^ (^ ^ ^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR t> ^,^ MISC. APPEAL N0,2^-^12003 ^ ./r 1) Holu Ram Nishad : S/o. Sukalu Nishad Aged about 32 years Occupation-Labourer 2) Sonbati Bai W/o. Holu Ram Nishad Aged about 25 years Occupation-Labourer Both R/o.Village-Mauoo P.0. Mauoo, P.S. Nadghat Tehsil-Bemetara,Dist:Durg(C.G) APPELLATNS APPLICANTS ...•';^ ^^f<*'' ^•-y. ^^ .-•^^••' ^\^2^ -^' ^' ^v 1)- 2) 3) VERSUS Ishak Mohmmed Aged about 40 years S/o. Baffathi Mohmmed Bhathia Occupation Driver & Truck Owner R/o.. Village Nadghat, Tahsil:Navgarh, Dist:Durg(CG) Laxminarayan, aged abour 25 yrs. S/o.Rameshwar Satnami Occupation Truck Conductor R/o. Vill-Ak6l1,P.S.Nadghat Tahsil:Navgarh, Dist:Durg(CG) The Oriental Insurance Co. Through its Manager Bhatapara, District: Raipur(C.G) RESPONDENTS ^^ t...v-""1 APPEAL UNDER SECTION 1^0F THE MOTOR VEHICLE ACT 1988 FOR AWARDING CLAIM U/S 140 OF M7V. ACT AND DIRECTING THE TRIBUNAL TO ENTERTAIN THE CLAIM CASE PREFERRED BY APPELLANTBEFORE THE TRIBUNAL <s^ XI-HC—78 T^r ^SWRW, •yTfi^Fi^, teray h. A-(V)o- 2^65'fl-ooS ^^ (^fg^l) ^itii^^w ^'^iT -?TR^f "^ ^3ffOT'^Ti^[ 18-01-2005. Shri Anand Kumar Tiwari, coijinsel Shri Vipra Sen Agrav^l, coun^el for respondente Shri Abhishek Sinha, couhsel Company. Heard counsel forthe respec^ive parties. forthe appellants. ^ No.1 and 2. for respondent No.S/lnsurance The appellants/Clajmants, deceased Shreedeh, have preferrecj Motor Vehjcles Act, 1988, against tljie the learned Additional Motor Accideht Durg in Claim Case No. 23 of 2002. jwho are the father and mother of this appeal under Section 173 of the order dated 25-02-2003, passed by Claims Tribunal, Bemetera, District: The appellants/Claimants hs^/Q fited an application under Section 166 of the Motor Vehicle Act, 198? (hereinafter referred to as "the Act") before the learned Claims Tqibunal claiming compensation of Rs.10,00,000/- and another applicatjon under Section 140 of the Act for no fault liabiljty, which have been reject^d by the tearned Claims Tribunal. Brief fads of the case are that on 28-03-2002 at about 3.00 p.m. a truck bearing Registration No.MPC/1909, renewed No.CG-04/ZC-2282 was parked near the house of one ^iakim Baeg in a narrow lane of village Mauoo. Respondent No.1 was theidriver and respondent No.2 was the conductor of the said truck. Respo^ident No.1 and 2 negligently, wittiout taking du©care opened tho side jpanel of th©truck for unloading the stones (Boulders). At that time dece|ised namely Shreedeh, aged about 5 years was passing near the truck ahd the boulders fell on his head, as a 4- + 4- ^^ XI-HC—78 Wi 7?^3Tii^T^qte \ ~€^"^PT^Tq, 'g^PT^', t^ray \A< A'K3^ Z-fcS^|'L.o&3 ^u1T'orwfflcff~TFr~su§i@ineQ~1^ Thereafter, he was admitted to thej injuries sustained by him on 29-034002. The matter was reported and the F.I.R. is Annexure-A/1. The appellants filed a cla|i Tribunal claiming compensation application under Section 140 ofth4 that due to the negligence and the truck the said incident occurre<j son namely Shreedeh. The respondents raised an Tribunal that the claim petition is accident cannot be said to have question. 'RTR^ff ^ 'rt^t '^'atfOT ^rr^r Tnjunes ana Decame unconscious. hospital where he succumbed to the im case before the tearned Clajms of Rs.10,00,000/- along with an Act for no fault liability on the ground of the driver andconductor of ?, which resulted in the death of their carelessness jobjection before the teamed Clairns n<j»t maintainable on the ground that the cfecurred due to use of the vehicle in After hearing learned couns^l for the parties, the learned Claims Tribunal rejected ttie claim case | of the appeliants/claimants, by the impugned order, as not maintainabj4 Section 165 of the Motor Veliide Act, 1988 is relevant and quoted below: "165. Claims Tribunal^ (1) A State Govemment may, by notification in the O^cial Gazelte, constitute one or more Motor Accidents fplaims Tribunels (hereinQfter in this Chapter referred (c| as "Claifns Tribunai") for such areas as may be spe^ified in ttie noWca^on for fhe ^ ~F ^T ^ XI-HC—78 •s^ •^mT^n, ^•^Tre", T^rray .fcl<...^..10.c?.:..?-7.^;^l..'?^2.?>. ^?r^T^iN' I 1 -31- purpose of adjixlicating ^ipon claims for compensation in respect (rfacc/cfenfe iiiyoMng injury to, persons arisi^ vehictes, or damages toj so arising, or bo ). (he cfeaff? of, orbexfily |?g out of ffie use of nwter 1 any pfoperty of a thifd party Explanation.- For ffw re^nwal declafed that the expres^ion in fBQpect of occidents injury to persons arisfi^g vehicles" incliKles clai^is Section 140 {andSectiofi one of ttwm shall be Vnereof. (a)is,orhasbeen,a (b) is, orhes been, a ^ fe^ ^3?RR3?Tt¥i' c^ doyftte, /? /s he by "clalms for comfxtnsation i^vaMng ihe deafh ofwbodily out of the use of motor for compensaffon uncter 163-AJ. 5/ia// (2) A Claims Tribunal me/nbers as ff^e State appoint and whew it con^ists of (wo or mow members, consist of such number of ^Sovemment may ihink fit to ^ppointsd as the Chairman (3) A person shall iwtbe^ualified forsppoinbnentas a member ofs Claims TribUnal untess he— Judge ofHigh Court, or DisWct Judge, or (c) is qualified for a^pointment as a Judge of a High Couri (or asa^ District Judge). (4) Where two or irpre Claims Tnbunals are constiiuted fw any area| ffw State Goiwmment, may by generaf or specisf o/cfer, regulate ttw distribution of business among them." j Learned counsel for the appelt^nts stated that the order passed by the teamed Claims Tribunal is not s^stajnable and placed reKance on a decision of the Dh/ision Bench of Ma<|lhya Pradesh High Court reported in 2002 (1ULJ - 277 Kiran Chhabra fiSmt.) and another Vs. KhaiH Patel and others. In the said case the Cour^ observed as under XI-HC—78 -s^ ^TPTF^T, ^i^i^ f^n^; ..b.<..A;<'o.o...'2d&.s'.(%^.^ -^- l--4- 4-1- f\.. use of ffie fradw by\ TTO^f -^ fe^" Tfe^R: '^'atrN^n^T "9. The matter is exa^nirwsd m ttw context ofavailable maierial on fecord of this case. There is no dispute that the accident was[the result ofwrong andnegligent ttie driver ttiewof which should not hav®parked it 4f a stoping pface, ffwn put ihe same on thejacR a/^f then csny on the lepairs. In a situaSon like fftis, ff^ slipping of ffive jack could be expected and this hs^pened as a resuH of which ffse disc of the tractor hi^ the chest of the deceased who was supeivising (hejrepe/r woii<. As Q resuft of Ws sccklent, he sttffef^fS senous injuries and despite treQtnwnt, cffed in thejDfefncf Hospital, Damah." Leamed counsel for the atfpellants also relied on the decisions of Hon'ble Supreme Court ronderec( in the oases of Shivmi DQVQnu Patil and anoffier vs. Smt Vatechald Uttam More reoorted in AIR 1991 SC f769 {Paras 25. 26. 35 and 36}.iWte Oew' ^Sm^J ancf othef^ vs. New India Asswance Co. Ltel. and ^nother reoorted in (2000) 5 SCC 113 {Para 9}, Union oflndia vs. Unlt^x! India Inswance Co. Ltet. and others reported in AIR 1998 SC 640 {Par^s 40,41, 42,43 and 44}. In the case of Shivoii D^vanu Patil ancf anottier fSuora} the Hon'ble Supreme Court has obserfed as under: "25. These decision^. indicate that the word "use", in thecpntext ofmotor \!ehic)es, has been construed in a wider sense to incfu^e the pe/fod when fhe vehicte is \^ rmi moving and is sifltionary, being eiffiser parked on \ ttieroadandwhefnit^sncstinapositiontofnovedueto some breakdkswn or fnechanical defect. Relying on ffte above mentioned d^cisions, the Appelfate Bench of ihe High Court has hefd that the expwssion "use of a +• XI-HC—78 -y^ ^TraT^I-, i?^R1TT^, fsi-^RT^ ..b..-..A.:.^.^.:.2^4.?.|.^±03l '^1 ^m 311^1-i^W on account of the immobile on axxout defect or accident. said that the petfol time when it was lyif the twck. ^T^f^pft^ 'HTWff "^ f^^ T^T^R •^3^^3?it^ motorvehicle"in S. 9^-A covers accktents which occur both when the vehWe fe in moffon and when it is stationary. With fef^ence to the facts of ttie present case (he tearned J^c^ges hav®obse/ved (hat th@ tenker in quesSon ^hiieprwsewSing atong Nattonaf Highway No.4 (ie. v^hile in use) after colliding with a motor tony was lying\on ffw srcte ancf ttwt ii cannGt be claimed that after th^ collision the use (^the tanker had ceased only bec^ause StwQS disQbfed. We Q in agreementwith the ^aid approach of the High Court. In ouropinion, ffte w^rd "use" has a wicter connotation to cover the period w^ien the vehicte is not moving and is stationary and the\use of a vehicle does not cease [vehicle having been renctered of a break-dbwn or mechanicaf ffw circumstances, it cannot be wker was not in ffie use at the on Hs side afterffje coflision with 26. The only offier cQused injuries te fhej can be said to /?av®| question which remains to be considered is wheff^r ffiie explosion and ffne which ctecea^ed son of ffiw responchnt taken p/ace due to an accktent arising out of the us^ofa motor vehide viz. fhe petrol tanker. Shri Sangh^ has urged that the expfesswn 'arising out of the u^e of a motor vehicle' implies a causaf relattonsliip fyetween ttie uwr of ttw motor vehicle and the accid^nt which has nesufted in cteath or disablement and that in the present case st cannot be said ffiaf the exptosie^i and fire which took place in tlw petwl tsnker four a/?c| af^r. the tsnker hac^ haffhours after fhe collision ahd turned turtle was an acckient arising out of the u^ of ttie petrol tQnker. fn this regard, Shri Sanghi ^as emphasized that the persons who sustasned injwess as a fesultofthe expk>sion and a fire in tlw pefro/ t^nker were pilfering petrol which had leaked out fi^m fhe petrol tanker and the \^^osffw^f'icl^ ^y^^ti je^ultj^^ ^jss^^ -r- XI-HC—78 3Tit^'^T'^N "^ ~€^'^^^^, w^tw^, 'f^ray ..b.<..A..K).o.r..^.S:..^^S, ^FJ^ (•^lf^Sf^l) '^ 4- '^T^fa^frT 'RT^ff ^ "fe^' ^st^?3TI^T activity ofthose pers^ns and that it was not on account of the user of the p^trol tanker. Shri Sanghi, in this connecSon, has pfa^ed reltance on ffw etecision fn Mockinnon Machkei^zie and Company Pvt. Lfcfc vs. Ibrahim Mahommed\lssak (1970) 1 SCR 869 " (AIR 1970 SC 1906), wh^feinttTis Court has construed fhe expn^ssion 'erising ^ut of emptoyment' appear/ng m Secffon 3 ofthe Wo^men's Compensation Act, 1923 Qnd BS laid efown 1 that there must be s casual r&fatjonshlp betwd^n ffie accident and ffise employment Shri ^anghi has urged ihat similaily t^re must be a ^asuaf reiattonshfp between ttie accident and the u^er of ffise motor vehicte for ff?e purpose of mQfntair^bifity of a claim under Section 92-AoftheAct. 35. This would sf)pw that as comparw3 to ffie expwssion "cause bj^ ffte expression "srising out of has a wfder connota^on. The expresslon "caused by" was usedin Section^95(1)(b)(i) and(ii) and 96(2)(b)(ii) of ffie Act. In Se(^on 92-A, Parliament, however, cftoose to use ttw ^xpwssion "arising out of' which indicstes ffmt foi\ the purpose of awarding compensatton und^r Section 92-A, the casual relQtionship betweeii re use of ^e motor vehicle and ihe accident resuftng in death or permanent disablQment te not i^fuiwd to be cliwct and prox/mafe and ft can be less i^imedfate, This woukl imply that accident slwuld beicannected wiffif (he use of the motor vehicle but ttje said connection need not be direct and immedi^te. This conshw:tiwi of the expression "arising o^riofffw use ofQ motervehicte"in Sefstfon 92-A enlar^e ffw ffekf of protection mode avatfafo/e to the viditims of an accident and te in Y consonance wlth th^ enactment 36. Was ifTe acci beneficlaf object uncferlying the invofving expiosion andfira in Vw mffr ffw use af teinker QS a XJ-HC—78 ^^ ^T^n^r,.^ft^^ t^iray ..b.<.A,.^o.:...^.£.(.^03 •q^7 (^f^^) a^i^T'^T ^•^T^¥r i^?w^Jt^^¥r -^ motor vehicle ? In oc x found ffiat fhe tanker in q 'WT^f ^ fe^f T^T^K •^^tfOT^i^T T view, in the focts and circumstances of ffw pres^nt case, this quesSon must be snswerecS fn the Qfflm^atlve. The Hfgh Court has uestion was canying pe^ol which is a highly combustiple and volatile materialand affer fhe aolfision with the c^her motor vehicle the ianker had fallen on one cf /te sktes on sloping ground resuMng in escape of hf^hty inffammable petrol and ttjQt Ihere WQS grave risk d^fexplosion and fiw from (he pe^of wming out of ffw \tanker. In ffi)e light of the aforesaid circumstences, 'ftw leamed Ju^es of the Hlgh Court have rightly ^ncfuded that the cofflsion between ffiie ianker and Ihe ofher vehicte which hacf occurred eariier and ffTeJescape of petrol from the tanker which ulSmately r^uHed m the expfosion and fi were not unconnect^d but related events Qnd meiety because there wa^ inteival of four to four and haffhours beiween the saipl colllsion andtbe explosion and flfe in thetanker, it cslpnot be necessarify inferred that thwe was not casuslifeiation between exp!osion and fire. In ttw circumstaf^ces, it must be hekl tiiat the exptosion and fipe wsulisn^ in the injuries which led fo the cteafh of OeepQk l/fjtem MO WQS due te an accident arising outofthe\use ofthe motor vehicle viz. fhe petrol tanf<erNo.MKL^461." In tho caso of RitQ Devi fSmt and Others fSuora) the Hon'bto ^upreme Court has observed as under 9. A conjoint reading of ffv^ above two sub sections of Sec^on 163-A shows tfwjf a wc^r/n or his heirs Q entsiled ip.alaim Ifwn the dswner/lnsurance Company a compensaffon for death jor pemianent disablement suflered due to accktent ^rising <wt of the useofthe motor whicle (emphasis ^upplied), without havmg to prove wfongful act or n^tect or default of anyone, Thus it is clear, if it is establishwl by STS ciaimants that .^e^(tes^3~sxlcSsablea ^jM&s^^us^^i&Jta^scL +• ^ c^ XI-HC—78 ^^ ^FTf^H, i^ftWT^, •^n-^: h-A t^cs-'L6S'|^&3 '^^ f." ^ "^ ^f^ ^Ti^T accident arising outo^the use of rootor vehicle then they will be enfftled fo^ payment of compensaffon. In the present case, th^ contenffon of the Insurance Company which Was jacceptecf by ffw High Court is thQt the deaffij of the dpceased (Dashrath Singh) was not caused by BH ac^dent Qrising outof ttw use af /nofor vehicte. Therek^w, we will have te examine ttw actual fegaf import of tfye words "death due to accident arising out of ihe use ofmotor vehicle". The docteion rondorod in tiio case of Shivaii Davanu Patil and another (Suora)came up forconsicjeration in the aforesaid case also. In the case of Union of Indila (Suoral the Hon'bte Supreme Court has ateo observed as under : | "40. tn our view the T^fibunaf is cfearly an aftema^ve fowm in substitution fd^ the Civii Court for adjudicating uponcfaims for comp^jsation arising out of the "use of motor vehicles". Thisi^ fuilSTer macte ctear <hom Secffon 110-F of ttw Act whicfy ststes thfst no Civil Court shell entertain any qwstidfi "relating to any claims for compensaffon which f^ay be adjiidicated upon by ff?© Claims Tribunai". In o|/r view, when we afe concemed only with Section 110^) and when Section 110B ctoes not snd cannot con^ol Section 110(1), a clalm is entertafnabte by ihe T^bunal, Ifitarises outofthe use o/a motor vehicle andyit is ciaimed against persons or agencies other than ffi^B driver, owner or insurer of the yehicfe pmvided in torf^ 3uch oiherper^ans or Qgencies \ are Qlso claimed to b^ liabte as joint tort-feasors. Itis obvious that prior to ^)at constitutton of the Tribunal, v \ such compensatton co^ild be ctecreed by the CMf Court not onfy against the ^wnerASriver and 'msurer of Ihe mofey vehicte but also ^gainst others who were found to fee joint tort-fessors. [The words "use of the motor ^^^e'L^^^s/so^l^^QssmsteLee^L^ •+ \ss -q- r XI-HC—78 TT ^^ -^q^T^p^ '^TfraTre', 'ra^n^y ..t}:.A^.<s..-M.d.^^^ ^ '?T^T3^T^HW v above words were inter^reted by Dayanu Patil vs. Vatschs^a 530; (AIR 1991 SC 176^ A. This Court in tha^ Austrafian case in Go^prnment N.S.W. vs. R.J. GfBenai^ CLR 437 and to (fte ob^rvGttons ttiose words have to be v^idelyconstived. refer to ffie observQtions | to the foltowi^effwt— ".......no sound reason phrase, "the use of a mdftor only limitatson upon its..\ injury must be one in ^anjf oftbe vehictes as a nwto^^hicfes ^N^ft^-W^ ^ fe^ Tf^SK ^'3?rm^¥r this Court 'sn Shive^'f UHam More, (1991) 3 SCC in the confext of Section 92- connection feferred to (fte Insurance d ice of dLioydsPvt. LM (1965) 114 ofBarwick, C.J. that Wemayalso of Windeyer, J- OT same case was given for resWcffng fhe vehlcte" in this way. The ffTat I can see is that ffw way a conswfuence ofa use of the Act provides for "fyom any pe/son" as and recovery under that (o the owner/driver w 'msurer part of Section 110-B. any persons are referable to oitier ffian dri\wyowner or insurer of ffw nwtor 41. Further, Section 1W-E recovery of fhe compeiijsation anears of land reveni^ Section is not restricted specified in the Obviously the words fronf persons vehicle. seco/jrc? ' reas^ns, 42. Forall the above reas^ns, compens^tion te mQint^inable guilty ofcomposite Qnd if srising aut of use that ttie Tribunal and hokling thot on sword Railways if its accsctent was afeo provec^ a the above aspect The Orientel Fire & !ndia, 1975 Acc CJ 33 the view ttwt ffiie General l^suraince we hoid that the claim fbr before ttw Tribunal against otherpersons or^geiwtes which are held to be negli^ence or arejoint tort-feasors, of use (^f ttw motor vehicle. Wehold High Couft were right m ^oukl be passed eigainst the negliger^e in felation to the same We find )Qt there has been conffict GfjucScial opini^n among the Hlgh Court's on 4nc/hra Pradesh High Court in Co. Ltd. vs. Union of ^IR 1975 Andh Pm 222 took claii^s before ffw Tribifnal are .4- ^ + T XI-HC—78 -^^ ^IT^F^I, ^ft^Ti^, 'toray .^•..^/...<^C>./...1L:6S'...'L5^> -^T ^m 10 ^Rfa^T ^R^f ^ fe^ Tf^K ^3t^H^T^T restridsdtothose^ Qi (fte motorvehicles on facts the cteciston was an accident Railway crossing, ff cfeaner efc-, tmvellir ttwre WQS no cfaim was filed in 1967 in agQinst the RQifwQy. that the CMI Court Tribunal hsidjum ^nst the driver, owner and insurer ^notagainstffwRailways. But cwrect !nasmwh as though n a lony and a fra/n st a a case where the driver, in the tofry wefe injwed and mst ffw torry owner. The suit Civil Court and was decreed ples rQised in the High Court no jurisdkstion and only ttre was nega&'ved lnourwew,on facts the ctecision fs c^rrect because the ptea was one of (Ehe exclusive negli^nce of the Raitway. In Union of India vs. Bhimeswara^Reckty, 1988 Acc CJ 660 : (AIR 1989 Andh Pra 49), tf^ough ffie driverand ciwner were pQf^es, ihe uWmeite ^iding was )at ffiw cfrw&r of fhe nwtor vehicle wss j not negligent and the sote negligence was tiTat ojftbe Railway. The case fhen at that stage comes out ^f Sectlon 110(1). Here alsothe cpncfusion on facts, ir^our view, is correct. But certain general broad oJbserv^ffons made //? ffwse two cases ^iat in no circumstan^es a claim can be frfecf by ffie Tribunal against fhe p^rsons/agencies not wferred to in the second part of ^ection 110-B, are not correct Similarly the Gauhati ffigh Court in Swamalata Dutta vs. Nationaf Transpdft India (Pvt) Ltd., AIR 1974 Gauhati 31, bythe Offssa High Court in Orissa R.T.C. Ltd. vs. Umakanta Sin^h, AIR 1987 Orissa 110andttTe Madras High Courtin Vnton oflndia vs. Kaifasan, 1974 Acc CJ 488 (Mad) h^ve hekf that no awsrd can be passed against ottie^s except ffw awner/driver or snsurer of the motor ifehicle. On ifw offiser hend ttw AlfaiiQbad High Cour^ in Union of IncKQ vs. Bhagwati Prasad.AIR 1982 All 3^10, the majority in ihe FuliBench of the Punjab & Haryafya High Court In Rajpal Singh vs. Union of India, 1986 J^c CJ 344: (ASR 1986 Punj& Har 239), the Giyarat High]Coiirt in Gujarat SRTC vs. Union offndia, AIR 1988 Guj^rai 13, the Kerala High Court in ffiie juc^ment under1 Appeal snd in United India I-HC—78 -S"-^' ^Tq^TZ^ '^ft^Fl'G, "f^TRTip; ..u.-...A..--.?o.o:..^.^U^^ -^^ (•ipf3^T) -^T •?y^T3TI^T^^Nl ^ p— '^N^n;T "RTR^ff ^ felZl' Tt^R ^"atfOTW^T InsurQnce Co. vs. and ttw RaJQsffjQn Hig^ SewakRam, 1993 Acc\ claim liesbefow the Tr tort-feasor connected whom composite neg/fl 9kumaran, 1988 Acc CJ 597 Courl in Union of fndisi VB. Dr. 366 have taken the Wew that a wnstl even against onotherjoint (he same accktent or against is alleged. 43. We are of the opi^'ion that the wew taken by ttie Andhra Praetesh, by w^y of ofe/ter and ffie views of Ihe GQUhati, Orissa and and ffitat tbe viewtake Hariyana, Gujarat, Ke fbe correct view. Fi High Court, clQims dnfwer/owner of ff?e for ffje Qwideni, claim^ negligence of the dryVer or owner of aw outslde agency Tribuna! but in the lai 9s High Courts is not conect by the Altahabad. Punjaband andRajasthan High Coufts fs as pointed by tf»e Gujarat yhene it is aff^ed ffiat ffw vehkile is so/e/y I'esponsibfe on ihe besis of ttje compo^/fe • of the motor vehicle as well as oiher vehiete or af any o(her be maintalnabfe before the type of case, if it is ultimatety found jat there is no\ negligence on the part of the driver of the vehicte or jtbere is no defect in ff?e vehicle but the acckient is onljf due to ^se sole negligence of the other pafties/agen^ies, then on that finding, the claim woufd go out ^f Secffon 110 (1) of ffiie Act because the case wouW then becomeone ofexclusive negHgence ofraihways. | Again ifthe accident had arisen onty on account of the ^egligence ofpersons offiierWan 1he driver/ownerof #?e| motor vehfcfe, ttie claim woukf not be maintainable befyre the Tribuna). 44. We msy however sif^d that ifas oftodsy, anyclaims agQinstpersons <^her (f?a/? the driver/owner/insuferafe pencfing in Civil Cou^ but which as p©rfhe /aw hefeinabove stated ou^ht to have been fodged befofe ihe Tribunal, then th^ Civil Courts concemed shall return the plaints and ^ie claimants coukl present ws same as a peWon befpre the Tribunals. fn ttwt event, \.^hey»^alU ^^ttLjai!£to»a^U^!^^t3sjdsum4^Scsi]&. ^^ XI-HC—78 ^^ ^n^r^R, ^I-^F^, t^rray .. ..h'..^.:.N3.c;.:..a:i?.I..M!^ ^f^TT^^(T^t^^) •3T[^I ^T ^T^Tqir^^fe ^Rf^NW^ ^ ft^t '^^TC - 1 2-1- ^ 3^H "prewnfecTBefWBW^ pfaints were filed in dlsposed of uneter ffie Act and in accordance \nDunais~omRe^€^e~ofTwnfc{i Civil Courts and shall be >vlslons of the Motor Vehicles vithlaw." Learned counsel for the re^pondents relied on the dedsion of Orissa High Court in the case ^f Kainhei Rsina ancf another v$. Ganaadhar Swain and ottfers reDdrted in AfR 1993 Orissa 1989. Para 7 ofthe said judgment is relevant an(| quoted below : 7. Iflt is held thatthe d^ath occurred fn the manner as concluded by fhe Tribi^nal, it has to be seen wheffier there was any use of[ the motor vehicte whlch had been a casual relaisons^ip wiff) tbe accicterriwhich has resulted in (he cteaff?. rufe as to in whfch cas^ accepted that the deaff\ There can be no hard and hst the"use"canbeinferred. The /earned counsel for ap/^©//antesubmits that even iftt fe was due to teli of a tog, since ffiie same was being lo^ded te s trwk it hss nexus with je user of ttw vehicl^ Though ffw submission is attrBctive, yet it is not ^pund As indicated above, it is impossible to lay out a^y fixed and rigid gukhline. To illustrate, supposing w^/e ff)e truck is being loaded with lags, suddenfy tt^ vehicle is stQrted without any caution, and a tog fatts ^pn a p^son, certainfy it can be held ttiat <be accident fsad nexus witti ttw t/se of ffvs vehlcte. Merely becau^e the vehtolewas intendedto be used as means of^nsporteffon, tt^at wouk! notbe ctecisive. A person d^es not "use" a motor vehicte unfess theie Ss at the r^fevant ffme some electment of confro/, mQnogemeni c^ operaffon of ^e vehicle (See Bfwvp.v. Robefts (1W) 1 QB1). The ffrst meaning assigned to the use ^n Johnson's dictionary is to employ to any purpose.i H Is, thefefore, a wonS ofwlde signMcafwe. The fac^ as ctete/ted by ffie Tribunal show ffvat the fallofffw^tog had no rwxus with ffiie u3®r offfw vehicfe not even jremote/y. There is no matenal te show thet #TC fei/1 of ^w lag WQ^ occesioned due to + \^? XI-HC—78 ^T f^ [ ~Q~^ ^TRT^T, ^^Rc, 'f^TO"y: l\.^.to^. 2-6S'|'^<»3 iwi^^t^^it¥r -^-j- ^R-ta^ ^ •fe^t ^T 3tf^H 3^1 use offfw vehicle. A c^retess handling ofgoods being tooded on or untoa^ed fmm a vehicie has no connectlon to ffie veM sny lapses in ttle proc^ss of loading/unk>ading is not }/ery material here. p/e Itseff. Whether there were Therefow, ffw Tribunal was jusWed in its concfu^ion ffiat ffiie insurer has no liability." The facts of the aforesaid ce^se areentirely different to the facts of the present case. The negligence is|attributed to Respondent No.1- Driver and Respondent No.2- Conductor Conductor are responsibte. Here in the instant case, the considered the material available or |ind it is alteged that the