KRISHNA DEVI Vs. DALBIR SINGH

JUDGEMENT

(1.) The appeal is against dismissal of the petition for compensation laid at the instance of the representatives of a motor mechanic, who died when he was attempting to repair a motor vehicle. The vehicle had stopped on the road and the deceased was brought to repair the same. When he was applying the jack, it tripped and the vehicle capsized on him resulting in his death. The claim petition was dismissed holding that the petitioner had volunteered to do the service as regards the vehicle and applied the principle of volenti non fit injuria.

(2.) The learned counsel for the appellants states that the claim is possible under Section 166 for a death or injury arising by the use of a motor vehicle and relies on the judgment of the Supreme Court in Smt. Rita Devi Versus New India Assurance Company Limited, 2000 5 SCC 113. That was a case where a person was seen travelling in an auto-rickshaw and later found dead in the autorickshaw itself which was lying abandoned in a far away place. The manner in which the death had occurred was not evident, but the Court was prepared to explain the principle that the death must have been caused by the use of the vehicle and made the Insurance Company liable. I would find no use for this judgment, for, it is not a case where the manner of cause of death was not known in this case. It was about a mechanic, who had attempted to work on the vehicle which was lying parked, but he had come to harm by his own act. I will not find therefore this judgment is applicable. The learned counsel also relies on a judgment of this Court in United India Insurance Company Limited Versus Lakhwinder Singh and others, 2010 3 RCR(Civ) 33 where the deceased was sleeping under the truck and the driver had taken away the vehicle without minding the person, who was sleeping under the truck. Here it was a clear case of negligence of the driver in driving the vehicle that caused death and the compensation awarded could therefore be seen as falling within the parameters of the claim under Section 163-A of the MV Act which was invoked in that case. In Parkash Kaur and another Versus Kulvindra Singh and another, 2008 ACJ 1414, the cleaner of the truck died when the vehicle capsized when he was attempting to put the jack on it. Here the liability of the insurer arises by the fact that a cleaner is a workman under the owner/insured and the insurance is compulsory under Section 147 of the Motor Vehicles Act. In this case, it cannot be stated prima facie that the person, who was working on the vehicle, could obtain a status of a workman under the insured to claim insurance cover against the Insurance Company under Section 147 of the MV Act. (This is subject to a further observation providing for another option as in the last para of the judgment). Yet another judgment relied on by the counsel is Meena Kumari and another Versus Ramkishan and another, 2010 3 ACC 72 where a passenger, who was travelling in a vehicle, died when there was a bomb blast in DTC bus. It was clearly a result of death of a person during the use of a vehicle and a passenger is always entitled to compulsory cover under Section 147 of the MV Act. None of the judgments cited by the counsel has any application to this case.

(3.) There is no reason to modify the order of dismissal on a principle of law that could be applied. However in a judgment of the Supreme Court relating to applicability of Section 140 of the MV Act, the Supreme Court held in Eshwarappa @ Maheshwarappa and another Versus C. S. Gurushanthappa and another, 2010 8 Scale 263 that the Insurance Company would be liable even if its liability cannot be traced to the terms of the policy on no fault basis. All that has to be seen in such a case is whether the vehicle had been insured.