the accident took place while the bus was not in motion and was standing in a garage and the garage cannot be said to be a public place Therefore, lastly, the learned advocate for the appellant – Insurance Co. has urged to this Court to allow the appeal and quash and set aside the judgment and award passed by the learned Tribunal. 9. Per contra, Mr.Nishit P. Bhalodi, learned advocate for the respondents – original claimants, has vehemently opposed the appeal and submitted that the claim petition was filed under Section 163-A of the MV Act, therefore, the victim and/or deceased cannot be attributed for any negligence. 9. Per contra, Mr.Nishit P. Bhalodi, learned advocate for the respondents – original claimants, has vehemently opposed the appeal and submitted that the claim petition was filed under Section 163-A of the MV Act, therefore, the victim and/or deceased cannot be attributed for any negligence. To substantiate his contention, learned advocate has relied upon the decision of the Apex Court in the case of United India Insurance Co. Ltd. v. Sunil Kumar & Others, reported in 2018 ACJ 1 . Learned advocate for the original claimants has further submitted that the place of accident was at garage which is a small type wooden shop on the public road itself. Thus, the vehicle in question was parked right on the public road and, therefore, the place of accident is a public place and cannot be said to be a private place. To substantiate his contention, the learned advocate for the original claimants has relied upon Exh.35(C) i.e. deposition of A.D. Inquiry Officer. Learned advocate has further submitted that at the time when the accident was occurred, the deceased was right on the top of the vehicle and, therefore, it is a clear case of use of motor vehicle at the time of accident. Learned advocate for the original claimants further submitted that the Insurance Co. has not raised any objection with regard to non-joinder of electricity company before the learned Tribunal. 10. No other submissions have been made, except stated hereinabove, by the learned advocates for the respective parties. 11. I have heard the learned advocates appearing for the respective parties at length and have gone through the records and proceedings of the learned Tribunal. 12. Having gone through the facts and submissions made by the respective learned advocates, in my considered opinion, the questions that arise for the consideration of this Court are (i) Whether the MV Act would be applicable, having regard to the fact that the vehicle was not in use as the same was parked in a garage ? and (ii) whether the place of accident i.e. Garage could be said to be a ‘public place’ ? 13. For deciding the aforesaid questions, it would be apt to refer to the definition of the term “public place” as envisaged in the MV Act as well as the decisions of the Apex Court as well as of this Court. 14. and (ii) whether the place of accident i.e. Garage could be said to be a ‘public place’ ? 13. For deciding the aforesaid questions, it would be apt to refer to the definition of the term “public place” as envisaged in the MV Act as well as the decisions of the Apex Court as well as of this Court. 14. Section 2(34) of the MV Act is extracted herein-below for the sake of convenience. “2(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.” 15. It is worthwhile to note the decision of the Full Bench of the Madras High Court in the case of United India Insurance Co. Ltd. v. Parvathi Devi, reported in 2000 (1) ACC 75, wherein it has been observed that the definition of ‘public place’ is very wide and the same reveals that the public at large has a right to access though that right is regulated or restricted. The Act being a beneficial legislation, the law of interpretation has to be construed in the benefit of public. If the language is simple and unambiguous, it has to be construed in the benefit of the public. The Court was of the view that the word 'public 'place', wherever used as a right or controlled in any manner whatsoever, would attract Section 2 (34) of the Act. A private place used with permission or without permission would amount to be a 'public place' and that the expression 'public place' for the purpose of Chapter VIII of the Motor Vehicles Act, 1939 will cover all places including those of private ownership where members of the public have an access whether free or controlled in any manner whatsoever. 16. In yet another decision, the Andhra Pradesh High Court in the case of P. Muse Khan & Others v. M. Gopala Krishnainah & Others, reported in 2003 (2) ACC 677 , wherein the question before the Court was whether the agricultural field where the accident occurred is a 'public place', within the meaning of Section 2 (34) of the Motor Vehicles Act, 1988, so as to fasten the liability against the insurer for the compensation awarded by the Tribunal. The Court, after referring to various decisions, including the decision of the Full Bench of the Bombay High Court in the case of Pandurang v. New India Life Insurance Co. Ltd. & Ors., reported in 1988 AIR (Bom.) 248 and the decision of the Full Bench of the Madras High Court in United India Insurance Co. Ltd. v. Parvathi Devi (supra) held that the evidence on record showed that the crime vehicle which was a bore well support lorry belonging to the 1st respondent was engaged to dig a bore well in the fields of one Shanker Reddy and during the course of drilling the accident took place resulting in the death of the deceased. The report given by the driver of the crime vehicle as recorded to First Information Report itself shows that at the time of the accident number of villagers were present in the field and watching the drilling operation. According to learned advocate, This was accessible to the members of the public. Since there is absolutely no rebuttal evidence on behalf of the respondents therein to show that the entry of public into the fields of Shankar Reddy was restricted or obstructed at the relevant time or at any time prior to that, the Court held that the Tribunal was not justified in holding that the place where the accident took place was not a public place within the meaning of Section 2(34) of the MV Act. The Court was of the view that even a private place, to which the members of a public have a right shall be held to be a public place and such question has to be determined considering the facts and circumstances of the case on hand and on the basis of evidence on record. 17. The decision of the Madhya Pradesh High Court in the case of Rajendra Singh v. Tulsabai & Others, reported in 2005 (2) ACC 719, wherein in the facts of the said case, the accident took place in the premises of cement factory, wherein trucks and dumpers used to come inside the said factory to load cement bags for transportation to various destinations. The Court, after referring to the various decisions of the different High Courts, including the decision of the Full Bench of the Bombay High Court in the case of Pandurang Chimaji Agale v. New India Life Insurance Co. The Court, after referring to the various decisions of the different High Courts, including the decision of the Full Bench of the Bombay High Court in the case of Pandurang Chimaji Agale v. New India Life Insurance Co. Ltd., reported in 1988 ACC 353 as well as of a Full Bench of the Orissa High Court in the case of Oriental Fire and General Insurance Co. Ltd. v. Raghunath Muduli, reported in 1992 (2) ACC 653 , found that almost all the High Courts were veering around to the illuminating dictum of the Full Bench in the case before the Bombay High Court. The Court, accordingly, held that the compound of the cement factory to which the public had access and the vehicles were going there for the business purposes and where the accident occurred was definitely a ‘public place’ and, therefore, the Insurance Co. could not escape from their liability and were bound to indemnify their insured persons and pay the compensation directly to the applicants therein. 18. So far as the use of vehicle is concerned, this Court has in a judgment in the case of United India Insurance Co. Ltd. v. Ravji Karshanbhai Rathod & Others, reported in 2005 ACJ 381 , has held as under : “4…. Making reference to the accident, it is forcefully contended that the accident did not arise out of use of motor vehicle. The tanker turned turtle and was stationary when the accident took place to Naphta at the lighting of match-stick by the deceased/claimants who gathered at the site for taking away the liquid assuming it to be kerosene. Reference is made to first information report, the statement of Fire Officer and by some of the deceased in dying declarations that someone lit match stick at the site. We are not satisfied with these submissions. There is no dispute that tanker carrying Naphta was met with accident, turned turtle resulting in leakage of Naphta liquid. Simply because the vehicle became stationary on account of accident having turned turtle, it cannot be said that the accident did not arise out of use of motor vehicle. We are not satisfied with these submissions. There is no dispute that tanker carrying Naphta was met with accident, turned turtle resulting in leakage of Naphta liquid. Simply because the vehicle became stationary on account of accident having turned turtle, it cannot be said that the accident did not arise out of use of motor vehicle. The expression "arising out of the use of motor vehicles" has to be given broader meaning and, therefore, simply because the vehicle happens to be stationary at the time when the accident took place, but the dominant purpose of the journey was use thereof for carrying Naphta liquid. There is direct nexus between the injuries suffered by the deceased/injured and the accident (see Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 ACJ 777 ). Another facet of the question is whether the deceased/injured were negligent/responsible for causing the accident by lighting matchstick. Frankly speaking, we are not satisfied with the evidence sought to be pleaded by the appellant in support of its contention that the deceased/injured were responsible for the fire having lit the match-stick.... 19. In yet another decision, this Court in the case of Shankarbhai Motibhai Prajapati, Heirs and Legal Representatives of Jigneshbhai Shankarbhai v. Ishwarbhai Gangarambhai, reported in 2013 (2) GLR 1127 , one of the questions was whether the Tribunal has jurisdiction to entertain the claim petition. “19. Since the truck in question is involved in the accident upon which the victim climbed, the proceedings under section 166 of the MV Act is very much maintainable. The Claims Tribunal constituted under the Motor Vehicles Act is entitled to maintain an application where other agencies than a motor vehicle is also contributing to causing the accident….” 20. The Apex Court in the case of United India Insurance Co. Ltd. V. Sunil Kumar & Others, reported in 2018 ACJ 1 , has held in Para.8 and 9 as under : “8. From the above discussion, it is clear that grant of compensation under section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by section 163-A (2). This is made explicit by section 163-A (2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on negligence of the claimant as contemplated by section 140 (4), to permit such defence to be introduced by the insurer and/or to understand the provisions of section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of section 163-A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under section 163-A of the Act at par with the proceeding under section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. 9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under section 163-A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim.” 21. Now, keeping in view the aforesaid settled legal propositions of law and applying the same to the facts of the present case, in my considered opinion, the first question deserves to be considered in the affirmative for the following reasons. 21.1 Indisputably, the vehicle in question was parked in a garage situated on the road side. The deceased, who was a cleaner of the bus, climbed on the roof of the bus and at that time, he came in contact with a live wire passing overhead and resultantly, he died. In view of the aforesaid settled legal proposition, the bus / vehicle which was insured can be said to be in use because the deceased cleaner got electrocuted while he was on the roof of the bus. The expression ‘use of vehicle’ is well explained in Kalim Khan v. Fimidabee, reported in 2018 ACJ 2025 (SC), more particularly in Paras.22 and 23 respectively which are reproduced below : “22. From the aforesaid authorities, it is limpid that the expression ‘use of the vehicle’ under certain circumstances can be attracted when the vehicle is stationary or static. The expression ‘use of vehicle’ is well explained in Kalim Khan v. Fimidabee, reported in 2018 ACJ 2025 (SC), more particularly in Paras.22 and 23 respectively which are reproduced below : “22. From the aforesaid authorities, it is limpid that the expression ‘use of the vehicle’ under certain circumstances can be attracted when the vehicle is stationary or static. A Division Bench of the High Court of Orissa in Kanhei Rana and another v. Gangadhar Swain and others15 while dealing with a situation where the deceased labourer after loading the truck with logs lost his life. The tribunal had categorically found that death was on the account of fall of a log, when the truck was being loaded with logs. The learned Single Judge, in appeal, had concurred with the view of the tribunal by opining that the fall of the log had no nexus with the use of the vehicle not even remotely, and there was no material to show that the fall of the log was occasioned due to use of the vehicle. He had further held that the careless handling of goods being loaded on or unloaded from a vehicle had no connection to the vehicle itself. Reversing the conclusion of the learned single Judge, the Division Bench opined that the concept of movement being not intrinsically or inherently connected with the use and the term 'use' having been connotatively expanded, there can be no doubt that the same can also be extended to the arena/sphere of a claim advanced under Section 110 of the 1939 Act. Heavy onus is cast on the driver to avoid negligence while the vehicle is in use. If the term 'use' in its conceptual sweep engulfs no motion or no movement or stationariness, then by logical corollary it is made essential that the driver or for that matter any agent of the owner should be careful and non-negligent. Negligence in driving is regarded as a fact that the vehicle is in motion. But the definition of 'use' having been expanded in its broader canvas, it has to clothe in its sweep other categories of negligence. To elaborate, when a vehicle remains static, it cannot constitute that the driver is negligent because of his rash and negligent driving. On the contrary, it has to embody some other different types of negligence. But the definition of 'use' having been expanded in its broader canvas, it has to clothe in its sweep other categories of negligence. To elaborate, when a vehicle remains static, it cannot constitute that the driver is negligent because of his rash and negligent driving. On the contrary, it has to embody some other different types of negligence. Of course that would depend upon the facts and circumstances of each case. The Division Bench of the High Court went on to say that the apex Court in Patil (supra) was dealing with the negligence so far as it was concerned with Section 92 of the Act, but as the language of Section 92A and Section 110 of the old Act used the same phraseology and there is absence of any etymological distinction, the same meaning should be given to the expression under Section 110 of the old Act. The appellate Bench held that there was causal relationship with the accident which had resulted in the death of the claimant. 23. We entirely agree with the aforesaid analysis, for it is in accord with the view of the decisions of this Court.” 21.2 Thus, the first question with regard to the applicability of the MV Act in the facts of the present case, is answered in the affirmative accordingly. 22. Now, since the first question has been answered in the affirmative, it is also necessary to decide the second question as to whether the accident took place at a public place or not. In my considered opinion, this question also deserves to be answered in the affirmative for the reasons recorded herein-below: 22.1 Admittedly, the bus/vehicle was parked in the garage. However, the garage in question, as can be seen from the evidence produced on record, is of a kind of small type of wooden shop, that too on the road side. Thus, while saying that the vehicle in question was parked in garage, it also gives impression that same was parked on a public road itself. Meaning thereby, the garage in question when itself on public road and looking to the size and nature of garage, it appears that the said garage is a small wooden shop, must be used only for the purpose of putting tools and equipments which would not be of that size that entire bus can be parked inside. Meaning thereby, the garage in question when itself on public road and looking to the size and nature of garage, it appears that the said garage is a small wooden shop, must be used only for the purpose of putting tools and equipments which would not be of that size that entire bus can be parked inside. As per the Panchnama and the deposition of AD Inquiry Officer, it transpires that the bus was on the public road and, therefore, it cannot be said that the bus was parked in a private property. So far as the law discussed herein-above, even a private property is also held to be a public place, if there is no restriction to enter at such place. However, in the instant case, the garage is not on any private property but, is itself on a public road. Therefore, in my view, the contention raised by the learned advocate for the appellant that the bus was not in a public place, is not acceptable and is hereby rejected. 23. As regards the contention raised by the learned advocate for the appellant relating to negligence on the part of the deceased itself is concerned, the same should be rejected because when a claim petition is filed under Section 163-A of the MV Act, it is not open for the insurer to raise any defence of negligence on the part of victim, as held by the Apex Court in the case of Sunik Kumar (Supra). 24. The last contention raised by the learned advocate for the appellant with regard to the negligence on the part of electricity company, deserves to be dealt with. It is pertinent to note that the very contention with respect to the liability of the electricity company was neither raised before the Tribunal nor has been pleaded in the appeal memo before this Court. The accident took place in the year 2009 and till today, the fruits of the award passed by the learned Tribunal has not been reaped by the original claimants. The MV Act is in the nature of social beneficial legislation, therefore, it is meant for the benefits of the victims and/or their heirs and legal representatives. Thus, in my view, after 12 years of accident, at this stage it would not be proper for the appellant – Insurance Co. The MV Act is in the nature of social beneficial legislation, therefore, it is meant for the benefits of the victims and/or their heirs and legal representatives. Thus, in my view, after 12 years of accident, at this stage it would not be proper for the appellant – Insurance Co. to raise such a contention which, if ultimately accepted, would be leaving the claimants high and dry. Hence, the contention with regard to the liability of the electricity company is hereby rejected. 25. In view of the aforesaid discussion, the appeal filed by the appellant- Insurance Co. fails and thereby, dismissed accordingly with no order as to costs. R & P be sent back forthwith to the concerned Tribunal and the Tribunal is directed to issue account payee cheque in favour of the claimants after due verification. 26. Consequently, Civil Application No.1 of 2014 does not survive and is accordingly disposed of.