H.K. Rathod, J.
1. Heard learned advocate Mr. DB Mehta on behalf of appellant Insurance Company.
2. The appellant insurance company has challenged award passed by Motor Accident Claims Tribunal main at Gandhinagar in MACP No. 1876/2004 vide exh 52 dated 20/6/2008. The claims Tribunal has awarded compensation of Rs. 2,04,500/- with 9% interest in favour of respondent claimants.
3. Learned advocate Mr. Mehta raised contention before this Court that claims Tribunal has committed gross error in awarding compensation in favour of respondent claimants because there was no vehicular accident occurred on the date of incident. He submitted that claims Tribunal has not appreciated contention of appellant that death of husband of respondent No. 1 had taken place not due to vehicular accident, but he was murdered by somebody else and his dead body was found on driver seat of Truck. Therefore, death of deceased has not occurred due to involvement or use of any vehicle.
4. He also submitted that claimants has failed to establish that husband of applicant No. 1 sustained grievous fatal injuries which resulted into death because of use of vehicle or out of use of vehicle or in vehicular accident. He submitted that it is a clear case of murder and claim petition is not maintainable for getting compensation under provision of Motor Vehicle Act.
5. He submitted that driver, who has been murdered by somebody else is not covered under policy issued by insurance company and claimants have failed to prove incident of accident or incident occurred during course of employment. He also relied upon decision in case of Oriental Insurance Co. Ltd. v. heirs and legal representative of Kishorbhai Popatlal Parsana reported in : (1999)3GLR2172 . He also relied upon decision of Apex Court in case of Rita Devi v. New India Insurance Company Ltd. reported in : (2000)ILLJ1656SC and submitted that admission made by widow that somebody has committed murder of her husband and she has no personal knowledge who had committed murder, has not been properly appreciated by claims Tribunal.
6. He also submitted that death of Saitansinh has registered by police because of murder not registered as accident occurred by use of vehicle. He also submitted that this death of driver not resulted for involvement of truck and there was no iota evidence of produced by claimants shown that driver was died because of involvement or use of truck.
7. According to him, there was no nexus between murder and use of vehicle established by claimants. The murder is understood in common parlance is a fallacious act where death is caused with intent and perpetrators of act normally have a motive against victim for such killing. The claims Tribunal has committed error in relying upon decision of Rita Devi. He submitted that claims Tribunal has no jurisdiction Under Section 163(A) of Motor Vehicle Act. Except that no other contention is raised by learned advocate Mr. Mehta before this Court.
8. I have considered submissions made by learned advocate Mr. Mehta and also perused award passed by claims Tribunal. The claimants are widow, three minor and father of deceased. The accident occurred on 20/2/2004 and Driver died during treatment hours in Rajasthan Hospital. On 17/2/2004, in early morning at Badarda National Highway No. 8, opposite Tea Lorry, within jurisdiction of Rajnagar Police Station, deceased was lying on driver seat of Truck bearing No. GJ-18-T-9084 with bleeding condition. Thereafter, deceased was shifted to Civil Hospital, Udaipur by police and was admitted in Rajasthan Hospital where he died. The claimant has made claim of Rs. 8 Lacs before claims Tribunal.
9. The opponent No. 1 owner has filed written statement vide exh 13 and he denied averment made in claim petition. According to opponent No. 1 he was owner of truck bearing No. GJ-18-T-9084 and opponent No. 2 was insurance company of said vehicle. The opponent No. 1 owner and opponent No. 2 insurance company both have denied averment made in claim petition on the ground that driver was murdered by somebody else and does not resulted of vehicular accident. Therefore, insurance company is not liable to pay compensation and owner is also not liable to pay compensation.
10. The insurance company has filed reply vide exh 25 as referred in para 4. Thereafter, matter was heard by claims Tribunal. The written submission made by claimant vide exh 51, according to them, at the time of incident deceased was aged about 25 years old. He was driver of opponent No. 1 and earning Rs. 4500/- per month by way of salary and other allowances. The copy of FIR and Panchnama are produced on record which shows that offending truck No. GJ-18-T-9084 is involved in accident. The PM report also clarifies that death of deceased Saitansinh Premsinh Rajput is occurred on account of cardiorespiratory failure as a complication of head injury. The application for compensation filed by claimants Under Section 163A. On behalf of insurance company, learned advocate Mr. Parikh has vehemently opposed submission made by learned advocate Mr. Trivedi on behalf of claimants and relied upon decision of Apex Court in case of Oriental Insurance Co. Ltd. v. heirs and legal representative of Kishorbhai Popatbhai Parsana reported in : (1999)3GLR2172 .
11. According to advocate of insurance company, claim petition is not maintainable but claimants shall have to filed application under provision of Workmen Compensation Act.
12. Learned advocate Mr. Trivedi appearing on behalf of claimants relied upon decision of Orrissa High Court in case of Divisional Manager, New India Assurance Co. Ltd. v. Ratan Thakur and Ors. reported in : 2003(II)OLR394 , wherein as per facts, driver while driving Truck of his employer was attached and murdered by dacoits. The question was that whether incident arose out of and in course of employment of deceased workman and his dependents are entitled compensation? The answer was given by Orrissa High Court that 'yes' claimants are entitled for compensation from Insurance company and owner on the ground that there was casual connection between incident and employment.
13. The claims Tribunal has considered another case of Rita Devi v. New India Assurance Company Ltd. reported in : (2000)ILLJ1656SC . Thereafter, claims Tribunal has considered object Under Section 163A. The widow of deceased have no personal knowledge but one fact is remained that somebody has committed murdered of her husband. One witness Premsinh Jetusinh Rajput i.e. father of deceased Saitansinh was examined vide exh 35, who has given same facts before claims Tribunal. The claimant was examined vide exh 33 and claimant has produced complaint vide exh 40 filed by owner of Tea Lorry Udailal Mohalal on 17/2/2004 before Rajnagar Police station of Rajashthan where he has narrated all relevant and material facts in which incident took place. The panchnama was produced on record vide exh 41, which appears from documentary as well as oral evidence that somebody has committed murdered of driver of truck. Therefore, according to claims Tribunal it can be said that deceased Saitansinh was not met with vehicular incident but death cause to accidental murder.
14. The opponent No. 1 of offending vehicle not examined by opponent's side and not stepped into witness box and not clarified that how accident is occurred. Therefore, claims Tribunal has relied upon evidence vide exh 33 and 35 of widow and father of deceased. The copy of policy was produced on record mark at 49/1. The claims Tribunal has considered object of Section 163A in detailed, thereafter, examined merits of matter in para 18. The claims Tribunal has considered income of deceased of Rs. 15000/- being non earning member in spite of fact that income certificate produced by claimant. There was no dispute raised by owner of vehicle that driver was not engaged by him and he was paid salary of Rs. 3000/- with Rs. 50/- per day daily allowance. Previously deceased was working with Abhay Transports and Travels, Gandhinagar where certificate issued and one owner of this company Maganbhai Rambharthi was examined vide exh 38. According to him, Saitansinh was working on 1/7/2000 upto 1/1/2003, thereafter, he left service and he has issued certificate on 1/10/2004. Though there was sufficient evidence that driver was earning member not non earning member this are evidence on record suggested fact that person who dies in incident was earning member, even though, claims Tribunal has considered Rs. 15,000/- as per second schedule income of non earning member. After considering decision in case of Ramdev Singh Chudasama v. Hansrajbhai Kodala reported in : (1999)1GLR631 and age of deceased 25 years, 18 multiplier has been applied total comes to Rs. 2,70,000/-, after deducting 1/3 comes to Rs. 1,80,000/- + Rs. 2000/- for loss of estate + Rs. 2500/- for funeral expenses + Rs. 5000/- by way of consortium and Rs. 15,000/- for medical expenses total comes to Rs. 2,04,500/- which has been awarded by claims Tribunal in favour of claimants.
15. In this award, one facts is not in dispute between parties. The deceased driver was appointed by opponent No. 1 owner of truck bearing No. GJ-18-T-9084. On the date of incident, deceased was serving as driver coming to Rajasthan on 17/2/2004 within jurisdiction of Rajnagar police Station, Badarda National Highway No. 8 opposite Tea Lorry lying with driver seat of truck with bleeding condition. The driver was died during course of employment and during duty hours. The opponent No. 1 has not denied in written statement vide exh 13 that deceased was not driver appointed by him but according to him, deceased died due to enmity with somebody else. The policy was enforced at the time of incident with National Insurance company. The opponent No. 1, who has owner of offending vehicle truck is not examined by opponent side and he has not stepped into witness box and he has not clarified actual position in which incident took place. Therefore, evidence of claimants has been rightly believed by claims Tribunal.
16. The deceased was aged about 25 years receiving salary of Rs. 4500/- per month with other allowances. Now question raised by learned advocate Mr. Mehta that death of driver can not consider to be occurred by use of vehicle and murdered as there may be enmity with somebody else who committed murder. After committing murder deceased was found on driver seat with bleeding condition. Therefore, learned advocate Mr. Mehta raised contention that murder is not covered being condition of insurance policy for payment of compensation.
17. In short his submission is that driver found to be murdered by somebody else or unknown person which does not happen because of use of vehicle and there is no proximity of cause of such murder by use of vehicle. He also submitted that murder can not consider to be an accident but it was intentionally act on the part of stranger or unknown person. Therefore, claims Tribunal has committed error in awarding compensation. This aspect has been considered by claims Tribunal. The widow Gitaben Saitansinh Rajput of deceased Saitansinh herself has filed affidavit vide exh 33. According to her evidence, on 17/2/2004 her husband during course of employment of opponent No. 1 was driving truck bearing No. GJ-18-T-9084 and coming towards Rajsthan to Jaipur and while returning Jaipur in early morning, her husband was found on driver seat in bleeding condition. Same facts has been stated by father of deceased vide exh 35. The complaint vide exh 40 filed by owner of Tea Lorry on same day 17/2/2004 before Rajnagar Police Station of Rajashthan wherein he has stated all relevant and material facts in which incident took place. This three evidence vide exh 33, 35 and 40 are proved facts that on day of incident deceased was working under control of opponent No. 1 owner and he was on duty and incident was occurred during course of employment while working as driver and he was found in bleeding condition on driver seat. This being an undisputed fact no rebuttal evidence led by owner and insurance company before claims Tribunal. The claims Tribunal has considered decision of Apex Court as well as Orrissa High Court in para 7 which is quoted as under:
7. On the other hand, learned advocate Mr. Trivedi appearing on behalf of the applicants in his written submission at Exh 51 has stated that when the claim petition preferred under Section 163A of the Motor Vehicles Act. As per the judgment of Hon'ble High Court reported in : 2003(II)OLR394 (Orissa High Court at Cuttack) in case of Divisional Manager, New India Assurance Co. Ltd. v. Ratan Thakur and Ors. wherin as per the facts driver while driving the truck of his employer was attacked and murdered by dacoits. Question was whether the incident arose out of and in the course of employment of the deceased workman and his dependents are entitled to compensation? It was held that yes, there was a casual connection between the incident and employment.
18. In another case reported in 2000 (0) GLHEL 78113 (Supreme Court) in a case of Rita Devi v. New India Assurance Company Ltd., wherein as per the facts the Hon'ble Supreme Court held that the murder of the deceased was due to an accident arising out of the use of motor vehicle. The relevant portion of the judgment read as under:
The Motor Vehicles Act does not define the work 'accident'. However, Section 163A of the Motor Vehicle Act provides for payment of compensation for the death or injury suffered in a motor vehicle accident on a structured formula basis on Section 163A of the Act. Sub - Clause (1) of the said Section says that notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule to the legal heirs or the victim, as the case may be;
A conjoint reading of the above two sub-clauses of Section 163A shows that a victim or his heirs are entitled to claim from the owner/insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of motor vehicle (emphasis supplied) without having to prove wrongful act or neglect or default of anyone. Thus it is clear if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the Insurance Company which was accepted by the High Court is that the death of the deceased was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the word 'death' due to accident arising out of the use of motor vehicle.'
The question, therefore, is can a murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accident murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
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 can not but be said that the death so caused to the driver of the 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 rickshaw. Therefore, it has to be said that on the facts and circumstances, of the case the death of the deceased was caused accidentally in the process of coming the theft of the auto rickshaw.
Learned counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word 'death' and the legal interpretations relied upon by us are with reference to definition of the word 'death' in Workmen's Compensation Act the same will not be applicable while interpreting the word 'death' in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the fact of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under the Act while the relief provided under Chapters X to XII of the M.V. Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the M.V. Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the M.V. Act. A perusal of the objects of the two enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is in our opinion applicable to the interpretation of the work death in the M.V. Act also. Finally, it is held that in the instance case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased was due to an accident arising out of the use of motor vehicle. Therefore, the accident arising out of the use of motor vehicle. Therefore, the trial Court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to conclusion that the death of deceased was not caused by an accident involving the use of motor vehicle.
Therefore, considering these legal position in the cited case by the Hon'ble Supreme Court, the judgment is binding to this Tribunal respectfully. Hence, the judgment cited by the learned advocate Shri Parikh for the opponent No. 2 can not be considered and the argument advanced by Shri Parikh would not help his client.
19. The Apex Court has decided similar question in case of Rita Devi as referred above and come to conclusion that during course of duty driver was having attack from stranger and he died then it amounts to accidental murder and death of deceased was caused accidental in process of committing theft or some other purpose of truck driver. Therefore, Apex Court has considered that such incident is considered to be occurred by use of vehicle and Section 167 of Motor Vehicle act is also considered then it was open for claimants either to proceed to claim for compensation under W.C. Act or in Motor Vehicle Act.
20. The Apex Court has examined can murder be an accident in any given case while considering difference between murder which is not an accident and murder which is an accident depends on proximity of cause of such murder. According to Apex Court, if dominant intention of Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if cause of murder or act of murder was originally not intended and same was caused in furtherance of any other felonious act, then such murder is an accidental murder. Therefore, above interpretation or difference which has been pointed out by Apex Court looking to facts of this case murder of driver husband of claimant was also an accidental murder not simplicitor which having proximity of cause of such murder connected with use of vehicle.
21. Recently, Similar question was examined by Division Bench of Allahabad High Court in case of Manjula Devi Mishra and Ors. reported in : AIR2007All122 . In this case, fact that widow, son and mother of deceased Awdhesh Kumar Mishra has filed appeal for claiming Rs. 11,40,000/- for death of Awdhesh Kumar took place on 23/1/1994 while deceased was driving along with his co-driver and cleaner was proceeding on truck No. UP 78 B 0449 at about 12.30 pm from Fatehpur to Kanpur via G.T. Road. The deceased was driving truck. As soon as truck reached in front of Chauhan Hotel situated at G.T. Road, some mischievous and unruly boys who were standing by side of hotel gave signal to stop truck. The deceased driver declined to stop truck which infuriated the aforesaid boys and they started pelting brickbats at vehicle. A brickbat hit Awadesh Kumar Mishra over his eyes, as a result of which vehicle was unbalanced and fell into a ditch and dashed against a Babool tree on said of road. Consequently, Awadesh Kumar Mishra driver and co driver Dharmendra both died on spot instantaneously. These deaths were attributed to injuries sustained by deceased in aforesaid accident which occurred on account of mischievous and unruly felonious act of aforesaid boys who pelted brickbats. The report of incident was lodged at police station, Kalyanpur, District Fatehpur. The PM report on body of deceased was conducted. At the time of accident deceased Awadhesh Kumar was found aged about 25 years and he left behind wife Manjula Devi, his son Ankur aged about 3 years and Kamala Devi mother of deceased. The claim was made of Rs. 11,40,000/-. The claim petition was contested by owner and insurance company on the ground that accident was not attributable to any negligent act of driver of vehicle and it was alleged that deceased was involved in accident which was result of his own individual act and such type of claim was not covered by insurance policy. The claim does not fall within ambit of Motor Vehicles Act. The truck was driven by deceased Awadesh Kumar Mishra himself and accident occurred when deceased himself lost balance and vehicle fell into ditch. There was no negligence on the part of owner of vehicle and insurance company could not be saddled with any liability to pay compensation and claims Tribunal has no jurisdiction to entertain claim petition. The Motor Accident Claims Tribunal decided award dated 1/5/1997 coming to conclusion that Tribunal has jurisdiction to decide claim petition and affirmed finding recorded by order dated 4/4/1995 that issues as to whether claim petition was cognizable under Motor vehicles Act or Workmen's Compensation Act holding that this claim petition could be decided by Motor Accidents Claims Tribunal. Ultimate finding is that accident occurred in question is attributable of some out side agency who was solely responsible for accident and relied upon Full bench decision of Allahabad High Court in case of Union of India v. Sushila Devi reported in : AIR1990All82 that Motor Accident Claims Tribunal has no jurisdiction to award any compensation. Thereafter, this decision was challenged to High Court and High Court has examined decision of Full Bench of Allahabad High Court and number of decisions have been considered. The division Bench of Allahabad High Court can not elobrate decision and also consider word used of Motor Vehicle Act in Section 92(A) covers accident which occurred both when vehicle is in motion and when it is stationary. The Allahabad High Court also considered decision of Apex Court in case of Rita Devi as referred above reported in : (2000)ILLJ1656SC . Thereafter, certain English authority also considered by Division Bench of Allahabad. The relevant discussion which applied to fact of this case found from para 12 to 26 are quoted as under:
12. Thus, from the aforesaid discussion, it is categorically clear that the explosion and fire resulting in injuries, which led the death of Deepak Uttam More was dues to an accident arisen out of the use of the motor vehicle, viz., the petrol tanker. Although the case was decided by the Hon'ble Apex Court with reference to section 92-A of old Motor Vehicles Act but the same was decided by construing the expression accident 'arising out of the use of the motor vehicle', which is similarly used under both Section 110 of the old Motor Vehicles Act, 1939 and Section 165 of new Motor Vehicles Act, 1988.
13. In Rita Devi's case : (2000)ILLJ1656SC a driver of the autorickshaw was employed by the owner for driving autorickshaw for carrying passengers on hire who had accepted the demand of fare paying passengers of transport them to a place of their destination. During the course of this duty the passengers had decided to commit an act of felony of stealing the autorickshaw and they had eliminated the driver of autorickshaw. In aforesaid case the Hon'ble Apex Court has held that the stealing of autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw was only incidental to the act of stealing of autorickshaw. Therefore, the murder of deceased autorickshaw driver was due to an accident arising of the use of the Motor Vehicle. Accordingly, the claimants who were wife and children of deceased were entitled for compensation claimed by them under Motor Vehicles Act. While coming to the aforesaid conclusion the Hon'ble Supreme Court has placed reliance upon Challis v. London & South Western Railway Co. (1905) 2 KB 154 and Nisbet v. Rayne & Burn (1910) 2 KB 689. In this connection Hon'ble Supreme Court has quoted the pertinent observations of aforesaid cases in paras 11 and 12 of the decision and in para 13 of the decision it has been pointed out that judgement of the Court of Appeal in Nisbet's case has been followed by the majority judgement of the House of Lords and in paras 14 and 18 Hon'ble Apex Court had recorded its concluded opinion. The pertinent observations of Honourable Apex Court in paras 11 to 14 and 18 of the decision are as under:
(11) In Challis v. London and South Western Railway Co. (1905) 2 KB 154, the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the trail by a boy from the bridge, that his injuries were caused by an accident. In the said case, the court rejecting an argument that the said incident cannot be treated as an accident held:
The Accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so it limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously.(12) In the case of Nisbet v. Rayne & Burn (1910) 2 KB 689, where a cashier, while traveling in a railway to a colliery with a large sum of money for the payment of his employer's workmen, was robbed and murdered. The Court of Appeal held:
That the murder was an 'accident' from the standpoint of the person who suffered from it and that it arose 'out of' an employment which involved more than the ordinary risk and consequently that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case the court followed its earlier judgments in the case of Challies (1905) 2 KB 154. In the case of Nisbet (1910) 2 KB 689, the court also observed that it is contended by the employer that this was not an 'accident' within the meaning of the Act, because uit was an intentional felonious act which caused the death, and that the word 'accident' negatives the idea of intention. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet and that it makes no difference whether the pistol shot had been deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet.(13) The judgment of Court of Appeal in Nisbet's case (1910) 2 KB 689, was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School v. Kelly (1914) AC 667.
(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 autorickshaw, 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 autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so cause to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the autorickshaw.
(18) In the instance case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Sing was not caused by an accident involving the use of motor vehicle.
14. From a close analysis of the observations of the Hon'ble Apex Court in Rita Devi's case : (2000)ILLJ1656SC , it appears that the Apex Court has placed reliance upon a decision of the Court of Appeal in Challis's case (1905) 2 KB 154, where an engine driver while driving a train under a bridge was killed by a stone wilfully dropped on the train by a boy from the bridge. The injuries were caused by said accident. Rejecting the argument that the said incident cannot be treated as an accident, the Court of Appeal had held that the accident which befell the deceased was incidental to his employment as an engine driver. In other words, it arose out of his employment. It was further observed that the argument for the respondents really involves the reading into the Act of proviso to the effect that an accident shall not be deemed to be withing the Act, if it arose from the mischievous act of a person not in the service of the employer. Another case relied upon by Hon'ble Apex Court was the case of Nisbet v. Rayne & Burn (1910) 2 KB 689, which was also decided by Court of Appeal wherein while traveling in a railway to a colliery with large sum of money for the payment of his employer's workmen, a cashier was robbed and murdered. The Court of Appeal had held that the murder was an 'accident' from the standpoint of the person who suffered from it and that if arose 'out of' an employment which involved more than the ordinary risk and consequently held that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case the Court of Appeal has followed its earlier judgment of Challis (supra). In the aforesaid case the contention of employer that this was not an 'accident' within the meaning of the Act, because it was an intentional felonious act which caused the death and that the word 'accident' negatives the idea of intention has been rejected on the ground that it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol show was deliberately fired at Nisbet or it was intended for somebody else and not for Nisbet. The aforesaid judgement of Nisbet's case has also been followed by majority judgment by House of Lords in Kelly's case (1914) AC 667. Thus it seems that in spite of fact that the decisions in Challis' case and Nisbet's case were pertaining to Workmen's Compensation Act but the meaning assigned to the expression 'arising out' of employment under the provisions of aforesaid Act has been describe and demarcate the ambit and scope of the expression 'arising out' of use of motor vehicle' under the provisions of Motor Vehicles Act. Thus the Apex Court has held that although death of deceased Dasarath Singh driver of the autorickshaw was caused accidentally in the process of committing theft of autorickshaw but the same was due to accident 'arising out of the use of the motor vehicle'.
15. In Kaushnuma Begum v. New India Assurance Co. Ltd. : [2001]1SCR8 an accident which gave rise to the claim occurred on 20/3/1986. the accident was attributed to bursting of tyre of front wheel of the jeep as a result of which the jeep had dashed one Haji Mohammad Hanif who was walking on the road at the moment and subsequently died due to injuries sustained in that accident. The widow and children of Haji Mohammad Hanif, filed the claim petition before the Tribunal in 1986 itself claiming a sum of Rs. 2,36,000 as total compensation. The owner of the jeep disclaimed the liability even by denying the accident in which his jeep was involved. Alternatively, he contended that any liability found against him in respect of the said jeep the same should be realised from the insurance company as the vehicle was covered by a valid insurance policy. The Tribunal had dismissed the claim with the finding that it appears that the front wheel of the jeep suddenly got burst resulting in unbalance and occurrence of this accident as mentioned in Exh 2 to the report of Police Station. Whatever is the circumstances, the rashness and negligence of the alleged jeep is not established. However, the Tribunal directed the insurance company to pay Rs. 50,000/- to the claimants under 'no fault liability' envisaged by Section 140 of the Motor Vehicles' Act, 1988 (corresponding to Section 92-A of the old Act). Aggrieved by the said decision of the Tribunal, the appellants preferred appeal, as per the provisions of Act before this Court, a Division Bench of this Court vide order dated 28/4/1999 dismissed appeal holding that the jeep overturned and there was no negligent or rashness of the driver. Feeling aggrieved the claimants filed the appeal before Hon'ble Apex Court, which was allowed.
16. To better understand the controversy, it would be useful to extract the observations of the Hon'ble Apex Court made in paras 7, 9 to 12, 18 and 19 of the aforesaid decision as under:
7. We have to proceed on two premises based on the finding of Tribunal. The first is that there was no negligence or rashness on the part of the driver of the Jeep. Second is that the deceased was knocked down by the jeep when its front tyre burst and consequently the vehicle became unbalanced and turned turtle. Should there necessarily be any negligence of the person who drove the vehicle if a claim for compensation (due to the accident involving that vehicle) is to be sustained?
(9) Section 165(1) of the Motor Vehicles Act confers the power on the State Government to constitute one or more Motor Accidents Claims Tribunals by notification in the Official Gazette for such area as may be specified in the notification. Such Tribunals are constituted for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Section 175 of the Motor Vehicles Act contains a prohibition that 'no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal.'
(10) It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for making a claim for compensation in respect of accidents arising out of use of motor vehicles. There are other premises for such cause of action.
(11) Even if there is no negligence on the part of the driver or owner of the motor vehicle, but the accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Rylands v. Fletcher 1861-73 All ER 1, can apply in motor accident cases. The said rule is summarised by Blackburn, J., thus:
The true rule of law is that the person who for his own purposes, brings on his land, and collects and/or keeps there anything likely to do mischief if it escapes, must keep it at his peril and, if he does to do so, he is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequences of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.(12) The House of Lords considered it and upheld the ratio with the following dictum:
We think that the true rule of law is that the person who for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and if he does not to do so, he is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps that the escape was the consequences of vis major or the act of God; but as nothing of this sort exists here it is unnecessary to inquire what excuse would be sufficient.(18) Like any other common law principle, which is acceptable to our jurisprudence, the rule in Ryland v. Fletcher 1861-73 All ER 1, can be followed at least until any other new principles which excels the former can be evolved, or until the legislation provides differently. Hence we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.
(19) .. We are, therefore, of the opinion that even part from Section 140 of the Motor Vehicles Act, a victim in an accident which occurred while using a motor vehicles, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.
17. From a close analysis of the aforesaid decision it is clear that in para 7 of the decision, the Hon'ble Apex Court has formulated specific question, i.e., should there necessarily be negligence of the person who drove the vehicle if claim for compensation (due to the accident involving that vehicle) is to be sustained? Thereafter in para 10 of the decision it has been categorically held that it must be noted that the jurisdiction of Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accident arising out of motor vehicles. There are other premises for such causes of action. In para 11 of the decision the Hon'ble Supreme Court again emphasised that even if there is no negligence on the part of driver or owner of motor vehicle but accident happens while the vehicle was in use should not owner be liable for damages to the persons who suffered on account of such an accident? Thereafter, Hon'ble Apex Court has dealt with the rule of strict liability propounded in Rylands v. Fletcher 1861-73 All ER 1, wherein Blackburn, J., had summarised the rule that the person who for his own purposes, brings on his land and collects or keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, he is prima facie answerable for all the damage which is the natural consequences of its escape and ultimately in para 19 of the decision the Supreme Court gave a concluded opinion that even apart from Section 140 of Motor Vehicles Act, a victim in an accident which occurred while using a vehicle is entitled to get the compensation from the Tribunal unless any one of the exceptions provided in Rylands v. Fletcher would apply.
18. Thus in view of aforesaid observations, it is clear that the allegation and proof of negligence in the use of motor vehicle on the part of driver or owner of the motor vehicle was found not a condition precedent for entertaining the claim for compensation of the victims of the accident by the Tribunal. What is essential is that the accident should be incidental to the use of motor vehicle. In this case, although the Hon'ble Supreme Court has determined the quantum of compensation on structured formula basis as provided in Second Schedule in view of the provisions contained under Section 163A of the new Motor Vehicles Act, but the question of jurisdiction of Tribunal and liability to pay compensation to the victims of accident has been decided by Hon'ble Apex Court by interpreting the expression 'arising out of use of motor vehicle' and under the rule of strict liability pronounced in Rylands v. Fletcher 1861-73 All ER 1, therefore, in our opinion, the proposition of law laid down by the Hon'ble Full Bench of this Court Sushila Devi's case : AIR1990All82 , to the aforesaid extent runs contrary to the decision of Hon'ble Apex Court. Similarly, Full Bench decision of Punjab & Haryana High Court and Gujarat High Court relied upon by Full bench of this Court in Sushila Devi's case (supra) to that extent are also in conflict of the aforesaid decisions of the Hon'ble Apex Court.
19. Although the case of Shivaji Dayanu Patil : [1991]3SCR26a , was a case of no fault liability under section 92-A of old Motor Vehicles Act and Rita Devi was also a case of no fault of liability under Section 163A of new Motor Vehicles Act but in both the cases the Hon'ble Apex Court has held that the death was caused due to an accident 'arising out of use of motor vehicle', thus by interpreting the expression 'arising out of use of motor vehicle'. The same expression 'arising out of use of motor vehicle' has been similarly used under Section 165(1) of the new Motor Vehicles Act. For ready reference the provisions of Sections 163A and 165 of new Motor Vehicles Act are reproduced as under:
163-A. Special Provisions as to payment of compensation on structured formula basis :- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation:- For the purpose of this sub section, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923.
(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3)The Central Government may, keeping in view the cost of living by notification in the official Gazette, from time to time amend the Second Schedule.
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 such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of third party so arising or both.
Explanation :- For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of or bodily injury to person arising out of the use of motor vehicles' includes claims for compensation under Section 140 and Section 163A.
20. Thus from a careful reading of the provisions of Section 163-A and Section 165(1) both of Motor Vehicle Act (New) it is clear that under Section 163A, the owner or authorised insurer shall be liable to pay compensation in case of death or permanent disablement due to accident arising out of use of motor vehicle, whereas under Section 165(1) of New Act, also same phraseology has been used to the effect that for the purpose of adjudicating upon the claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of use of Motor Vehicles or damage to any property of third party so arising or both, the tribunals are constituted by the State Government. Although, we are conscious about the proposition that same expression takes different colour depending upon the context of the statutes, but there is nothing to indicate contrary in context of Section 165 of the Act inasmuch as others provisions subsequent thereto under Chapter XII of the Motor Vehicle Act (New) so as to gather different intention therefrom particularly in view of the clear legal position enunciated by Hon'ble Apex Court in Kaushnuma Begum's case (supra). Therefore, the interpretation of the expression 'arising out of use of motor vehicle' given by Hon'ble Apex Court in aforesaid decisions will equally apply in respect of Section 165(1) also and in such a situation the causal relationship between the use of motor vehicle and the accident involving the death or bodily injury is not required to be direct and proximate and it can be less immediate. In other words, the accident would be connected with the use of motor vehicle but said connection need not be direct and immediate. In our considered opinion, therefore, the crucial question for determination of Motor Accident Claim Tribunal is to see whether the accident is 'incidental' to the 'use of motor vehicle' instead of examining it to be caused by negligence in use of motor vehicle or solely caused by outside agency or use of motor vehicle has contributed it.
21. Thus the aforesaid discussion leads towards a further inescapable conclusion that it would be sufficient to plead and prove that the accident is incidental to the use of motor vehicle. The jurisdiction of Tribunal is not restricted to decide the claim arising out of negligence alone in the use of motor vehicle. The negligence is only one of the species of causes of action for making a claim for compensation in respect of accident arising out of use of motor vehicles. If the pleading and proof of negligence would have been essential condition precedent for exercise of jurisdiction of claims Tribunal instead of using the expression 'arising out of use of motor vehicles', different words and phraseology would have been appropriately used and employed under Section 165(1) of the Motor Vehicle Act so as to include the negligence in use of motor vehicle instead of employing the expression 'arising out of use of motor vehicle' simpliciter. Therefore, in our considered opinion, the jurisdiction of tribunal should not be restricted to entertain and decide the claims arising out of negligence alone in use of motor vehicle. Restricting the claim for compensation and jurisdiction of tribunal to decide such claims arising out of negligence alone in the use of motor vehicle would be carvation of a proviso under Section 165(1) of the Motor Vehicle Act to exclude the jurisdiction of claims tribunal for awarding compensation in respect of such category of cases where the death or bodily injury is caused in the accident arising out of use of motor vehicle but without negligence in use of such motor vehicle and where the accidents are caused due to the use of motor vehicle but outside agency is found to be solely responsible for such accident, the use of which Legislature has deliberately omitted while enacting the provisions of Section 165 of Motor Vehicle Act.
22. At this juncture, we would like to add further that having given our thoughtful consideration to the ambit and scope of provisions of Section 165(1) of New Motor Vehicles Act in the wake of decision of the Hon'ble Apex Court in Kaushnuma Begum's case (supra), it seems that rules of strict liability of owner of mischievous things propounded in Rylands v. Fletcher's case, have been embodied under the provisions of Section 165(1) of the New Motor Vehicle Act, but without incorporating any of exceptions of the aforesaid rules. Seven exceptions as defence were provided under the aforesaid rules of strict liability of owner, such as (1) consent of the plaintiff i.e. volenti non fit injuria, (2) common benefit i.e. where the source of danger is maintained for the common benefit of plaintiff and defendant, the defendant is not liable for its escape, (3) Act of stranger, i.e. if the escape was caused by the act of unforeseeable act of stranger, the rule does not apply, (4) exercise of statutory authority i.e. the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise. (5) Act of God i.e. circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility. (6) Default of plaintiff where the damage is caused on his count, the rule will not apply. (7) Remoteness of consequences. But assuming for sake of arguments, the aforesaid exceptions of law of torts and common law are still available to the owner of mischievous things, thus the same may be available to the owner of the motor vehicle while in use, even then those exceptions would not exclude the jurisdiction of tribunal to entertain a claim under Sections 165 and 166 of the Motor Vehicle Act, at the most, such exceptions may be pleaded by the owner of motor vehicle as defence against such claims of the victims of the accident, therefore, on this count also the jurisdiction of claims tribunal cannot be excluded. In our opinion, the concept of negligence in use of motor vehicle cannot be imported from common law and law of Torts to oust the jurisdiction of claims tribunal under Section 165(1) of New Motor Vehicle Act in the wake of express provision under statute, which does not necessarily involves the negligence in use of motor vehicle. It is no doubt true that expression 'arising out of use of motor vehicle' is wide enough to embrace in it, negligence in use of motor vehicle also but it cannot be held to be necessary concomitant of it and while determining the ambit and scope of jurisdiction to entertain the claim and determine the compensation the expression 'negligence' cannot be imported to interpret the meaning of expression 'arising out of use of motor vehicle' to exclude such category of cases from the jurisdiction of tribunal where the accidents happens without negligent driving of motor vehicle or the accident occurred due to use of motor vehicle but the outside agency was found solely responsible for such accident, unless plain reading of provisions of Section 165 leads to anomaly and absurdity in consequence. Giving restricted meaning to the aforesaid expression would deprive such class of persons from the benefits of compensation who are otherwise entitled if the fair and a reasonable meaning is given to the aforesaid expression. The aforesaid view also stands fortified from statement of law made under Section 175 of Motor Vehicle Act, where the claims tribunal shall have exclusive jurisdiction to entertain any claim for compensation which may be adjudicated upon by the claims tribunal for that area in total exclusion of the jurisdiction of Civil court. In case such other persons or outside agency which may be joint tort feasors or found to be guilty of composite negligence or found solely responsible in causing the accident are excluded from the jurisdiction of tribunal if the accident arises out of use of motor vehicle , the victims to motor accident would be rendered remediless against such joint tort feasors. Thus that would be complete distortion of purpose underlying Sections 165 and 175 of New Motor Vehicle Act. For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort feasors or found to be solely responsible for causing accident if arising out of use of the motor vehicle. Thus having regard to the beneficial object of legislation the restricted meaning to the expression 'arising out of use of motor vehicle' can not be given which would deny the relief reasonably contemplated by the statute.
23. At this juncture it is to be pointed out that confusion might have arisen due to use of expression ' liability to pay compensation in certain cases on the principle of no fault' in the heading of Sections 92-A and 92-B inasmuch as provisions contained thereunder and in Chapter VII-A of Old Motor Vehicle Act and so also under Sections 140, 141 and 163A of New Motor Vehicle Act, which distinguished the liability to pay compensation on the principle of no fault from that of right to claim compensation on principle of fault. But from the perusal of provisions of Chapter XII of New Motor Vehicle Act, which contains the provision right from Sections 165 - 176, there is nothing to indicate that while making claim for compensation under Chapter XII of the New Motor Vehicle Act the claimants are required to plead and prove the negligence in use of motor vehicle or if the outside agency is found to be solely responsible in causing the accident involving the death or bodily injury to persons or damage to any property of third party so arisen or both, the claimants would be divested from claiming compensation under the aforesaid provisions of Act, thus, import of the concept of negligence from common law and law of Torts to exclude the jurisdiction of Claims Tribunal on the principle of fault required to be established by victims and legal representative of victim cannot be reasonably inferred from any of the provisions contained under Chapter XII of the Motor Vehicle Act. In our opinion, provisions contained under Sections 140, 141 of Chapter X and Section 163A of Chapter XI of New Motor Vehicle Act, despite having overriding effect to extent indicated thereunder cannot be interpretated as controlling provisions of the Sections 165 and 166 of New Motor Vehicle Act, particularly when the words and expressions used under Section 165 of the New Motor Vehicle Act are clear, plain, unambiguous, and meant to serve beneficial object of the statute, without involving any anomaly, inconsistency and absurdity in consequence. We do not find any difficulty in accepting the same meaning of the expression 'arising out of use of motor vehicle' as given in Shivaji Dayanu Patil's case and Smt. Rita Devi's case in the wake of dictum of Hon'ble Apex Court in Kaushnuma Begum's case under Section 165 as well.
24. In view of aforesaid discussion, we are of the considered opinion that the conclusions drawn by Full Bench of this Court in Smt. Sushila Devi's case to the effect that the mere fact that motor vehicle was involved in the accident by itself, and without more would not confer on the Tribunal's jurisdiction to entertain the claim and further where the claim for compensation alleges that the accident was caused by negligence of driver of motor vehicle as well as by some outside agency and if the Tribunal ultimately finds that the accident was wholly caused by outside agency and not by the driver of the motor vehicle it will cease to have any jurisdiction to grant any relief to the claimant and where the claim petition is directed solely against a outside agencies, i.e. other than the driver, owner or the insurer of the vehicle, the tribunal shall have no jurisdiction even to entertain the petition at the very threshold, appears to be contrary to the dictum's of Hon'ble Apex court in aforesaid cases, indicated herein before. In our opinion, the aforesaid statements of law laid down by Full Bench of this Court are clearly in conflict of dictums of Hon'ble Apex Court stated hereinbefore. With due respect we are not able to persuade ourselves to agree with the aforesaid conclusions drawn by Hon'ble Full Bench. In other words the conclusion drawn by the Full Bench in respect of second and fourth category of cases, in our considered opinion, are clearly contrary to the dictum of Hon'ble Apex Court as indicated hereinbefore, therefore, can be held to be no longer good law.
25. Now before applying the law enunciated hereinbefore in the facts and circumstances of the case in question, we would like to extract the findings recorded by Motor Vehicle Claims Tribunal on the issue of jurisdiction and entitlement of relief claimed in the claim petition as under:
In the instant case a cursory glance at the evidence produced by the petitioners themselves show that this accident was a result of the pelting or the stones by unruly boys. These boys got infuriated on account of refusal on the part of driver to stop the vehicle at their indication and they indulged in stone pelting which damaged glasses and as a result of this fact driver lost balance and vehicle fell into the ditch and eventually dashed against a Babool tree. These facts show that this act is wholly attributable to outside agency and that the driver of the vehicle was neither rash nor negligent in driving the vehicle. Thus in such cases no relief could be given to the claimants.Thus in view of law enunciated herein before, we are not in agreement with the conclusions drawn by the Tribunal based on the aforesaid findings. It appears that said conclusions are based on Full Bench decision of this Court rendered in Smt. Shushila Devi's case which we have already dealt with in some detail and have held that conclusions drawn by the Hon'ble Full Bench of this Court in respect of second and forth categories of cases referred in the judgment of Hon'ble Full Bench are in conflict of decision of Hon'ble Apex Court referred herein before Therefore, in our opinion, the conclusions drawn by Tribunal cannot be sustained and liable to be set aside. We further hold that in given facts and circumstances of the case the Tribunal had jurisdiction to grant relief claimed by the claimants/appellants and claimants were entitled for relief claimed before the Tribunal, because of the reason that the accident in question arose out of use of motor vehicle. It can not be inferred that accident in question was wholly unconnected with the use of motor vehicle. It is immaterial that Tribunal has found that outside agency was solely responsible for said accident and it was not caused on account of rash and negligent driving of motor vehicle. In given facts and circumstances of the case, in our opinion the accident in question was incidental to the use of motor vehicle, it is immaterial whether it was caused by rash and negligent driving of motor vehicle or it was solely caused by outside agency or offending motor vehicle had contributed it or not.
The Division Bench of Allahabad High Court as referred above has heavily relied upon decision of Division Bench of Gujarat High Court in case of GSRTC v. Union of India and Ors. reported in 1987 ACJ 734. The facts of referred case that accident occurred between bus and railway engine at the levelled crossing resulting into death of bus passenger. The Tribunal has found that accident was caused due to composite negligence of both driver their inter se liability being 25% for bus driver and 75% for engineer but dismissed claim against railway and considering that Tribunal had no jurisdiction to pass award against railway. The question is whether claims Tribunal has jurisdiction to pass award against joint tort feasor. The answer is yes. The statutory settings has been examined by Division Bench of this Court in para 11 to 15 which are quoted as under:
11. Statutory settings :- In the first place, it would be profitable to have a quick glance at the relevant statutory provisions in the light of which the controversy will have to be resolved. Relevant provisions for our consideration are found in Chapter VIII of the Act. This chapter deals with insurance of motor vehicles against third party risks. It must be stated that the accident in question occurred on 4-10-1974. Relevant statutory scheme as existing on that date will have to be examined for deciding the present controversy. It is true that chapter VII -A was added to the Motor Vehicles Act, 1939 by the Legislature by Act 47 of 1982 incorporating Sections 92A to 92E, providing for claims for compensation arising out of death or permanent disablements wherein no-fault liability is statutorily sought to be imposed on the owner or owners or any other person. The impact of the said provisions on Section 110(1) is not required to be considered by us on the facts of the present case and we, therefore, express no opinion on this aspect. Section 93 defines various terms employed in the remaining Sections of the said chapter VIII. Section 94 lays down necessity for insurance against third party risk. It prohibits user of any motor vehicle in a public place by a person other than a passenger except after getting such vehicle insured for compliance with the requirements of the Chapter. Section 95 lays down requirements of policies and limits of liability of the insurance company. Section 96 provides for duties of insurers to satisfy judgements against persons insured in respect of third party risks. Section 97 provides for rights of third parties against insurers on the insolvency of the insured. Sections 98 to 109 deal with other requirements centering round policy of insurance in connection with motor vehicles which are being used on the roads and public places and which are likely to result in any injury to third parties. Then we come to Section 110 which is relevant for our present purpose. Sub-section (1) of Section 110 provides that a State Government may, by notification in the official gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. We are not concerned with other Sub-Sections of Section 110. Section 110-A lays down procedure for filing applications for compensation and indicates persons who can move such applications for compensation before the concerned Tribunal. Section 110A on which great store was placed by the learned Advocate for the Union of India is required to be noticed in extenso. It reads as under:
On receipt of an application for compensation made under Section 110A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 109-B, may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be-paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.
Provided that where such application makes a claim for compensation under Section 92-A in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter VII-A.
Section 110C provides for procedure and powers of the Claims Tribunal and lays down that the Claims Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for other purposes as may be prescribed. Other relevant Section is Section 110-E which prescribes mode of recovery of money under the award passed by the Claims Tribunal. It provides that where any money is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the money, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. Then follows Section 110F which bars the jurisdiction of the civil courts in connection with claims which can be entertained by the Claims Tribunal under the Act. The said Section is also material for the present purpose and, therefore, it is extracted herein in extenso:
Where any Claims Tribunal has been constituted for any area, no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the civil court.12. The aforesaid is the resume of the relevant statutory provisions in the light of which the present controversy has to be resolved. Now, a mere look at Section 110(1) read with Section 110-F shows that specified Tribunals have jurisdiction to entertain and adjudicate upon claims for compensation in respect of the accidents which might have resulted in death or bodily injury to persons, provided such accidents are caused out of use of motor vehicles and in these circumstances, even claims for damages to property of third party can also be entertained if such damages have accrued as a result of such accident. Moment such claims can be entertained by the Claims Tribunals, jurisdiction of the ordinary civil court to entertain such claims would automatically get excluded by joint operation of Section 110(1) and 110F of the Act. It at once becomes clear that the Legislature while providing for exclusion of jurisdiction of ordinary civil courts in connection with adjudication of claims from accidents arising out of use of motor vehicles, has nowhere indicated that such claims can be entertained only against a given set of persons or parties. The pivot or catch-words in Section 110(1) are 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles'. Therefore, the claims petitions must be arising out of accidents caused by use of motor vehicles. If that condition is satisfied, all such claims have to be lodged before the claims Tribunals and not before the ordinary civil courts. It must be kept in view that ordinarily, civil courts have full jurisdiction to decide any matter of civil nature as per Section 9 of the Code of Civil Procedure. That power of the civil court pro tanto is circumscribed, excluded and handed over to the Tribunal under Section 110(1) once such Tribunal is established. In the absence of such Tribunal for a given area, jurisdiction would continue to inhere in the regular civil court. Now, it is well settled that the Claims Tribunal under Section 110(1) has to adjudicate about the claims for compensation arising out of accidents caused by motor vehicles provided such claims are based on tortious liabilities of the motor vehicle driver and on that basis on the principle of vicarious liability, against the owners of such motor vehicles and the insurance companies which would step in on the basis of contract of indemnity and also on account of the statutory liability as laid down by the Motor Vehicles Act. It is not as if that claims for compensation would lie even in cases of accidents caused by motor vehicles if motor vehicles were not negligently used at the given point of time. Even though legislature in Section 110(1) has employed the words 'accidents arising out of use of motor vehicles' it is now well settled by the decision of the highest court that such use must be 'negligent use' as the claim for compensation entertained by the Tribunal under Section 110(1) is one on account of tortious liability of the driver of the motor vehicle. In the case of Minu B. Mehta v. Balkrishna : [1977]2SCR886 , it has in terms been held by the Supreme Court speaking through Kailasam, J. that 'the liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent.' While interpreting relevant provisions of the Act Sections 95 onwards, it was held by the Supreme Court in the aforesaid case, negativing the contention that claims Tribunal could adjudicate upon any claim for compensation not based on tortious liability of the other side, that:
This plea ignores the basic requirements of the owner's liability and the claimants' right to receive compensation. The owners' liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. The claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the claims Tribunal is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results.It was further held in this connection that proof of negligence remains the linch pin to recover compensation. It is, therefore, obvious that the phraseology employed by the legislature in Section 110(1) laying down functions to be performed by the Claims Tribunal for adjudicating upon the claims for compensation in respect of accidents involving injuries to persons arising out of use of motor vehicles must necessarily be treated to mean that the Claims Tribunal will be entitled to adjudicate upon the claims for compensation in respect of accidents arising out of negligent use of the motor vehicles and not any innocuous use or in other words, it should be misuse of the motor vehicle or rash and negligent use of the motor vehicle which must have contributed to or must have caused the accident in question. Claims for compensation arising out of only such accidents can be entertained by the claims Tribunal under Section 110(1). It is also to be kept in view, as seen earlier, that Section 110(1) carves out an exclusive field of jurisdiction from the otherwise existing jurisdiction of the civil Court and confers it on the specified Tribunal. Thus, all that Section 110-A does is to create a forum for adjudication of claims for compensation which may have otherwise fallen within the jurisdiction of ordinary civil Court and that exclusive forum which is created by Section 110(1) has to adjudicate upon the claims for compensation which must be based on pre-existing right and liability, like tortious liability of the concerned tortfeasor who might have caused the accident in question. Moment that conclusion is reached, it becomes obvious that when the claims Tribunal has to decide tortious liability of the tortfeasor viz. driver of the motor vehicle who might have caused the accident giving rise to the claim for compensation, it is just possible that the said tortfeasor may not be the sole tortfeasor but there may be other joint tortfeasor involved in the very same accident who might have also contributed by way of composite negligence in the causing of the accident in question. The question arises, as to whether the claimant before the claims Tribunal properly moved by him for adjudication of the claim for compensation, on account of the accident caused by the negligent use of the motor vehicle can urge that the accident in question was caused not only by rash and negligent use of the motor vehicle, but also by some outside agency' which contributed its mite and was also partly responsible for the causing of the accident, or in other words, can claimant legitimately urge that there was, in addition to the motor vehicle driver who was a tortfeasor, another joint tortfeasor being some other person who might not have used any motor vehicle but nonetheless who might have contributed to the causing of the accident As it is well settled that the claims Tribunal has to adjudicate upon claims on the basis of the tortious liability of the tortfeasor brought before it, of necessity, such disputed claims can encompass to the adjudication of claims even against all joint tortfeasors contributing to the accident in question as they would also remain in the domain of tortious liability. It is also well settled that once it is decided that the accident in question has been caused by joint tortfeasor, two or more, each one of them would remain jointly and severally liable to meet the claim of the claimant. All these questions therefore, can legitimately fall within the scope and ambit of the jurisdiction of the Claims Tribunal under Section 110(1) moment it is shown that the accident in question, if not wholly, at least in part, is caused by negligent use of the motor vehicle. We do not find anything in the language co Section 110(1) or any other provision of the succeeding Sections to contra-indicate the legislative intention underlying conferment of exclusive jurisdiction of the Claims Tribunal for adjudication of claims for compensation in such cases. It is also interesting to note that Section 110-A which provides for procedure for applying for compensation before the Tribunal nowhere indicates as to against whom such application can be filed. As the claims before the Tribunal have to be based on tortious liability, as seen above, it necessarily follows that application can be filed against either sole tortfeasor viz. the driver of the offending motor vehicle causing the accident or against one or more of joint tortfeasors who are involved in the accident. Some of the joint tortfeasors might be agencies not utilising any motor vehicle in contributing to such accident. Consequently, claim petition can legitimately be filed not only against the driver, owner and insurer of the offending motor vehicle which has been rashly and negligently used at the relevant time for causing the accident but can also be filed against joint tortfeasors who might have contributed to the accident along with the driver of the motor vehicle and who by themselves may not have utilised any motor vehicle while so contributing to the accident. For example, a third party might have been injured on a public road on account of rash and negligent driving of the motor vehicle on the one hand and a horse-carriage or camel cart on the other and the drivers of both these types of vehicles might have jointly contributed by their negligence and rashness in injuring the third party pedestrian. If claim for compensation is moved by him before the claims Tribunal, as the accident caused to him can be said to have arisen partly out of negligent use of the motor vehicle viz. truck or car on the one hand, he cannot be told off the gates by saying that as other vehicle was non-motor vehicle, his claim for compensation against the driver or owner of the horse-cart or camel cart cannot be entertained by the Tribunal even though he was a joint tortfeasor along with the driver of the motor car or truck, simply on the ground that other vehicle is not a motor vehicle. No such contention can be countenanced on the express language of Section 110(1) read with Section 110-F of the Act.
13. We now turn to Section 110-B of the Act on which great reliance was placed by the learned Advocate for the Union of India in support of his contention that the claims Tribunal has jurisdiction to pass award only against owner or driver or the insurer of the offending vehicle and against no one else. So far as the first part of Section 110-B is concerned, it nowhere lays down any such proposition. On the contrary, it clearly indicates that on receipt of an application for compensation, the Tribunal shall, after giving the parties an opportunity of being heard and holding injury, determine the amount of compensation which appears to it to be just and specify the person to whom it shall be paid. As we have already seen earlier, Section 110A nowhere indicates that only the driver owner or insurer of the offending motor vehicle have to be joined as parties. In cases where rash or negligent use of the motor vehicle only has not caused the accident but some other agencies have also contributed to the causing of the accident by way of their composite negligence, such agencies can legitimately be brought before the Tribunal on the principle of their liability as joint tortfeasors. If such composite application can be filed against joint tortfeasors under Section 110A, the first part of Section 110-B would spring into action and the Tribunal would get enjoined to hold inquiry in the matter and after having given an opportunity to the parties of being heard, the Tribunal has to determine the just compensation to be payable to the claimant on account of tortious act of the concerned joint tortfeasor. Thus, the first part of Section 110B does not support the learned Counsel for the Union of India in his submission that the Tribunal cannot adjudicate upon such claims arising out of composite negligence of joint tortfeasors. However, he was more sanguine about the later part of Section 110-B. All that the second part of Section 110-B provides is that in making the award for compensation, the Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. We fail to appreciate how this part of Section 110-B in any manner can be said to have whittled down the wider scope of Section 110(1) which confers exclusive jurisdiction on the Claims Tribunal to adjudicate upon such claims. It is interesting to note the legislative history underlying insertion of the later part of Section 110-B in its present form. Before Section 110-B later part was amended by Act 56 of 1969 with effect from 2-3-1970, later part of the then existing Section 110-B read as under:
in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer.The words 'or owner or driver of the vehicle involved in the, accident or by all or any of them, as the case may be' were inserted by Amending Act 56 of 1969. Thus, in case of road accidents that took place prior to 2-3-1970, the Tribunal while passing awards under the Act had to specify, because of the legislative mandate, the amount which was to be paid by the insurer of the offending vehicle. But only on that basis, it could not have been urged with any emphasis that, therefore, the Claims Tribunal had not to pass any award against the insured of the motor vehicle or its driver that it would lead to an impossible situation. It is obvious that before any direction can be issued against the insurer of the offending vehicle to pay any compensation to the claimant, it must be first shown that the driver of the motor vehicle was rash and negligent in driving the same and it had resulted into the accident and that the driver in the first instance should be made liable to pay compensation and the owner of the motor vehicle, on the principle of vicarious liability also, has to be roped in, unless it is shown that the driver had driven the offending motor vehicle at tire relevant time contrary to the express direction of the owner and consequently it would snap the link of owner's liability on the basis of vicarious liability. Except in such cases, in all other cases arising out of rash and negligent use of the motor vehicle, the driver and the owner of the motor vehicle have first to be held to be responsible on the basis of tortious liability for the accident and then only insurer would come in via contract of indemnity or an account of its statutory obligation under Section 95 read with Section 96 of the Act. Consequently, even though the later part of Section 110-B prior to 2-3-1970 mentioned that the Tribunal had only to specify the amount which shall be paid by the insurer, it could not have been urged with any emphasis that the Tribunal was absolved of its obligation in passing the award first against the owner or driver of the motor vehicle involved in the accident. It must therefore, be held that question of specification of the amount which is to be paid by the insurer or owner or driver of the motor vehicle involved in the accident as mentioned in Section 110-B only means that when the tortfeasor is the driver of the motor vehicle, either sole or joint, with any one else. so far as inter se liability of the driver of the offending motor vehicle, owner of the motor vehicle and the insurer is concerned, it is to be specified by the Tribunal so that their respective shares in the contribution of compensation can be clearly demarcated. In same cases, driver of the motor vehicle may be found to be negligent in driving the motor vehicle which caused the accident, but owner may be exonerated as it might be shown that the driver had driven the vehicle at the relevant time, contrary to the instructions of the owner. Thus, on the principle of vicarious liability, owner may not be roped in. Still, insurer of the vehicle may remain responsible on account of wider coverage of the insurance policy concerning such accident on account of rash and negligent driving by the driver. In such cases, the Tribunal may have to specify the liability of the driver and the insurer and has to determine whether the owner is liable at all to meet the claim. In some other cases, driver of the motor vehicle may be liable to make goad the claim on account of the rash and negligent driving. Owner may also be liable on the principle of vicarious liability. Still, the insurance company may get exonerated on account of its any of the statutory defences under Section 96(2) of the Act, being found established on record or limits of its statutory liability under Section 95 being found to be operative in a given case and there being absence of any wider contractual coverage for covering additional liability. In such cases, it becomes necessary to specify the extent of liability of the insurer vis-a-vis liability of the owner and driver of the offending motor vehicle. It is for this purpose that the last part of Section 110-B has been enacted. But that does not mean that legislature wanted to rule out joinder of other tortfeasors in the proceedings for adjudication of claims before the Tribunal under Section 110(1) when the accidents are caused not only by negligent use of the motor vehicle but also by negligent use of any other vehicle or object which contributed to such accident by way of composite negligence. It is, therefore not possible to agree with the contention of the learned Counsel for the Union of India that last part of Section 110-B whittles down or curtails the scope and ambit of Section 110(1) of the Act read with Section 110-F of the Act. In this connection, it is also interesting to note Section 110E of the Act. The said Section was amended by Act 56 of I969 with effect from 2-3-1970. Earlier in the said Section, it was provided that where any money is due from an insurer under an award, the claims Tribunal may, on an application made to it by the person entitled to the money, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same manner as an arrear of land revenue. By the very Amending Act by which words 'or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be' were inserted in last part of Section 110-B, the words 'an insurer' in Section 110-E were substituted by the words 'any person'. It, therefore, becomes obvious that the very same legislature which called upon the Tribunal to specify in the award the amount to be paid by not only the insurer but by owner and driver of the motor vehicle under Section 110-B, instead of using the very same wards in Section 110-E, laid down that money due from any person under the award can also be recovered as arrear of land revenue. If the legislature had meant to confine the jurisdiction of the Tribunal to award compensation only against the insurer, owner or driver of the motor vehicle and against no one also even though there might be joint tortfeasors, then the legislature would not have used the words 'money due from any person under the award' and instead would have used the same phraseology as it employed in Section 110-B viz. 'the insurer or owner or driver of the vehicle'. It must, therefore, be held that legislative intention reflected by Section 110E itself suggests that under the award, money can be due from any person and not necessarily from insurer or driver or owner of the offending motor vehicle only, as tried to be suggested by the learned advocate for the Union of India. It is, therefore, obvious, on the express scheme of the relevant provisions of the Act that the Claims Tribunal can entertain claim petitions not only against the sole tortfeasors who are driver and owner of the motor vehicles and against the insurer of such vehicles but can also entertain claim petitions arising out of the accident which might have been caused not only by rash and negligent use of the motor vehicle but also by rashness and negligence of other agencies which might have jointly contributed to the causing of such accident. However, one aspect of the matter must be clearly kept in view. If the accident in question is alleged to have been caused on account of rash and negligent use of any vehicle other than motor vehicle and if no negligent use of any motor vehicle is at all alleged to be involved in the causing of the accident in question, then, on the express language of Section 110(1). such claim petitions would go out of the sweep of Section 110(1) of the Act and the Claims Tribunal cannot entertain such petitions. However, if the accident is alleged to have been caused not only by rash and negligent use of the motor vehicle but also by some other vehicle or any other agency which might have contributed to the accident, then on the principle of tortious liability arising on account of being a joint tortfeasor, such agency can legitimately be made to stand before the Tribunal to answer the claim and once that happens and once the Tribunal gets jurisdiction to entertain and to adjudicate upon such composite claim it would be incongruous to urge that the Tribunal can go that for and no further and after adjudicating such claims and after hearing such joint tortfeasors, it cannot pass any award against such joint tortfeasors on the principle of joint and several liability once it proceeds to pass award against tortfeasor who has rashly and negligently used the motor vehicle and caused the accident at least partly.
14. It is also necessary to keep in view at this stage one salient feature viz. that in cases of accidents caused by rash and negligent use of motor vehicle when some outside agency has also contributed to the accident and such outside agency can be treated to be a joint tortfeasor, if it is suggested that claims Tribunal can pass award only against one of the joint tortfeasors viz. driver of the motor vehicles, along with its owner and insurer as the case may be, so far as other tortfeasors are concerned, the claimant must be driven to civil Court for establishing his claim against other joint tortfeasors, it is likely to result into conflicting decisions of two competent forums in connection with the very same accident based on the same set of facts. Apart from such result that may follow, it would also result in the possibility of parallel litigations in connection with the very same accident based on the same facts and unnecessary complications would arise and the claimants would naturally stand to suffer for no fault of theirs. On the express scheme of relevant provisions of the Act, we do not find that legislature intended to create any such anomalous situation or it intended to put the claimants in such a precarious position. On the contrary, the legislative scheme appears to be clear that in case of claim for compensation arising out of accident involving dealt or bodily injury to person due to negligent use of the motor vehicle, it is the claims Tribunal which can finally decide the matter from all perspectives and can pass proper awards against all concerned so that suffering claimant may get the relief at the earliest and may not be driven from pillar to post. That is precisely the reason why under Section 110-C, it has been laid down that the claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
If this is the legislative intention, we fail to appreciate how part of the claim arising out of the very same accident can be adjudicated by the Tribunal and the rest of the claim against other joint tortfeasors can be left to be decided by ordinary civil court leading to complications as aforesaid. At least the scheme in question does not compel us to come to such a conclusion and on the contrary it contraindicates such a situation.
15. The view which we have taken on the aforesaid statutory scheme really puts an end to the controversy in question. However, it would be necessary for us to look at a few relevant judgements of different High Courts which were pressed in service by the learned Advocates of respective parties in support of their rival contentions.
22. In view of observations made by Division bench of Allahabad High Court and considering decision of Apex Court in case of Rita Devi, according to my opinion, in facts of this case, occurred incident is covered by accident means it is not simplicitor murder but it is an accidental murder because driver who was murdered was working on the same vehicle he was sent for duty and meanwhile while returning from Jaipur he was found to be murdered by some unknown person on seat of driver in Truck with bleeding condition. The use of vehicle means it covers driven, repaired, parked, kept stationary or left unattended condition of vehicle in question or involved in accident. The accident is incidental to use of motor vehicle. Then jurisdiction of claims Tribunal is not restricted under provision of M.V. Act.
23. Therefore, claims Tribunal has rightly considered FIR, Panchnama and certified copies of primary treatment certificate, PM report and exh 40 to 43 and rightly also considered scope of Section 163A and rightly calculated amount of compensation and incident occurred by use of vehicle under Motor Vehicle Act during course of employment and claims Tribunal has jurisdiction to decide claim petition filed by claimants. Therefore, contention raised by learned advocate Mr. Mehta can not be accepted and same are rejected.
24. Considering that deceased was died in accidental murdered by use of motor vehicle during course of employment of opponent No. 1, claimants are entitled for compensation from owner and insurance company. There was no negligence of deceased in driving vehicle or there was no rash and negligent driving of deceased was found to be responsible. Therefore, this accidental murder rightly decided by claims Tribunal. The claims Tribunal has not committed any error and reasoning given by claims Tribunal is not vitiated as baseless and perverse. The finding based on legal evidence. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed.
25. Today, first appeal is dismissed by this Court, therefore, no order is required to be passed in civil application. Accordingly, civil application is also disposed of. If any amount is deposited by insurance company, then Registry is directed to transmit same before claims Tribunal Gandhinagar.