1. Heard Mr. P.P Bhattacharjee, learned counsel for the petitioner Insurance Company. Also heard Mr. S. Deb, learned Sr. counsel along with Mr. S. Dutta, learned counsel for the claimant-respondents.
2. Since both the two petitions involve common question of law and facts, hence with the consent of the learned counsel of both sides, these are disposed of together finally by this common judgment and order.
3. On 19.10.1997, one Bus bearing No. TRS-488 was coming from Jampaijala to Agartala, without Police escort. At about 7-20 a.m, when it reached Kanurampara, under Takarjala Police Station, a gang of armed unknown extremists stopped the Bus and kidnaped the passengers including the two deceased, namely, Binanda Sarkar and Milan Debanth. Subsequently on 30-10-1997, the dead bodies of the two deceased were found lying on the road. The heirs of the two deceased filed claim petitions before the Motor Accident Claims Tribunal, Agartala. On the prayer of the claimant-petitioner, the learned Member, Motor Accident Claims Tribunal awarded a sum of Rs. 50,000 in each case to the heirs of the two deceased persons under section 140 of the Motor Vehicle Act (for short, ‘the MV Act’). Aggrieved by the said order, the Oriental Insurance Company has filed the present writ petition under Article 227 of the Constitution of India for setting aside the impugned order of the Tribunal.
4. The argument of the learned counsel for the petitioner is that the death of the two deceased has not resulted from an accident arising out of the user of the vehicle and as such the petitioners are not liable to pay no-fault-liability amount awarded in the case under section 140 of the MV Act. The learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More, (1991) 3 SCC 530. The learned counsel for the respondents, on the other hand, argued that the claim of the petitioners falls within the ambit of section 140 of the MV Act and relied upon the decisions of Rita Devi v. New India Assurance Co. Ltd., 2000 SCW 1579 and also on the decision of the Supreme Court in (1991) 3 SCC 530, also relied upon by the learned counsel for the petitioner. According to the learned counsel for the respondents, the facts of the two cases are fully covered by the decisions of the Supreme Court in Rita Devi v. New India Assurance Co. Ltd. (supra). Sub-sections 1 and 2 of section 140 of the MV Act relevant for the present case are extracted as under:—
“(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(Emphasis laid)
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of (fifty thousand rupees) and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of (twenty-five thousand rupees).”
5. On perusal of the section 140 of the MV Act extracted above, it is clear that no-fault-liability amount of Rs. 50,000 in case of death is payable when the death of any person has resulted from an accident arising out of the use of a motor vehicle. It is undisputed in the case that the two deceased persons were travelling by the Bus and the armed extremists appeared in the/scene, injured the driver and kidnaped the passengers along with the two deceased. It is also undisputed in the case that the two deceased persons were found dead on the road on 27-10-1997. In the post mortem examination, the cause of death reported to be in death due to shock and haemorrhage as a result of cut injury over the neck (homicidal).
6. In Rita Devi v. New India Assurance Co. Ltd. (supra), one auto rickshaw was being used as a public carrier vehicle used for carrying passengers on hire, insured, by the Insurance Company. One day some unknown passengers hired the auto rickshaw from the auto rickshaw stand, the driver of the auto rickshaw went along with the passengers, the said auto rickshaw was stolen and the dead body of the driver was recovered by the police on the following day, the auto rickshaw was never recovered. The claim of the heirs of the deceased for compensation was allowed by the Supreme Court with the following observations:—
“14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Darshan Singh) was caused accidentally in the process of committing the theft of the auto rickshaw.”
7. In the case of Shivaji Dayanu v. Vatschala Uttam More (supra), the facts of the case were that a collision between a petrol tanker and a truck took place on a national highway at about 3 a.m as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the highway. Due to overturning of the tanker, the petrol contained in it leaked out and collected nearby. At about 7-15 a.m an explosion took place in the tanker causing bum injuries to those assembled near it including respondent's son who later succumbed to his injuries. The respondent as legal representative of her deceased son filed a claim petition before Tribunal under Section 92-A as well as under Section 110 of the Motor Vehicles Act, 1939. The Tribunal dismissed the petition under section 92-A on the ground that the explosion and the fire which took place after four hours could not be said to be an accident “arising out of the use” of the tanker within the meaning of that provision. The Tribunal observed that the villagers tried to take the benefit of the earlier accident and tried to pilfer petrol from the petrol tanker and while thus pilfering the patrol there was friction which caused ignition and explosion and thus an outside agency was responsible for the explosion and fire. The claim was decreed by the High Court, in appeal before the Supreme Court, the Insurance Company and the owner of the truck urged that there was no causal relationship between the collision which took place between the petrol tanker and the truck at about 3 a.m and the explosion and fire in the petrol tanker which took place about 4 hours later and so it cannot be said that the explosion and fire in the petrol tanker was an accident arising out of the use of the motor vehicle. The Supreme Court repelled the contention of the Insurance Company and affirmed the judgment of the High Court. The Supreme Court observed as under:—
“36. This would show that as compared to the expression “caused by”, the expression “arising out of” has a wider connotation. The expression “caused by” was used in Section 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act, in section 92A, Parliament, however, chose to use the expression “arising out of” which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression “arising out of the use of a motor vehicle” in Section 92A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.
37. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on the sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and a half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker No. MKL 7461.”
8. The learned counsel for the Insurance Company relied upon the observations of the Supreme Court in para 35 of the judgment in Shivaji Dayanu Patil v. Vatschala Uttam More (supra) which are as under:—
“35. In the same case, Windeyer, J. has observed as under: (CIR p. 447)
“The words ‘injury caused by or arising out of the use of the vehicle’ postulate a causal relationship between the use of the vehicle 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 a sense of consequence.”
9. As observed by the Supreme Court in Shivaku bayanu v. Vatschala Uttam More (supra), there must be direct or proximate relationship of cause and effect. In the instant case, undisputedly, the extremists kidnaped the deceased along with the other passengers, the Bus was left on the spot and about 11 days thereafter, the dead bodies of the two deceased persons were recovered with injury and the report of the post mortem examination is that the death was homicidal. It is an act of the extremists which had caused, the death of the two deceased persons. The death of the two deceased is not accidental nor by no stretch of imagination, it can be said to have been arisen out of the use of the vehicle. Simply because the two deceased persons travelled by the Bus and subsequently they were killed by some third person, not connected with the vehicle, it cannot be said that the death is accidental and as a result of the use of the vehicle. The facts of the two cases relied upon by the learned counsel for the respondents are entirely different.
10. In the case of Rita Devi v. New India Assurance Company Ltd. (supra), the vehicle (auto rickshaw) itself was also stolen and the same was not recovered. As observed by the Supreme Court in that case, the driver of the auto rickshaw was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw, then it cannot but be said that the death of the driver so caused was an accidental murder. In the instant two cases, the Bus was left on the spot and the extremists left along with the passengers including the two deceased persons. As regards, the case of Shivaji Dayanu Patil v. Vatschala Uttam More (supra), the facts of the case also show that the death of the deceased was on account of the petrol which came out from the petrol tanker, involved in the incident and that there was a relationship between the death and the petrol tanker. So, the Court held that the accidental death arose out of the use of the vehicle.
11. In view of the discussions made above, it is clear that the death of the two deceased cannot be said to have arisen out of the use of the vehicle within the meaning of Section 140 of the MV Act. The learned Member, Motor Accident Claims Tribunal took an erroneous view of the matter and awarded the no-fault-liability amount.
12. The learned counsel for the respondents also argued that the present petitions under Article 227 of the Constitution of India are not maintainable. Learned Member, Motor Accident Claims Tribunal has taken an erroneous view of the provisions of MV Act, as is apparent on the face of the records. The present two petitions under Article 227 of the Constitution of India are, therefore, maintainable.
13. In the result, both the two petitions are allowed. The impugned order dated 28.8.1999 passed by the learned Member, Motor Accident Claims Tribunal is quashed. The respondents' petitions under section 140 of the MV Act stand rejected. Costs on parties.