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Judgment
S. Manikumar, J.—Aggrieved by the finding with regard to liability and quantum of compensation, the Insurance Company has preferred this
appeal.
Brief facts leading to the appeal are as follows: On 28.09.1996 at 5.00 p.m., when first respondent''s son was giving directions to the lorry
bearing Registration No.TN04-C-3589 owned by the fourth respondent and insured with the appellant-Insurance Company, placed his hands on
the right side of the head light and at that time, a high tension electric wire came in contact with the right edge of the container carried in the lorry
and due to electrocution, he was electrocuted. Immediately, he was taken to the Government Victoria Hospital, where he was declared as, dead.
In connection with the death, a case in UDR.No. 15 of 1996 was registered at Byatarayanapura Police Station. Parents have claimed
compensation of Rs. 3,00,000/- for the death of their son.
The appellant-Insurance Company resisted the claim petition and denied that the employment of the deceased Sivakumar as a cleaner. They
contended that the alleged accident is within the premises of seventh respondent, viz., M/s. Mother Nature and sons and it is not in the public place
and therefore, the claim petition is not maintainable. They further contended that the criminal case registered only u/s 174 of Criminal Procedure
Code and that was not registered u/s 304-A of Indian Penal Code and therefore, it is a mysterious death and not arising out of an accident. They
submitted that as the genesis involved in the motor accident claims is the rash and negligent act of the driver of a motor vehicle in a public place as
enumerated u/s 147 of the Motor Vehicles Act, 1988, the present petition as framed by the claimants is not maintainable. Even in the Post-mortem
certificate, there is no opinion found that the deceased died due to the injuries caused in the motor accident. They also submitted that the vehicle
involved in the accident, ie., AP03-U-74 was not insured with the respondent on the date of accident i.e., on 28.03.1996 and if the container had
come in contact with a high tension wire, the container would have been damaged and the driver would have reported the same in the complaint. In
the absence any such complaint, it cannot be presumed that the deceased died due to the electrocution. They disputed the age and income of the
deceased. In fine, they submitted that the appellant-Insurance Company is not liable to pay compensation.
Before the Tribunal, father of the deceased examined himself as PW.1, and PW.2 is the driver of the vehicle bearing Registration No.TN04-C-
3589. Ex.P1 - F.I.R., Ex.P2 - Rough sketch to show the place of occurrence; Ex.P3 - R.C. Book of the vehicle bearing Registration No.TN 04
C 3589 and Ex.P4 - Policy for the vehicle bearing Registration No.TN04 C 3589 were marked on behalf of the respondents/claimants. On behalf
of the appellant-Insurance Company, an Assistant dealing with the policy and a Senior Assistant of the Insurance Company were examined as
RW.1 and RW.2 respectively. Ex.B1 - Policy and Ex.B2 - Letter issued by the Insurance Company to the Advocate were marked.
The Tribunal, on evaluation of pleadings and evidence, found that the accident had occurred in the manner as set out in the claim petition and
fastened the liability on the appellant-Insurance Company to pay compensation of Rs. 2,56,000/- with interest at the rate of 9% per annum from
the date of claim petition.
Heard, Mr. V.R. Subramaniam, learned Counsel for the appellant and Mr. V. Bharathidasan, learned Counsel for respondents 1 and 2.
Learned Counsel for the appellant submitted that the Tribunal has failed to note that the accident had occurred within the private premises viz.,
Mother Nature and Sons, Bangalore, which is not the public place and therefore, the claim petition is not maintainable. Placing reliance on the
contents of Ex.P1-F.I.R. and 161 statements, learned Counsel for the appellant submitted that the deceased accompanied another driver to assist
him in a lorry bearing Registration No.AP03-U-74, which was proceeding from Chennai to Banglore and it reached the pipe line factory at
Mysore road. He further submitted that there is no actionable negligence on the part of the driver of the vehicle bearing Registration No.TN04-C-
3589 warranting indemnification of the insured.
Learned Counsel for the appellant submitted that the lorry bearing Registration NO.AP03-U-74 was not insured with the appellant-Insurance
Company and therefore, the appellant is not liable to pay compensation. He further submitted that if the case of the respondents is to be accepted
that the high tension wire came into contact with the container, there would have been severe damage to the lorry and the driver would have
sustained injuries. In the absence any documentary evidence coupled with the fact that the police have registered the case only u/s 174 of Cr.P.C.,
as a mysterious death and not u/s 304 I.P.C., the Company is not liable to pay compensation. Finally, learned Counsel for the appellant submitted
that the vehicle which was involved in the accident is APC3-U-74 and therefore, the Tribunal ought to have held against owner of that vehicle and
its insurer under the Workmen''s Compensation Act, exonerating the appellant-Insurance Company from the liability.
Without prejudice to the above contention, learned Counsel for the appellant submitted that the application of multiplier to arrive at the
dependency compensation is on the higher side and therefore, the quantum of compensation needs reduction.
On the other hand, learned Counsel for the respondents submitted that initially, by mistake, in the claim petition, the registration number of the
vehicle involved in the accident was mentioned as AP03-U-74. Subsequently, by an amendment, the registration number of vehicle was amended
as TN04-C-3589 and the said amendment was unchallenged and it reached its finality. Under such circumstances, it is not open to the appellant to
contend that the vehicle bearing Registration NO.AP03-U-74 was involved in the accident. He submitted that in the absence of specific denial in
the counter affidavit filed by the appellant-Insurance Company, it is not open to them to raise the plea that the vehicle bearing Registration
NO.TN04-C-3589 was not involved, at the appellate stage. He further submitted that the deceased was a cleaner of the lorry bearing Registration
No.TN04-C-3589 and he died due to electrocution only and it is not a case of mysterious death.
Learned Counsel for the respondents submitted that the oral testimony of the claimants is supported by the evidence of the driver of the lorry,
PW.2, Mr. Pandian, who has deposed that the deceased was a cleaner of lorry bearing Registration No.TN04-C-3589. Reiying on the evidence
of RW.1, Assistant of the appellant-Insurance Company, learned Counsel for the respondents submitted, that appellant''s witness had enquired the
driver of the vehicle bearing Registration No.TN04-C-3589, who had stated that the deceased was a cleaner at the time of accident. Referring to
the decisions in United India Insurance Company Ltd. v. Amir Basha reported in 2004 (2) TNMAC 23 and Smt. Kaushnuma Begum and Others
Vs. The New India Assurance Co. Ltd. and Others, , learned Counsel for the respondents submitted that even though the accident had not
occurred in the public place, it is suffice if the accident had arisen out of the use of the Motor Vehicle and the beneficial enactment enlarges the field
of protection to the victims of the accident and therefore, the respondents are entitled to seek for compensation. Section 167 gives an option to the
claimants to claim compensation either under Chapter XII of the Act or under the provisions of the Workmen''s Compensation Act, 1923. What is
prohibited is that one cannot claim compensation under both the Acts.
As regards quantum of compensation, learned Counsel for the respondents submitted that the deceased was aged about 24 years at the time
of accident and the compensation of Rs. 2,56,000/- awarded by the Tribunal is not excessive and it does not warrant any interference.
The Division Bench of this Court in 2004 (2) TNMAC 23 (cited supra), after analysising the various decisions, has considered the scope and
ambit of the expression ""Accident arising out of use of motor vehicle"" under Sections 147 and 167. In Paragraph 13 of the judgment it has held as
follows:
It is clear from the above decisions and in view of the object of the enactments, both under the Motor Vehicles Act, 1939 and 1988 the
expression ""caused by"" and ""arising out of"" have a wider connotation. Though the accident should be connected with the use of the motor vehicle,
but the said connection need not be direct and immediate. The expression ""arising out of use of motor vehicle"" as mentioned in Section 92-A of the
1939 Act and Section 165 of 1988 Act enlarges the field of protection made available to the victims of an accident and it is in consonance with the
beneficial object underlying the enactment. From the expression employed namely ""accident arising out of the use of a motor vehicle"" in the place
of accident caused by the use of motor vehicle"", it is clear that the Legislature wanted to enlarge the scope of the word ""use"" and nor to restrict it
for denying compensation in deserving cases; accordingly we are of the view that the test accordingly we are of the view that the test should be
whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not
forget that these provisions are made in order to help the victims. We are of the view that for the word ""use"". We are also of the view that the
expression ""arising out of the use of motor vehicle"" has to be given a wider meaning. We are also of the view that ""use of motor vehicle"" need not
necessarily be so intimate and closely direct as to make it ""a motor accident"" in the sense in which that expression is used in common parlance.
Accordingly, we hold that the death of Absar arose out of the use of motor vehicle, herein are entitled to compensation for the death of their son
Absar.
In the above reported case, the Motor Vehicle/lorry remained stationed and parked in road side workshop for doing some welding work. While
Vulcanizing the tube, the deceased sustained fatal injury in the accident. The Court held that the expression ""arising out of use of motor vehicle in
Section 92-A of 1989 Act and Section 165 of 1988 Act enlarges the field of protection made available to the victims of accident and it is in
consonance with the beneficial object underlying the enactment. The Court further held that use of the word ""use"" should not be given restrictive
interpretation and that ""Use of motor vehicle"" need not necessarily be so intimate and closely direct as to make it ""a motor accident"" in the sense, in
which that expression is used in common parlance.
In a decision in Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, , Their Lordships have held that the
principle of strict liability propounded in Rylands v. Fletcher, held, applicable in claims for compensation made in respect of motor accident. In this
case, the front wheel of the motor vehicle burst, when the vehicle was in motion resulting in driver losing balance of the vehicle which ran turtle
killing he persons on road. The Apex court held that even if there was no negligence on the part of the driver of the vehicle, since the accident
occurred while vehicle was in use.
The Division Bench of the Karnataka High Court in Gouri Bi Vs. Khemraj, , has held that the expression ""arising out of the vehicle cannot be
equated to the phrases, ""arising under"" or ""caused by"" and arising out of. The Court further held that ""arising out of has wide meaning and it means
connected with"" and must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle that is required to satisfy
the words ""caused by"". Casual relationship to the injury may be enough to satisfy the words the expression ""arise out of"" as used in the Act and in
the policy.
In Sharlet Augustine and Others Vs. K.K. Raveendran and Others, , a bus dashed against a wayside electric post and then fell into paddy field
on the right side. It also hit a wire of an electric transformer with the result, the live wire came in contact with the wire. A passenger came out of the
bus and when he attempted to save the driver came in contact with the live wire, electrocuted and died. The Division Bench of the Kerala High
Court has held that the accident arose out of the use of motor vehicle and awarded compensation.
In a decision in Maqbul Hussain Kitabullah Vs. Kulvinder Sriram Kapoor and Others, , the Court has held that
the expression ""arises out of"" had a wider connotation. It is not necessary that there should be direct and proximate action between the use of
motor vehicle and the accident resulting in death or permanent disablement. It is enough if the accident can be connected with the use of the motor
vehicle. The construction of the expression ""arisen out of the use of a motor vehicle"" in Section 92-A of the Act enlarged the field of protection
made available to the victims of an accident and was in consonance with the beneficial object underlying the enactment. In other words the
expression ""arisen out of"" cannot be equated to the expression ""caused by
But for the contact of the live high tension wire on the container of the lorry bearing Registration No.TN04-C-3589, the deceased would not
have lost his life. The claim petition made by the legal representatives of the deceased is maintainable even if the driver of the vehicle was not
proved to be negligent in driving the vehicle. Negligence is one of the causes for action for making a claim for compensation in respect of accidents
arising out of use of motor vehicle. The accident should be connected with the use of motor vehicle but the said connection need not be direct and
immediate. The expression ""arising out of the vehicle"" has to be given the widest interpretation having regard to the purpose underlying the motor
vehicle legislation.
As regards the involvement of the vehicle, I accept the explanation given by the respondents/claimants that the number of vehicle was
mistakenly given at the time of filing of the claim petition and after realizing the bona fide mistake, the respondents filed an application for
amendment and the same was ordered. The order of amendment is unchallenged and it has become final. Further, the oral evidence of the
claimants is also supported by PW.2, the driver of the vehicle bearing Registration No.TN04-C-3589, who had categorically deposed that when
the said vehicle was moving inside or outside from the private company, viz., Mother Nature and sons, seventh respondent herein, the deceased
placed his hands on the head light, which came in contact with a high tension wire. Therefore, there is adequate evidence on the side of the
claimants to prove that the vehicle bearing Registration NO.TN04-C-3589 involved in the accident.
The oral evidence of the claimants as regards the employment of their son, is supported by PW.2, Pandiyan, the driver of the vehicle insured
with the appellant-Company. RW.1, the Assistant of the Insurance Company had enquired the driver and also gathered information that the
deceased was a cleaner of the vehicle, insured with the appellant-Insurance Company.
Placing reliance on the decisions in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, and Rajendra Singh and Others Vs. The
State of Bihar, , learned Counsel for the respondents submitted that there is no contradiction in the oral evidence. It supports the case of the
respondents. Paragraph 19 in the decision reported in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, , the Court has held as
follows:
Contradict"" according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which
contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in
evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement made in
evidence. If the statement before the police officer - in the sense we have indicated - and the statement in the evidence before the Court are so
inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other.
In the absence of contradiction of oral testimony of PW.1 and the driver of the lorry, PW.2, there is no reason to reject the evidence of the
claimants that the deceased was a cleaner attached to the vehicle bearing registration No.TN04-C-3589. Therefore, the finding of the Tribunal that
the deceased was a cleaner at the time of accident in the vehicle bearing Registration No.TN04-C-3589 cannot be termed as perverse or it lacks
evidence.
The decision in United India Insurance Company Ltd. v. Amir Basha reported in 2004 (2) TNMAC 23 applies to the facts of the present case
that the vehicle bearing Registration No. TN04-C-3589 was in ''use'' at the time of accident and it need not be a motor vehicle accident.
Therefore, the respondents are entitled to claim compensation for the death of their son, under the Motor Vehicles Act.
In the instant case, it is evident from Ex.P3-R.C.Book and Ex.P4 - Policy, the vehicle bearing Registration No.TN04:C-3589 involved in the
accident is insured with the appellant Insurance company. The contention of the appellant-Insurance Company that the vehicle insured with them
was not involved in the accident, is not acceptable. It is settled (aw that F.I.R., and 161 statement can be used only to corroborate or to contradict
the evidence before the Tribunal. All that is needed is preponderance of probabilities. Under such circumstances, non-production of any
documentary evidence to prove that the vehicle suffered damages is not going to affect the case of the respondents/claimants that there was an
accident. Though the death of Sivakumar was recorded u/s 174 of Cr.P.C., as mysterious death, the claimants have produced acceptable
evidence before the Tribunal to prove that the death was only due to the electrocution. It is open to the claimants to seek recourse to claim
compensation before the Tribunal.
There is no challenge in the memorandum of appeal regarding quantum of compensation. In the absence of the same, I am not inclined to
accept the contention of the appellant that the quantum of compensation is excessive. The deceased was aged about 24 years at the time of
accident and he would have contributed the portion of his income to the parents. The award is just and reasonable. In the light of the above, I do
not find that the Tribunal has applied any wrong principles of law in awarding compensation. In the result, the Civil Miscellaneous Appeal is
dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.