Fimidabee W/O Abdul Gaffar and Others Vs. Kalim Khan S/O Aziz Khan and Others - Court Judgment

Oral Judgment:

1. Both these appeals challenge judgment and order dated 05.01.2008 passed by the learned Chairman, Motor Accident Claims Tribunal, Washimin M.A.C. Petition No.64/2006.

2. The facts of this case are quite peculiar and can be stated as under.

3. I will refer the parties by their designation in the lower court. Respondent no.1 Faimidabee is owner of agricultural land Survey No.136 of village Kajleshwar, Taluka Karanja, District Washim. She started the work of digging of well in her field. She also used explosives for digging. Respondent No.2 is the owner of the vehicle in question, which is a Tractor. Respondent No.1 gave work of digging of the well to the respondent No.2, who was using explosives for digging the well. On 08.04.2005, at about 04-15 p.m., respondent No.2 and his employee planted explosives inside the well for the purpose of causing explosion. The power for trigger of the explosives came from the battery of the Tractor which was parked nearby. Explosion took place and a large stone flew in air and fell on the head of one Firoz who was standing in front of a shop in the village. The distance between the well and Firoz was about 300 ft. Firoz died due to head injury. The petitioners are legal representatives of dependents of Firoz. They were advised to file this petition asserting that the accident involved 'use of motor vehicle' namely the Tractor.

4. The respondents opposed the claim saying that this accident did not involve use of motor vehicle. The learned Chairman rejected their case and held that the accident arose out of the use of motor vehicle.

5. The only question that arose for my consideration in this appeal is:'whether the accident arose out of use of the motor vehicle namely Tractor?

6. The facts mentioned above are admitted and therefore, it is not in dispute that the motor vehicle's battery was used for igniting the fuse of explosive. The question is whether such use was 'use of motor vehicle' as contemplated under Section 165 of the Act? Broad definition of accident arising out of use of motor vehicle is given in subsection (1) of Section 165 reads as under:

“165 (1) : A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter 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 a third party so arising, or both”.

7. The principle use of a vehicle is to carry goods/passengers etc. from one place to other. In case of a tractor agriculture operations are additional uses. A tractor should either move from one place to other so as to constitute its use. While it is stationery, with additional implements/machines can be run using its power generated by it engine for thrashing, cutting agriculture produce. A motor vehicle has a storage battery fixed in it. The power from it is used for starting the vehicle's engine. Once the engine starts, the battery is almost dormant. A dynamo is used for generating power then. When a motor vehicle is idle, its battery can be removed for providing power to other machines which have nothing to do with running the vehicle. Sometimes storage battery of a vehicle is disconnected and taken for such other use. Sometimes people also use the battery for other purposes without disconnecting it from or removing it from the vehicle in which it is fixed.

8. In this case, it is an admitted fact that the battery of the vehicle was still installed inside the vehicle and its terminals were used for providing power to the fuse of explosive. So the battery of the vehicle was practically detached from the vehicle and was not a part of the vehicle. The explosion could have even occurred utilizing other energy source. So the use of the battery for causing explosion cannot be said to be a 'use of vehicle'. If the vehicle was not used for causing explosion, it cannot be said that the accident that took place was accident arising out of use of motor vehicle as defined in Section 165. The claim petition under Section 166 thus, was not maintainable. The learned Chairman committed serious error in appreciating the facts. The appeal should succeed. The judgment and order dated 05.01.2008 passed by the learned Chairman, Motor Accident Claims Tribunal, Washim in M.A.C. Petition No.64/2006 is set aside. Hence, the appeal stands is allowed. Rule made absolute in the above terms with no order as to costs.