IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.207 of 2007 SENIOR DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD. MUZAFFARPUR THROUGH ITS DULY CONSTITUTED ATTORNEY SRI ANJANI KUMAR, A.O. NATIONAL INSURANCE COMPANY LTD. ,REGIONAL OFFICE, 4TH FLOOR SONE BHAWAN, B.C. PATEL PATH, PATNA…..OPPOSITE PARTY NO.2….APPELLANT. Versus 1. SAYEEDA KHATOON , WIFE OF MD. ALLAUDDIN. …….(CLAIMANT NO.1) 2. MD. ALLAUDDIN, SON OF HASIM …….(CLAIMANT NO.2) BOTH RESIDENT OF VILLAGE CHAKNOOR, P.O. P.S. MUFASSIL SAMASTIPUR, DISTRICT-SAMASTIPUR. 3. NARAIN PODDAR, SON OF SRI S. PODDAR, RESIDENT OF VILLAGE MATHURAPUR, P.O. & P.S. WARISNAGAR, DISTRICT- SAMASTIPUR…..OPPO. PARTY NO.1………………...RESPONDENTS. ----------- For the Appellant : Mr. Ashok Priyadarshi,Advocate. For the Respondent No.2 : Mr. Sanjay Kumar, Advocate. ----------- 5. 25.3.2009. This appeal by the National Insurance Company Limited, Muzaffarpur Branch (hereinafter referred to as “the appellant) under Section 173 of the Motor Vehicles Act has been preferred against the order dated 19.3.2007 passed by the learned Ist Additional District Judge-cum- Motor Vehicles Claims Tribunal, Muzaffarpur, in Claim Case No.274 of 2002, whereunder the Insurance Company has been made liable to pay “no fault compensation” to the claimants, impleaded herein as Respondent Nos.1 and 2 under Section 140 of the Motor Vehicles Act. Notice was issued in the admission matter and as would appear from perusal of the ordersheet the same has been duly served on all the Respondents and in pursuance whereof Respondent No.2 only has put in an appearance. - 2 - The primary grievance of the appellant- Insurance Company in the facts and the circumstances of the case is that the learned Tribunal had exceeded its jurisdiction in passing the impugned order directing payment of “no fault compensation” under Section 140 of the Motor Vehicles Act to the claimants since the death of the Driver, Md. Alauddin, had never resulted from an accident “arising out of the use of a motor vehicle” and was primarily on account of the assault on him by the villagers. It appears that the claimants who happen to be the father and the wife of deceased Md. Alauddin, the Driver of Maruti Van bearing Registration No.BR-33-4685, claimed compensation on account of the death of their son/husband by he being assaulted to death with bricks, lathi, fists and slaps by the villagers of Masudanpur wherefrom that the son of one Rajendra Prasad Singh had been kidnapped. It also appears that the said Maruti Van had been hijacked and had been used in the kidnapping of the son of the said Rajendra Prasad Singh and on being caught, the five occupants of the Maruti Van including its driver, Alauddin, were mercilessly assaulted by the villagers and all of them were beaten to death. The learned counsel for the appellant sought to draw my attention to the fardbeyan given by chowkidar, Ram Naresh Paswan, which gave rise to Sakra P.S. Case No.75 of 1995 in connection with the death of the aforesaid Alauddin and four others. The said fardbeyan has been appended as Annexure-1 to the Memo of Appeal and reveals how the Maruti Van on being hijacked had been used in the commission of the overt act of kidnapping of the son of the said Rajendra Prasad Singh and how the five occupants of the said vehicle including the said Alauddin had - 3 - been dragged out of the vehicle and assaulted to death by the mob. From the impugned order, it appears that the learned Tribunal came to the conclusion that the death of Alauddin was caused due to the use of the vehicle. This obviously is an apparent error on the face of the record for no sane person in the normal course of affair would/could have formed a presumptive opinion that the death of the deceased Alauddin was resultant of the use of the motor vehicle. It is clear that the death of said Alauddin had been caused for reasons other than the use of the motor vehicle. The expression “an accident out of the use of a motor vehicle” would apparently mean and contemplate a situation where the motor vehicle had met with an accident thereby causing death or disablement to either the occupants of the vehicle or any other person who has come under the wheels of the vehicle and in no circumstances did the provision contemplate that such compensation should be paid to kidnappers or hijackers who are killed by villagers for their overt act only because they had been using a particular motor vehicle. By using the expression “accident arising out of the use of a motor vehicle” in place of “accident caused by the use of a motor vehicle” the Legislature wanted to enlarge the scope of the word “use” and not to deny compensation in deserving cases. The test should be whether the accident was reasonably proximate to the use of the motor vehicle, whether or not the motor vehicle was in motion at the relevant time. In the instant case, it is apparent from a reading of the F.I.R. (Annexure-1) as also the impugned order that the said Maruti Van had never met with an accident rather it was being used by the deceased - 4 - persons in the commission of the overt act of kidnapping the son of one Rajendra Prasad Singh and as a matter of fact, the deceased had been dragged out of the vehicle and assaulted to death by the mob. It is well settled that the mere use of the vehicle as means of transportation would not be decisive. In the background of the case, the death of Alauddin could not be said to have arisen out of use of motor vehicle within the meaning of Section 140 of the Motor Vehicles Act. It goes without saying that the word “use” cannot be given a restrictive meaning and the accident should be reasonable proximate to use of the motor vehicle whether or not motor vehicle was in motion at the relevant time. Having given my anxious considerations to the issue involved, I am of the considered opinion that the learned Tribunal has completely misdirected itself and has fallen in error in passing the impugned order dated 19.3.2007 in Claim Case No.274 of 2002. Accordingly, the impugned order is hereby set aside and the appeal is allowed at the admission stage itself. The statutory amount which has been deposited by the Insurance Company in the office of the Court shall now be returned to the appellant- company. P.S. (Abhijit Sinha,J)