Civil Appellate Jurisdiction
First Appeal No. 843 of 2010
United India Insurance Co. Ltd. (Appellant)
Shri Laxman Hirman Shewale (Respondent)
The respondent i.e. Shri Laxman Hirman Shewale used to work as a Salesman in a Gift Centre known as “Greet and Gift Celebration” at Ghatkopar (West), Mumbai. On the day of 15th September 2002, at 5.30 in the evening the respondent was asked by his employee to bring a garland from nearby shop. The respondent went to get it and when he was walking on the footpath, he got hit by iron bars which were being unloaded from a Motor Lorry. Due to this accident the respondent suffered a head injury which comprised of a depressed fracture of left frontal bone with intracerebral hemorrhage and as a result of the injuries he suffered an impaired vision resulting into permanent partial disability. The respondent was not able to work for 2 months and hence didn’t get paid; also he has to spend money on his treatment.
The Vehicle at the time of the accident was owned by Abdul Hai Gulam Ali Chodhari, his vehicle was covered by a policy of Insurance by the Appellant i.e. United India Insurance Co. Ltd. So the respondent filed the petition before the Tribunal seeking compensation of Rs. 1, 50,000/- and the tribunal did awarded the asked compensation to the respondent.
Hence the Insurance Company (Appellant) challenged the decision of the Tribunal in the High court of Bombay. It was submitted by the counsel for the Appellant, that during the time of unloading the iron bars from the Lorry, the vehicle was stationary and was not in any use and thus the defendant cannot seek compensation under sub Section 1 of Section 165 of the Motor Vehicles Act, 1988. He said as the vehicle was stationary and the respondent was passing nearby the vehicle when the accident happened, it cannot be said that the accident arise out of the ‘use of vehicle’.
The Appellant relied on the decisions of the same court in Ananda Dattatraya Patankar vs. Kishore Narayan Patil and Ors. and the decision of the Supreme Court in Minu B. Mehta and Anr. Vs. Balkrishna Ramchandra Nayan and Anr. According to the Appellant, the Tribunal was in error for granting the compensation, because there is no liability in this case of an accident.
The counsel for the respondent is supporting the order passed by the Tribunal and is stating that the expression accident arising out of the ‘use of motor vehicle’, under sub Section 1 of Section 165 of the Motor Vehicle Act, 1988 has been consistently interpreted widely. The respondent is relying on the decision of the Supreme Court in Kalim Khan and Ors. Vs. Fimidabee and Ors. And New India Assurance Co. Ltd vs. Yadu Sambhaji More and Ors. to submit that the expression ‘use of vehicle’ can be considered even when the vehicle is stationary.
The Bombay High Court in his submission looked into the judgment and facts of the Kalim Khan and Ors and in the case of Yadu Sambhaji More and Ors.
In the case of Kalim Khan, a blasting machine was carried on a tractor for digging a well in an agricultural field and during the operation, a splinter stone flew and hit on the head of a person resulting in his death. In this case, the Supreme Court held that even though the tractor was stationary, the accident will be said to occur on the account of the use of the vehicle.
In the case of Yadu Sambhaji More, there was a collision between a truck and a petrol tanker, in which due to the collision the tanker had turned turtle and after 4 ½ hours of the accident, the tanker exploded and caught fire which resulted in the death of 45 persons who were collecting petrol there. The Insurance Company stated that the death of those persons cannot be said occurred due to the use of the vehicle. But the Supreme Court held that it occurred out of the use of motor vehicles.
The Bombay High Court after considering all the case laws and previous judgments held that in the following case it can be said that the accident occurred out of the use of a motor vehicle, and also stated that it the duty of the owner to check whether the vehicle is at the proper place where it won’t cause any harm to the normal people.
And hence the court dismissed the appeal of the appellant and upheld the decision of the Tribunal.