NEW INDIA ASSURANCE CO LTD Vs. SHEEJA

JUDGEMENT

(1.) Husband of the first respondent was the driver of taxi KBT-7905. The said taxi was taken to workshop of 5th respondent and while repairing, gas cylinder exploded and the driver died. Legal representatives of the deceased claimed compensation of Rs. 3,72,500/-. Though the Tribunal found that there is no negligence on the part of the workshop owner or the owner of the vehicle and it was an act of God, entire amount claimed was awarded by the Tribunal. This appeal is filed by Insurance company on two grounds. First contention was that the accident is not arising out the use of motor vehicle and therefore claim petition filed under Section 156 will not lie. Secondly, it was contended that after finding that this is the act of God, the owner of vehicle as well as the insurance company cannot be compelled to pay compensation. With regard to first contention whether it is arising out while using motor vehicle, we refer the decision of Supreme court in Shivaji Dayanu Patil and Anr. v. Vastchala Uttam More . In that case there was a collusion between a truck and petrol tanker and the tanker turned turtle. After four and half hours of the accident the tanker exploded and caught fire resulting in injuries to and death of several persons -Contention taken up was that at the time when explosion and fire took place the petrol tanker which was lying turtle was not suitable or fit for use on the road and hence it was not a motor accident. The apex court held in paragraph 12 as follows:

(2.) It is contended that since no negligence is proved even if arising out of use of motor vehicle no compensation can be awarded against insurance company or owner of the vehicle except under Section 140. Accident occurred on 13/3/1990 before 163 A was introduced. Therefore provisions of Section 163-A also cannot be applied herein. However, it has come out in evidence that deceased was employed by owner of the vehicle and therefore workmen compensation is to be paid by the owner. That liability of the insured is to be indemnified by the insurance company. Now the question is what is the amount of compensation that could be awarded under Workmens' Compensation Act. Tribunal found that he was getting more than Rs. 1000/- per month. Maximum monthly wages that could be calculated for workmen compensation during the relevant time of accident was only Rs. 1000/-. Since payment was made only after the amendment, interest of 12% is to be paid on the basis of the award. He was 29 years old. Therefore factor applicable is 209.92 and compensation payable will be 1000 x 209.92 x 40/100 = 83.968/-. That is higher than the amount under Section 140. Therefore Rs. 83,968/- will be deposited by insurance company within one month from the date of receipt of copy of judgment before the Motor Accidents Claims Tribunal with 12% interest from the date of accident till the date of deposit after deducting the amount if any already deposited. On deposit of the amount it should be disbursed to the first and second respondents in equal proportion.