CIVIL REVISION No.920 OF 2004 ****** Against the judgment dated 31.3.2004, and award dated 8.4.2004, passed by Sri Rajendra Kumar Mishra, 3rd Additional District Judge–cum- Motor Accident Claim Tribunal, Rohtas at Sasaram, in M.V. Claim Case No.31 of 2002/T.R. No.4 of 2003. ******* THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., Anpurna House, G.T. Road, Sasaram, Rohtas through its authorized signatory Sri Birendra Kumar, Deputy Manager, National Insurance Company, Regional Office, 4th Floor, Sone Bhawan, B.C. Patel Road, Patna. … Opposite Party no.2…..Petitioner. Versus 1. SAMDEYA DEVI, wife of Basgit Sah (Claimant no.1) 2. Basgit Sah, son of Late Kusa Sah (Claimant no.2) Both residents of Village- Moresarai, P.S. Sheosagar, District- Rohtas. 3. Ravi Ranjan, son of Sri Pramod Kumar Singh, resident of Near Gate High School, Aurangabad, District- Aurangabad (Opposite party no.1). ……. Opposite Parties. ***** For the Petitioner: Mr. Ashok Priyadarshi, Advocate. For the Opp.Parties: Ms. Binita Sinha, Advocate. ----------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR ****** S K Katriar, J. This civil revision application under the provisions of section 115 of the Code of Civil Procedure is directed against the judgment dated 31.3.2004, passed by the learned 3rd Additional District Judge –cum- Motor Accident Claim Tribunal, Rohtas, Sasaram, in M.V. Claim Case No.31 of 2002/T.R. No.4 of 2003 (Samdeya Devi and another Vs. Sri 2 Ravi Ranjan and another), whereby the claim petition filed by the parents of the deceased under the provisions of section 163A of the Motor Vehicles Act 1988 (hereinafter referred to as the „Act‟), has been allowed, and compensation has been granted to the parents. 2. A brief statement of facts essential for the disposal of this civil revision application may be indicated. It appears that Sheo Shankar Prasad Gupta, the deceased, was moving in a truck bearing Registration No.BR-15G/7941, owned and registered in the name of his father who was doing business in rice. After loading the truck with 262 bags of rice, he left Osrawan Dinara, district Rohtas, on 4.9.2000, at 6.00 PM, the destination station being Jainamore, Bokaro. The truck was driven by a driver, and a khalasi and Sheo Shankar Prasad Gupta were also seated in the truck. The father of Sheo Shankar Prasad Gupta lodged a first information report on 8.9.2000, which was registered as a Kargahar P.S. Case No.88 of 2000, under section 396 of the Indian Penal Code. The F.I.R. was followed by the present claim petition under section 163A of the Act by the parents of Sheo Shankar Prasad Gupta, wherein the aforesaid facts were stated. It was also stated that, on receipt of the information, the family members had rushed to the spot and found that the truck was standing by the side of the road, the 3 two wheels of the truck and all the 262 bags of rice were missing. The dead-body of Sheo Shankar Prasad Gupta was found in a canal near village- Ghordiha. The driver and khalasi had also been murdered. The parents, therefore, claimed compensation under the provisions of the Act. The present petitioner, being the insurer of the vehicle, contested the claim. Both sides led evidence in support of their respective cases. The claimants examined a number of witnesses and also produced documentary evidence. On a consideration of the materials on record, the learned Accident Claim Tribunal allowed the claim petition, has awarded compensation, and impugned herein. 3. While assailing the validity of the impugned judgment, learned counsel for the petitioner has advanced elaborate submissions. He submits that the nature of the occurrence is not covered by the provisions of the Act, and cannot give rise to claim of compensation thereunder. He submits that the judgment of the Supreme Court in Rita Devi (Smt) and others Vs. New India Assurance Co. Ltd. and another, reported in (2000)5 S.C.C. 113, relied on by the learned Accident Claims Tribunal, is really inapplicable to the facts and circumstances of the present Case. 4. Learned counsel for the claimants (opposite parties herein) has supported the impugned judgment. 4 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears that the claimants, the parents of the deceased, have filed the present claim petition. They examined a number of witnesses who are close relatives of the deceased in support of the claim petition. Learned Accident Claim Tribunal has discussed the entire evidence on record. It appears to us on a perusal of the materials placed before us that the vehicle in question was found parked by the side of the road, its two wheels, as well as 262 bags of rice which had been loaded at the starting station, were missing. The dead body of Sheo Shankar Prasad Gupta was found away from that place near a canal. It is evident that it was not a case of accident, and indeed was a case of theft of rice and spare parts of the truck. 6. In order to give rise a claim of compensation under the Act it appears that in view of provisions of Section 165 of the Act, the occurrence should be “…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…”. It appears to us that, in order to give rise to a claim for compensation, it has to be both, accident by a motor vehicle and by use of motor vehicle. It is inherent in the situation that the motor vehicle should be in use and the 5 claim should arise because of accident. A case of theft like the one in hand is surely not covered by the expression „accident‟ occurring in section 165 of the Act. 7. The learned Claims Tribunal has relied on the judgment of the Supreme Court in Rita Devi Vs. New India Assurance Co. Ltd. (supra). That was a case where the vehicle in question (an auto-rickshaw) was registered as a public carrier had been hired by certain persons, with the object to steal the vehicle, had killed the driver of the vehicle. The Supreme Court considered the provisions of Motor Vehicles Act, as well as the Workmen‟s Compensation Act. Relying on the definition of „death‟ occurring in the Workmen‟s Compensation Act, the Supreme Court upheld the claim for and on behalf of the widow and other representatives. It appears to us that the facts of Rita Devi Vs. New India Assurance Co. Ltd. (supra), stood on a different footing, and the claim for compensation was allowed, inter alia, mainly because the claim was admissible under the Workmen‟s Compensation Act. In the instant case, the deceased was not covered by the Workmen‟s Compensation Act. We are, therefore, of the view that the judgment of the Supreme Court in Rita Devi Vs. New India Assurance Co. Ltd. (supra) stood on its own facts, and inapplicable to the facts and circumstances of 6 the present case. We, therefore, disagree with the impugned judgment. 8. In the result, this civil revision application is allowed, and the impugned judgment dated 31.3.2004, passed in M.V. Claim Case No.31 of 2002/T.R. No.4 of 2003, is hereby set aside. In the circumstances of the case, there shall be no order as to costs. (S K Katriar, J.) Patna High Court, Patna. Dated the 11th day of October, 2010. S.K.Pathak/ (NAFR)