KALIM KHAN & OTHERS versus FIMIDABEE & OTHERS on 3 July 2018

[2018] 6 S.C.R. 561

KALIM KHAN & OTHERS

v.

FIMIDABEE & OTHERS

(Civil Appeal Nos. 8785-8786 of 2015)

JULY 03, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Motor Vehicles Act, 1988 – ss. 165 and 166 – Claim petition– Maintainability of – Compensation – Liability of insurer – Blastingoperation carried out in the field of the owner, for digging of thewell using battery of the tractor – Stone fell on deceased leading tohis death – Tribunal holding that the accident was a vehicularaccident and vehicle being used for commercial purpose, there wasbreach of insurance policy by the owner, awarded compensationfastening the liability on the owner – High Court held that the claimpetition was not maintainable since battery being detached fromthe vehicle and not part of it, the accident did not arise out of useof vehicle – On appeal, held: There has to be some causal relationor the incident must relate to it – It should not be totally unconnected– Keeping in view the evidence on record, the tribunal rightly heldthat the battery was installed in the tractor and explosives werecharged by the battery – Purpose was to dig the well in the field –Vehicle was in use as stipulated u/s. 165 – Thus, the High Courterred on the said score – Furthermore, the vehicle being used forcommercial purpose, there was breach of insurance policy and, thus,the insurer was not liable to pay the compensation – Though, thecase of insurer that the work of digging of well in a field used foragricultural purpose would embrace an activity associated withagriculture for irrigating the field is accepted, however, this wouldnot help in fastening the liability since there was no analysis of theterms and conditions of the policy and evidence of witnesses by theHigh Court – Parties relegated to the High Court to determine aboutfastening of the liability on the insurer or the owner – Until theninsurance company to pay the compensation to the claimants asdetermined by the tribunal which would be subject to the conclusionof the remanded appeals.

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562SUPREME COURT REPORTS

APartly allowing the appeals, the Court

HELD: 1.1 The tribunal has treated the accident to be avehicular accident and entertained the claim. The High Courtdid not analyze any evidence brought on record to come to theconclusion that the battery of the vehicle was practically detachedBfrom the vehicle and was not a part of the vehicle. On the contrary,the tribunal noticed that the panchnama of the tractor clearlyshowed that the tractor was in the field and the blasting machinewas found on tractor with wrapped gas pipe and an explosivebattery found on the tractor with the wooden cover. It referred tothe evidence, to record the finding that the blasting machine wasCkept on the tractor driven by the driver engaged by the ownerand the tractor was used for digging of the well with the blastingmachine. The insurer, as is evident, had only raised a singularplea with regard to use of the tractor, namely, ‘commercialpurpose’ and on that foundation, it had advanced the stance thatDthere had been fundamental breach of the insurance policy.Keeping in view the evidence on record, the view expressed bythe tribunal that the battery was still installed on the vehicle andthe power was drawn from the battery for explosive purposes, isaccepted. [Para 6] [568-B-D]

E1.2 Section 165 of the Motor Vehicles Act makes it vividthat the tribunal can adjudicate the claims for compensation inrespect of accidents arising out of use of motor vehicles. Thus,the fundamental requirement is that the accident should ariseout of the use of the motor vehicle. If there is no use of the motorvehicle, the question of vehicular accident will not arise. SectionF2(44) defines ‘tractor’ to mean a motor vehicle which is not itselfconstructed to carry any load (other than equipment used for thepurpose of propulsion); but excludes a road-roller. [Paras 7, 8][569-A-B, D-E]

1.3 It is limpid that the expression ‘use of the vehicle’Gunder certain circumstances can be attracted when the vehicle isstationary or static. The causal relationship should exist betweenviolation and the accident caused. There has to be some act doneby the person concerned in causing the accident. The commissionor omission must have some nexus with the accident. The word‘use’ need not have an intimate and direct nexus with the accident.H

The court has to bear in mind that the phraseology used by thelegislature is “accident arising out of use of the motor vehicle”.The scope has been enlarged by such use of the phraseology andthis Court taking note of the beneficial provision has placed awider meaning on the same. There has to be some causal relationor the incident must relate to it. It should not be totallyunconnected. Therefore, in each case what is required to be seenis whether there has been some causal relation or the event isrelated to the act. [Paras 22, 24] [576-E; 577-F-H]

1.4 As is evincible, the battery was installed in the tractorand the explosives were charged by the battery. The purposewas to dig the well in the field. In such an obtaining factual matrix,it would be an erroneous perception to say that the vehicle wasnot in use as stipulated under Section 165. Hence, the DivisionBench erred on that score.[Para 25] [578-A-B]

1.5 The insurer advanced the plea that the tractor wasinsured under “Farmer Package Policy” for agriculture purposeby the owner of the vehicle. However, it was used for commercialpurpose by mounting a blasting machine thereon. That use wasin breach of insurance policy and, therefore, the insurer was notliable to pay the compensation. The insurer also examined itsemployee to establish the fact that the owner of the vehicle hadcommitted breach of insurance policy by using it for commercialpurpose and for transporting the blasting machine. [Para 26][578-C-D]

1.6 It is noticed that the battery of the tractor was used fordigging of well in a field used for agricultural purpose. The insuredhad contended that the work of digging of well in a field used foragricultural purpose would embrace an activity associated withagriculture for irrigating the field and is answered in theaffirmative. This does not help in fastening the liability becausethere has been no analysis as regards the terms and conditionsof the policy and its fundamental character. The High Court didnot deal with any of these matters, the adjudication whereof hasnow become inevitable to answer the issue about the liability tobe borne by the insurer, the owner of the vehicle (insured) orotherwise. This adjudication requires analysis of relevant material AB

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Aincluding the insurance policy and evidence of concernedwitnesses, for understanding the terms and conditions of the policyregard being had to nature of policy and the extent of the liabilityof the insurer, if any. As the High Court did not consider thisaspect at all, it is deemed appropriate to relegate the parties tothe High Court for determining the singular issue about fasteningBof the liability on the insurer or the owner of the vehicle. Underthese circumstances, until that issue is finally decided, theinsurance company must pay the compensation amount payableto the claimants as determined by the tribunal in terms of theaward, which payment will be subject to the outcome of theCremanded appeals to be decided by the High Court. The claimantsneed not contest the remanded proceedings before the HighCourt as it is remitted only for limited purpose to determine theliability amongst the insurer and owner of the vehicle. [Para 27][579-G-H; 580-A-B]

DKanhei Rana and Another v. Gangadhar Swain andOthers AIR 1993 ORI 89 – approved.

Shivaji Dayanu Patil v. Smt. Vatschala Uttam More(1991) 3 SCC 530 : [1991] 3 SCR 26 ; Pushpa RaniChopra v. Anokha Singh 1975 ACJ 396 (Del HC) ;EGeneral Manager, K.S.R.T.C. v. S. Satalingappa1979 ACJ 452 (Kant HC) ; Oriental Fire and GeneralInsurance Co. Ltd. v. Suman Navnath Rajguru 1985ACJ 243 (Bom HC); Union of India v. United IndiaInsurance Co. Ltd. and Others (1997) 8 SCCF683 :[1997] 4 Suppl. SCR 643 ; Samir Chanda v.Managing Director, Assam State Transport Corporation(1998) 6 SCC 605 : [1998] 1 Suppl. SCR 219 ; Unionof India v. Bhagwati Prasad (Dead) and Others (2002)3 SCC 661: [2002] 2 SCR 290; General Manager,Kerala State Road Transport Corporation, TrivandrumGv. Susamma Thomas and Others (1994) 2 SCC 176 –referred to.

Heyman v. Darwins Ltd. [1942] AC 356 : [1942] 1 AllER 337; Union of India v. E.B. Aaby’s Rederi A/S

[1975] AC 797 : [1974] 2 All ER 874 ; Samick LinesCo. Ltd. v. Owners of the Antonis P. Lemos [1985] 2WLR 468 ; Newberry v. Simmonds [1961] 2 ALL ER318 ; Smart v. Allan [1962] 3 ALL ER 893 ; Elliott v.Grey [1960] 1 QB 367 : [1959] 3 All ER 733 ;Government Insurance Office of New South Wales v.R.J. Green & Lloyd Pty. Ltd. (1965) 114 CLR 437 –referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil AppealNos. 8785-8786 of 2015.

From the Judgment and Order dated 10.10.2013 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in First AppealNo. 494 of 2013 and First Appeal No. 437 of 2008.

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Ms. Aparna Jha, M. D. Adkar, Rohit Gupta, Amit Bhagat,Ms. Kirti Sondhi, Abhishek Yadav, Advs. for the Appellants.

Satyajit A. Desai, Ms. Anagha S. Desai, Varun Mathur,Ms. Aishwarya Bhati, Abhishek Kumar, Viresh B. Saharya, AkshatAgarwal, Advs. for the Respondents.

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566SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by DIPAK MISRA, CJI 1. The legal representatives of thedeceased Firoz preferred a claim petition being MAC Petition No. 64 of2006 before the Chairman, Motor Accidents Claims Tribunal (for short,‘the tribunal’), Washim under Section 166 of the Motor Vehicles Act,B1988 (for brevity, “the Act”) claiming compensation of Rs. 15 lacs onthe foundation that the deceased was an Assistant Teacher in UrduPrimary School at Pusad run by Zilla Parishad, Yeotmal and was drawingmonthly salary of Rs. 8,123/- and they were dependent on the income ofthe deceased. The assertion in the claim petition was that land situatedin survey number 136 of village Kajleshwar, Tq Karanja, Washim DistrictCwas belonging to Respondent No. 1 who had commenced the work fordigging of well in the above agricultural land. On 08.04.2005 at about4.15 p.m., when the deceased was returning towards his house afterpurchasing certain articles from the grocery shop, a heavy stone cameflying and fell on his head, as a consequence of which, he sustainedDgrievous injuries and was carried for treatment in a jeep to the hospitalwhere he was declared dead. The case of the claimants before theTribunal was that the stone fell on the deceased due to blasting operationcarried out for digging of well in the field of respondent No. 1. It isfurther put forth that the tractor belonging to the 1[st] respondent andinsured with the respondent No. 4 was used for digging up well byEkeeping the blasting machine and, therefore, the causing of death by theuse of the tractor was established.

2. The tribunal, appreciating the materials brought on record, cameto hold that digging of the well with use of blasting machine was carriedon in the field of the owner and the tractor was used for digging of theFwell with the blasting machine. Thereafter, it proceeded to deal withfixing of the liability and the quantum of the compensation. On the firstaspect, it took note of the submission advanced on behalf of the insurerthat the owner had committed breach of the policy by using the tractorfor commercial use. To bolster the said stance, the insurer asserted thatGthe owner had not taken permission from the competent authority forcarrying on the blasting work in his field and, hence, there was violationof the policy. On behalf of the owner, the stand was taken that thetractor was used for agricultural purposes, for digging of the well wascarried on for the irrigation of the crops which work was incidental toagriculture and hence, there was no violation of the policy.H

3. The tribunal came to hold that on the basis of the materialbrought on record, the vehicle was used for commercial purpose and,therefore, there was a fundamental breach of the insurance policy. Itfurther opined that the cause of the death of the deceased was due tovehicular accident because of the evidence brought on record. Emphasiswas laid on the fundamental breach of the insurance policy by the ownerand, ultimately the liability was fastened on him directing him and otherrespondent to pay the compensation of Rs. 9,30,000/- with interest atthe rate of 6% per annum from the date of the petition tillrealization.

4. Two appeals were preferred before the High Court challengingthe award of the tribunal. The High Court noted that the power fortrigger of the explosives came from the battery of the tractor which wasparked nearby and as explosion took place, a large stone flew in air andfell on the head of the deceased who was standing in front of a shop thatwas 300 ft. away. It addressed to the concept of ‘use of motor vehicle’and in that context stated that the tractor, when it is stationary with theadditional implements/machines can be run using the power generatedby its engine for thrashing and cutting agriculture produce. It also dweltupon the concept that when a storage battery of a vehicle is disconnectedand taken for some other use, sometimes it is used for other purposeswithout disconnecting the battery from the vehicle. On the factual issue,the High Court opined that the battery of the vehicle was still installedinside and the terminals were used for providing power to the use ofexplosive. However, it further went on to say that the battery waspractically detached from the vehicle and was not a part of the vehicleand on that basis ruled that use of battery for causing explosion cannotbe said to be use of vehicle, for the vehicle was not used for causingexplosion. Eventually, it held that it could not be said that the accidentthat took place had arisen out of the use of motor vehicle as defined inSection 165 of the Act and, therefore, the claim petition under Section166 was not maintainable. Expressing the aforesaid view, the High Courtset aside the award passed by the tribunal.

5. We have heard Ms. Aparna Jha, learned counsel for theappellants, Ms. Aishwarya Bhati, learned counsel for the respondentNo. 2 and Mr. Abhishek Kumar, learned counsel for the respondentNo. 4.

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A6. As is noticeable, the High Court has recorded a finding that thebattery was practically detached from the vehicle. The correctness ofthis finding is required to be determined first. It is necessary to note herethat the tribunal has treated the accident to be a vehicular accident andentertained the claim. As we find, the High Court has not analyzed anyevidence brought on record to come to the conclusion that the battery ofBthe vehicle was practically detached from the vehicle and was not a partof the vehicle. On the contrary, the Tribunal had noticed that thepanchnama of the tractor, Ex-42, clearly showed that the tractor was inthe field and the blasting machine was found on tractor with wrappedgas pipe and an explosive battery found on the tractor with the woodenCcover. It has referred to Ex-41 and other oral evidence to record thefinding that the blasting machine was kept on the tractor driven by thedriver engaged by the owner and the tractor was used for digging of thewell with the blasting machine. The insurer, as is evident, had only raiseda singular plea with regard to use of the tractor, namely, ‘commercialpurpose’ and on that foundation, it had advanced the stance that thereDhad been fundamental breach of the insurance policy. Keeping in viewthe evidence on record, we agree with the view expressed by the tribunalthat the battery was still installed on the vehicle and the power wasdrawn from the battery for explosive purposes. Having arrived at theaforesaid conclusion, we shall proceed to deal with the concept of ‘use’Eand determine whether the accident could be regarded as a vehicleaccident.

7. Section 165 deals with the claims tribunals. It uses the word‘use of motor vehicles’. For the sake of completeness, we reproducethe relevant part of the said provision:-F“Section 165. Claims Tribunals.—

(1) A State Government may, by notification in the Official Gazette,constitute one or more Motor Accidents Claims Tribunals(hereafter in this Chapter referred to as Claims Tribunal) for sucharea as may be specified in the notification for the purpose ofGadjudicating upon claims for compensation in respect of accidentsinvolving the death of, or bodily injury to, persons arising out ofthe use of motor vehicles, or damages to any property of a thirdparty so arising, or both…..”

The aforesaid provision makes it vivid that the tribunal canadjudicate the claims for compensation in respect of accidents arisingout of use of motor vehicles. Thus, the fundamental requirement is thatthe accident should arise out of the use of the motor vehicle. If there isno use of the motor vehicle, the question of vehicular accident will notarise.

8. In this context, reference to certain definitions, as stated in thedictionary clause would be apt. Section 2(28) defines ‘motor vehicle’ or‘vehicle’. It reads as follows:- “(28) “motor vehicle” or “vehicle” means any mechanicallypropelled vehicle adapted for use upon roads whether the powerof propulsion is transmitted thereto from an external or internalsource and includes a chassis to which a body has not been attachedand a trailer; but does not include a vehicle running upon fixedrails or a vehicle of a special type adapted for use only in a factoryor in any other enclosed premises or a vehicle having less thanfour wheels fitted with engine capacity of not exceeding twenty-five cubic centimeters;”

Section 2(44) defines ‘tractor’ to mean a motor vehicle which isnot itself constructed to carry any load (other than equipment used forthe purpose of propulsion); but excludes a road-roller.

9. Keeping the aforesaid definitions in view, we are required toanalyze whether the use of the vehicle in the manner in which it is donecan be treated as use of the vehicle to cause a vehicular accident. ThisCourt in Shivaji Dayanu Patil and another v. Smt. Vatschala UttamMore[1] was dealing with conceptual meaning of the phrase “arising outof the use of motor vehicle” as contained in Section 92-A of the MotorVehicles Act, 1939 (hereinafter referred to as ‘the 1939 Act’). We maynote with profit that Section 92-A(1) used the words “an accident arisingout of the use of a motor vehicle” and Section 165 of the Act that hasbeen reproduced hereinabove also uses the words “arising out of theuse of motor vehicles”. Thus, there has been no change in this part ofthe provision.

10. In Patil’s case, there was a collision between a petrol tankerand a tractor on the national highway as a result of which, the petrol1(1991) 3 SCC 530

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Atanker went off the road and fell on its left side as a result of its turningturtle, the petrol contained in it leaked out and collected nearby. Theaccident took place at about 3 a.m. and at about 7.15 a.m. an explosiontook place in the said petrol tanker resulting in fire and the persons whohad assembled near the tanker sustained injuries and one of themsuccumbed to the injuries. On a claim petition being filed, the tribunalBdismissed the same on the ground that the explosion could not be said tobe an accident arising out of the use of the petrol tanker and that theprovision of Section 92-A of the 1939 Act were not attracted. It expressedthe view that the accident that took place at 7.15 a.m. was an independentexplosion. On appeal, the learned single Judge of the High Court heldCthat though at the material time the tanker was not being driven on thehighway and was lying turtle on its side on the highway but it would becovered by the expression ‘use’ as contemplated in Section 92-A of the1939 Act. In Letters Patent Appeal, the Division Bench opined that theexpression ‘use’ of motor vehicle covers a very wide field, a field more extensive than which might be called traffic use of the motor vehicleDand that the use of a vehicle is not confined to the periods when it was inmotion or was moving and that a vehicle would still be in use even whenit was stationary. It had also expressed the view that it could not beinferred that there was no causal relation between the earlier event andthe later incident of explosion and fire and further, the earlier collision ifEnot the cause, was at least the main contributory factor for the subsequentexplosion. Being of this view, the Division Bench affirmed the judgmentof the learned single Judge.

11. This Court referred to the Statement of Objects and Reasonsfor introduction of Section 92-A to Section 92-E of the Motor VehiclesF(Amendment) Act, 1982. Analyzing, Chapter VII-A of the 1939 Actwhich was amended by Act 47 of 1982 dealt with “Liability without faultin certain cases”, the Court referred to the anatomy of Section 92-A,the purpose behind it, the concept of beneficial legislation and proceededto interpret the words ‘arising out of the use of motor vehicle’. Be itnoted, on behalf of the petitioners therein, a contention was raised thatGthe tanker had ceased to be a mechanically propelled vehicle. The Courtrelied on the decision in Newberry v. Simmonds[2] wherein it was heldthat the motor car does not cease to be a mechanically propelled vehicleupon the mere removal of the engine if the evidence admits the possibility 2[1961] 2 ALL ER 318H

2[1961] 2 ALL ER 318H

that engine may shortly be replaced and the moving power restored.The Court further referred to the authority in Smart v. Allan[3] where thedefendant had brought a car for £ 2 and subsequently sold it as scrap for30 cents. It was found that the engine was in a rusty condition and wasincomplete and it did not work, and there was no gear-box or electricbatteries; and the car was incapable of moving under its own power,having been towed from place to place and that it could only have beenput in running order again by supplying a considerable number of spareparts and effecting considerable repairs, the cost of which would havebeen out of all proportion to its value. It was contended before the Houseof Lords that every vehicle which starts its life as a mechanically propelledvehicle remains as such until it is physically destroyed. The saidsubmission was rejected by Lord Parker, CJ who observed thus:- “… it seems to me as a matter of common sense that some limitmust be put, and some stage must be reached, when one can say:‘This is so immobile that it has ceased to be a mechanicallypropelled vehicle’. Where, as in the present case, and unlikeNewberry v. Simmonds, there is no reasonable prospect of thevehicle ever being made mobile again, it seems to me that, at anyrate at that stage, a vehicle has ceased to be a mechanicallypropelled vehicle.”

This Court agreed with the aforesaid formulation and reasoningand came to hold that the petrol tanker had not ceased to be a motorvehicle.

12. The two-Judge Bench thereafter proceeded to interpret theexpression ‘use of the motor vehicle’, for it was urged that a vehicularaccident could only take place when the vehicle is mobile.

13. Learned counsel for the petitioner therein urged for placing anarrow meaning on the word ‘use’ by confining it to a situation onlywhen the vehicle is mobile. On behalf of the respondent, it was suggestedthat a wider connotation for the word ‘use’ should be taken so as toinclude the period when the vehicle is stationary. On behalf of therespondents, observations made in Elliott v. Grey[4], GovernmentInsurance Office of New South Wales v. R.J. Green & Lloyd Pty.Ltd.[5], Pushpa Rani Chopra v. Anokha Singh[6], General Manager, 3 [1962] 3 ALL ER 893

4 [1960] 1 QB 367 : [1959] 3 All ER 733

5 (1965) 114 CLR 437

6 1975 ACJ 396 (Del HC)

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AK.S.R.T.C. v. S. Satalingappa[7] and Oriental Fire and GeneralInsurance Co. Ltd. v. Suman Navnath Rajguru[8] were pressed intoservice. The Court, after referring to the decisions cited by the respondentand the analysis made by the High Court, opined:- “26.…In our opinion, the word “use” has a wider connotation toBcover the period when the vehicle is not moving and is stationaryand the use of a vehicle does not cease on account of the vehiclehaving been rendered immobile on account of a breakdown ormechanical defect or accident. In the circumstances, it cannot besaid that the petrol tanker was not in the use at the time when itwas lying on its side after the collision with the truck.”C

14. After so holding, the Court proceeded to consider whetherexplosion and fire which caused injuries to the insured and eventualdeath of one could be said to have taken place due to an accident arisingout of the use of the motor vehicle, i.e., the petrol tanker. In that context,the question of causal relationship between the user of the motor vehicleDand the accident which has resulted in death or disablement arose. Beit stated, the stand of the petitioner that the deceased and the injuredpersons were engaged in pilferage of petrol and the explosion of firetook place because of the unlawful activities was negatived as the findingrecorded by the tribunal on the said score had been overturned by theElearned Single Judge whose view had been approved by the appellateBench of the High Court.

15. The Court referred to Heyman v. Darwins Ltd.[9], Union ofIndia v. E.B. Aaby’s Rederi A/S[10] and Samick Lines Co. Ltd. v.Owners of the Antonis P. Lemos[11] and thereafter adverted to the decisionFof the High Court of Australia in R.J. Green Case wherein LordBarwick, C.J. has stated:- “Bearing in mind the general purpose of the Act I think theexpression ‘arising out of’ must be taken to require a less proximaterelationship of the injury to the relevant use of the vehicle than isrequired to satisfy the words ‘caused by’. It may be that anGassociation of the injury with the use of the vehicle while it cannot 7 1979 ACJ 452 (Kant HC)

8 1985 ACJ 243 (Bom HC)

9 [1942] AC 356 : [1942] 1 All ER 337

10 [1975] AC 797 : [1974] 2 All ER 874

H11 [1985] 2 WLR 468

be said that that use was causally related to the injury may yet beenough to satisfy the expression ‘arise out of’ as used in the Actand in the policy.”

The observation of Windeyer, J. that was reproduced by the Courtis to the following effect:- “The words ‘injury caused by or arising out of the use of thevehicle’ postulate a causal relationship between the use of thevehicle and the injury. ‘Caused by’ connotes a ‘direct’ or‘proximate’ relationship of cause and effect. ‘Arising out of’extends this to a result that is less immediate; but it still carries asense of consequence.”

16. The two-Judge Bench, appreciating the wider connotation,proceeded to lay down:- “36. This would show that as compared to the expression “causedby”, the expression “arising out of” has a wider connotation. Theexpression “caused by” was used in Sections 95(1)(b)(i) and (ii)and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however,chose to use the expression “arising out of” which indicates thatfor the purpose of awarding compensation under Section 92-A,the causal relationship between the use of the motor vehicle andthe accident resulting in death or permanent disablement is notrequired to be direct and proximate and it can be less immediate.This would imply that accident should be connected with the useof the motor vehicle but the said connection need not be directand immediate. This construction of the expression “arising out ofthe use of a motor vehicle” in Section 92-A enlarges the field ofprotection made available to the victims of an accident and is inconsonance with the beneficial object underlying the enactment.”

17. Thereafter, the Division Bench posed the question, whetherthe accident involving explosion and fire in the petrol tanker wasconnected with the use of tanker as a motor vehicle. Concurring withthe view of the High Court, it ruled:- “37. …In our view, in the facts and circumstances of the presentcase, this question must be answered in the affirmative. The HighCourt has found that the tanker in question was carrying petrolwhich is a highly combustible and volatile material and after the A

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Acollision with the other motor vehicle the tanker had fallen on oneof its sides on the sloping ground resulting in escape of highlyinflammable petrol and that there was grave risk of explosion andfire from the petrol coming out of the tanker. In the light of theaforesaid circumstances the learned Judges of the High Courthave rightly concluded that the collision between the tanker andBthe other vehicle which had occurred earlier and the escape ofpetrol from the tanker which ultimately resulted in the explosionand fire were not unconnected but related events and merelybecause there was interval of about four to four and half hoursbetween the said collision and the explosion and fire in the tanker,Cit cannot be necessarily inferred that there was no causal relationbetween explosion and fire.In the circumstances, it must be heldthat the explosion and fire resulting in the injuries which led to thedeath of Deepak Uttam More was due to an accident arising outof the use of the motor vehicle viz. the petrol tanker No. MKL7461.”

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The aforesaid analysis throws immense light to understand theconcept of “related events” and “causal relation”. They have beendistinguished from an event which is not connected. Needless to say, theEappreciation of causal relation is a question of fact in each case and is tobe weighed and appreciated on the basis of the materials brought onrecord.

18. In Union of India v. United India Insurance Co. Ltd. andothers[12], a two-Judge Bench has opined that the words ‘use of the motorFvehicle’ is to be construed in a wider manner. The learned Judgesreferred to the decision in Patil’s case wherein reference was made tothe Australian case in R.J. Green (supra) and to the observations ofLord Barwick, C.J. that those words have to be widely construed. TheCourt, in the latter case, referred to the observations of Windeyer, J. inR.J. Green’s case which read thus:-G

“… no sound reason was given for restricting the phrase, ‘theuse of a motor vehicle’ in this way. The only limitation upon it …that I can see is that the injury must be one in any way aconsequence of a use of the vehicles as a motor vehicle.”12(1997) 8 SCC 683H

The aforesaid passage emphasizes on “consequence of a use”. Itis equated with a “related event”.

19. The aforesaid view has been reiterated in Samir Chanda v.Managing Director, Assam State Transport Corporation[13]. In thesaid case, a bomb exploded inside the bus as a result of which theappellant sustained serious injuries on his legs. The tribunal passed anaward in favour of the claimant. In appeal preferred by the respondent,the High Court, while not disturbing the finding of the tribunal on facts,expressed the view that there was no negligence on the part of theowner or the driver of the vehicle and, therefore, the question of payingcompensation did not arise. This Court referred to Patil’s case andplacing reliance on the same, opined:- “14. … The explosion took place inside the bus is an admittedfact and the usual police escort was not there. The High Court,except observing that there was no negligence, has not upset thefinding of the Tribunal that the atmosphere during the period ofaccident was so polluted requiring care on the part of the conductorand the driver of the bus. There cannot be any doubt that theaccident arose out of the use of the motor vehicle justifying theclaim of the appellant.”

20. The decision in United India Insurance Co. Ltd. (supra)has ruled that if it is ultimately found that there is no negligence on thepart of the driver of the vehicle or there is no defect in the vehicle butthe accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1)of the 1939 Act because the case would then become one of exclusivenegligence of the Railways. Again if the accident had arisen only onaccount of the negligence of persons other than the driver/owner of themotor vehicle, the claim would not be maintainable before the tribunal.

21. The said opinion has been overruled by a three-Judge Benchdecision in Union of India v. Bhagwati Prasad (Dead) and others[14].We have placed reliance on the Division Bench judgment, as we arereally not concerned about the overruled part. However, we may notewith profit that Bhagwati Prasad’s case expands the horizon of thejurisdiction of the Motor Accidents Claims Tribunal by stating that acombined reading of Sections 110 and 110-A, which deal with the 13 (1998) 6 SCC 605

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Aconstitution of one or more Motor Accidents Claims Tribunals andapplication for compensation arising out of an accident, as specified insub-section (1) of Section 110 unequivocally indicates that the ClaimsTribunal would have the jurisdiction to entertain application forcompensation both by the persons injured or legal representatives of thedeceased when the accident arose out of the use of a motor vehicle.BThe crucial expression conferring jurisdiction upon the Claims Tribunalconstituted under the Motor Vehicles Act is the accident arising out ofthe use of a motor vehicle and, therefore, if there has been a collisionbetween the motor vehicle and railway train then all those persons injuredor legal representatives of the deceased could make application forCcompensation before the Claims Tribunal not only against the owner,driver or insurer of the motor vehicle but also against the RailwayAdministration. Once such an application is held to be maintainable andthe tribunal entertains such an application, if in course of enquiry thetribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible and not the owner or driver ofDthe motor vehicle then the tribunal cannot be held to be denuded of itsjurisdiction which it had initially. In other words, in such a case alsotribunal would be entitled to award compensation against the other jointtortfeasor.

22. From the aforesaid authorities, it is limpid that the expressionE‘use of the vehicle’ under certain circumstances can be attracted whenthe vehicle is stationary or static. A Division Bench of the High Court ofOrissa in Kanhei Rana and another v. Gangadhar Swain and others[15]while dealing with a situation where the deceased labourer after loadingthe truck with logs lost his life. The tribunal had categorically found thatFdeath was on the account of fall of a log, when the truck was beingloaded with logs. The learned Single Judge, in appeal, had concurredwith the view of the tribunal by opining that the fall of the log had nonexus with the use of the vehicle not even remotely, and there was nomaterial 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 beingGloaded on or unloaded from a vehicle had no connection to the vehicleitself. Reversing the conclusion of the learned single Judge, the DivisionBench opined that the concept of movement being not intrinsically orinherently connected with the use and the term ‘use’ having been

connotatively expanded, there can be no doubt that the same can also beextended to the arena/sphere of a claim advanced under Section 110 ofthe 1939 Act. Heavy onus is cast on the driver to avoid negligence whilethe vehicle is in use. If the term ‘use’ in its conceptual sweep engulfs nomotion or no movement or stationariness, then by logical corollary it ismade essential that the driver or for that matter any agent of the ownershould be careful and non-negligent. Negligence in driving is regardedas a fact that the vehicle is in motion. But the definition of ‘use’ havingbeen expanded in its broader canvas, it has to clothe in its sweep othercategories of negligence. To elaborate, when a vehicle remains static, itcannot constitute that the driver is negligent because of his rash andnegligent driving. On the contrary, it has to embody some other differenttypes of negligence. Of course that would depend upon the facts andcircumstances of each case. The Division Bench of the High Courtwent on to say that the apex Court in Patil (supra) was dealing with thenegligence so far as it was concerned with Section 92 of the Act, but asthe language of Section 92-A and Section 110 of the old Act used thesame phraseology and there is absence of any etymological distinction,the same meaning should be given to the expression under Section 110of the old Act. The appellate Bench held that there was causal relationshipwith the accident which had resulted in the death of the claimant.

23. We entirely agree with the aforesaid analysis, for it is in accordwith the view of the decisions of this Court.

24. It may be reiterated here that the causal relationship shouldexist between violation and the accident caused. There has to be someact done by the person concerned in causing the accident. Thecommission or omission must have some nexus with the accident. Theword ‘use’ as has been explained by the authorities of this Court neednot have an intimate and direct nexus with the accident. The Court hasto bear in mind that the phraseology used by the legislature is “accidentarising out of use of the motor vehicle”. The scope has been enlarged bysuch use of the phraseology and this Court taking note of the beneficialprovision has placed a wider meaning on the same. There has to besome causal relation or the incident must relate to it. It should not betotally unconnected. Therefore, in each case what is required to be seenis whether there has been some causal relation or the event is related tothe act.

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A25. Presently, we shall scrutinse the factual score in the case athand. As is evincible, the battery was installed in the tractor and theexplosives were charged by the battery. The purpose was to dig thewell in the field. In such an obtaining factual matrix, it would be anerroneous perception to say that the vehicle was not in use as stipulatedunder Section 165 of the Act. Hence, we have no hesitation in holdingBthat the Division Bench has fallen into error on the said score.

26. Having said that, we have to presently analyse on whom theliability should be mulcted. As is evident, the insurer has advanced theplea that the tractor was insured under “Farmer Package Policy” forCagriculture purpose by the owner of the vehicle. However, it was usedfor commercial purpose by mounting a blasting machine thereon. Thatuse was in breach of insurance policy and, therefore, the insurer wasnot liable to pay the compensation. The insurer also examined itsemployee, namely, Mr. Chararkar to establish the fact that the owner ofthe vehicle had committed breach of insurance policy by using it forDcommercial purpose and for transporting the blasting machine. Thetribunal has adverted to the plea of the insured that the vehicle was usedfor digging of the well in the field of respondent No. 1 (Fimidabee w/oAbdul Gaffar) which obviously was for irrigation and incidental toagricultural activity and not in breach of the insurance policy. The rivalEcontention in this behalf has been considered by the tribunal in the followingwords:- “29. The Respondent No.2 has admitted the fact that InsurancePolicy of offending tractor was for the agricultural purpose. Theinsurance of offending tractor was taken at Jaipur, Rajasthan. ItFwas brought for commercial activity namely the blasting work.The blasting machine was found on the tractor. No permissionfrom Competent Authority was taken for the blasting work andtherefore, the Respondent No.2 has used tractor for commercialpurpose and consequently there was fundamental breach of theInsurance Policy. The Respondent No.2 committed fundamentalGbreach of the Insurance Policy allowing the use of tractor forcommercial purpose and therefore, the decision cited supra isinapplicable.”

And again in paragraphs 35, 36 and 37, the tribunal has observed:- “35. The Respondent No. 1 has come with the case that diggingwork with blasting operation was given with sole responsibility ofRespondent Nos. 2 and 3. The Respondent Nos. 2 and 3 havecome with the case that blasting work for digging of well wastaken at the risk of Respondent No.1 to 3 have not produceddocumentary evidence showing that digging work of well withblasting operation was being done on the sole responsibility eitherof Respondent No.1 or of the respondent Nos. 2 and 3. In absenceof such evidence, the Respondent Nos. 1 to 3 are jointly andseverally liable to pay compensation.

36. It was submitted on behalf of Respondent No.4 that RespondentNo.2 committed fundamental breach of Instruction Policy by usingthe tractor for commercial purpose and therefore, RespondentNo.4 cannot be directed to make the payment to petitioners andrecover the same from the owner of offending tractor.

37. The Respondent No.2 allowed the use of offending tractorfor doing the blasting work and therefore there was fundamentalbreach of the Insurance Policy. Since there was fundamentalbreach of the Insurance Policy for using the offending tractor forcommercial purpose and consequently, Respondent No. 4 is notliable to pay the compensation and directed to pay the same andrecover the same from Respondent No. 2 owner of offendingtractor.

xxx xxx xxx”

The High Court, however, has not analysed this issue at all, for ittook the view that as the vehicle was not used for causing explosion, itcould not be said that the accident had arisen out of use of motor vehicleas defined under Section 165 of the Act.

27. From the factual position as already analysed earlier, it is noticedthat the battery of the tractor was used for digging of well in a field usedfor agricultural purpose. The insured had contended that the work ofdigging of well in a field used for agricultural purpose would embrace an A

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Aactivity associated with agriculture for irrigating the field and we haveanswered the same in the affirmative. We may immediately state thatour answer does not help in fastening the liability because there hasbeen no analysis as regards the terms and conditions of the policy and itsfundamental character. The High Court, as we notice, has not dealt withany of these matters, the adjudication whereof has now become inevitableBto answer the issue about the liability to be borne by the insurer, theowner of the vehicle (insured) or otherwise. This adjudication requiresanalysis of relevant material including the insurance policy and evidenceof concerned witnesses, for understanding the terms and conditions ofthe policy regard being had to nature of policy and the extent of theCliability of the insurer, if any. As the High Court has not considered thisaspect at all, we deem it appropriate to relegate the parties to the HighCourt for determining the singular issue about fastening of the liability onthe insurer or the owner of the vehicle. Under these circumstances, weare of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to theDclaimants as determined by the tribunal in terms of the award dated 5[th]January, 2008, which payment will be subject to the outcome of theremanded appeals to be decided by the High Court. Needless to statethat the claimants need not contest the remanded proceedings beforethe High Court as it is remitted only for limited purpose to determine theEliability amongst the insurer (United India Assurance Co. Ltd.) and ownerof the vehicle, Kanhaiyalal.

28. In view of the aforesaid analysis, we partly allow both theappeals, set aside the judgment of the High Court dated 10[th] October,2013 in First Appeal Nos. 494 of 2013 and 437 of 2008 and restore bothFthe First Appeals to the file of the High Court to their original numbersfor being decided on the question as to who should be made liable to paythe compensation amount as determined by the tribunal to be paid to theclaimants. We request the High Court to decide the First Appealsexpeditiously, with reference to the limited issue of liability to pay compensation. In terms of this order, the insurance company is directedGto deposit the compensation amount before the tribunal within eight weekshence, which will be without prejudice to the rights and contentions ofthe insurance company in the remanded First Appeals. In the event theinsurance company succeeds, it will have the right to recover the samewith interest accrued thereon from the owner of the vehicle. The amountH

KALIM KHAN & OTHERS v. FIMIDABEE & OTHERS[DIPAK MISRA, CJI]

deposited by the insurance company shall be disbursed by the tribunalAkeeping in view the law laid down in General Manager, Kerala StateRoad Transport Corporation, Trivandrum v. Susamma Thomas andothers[16].

29. In the facts and circumstances of the case, there shall be noorder as to costs.B

Nidhi Jain

Appeals partly allowed.

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