NEW INDIA ASSURANCE CO LTD Vs. LAKSHMI

JUDGEMENT

(1.) Insurance Company is the appellant. On 21.5.1990 the claimant in O. P. (MV) No. 271/90 (first respondent herein) out of which this MFA arises, sustained injury by a fertilizer bag falling upon her in the process of unloading it from a stationary lorry of which the second respondent herein is the driver cum owner. There was a controversy before the Tribunal on the point as to whether the accident took place when the vehicle was in motion or stationary. The Tribunal on appreciation of evidence found that the accident took place when the vehicle was stationary and even so, the appellant is liable to indemnify the second respondent owner cum driver because the accident arose out of the 'use' of a motor vehicle and in that view, passed an award directing the appellant to pay a sum of Rs. 15,250/- with 12% interest from the date of petition and proportionate cost. Being aggrieved by the aforesaid award, the insurance company has preferred this appeal. The quantum of compensation awarded is not under challenge. The challenge is confined only to the finding of the Tribunal that the accident arose out of the use of the motor vehicle. According to the appellant insurance company, on the facts disclosed, it cannot be said that the accident was one arising out of the 'use' of the motor vehicle and as such the Tribunal had no jurisdiction to entertain a claim petition under S.165 of the Motor Vehicles Act, 1988 (for short 'the Act').

(2.) Having heard counsel on both sides, we are of opinion that the appellant is not well founded in its submission and the Tribunal, in our considered opinion, was perfectly right in holding that the accident was one arising out of the use of the motor vehicle. In this connection, it has to be noted that jurisdiction under S.165 of the Act is attracted if there is an accident involving death of or bodily injury to a person arising out of the use of a motor vehicle. The primary fact which, therefore, attracts the jurisdiction of the Tribunal is the use of a motor vehicle. The word 'use' is used in the Section in a wide sense. It covers all employment of the motor vehicles, so that whenever the vehicle is put into action or service, there is 'user' of the vehicle within the provisions of S.165 of the Act, whether the vehicle was being driven, or repaired or simply parked or kept stationary or left unattended. In that sense, the vehicle is used, whenever the vehicle is driven out for some purpose or it is kept stationary. This, without anything more, is sufficient to attract S.165 of the Act. Therefore, whenever any accident occurs causing death of or injury to persons because of the vehicle or its user the jurisdiction of the Claims Tribunal is attracted. Any accident occurring in the course of the user for carriage of passengers of otherwise is liable to be compensated through the forum provided under S.165 of the Act. The basic requirement of such claim is only that it should arise out of the use of motor vehicle. There is no warrant for the contention that the accident should take place at a time when the vehicle was in motion or the accident has resulted in damage to the vehicle. All that is required is that there should be an accident, viz. something unexpected and unintended and that should arise out of the user of the vehicle. (Vide Padmanabhan Nair v. Narayanikutty ( 1987 (2) KLT 370 (DB). Adverting to the language and phraseology employed in S. 165 of the Act, a Division Bench of this Court in the decision reported in Babu v. Remasan ( 1995 (2) KLT 300 ) observed as follows:

(3.) Of course, learned counsel for the Insurance Company brought to our notice the decision reported in Kanhei Rama and Another v. Gangadhar Swain and Others (1992 ACJ 1124) wherein, the Orissa High Court while considering an identical fact situation, held that when the accident took place due to the fall of a log on the claimant when the truck was being unloaded with log, it cannot be said that the fall of the log was occasioned out of the use of the vehicle. With respect, we cannot subscribe to the view especially in the light of the Division Bench decisions of this Court holding otherwise.