ORIENTAL INSURANCE CO LTD Vs. MOMINA AND OTHERS

JUDGEMENT

(1.) This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by Oriental Insurance Co Ltd, being aggrieved by judgment dated 4.8.2004 passed by the Motor Accident Claims Tribunal/Special Judge, NDPS, Act Allahabad in Motor Accident Claim Petition No.474 of 2000.

(2.) Brief facts as they reveal from the judgment are that the accident in question occurred when the deceased was doing his work. On 15.5.2000 at about 3.30 p.m.(afternoon) driver of Gas tanker stopped his tanker near the shop of one Hari Lal. The driver of the tanker directed the deceased Abbas Ali to join the tanker but the deceased refused as it was filled with Gas and Diesel. The driver conveyed that there was no diesel or Gas and if anything happens it would be his liability. At that point of time, the deceased started repairing the broken mudguard of the vehicle and at that pint of time the diesel starting leaking and it caught fired. The deceased who was doing the work was shifted to Swarooprani Hospital. However, after five days he succumbed to the injuries due to the burn injuries. It is a case of claimant who are the heirs of the deceased. The accident occurred due to the gross negligence on the part of the driver of the vehicle. The deceased was aged about 28 years of age and was doing the work of welding and was earning a sum of Rs.3,000/- per month. The Insurance Company filed its reply one of the denial. The Tribunal framed about four issues and all of them were held against the appellants.

(3.) In this case the contention is that the vehicle was parked in workshop where it was repaired and, therefore, the driver cannot be held solely liable as the deceased was also aware about the mis-happening and, therefore, the Insurance Company is not liable to pay. The second contention is that the compensation awarded is on the higher side. The first contention is that the answer by the Tribunal itself and it cannot be said that accident did not occurred due to the use of motor vehicle. The term of motor vehicle as defined in Section 2(28) will mean-