:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 149 OF 1999 FIRST APPEAL NO. 149 OF 1999 FIRST APPEAL NO. 149 OF 1999 Yadu Sambhaji More ..Appellant versus 1. Shivaji Dnyani Patil 2. New India Assurance Co. Ltd. 3. Smt. Subhadra Yadu More ..Respondents Mr. G. S. Hegde for the Appellant. Mr. M. G. Barve for the Respondents. CORAM : D. G. DESHPANDE,J. CORAM : D. G. DESHPANDE,J. CORAM : D. G. DESHPANDE,J. DATE : 24TH MARCH,2005 DATE : 24TH MARCH,2005 DATE : 24TH MARCH,2005 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Heard Mr. Hegde for the appellant - original claimant in this appeal arising out of the judgment of the Motor Accident Claim Tribunal, Satara and also Mr. Barve for Respondents i.e. owner and Insurance Company. :2: 2. The accident that occurred in this case was very peculiar. A petrol tanker No.MXL 7461 was proceeding from Pune to Bangalore by National Highway No.4. The said tanker dashed against the rear portion of another truck which was coming from opposite direction. The petrol tanker turned turtled. Petrol started leaking from the tanker. Many villagers assembled to collect the petrol and suddenly explosion took place or the patrol caught fire as a result of which 46 persons died. All of them filed separate claim petitions and the present appellant was one of the petitioner before the MACT Satara. His claim petition came to be dismissed and hence he has filed this Appeal. 3. The claim was mainly against the insurance company and the owner of the petrol tanker. Claim was strongly opposed by both of them. The Tribunal therefore framed following issues: 1. Whether it is proved that the incident of giving dash to one truck by the petrol tanker MXL 7461, took place at about 3.00 a.m. on 29.10.1987? 2. Whether it is proved that the applicant, who went near the scene of accident sustained the injuries at about 7.00 A.M. :3: due to explosion and fire to petrol tanker MXL 7461? 3. Whether sustaining of injuries was arising out of use of the petrol tanker and was the result of negligence on the part of the petrol tanker driver? 4. Whether the Tribunal under the Motor Vehicles Act, has no jurisdiction to try and entertain his petition? 5. Whether the applicant was entitled to claim compensation? 4. The Tribunal gave finding in affirmative on Issue nos. 1, 2 and 4, and negative findings on crucial issues 3 and 5, and dismissed the claim petition and therefore this Appeal. 5. From paragraph 14 of the judgment of the Tribunal, it is clear that there were in all 44 claim petitions filed by different victims. Main claim petition was 168 of 1988 and issues were framed in that petition and the Tribunal rightly concluded that decision of claim petition No.168 of 1988 and the issues therein will decide the fate of all other claim petitions because all those claim :4: petition Nos. 168 to 1988 to 179 of 1988 and 181 of 1988 to 210 of 1988 were arising out of one and the same accident. 6. So far as accident is concerned, it is in two parts. Firstly, there was a dash between the petrol tanker and truck and it was on 29.10.1987 at about 3 a.m. and it was this accident that resulted in tilting of the truck on the road and then petrol started leaking, Villagers assembled to collect petrol and then petrol caught fire wherein there was huge loss of human life. The present appellant - claimant sustained injuries. 7. While deciding the main issue No.3 i.e. whether injuries were sustained by the claimant out of the use of the petrol tanker and whether it was a result of negligence on the part of the driver of the tanker, the Tribunal relied upon the evidence of Opponents - Respondents. Opponent - Respondent No.1 i.e. owner examined himself i.e. Shivaji Dnyani Patil as opponent witness No.1 at Exhibit 32, and one Dhondiram Nanas Mali as opponent Witness No.2, who was working on the tanker involved in the accident. The said Dhondiram Mali was also the driver of the tanker. It is necessary to find out what the driver has to say about the entire episode before considering the case of the appellant. :5: 8. Dhondiram Mali O.W. No.2 has stated that on the date of the accident he was driving the tanker from Bombay to Miraj. The tanker was loaded with 12,000 litres of petrol at Shivadi. He left Shivadi at 1 p.m. on 28.10.1987. He had some halts in between and then at about 2.30 a.m. he reached near Village Kavthe. He was driving towards Miraj and with a speed of 40 (The tribunal has noted at this juncture that the witness was not describing whether speed of 40 was in kms. or miles per hour), then at that juncture another vehicle approached from opposite direction, he signaled dim and full but the other vehicle did not give any signal. There was a large heap of rubble towards his left side. Some work of elevating of the road was in progress and as the vehicle from the opposite direction was heading towards him, he swerved to the left. But even then the truck or vehicle coming from opposite direction hit the back portion of right wing of the tanker. It was a truck loaded with onions. The impact was between the rear portion of the truck and the rear portion of the tanker. As a result of the impact and due to the heap of rubble to the left side, his tanker tilted on its left wing i.e. cleaner side. 9. Driver Mali has further stated that he had suffered injuries to his back and his head, Cleaner Dattatraya Khatave also suffered injuries to the :6: right arm. He came out from the portion of front wind-screen. He waited near the vehicle and sent the cleaner to give telephonic message to the owner Shivaji Patil. He has further stated that his tanker was resting on the left side of the road in a ditch about 5 ft. below the road level. The tanker had four openings and four compartments and he noticed that from the second opening the petrol was leaking. He tried to tighten the lid but he could not prevent the leakage and he asked the cleaner to report the matter to the police station. 10. In the meanwhile another tanker of Kolhapur Shetkari Sangh arrived there from Bombay side. One Shrike was the driver of that vehicle and one Kale an Officer of Indian Oil Company was also in that tanker. They assured him that they will report the matter to the police station and asked him to wait near his tanker. Then after 15 minutes one more tanker owned by one Dadage of Sangli arrived at the spot then cleaner of this tanker i.e. involved in the accident and Dadage went to village Kavthe for giving telephonic message to Patil. All the five persons i.e. Witness Mali, his cleaner, Dadage, his driver and his cleaner waited near the vehicle throughout the night. 11. Mali has further stated that at about 6 a.m. :7: movement of the people was seen near the petrol tanker. One person had come with a tin of water and started pouring petrol in it. He was asked not to take petrol, but soon about 50 people came from the village. Mali contends that he was informing the people that petrol was highly inflammable and they should not collect the petrol, but nobody paid attention to him. People beat them with whatever they had, they took them to road and at that time the petrol tanker caught fire. It was a sudden fire. There was a fire extinguisher in his vehicle but that was on the other side of the vehicle and it was pressed under the vehicle. 12. He has further stated that there was a red signal painted on the petrol tanker with the sign of skull and writing ’Khatra", and the tanker because of the fire was fully destroyed. 13. It is the manner in which the accident had occurred i.e. two accidents occurred, one because of the dash by the vehicle coming from opposite direction, and the other because of the explosion. 14. The crucial question that is raised in this appeal is whether in the circumstances the Tribunal was justified in dismissing the application on the ground that the accident had not occurred while the :8: petrol tanker was being used. The second question that would arise whether in the circumstances the owner or the insurance company can be held liable. 15. Mr. Hegde counsel for the appellant firstly contended that this issue "whether the vehicle was in use or not" was decided by the Supreme Court in a judgment reported in 1991 ACJ 777 Shivaji Dayanu 1991 ACJ 777 Shivaji Dayanu 1991 ACJ 777 Shivaji Dayanu Patil and Anr. vs. Vatschala Uttam More Patil and Anr. vs. Vatschala Uttam More Patil and Anr. vs. Vatschala Uttam More. This matter before the Supreme Court arose from the same accident. It was under no fault liability. The question before the Supreme Court involved was interpretation of the words "arising out of the use "arising out of the use "arising out of the use of motor vehicle" of motor vehicle" of motor vehicle" contained in Section 92-A of the Motor Vehicles Act, 1939, When the petitioners in that matter filed an application for no fault liability under Section 92-A. All those claim petitions were decided by the same Tribunal and the applications were dismissed on the ground that the explosion could not be said to be an accident arising out of the use of the petrol tanker and therefore provisions of Section 92-A of the Act were not attracted. The Tribunal was of the view that the explosion and the fire took place after about four hours, has no connection whatsoever with the accident which took place at 3 a.m. and therefore explosion and the fire was altogether an independent accident. The Tribunal also observed that the :9: villagers tried to take benefit of the earlier accident and tried to pilfer petrol from the petrol tanker when there was friction which caused ignition and explosion and since an outside agency was responsible, which created situation, the explosion could not be said to be an accident arising out of the use of the tanker. 16. Aggrieved by this order of the Tribunal, the claimants preferred Appeal before this High Court. The High Court allowed the Appeal disagreeing with the finding of the Claim Tribunal and therefore the matter went to the Supreme Court at the instance of the owner of the vehicle Shivaji Patil. Supreme Court after considering all the facts and circumstances, the provisions of Section 92-A and the various other Judgments and the facts of the case, viz. people pilfering petrol from the tanker, uphold the judgment of the Single Judge of this Court and also interpreted the words "arising out of "arising out of "arising out of the use of a motor vehicle" the use of a motor vehicle" the use of a motor vehicle" and dismissed the Petition. 17. Mr. Hegde therefore on the basis of the aforesaid judgment of the Supreme Court which arose from the same accident involved in this appeal, strenuously urged that the point whether the petrol tanker was in use has been conclusively decided by :10: the Supreme Court and therefore now this court cannot come to any other conclusion on the basis of the submissions made by Mr. Barve. 18. Secondly, Mr. Hegde contended that the petrol tanker was insured with the insurance company. The owner of the vehicle has received compensation for the same from insurance company- the respondents in this appeal about the loss of his tanker in the said accident, and therefore the insurance company was liable to pay compensation to the claimant. He also contended that even though the driver of the petrol tanker and other witnesses were examined by the respondents - opponents, their evidence was contradictory about the manner in which the explosion took place and therefore according to him that story of the respondents - opponent was liable to be rejected and the judgment of the Tribunal was liable to be set aside. 19. As against this, Mr. Barve contended that the judgment of the Supreme court, referred to above, Shivaji Patil vs. Vatschala More, that arose out of this accident was a judgment in an application under Section 92-A. Therefore it was a judgment against the interlocutory order or it was a judgment before the evidence was recorded, and as such the judgment was not binding and this court can :11: again assess the evidence and come to a different conclusion. 20. Mr. Barve also relied upon the judgment of the Full Bench of this Court reported in 2004 ACJ 35 2004 ACJ 35 2004 ACJ 35 Divisional Controller, Maharashtra State Road Divisional Controller, Maharashtra State Road Divisional Controller, Maharashtra State Road Transport Corporation vs. Bapu Onkar Chaudhari Transport Corporation vs. Bapu Onkar Chaudhari Transport Corporation vs. Bapu Onkar Chaudhari. In that case question was whether the appeal was maintainable against the order of no fault liability. Single Judge referred the matter to the Division Bench and the Division Bench referred it to the Larger Bench, and Larger Bench held that order passed in application under Section 140 of the Act is an award and therefore no appeal would lie under Section 173 and also held that against an order passed by MACT in an application under section 140 of the Act granting compensation of no fault liability, the appeal would lie to the High Court. Therefore both the issues that were referred to the Full Bench were answered in the negative. While doing so the Full Bench relied upon judgment of the Supreme Court in Shivaji Patil vs. Vatschala More, referred to above, wherein Supreme Court observed as under: "The said object would be defeated if the "The said object would be defeated if the "The said object would be defeated if the Claims Tribunal is required to hold a Claims Tribunal is required to hold a Claims Tribunal is required to hold a regular trial in the same manner as for regular trial in the same manner as for regular trial in the same manner as for :12: adjudicating a claim petition under section adjudicating a claim petition under section adjudicating a claim petition under section 110-A of the Act. Rules 291-A, 306-A and 110-A of the Act. Rules 291-A, 306-A and 110-A of the Act. Rules 291-A, 306-A and 306-B contains adequate provisions which 306-B contains adequate provisions which 306-B contains adequate provisions which would enable the Claims Tribunal to satisfy would enable the Claims Tribunal to satisfy would enable the Claims Tribunal to satisfy itself in respect of the matters necessary itself in respect of the matters necessary itself in respect of the matters necessary for awarding compensation under section 92-A for awarding compensation under section 92-A for awarding compensation under section 92-A of the Act and in view of these special of the Act and in view of these special of the Act and in view of these special provisions, the Claims Tribunal is not provisions, the Claims Tribunal is not provisions, the Claims Tribunal is not required to follow the normal procedure required to follow the normal procedure required to follow the normal procedure prescribed under the Act and the Rules with prescribed under the Act and the Rules with prescribed under the Act and the Rules with regard to adjudication of a claim under regard to adjudication of a claim under regard to adjudication of a claim under section 110-A for the purpose of making an section 110-A for the purpose of making an section 110-A for the purpose of making an order on a claim petition under section order on a claim petition under section order on a claim petition under section 92-A." 92-A." 92-A." 21. Mr. Barve, therefore contended that from the aforesaid judgment of the Full Bench and the judgment of the Supreme Court in Shivaji Patil’s case and the paragraph quoted above, it will be clear that an order under Section 92-A is an interim order where formal procedure of recording evidence is not to be followed and therefore the judgment of the Supreme Court in Shivaji Patil’s case would not be of any help to the claimant. That order of the Supreme Court in Shivaji Patil’s case has not decided the issue finally and conclusively. It arises out of an interim order, therefore it is not a conclusive finding of the Supreme Court. :13: 22. Mr.Barve also contended, in addition, that there was no evidence showing about the negligence of the driver of the patrol tanker. According to him, merely because the vehicle is insured the victims of the accident are not entitled to claim as of right but they must also prove the negligence of the driver. He relied upon judgment of the Supreme Court reported in 1977 ACJ 118 Minu B. Mehta and 1977 ACJ 118 Minu B. Mehta and 1977 ACJ 118 Minu B. Mehta and Anr. vs. Balkrishna Ramchandra Nayan and Anr. Anr. vs. Balkrishna Ramchandra Nayan and Anr. Anr. vs. Balkrishna Ramchandra Nayan and Anr. This was a matter arising out of Section 110 of the Motor Vehicles Act, 1939. The application came to be filed before M.A.C.T. Mumbai by Dr. Balkrishna Ramchandra Nayan on 14.4.1969. The said Balkrishna was dirving his car. His Nurse Malti Deshmukh was sitting by his side. There were stone dividers in the middle of the road. When the car approached Lotus Cinema the truck owned by the Appellants and insured with the Insurance Company came from the opposite direction in a high speed and dashed against right side of the car. Car was damaged and so also Balkrishna and his nurse Malati were injured. He filed claim petition. Opponents denied the claim. Parties adduced evidence about the negligence. The Tribunal found that accident was due to rash and negligent driving of the lorry. The Supreme Court found that the High Court has given a clear cut finding that the Tribunal has rightly :14: disbelieved the plea and rightly held that it was the driver of the lorry who was negligent. The Supreme Court therefore concurred with the findings of the Tribunal and High Court that negligence of the lorry driver has resulted in the accident. 23. Supreme Court confirmed the award passed by the Claims Tribunal, that is the main award, and the owner and the insurance company were jointly and severally held liable. 24. The second question was about the direction given by the High Court regarding determination of the liability as between the insurance company and the owner. It appears that Justice Vaidya who deliered Judgment of the Bombay High Court has held "...In my opinion, public good requires that "...In my opinion, public good requires that "...In my opinion, public good requires that everyone injured, viz., by the use of motor vehicle, everyone injured, viz., by the use of motor vehicle, everyone injured, viz., by the use of motor vehicle, must immediately get compensation for the injury." must immediately get compensation for the injury." must immediately get compensation for the injury." The Supreme Court held in paragraph 34 that the reasoning of the Justice Vaidya and another Judge Mridual was not accepted as it is opposed to basic principles of the owner’s liability for negligence of his servant and is based on a complete misreading of the provisions of Chapter VIII of the Act. Ultimately the Supreme Court held that the view that the view that the view expressed of the learned Judge of the High Court has expressed of the learned Judge of the High Court has expressed of the learned Judge of the High Court has no support in law and we hold that proof of no support in law and we hold that proof of no support in law and we hold that proof of :15: negligence is necessary before the owner of the negligence is necessary before the owner of the negligence is necessary before the owner of the insurance company could be held to be liable for the insurance company could be held to be liable for the insurance company could be held to be liable for the payment of compensation in a motor accident claim payment of compensation in a motor accident claim payment of compensation in a motor accident claim case. case. case. Mr. Barve therefore contended that if there is no evidence showing negligence of the driver, then the claim petition was rightly dismissed and no interference is called for. 25. In the background of these submissions, two questions arise, viz. whether the judgment of the Supreme Court in Shivaji Patil’s case is final regarding the expression "use of vehicle" or whether it is an interlocutory order or they are observations in an interlocutory order and hence not conclusions after the trial, and, secondly whether the driver of the petrol tanker was negligent. 26. So far as first aspect is concerned, in my opinion, the submissions made by Mr. Hegde that the Judgment of the Supreme Court in Shivaji Patil vs. Vatschala More, is concluded and final, has to be accepted. It is true that the matter before the Supreme Court was in respect of no fault liability. It is true that the order of no fault liability was an interim order. It is also true that parties had not led evidence at that juncture. But whether the vehicle was in use or not was a question before the Supreme Court and even after evidence that aspect :16: has not changed. Time at which the accident occurred, viz. catching the fire by the petrol has remained the same. The circumstances preceding this particular point have also remained the same. The manner in which the petrol tanker came near the spot and how it was hit by a vehicle or truck coming from opposite direction also remained the same even after evidence and therefore when facts which were before the Supreme Court have not at all changed inspite of the full trial and evidence, the judgment of the Supreme Court has to be accepted and taken as a concluded judgment so far as the issue as to whether the vehicle was "in use" or "arising out of the use of the motor vehicle", finally and concluding. Secondly, question before the Supreme Court was about the interpretation of the words "arising out of use of motor vehicle". The situation, namely occurring explosion to the petrol tanker has not changed so far as this particular aspect is concerned. Same issue is raised by Mr. Barve as to whether the accident occurred arising out of the use of the vehicle and therefore when the Supreme Court has interpreted the word or phrase "arising out of the use of motor vehicle", and gave its finding and when same issue is involved regarding interpretation, then, in my opinion, it is not necessary to go into that question again and the finding and observations of the Supreme Court are :17: required to be accepted. I therefore hold that in view of the Supreme Court Judgment in Shivaji Patil v/s. Vatschala More, the issue whether the accident occurred arising out of the use of the motor vehicle stands finally concluded and I hold that the trial court having not considered this important aspect came to a wrong conclusion regarding issue no.3 from the Tribunal, as stated above. These findings are perverse. They are set aside and quashed and it is held since