IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.700 of 1992 Date of Decision : May 22, 2009 Smt. Rama Rani and others ....Appellants Versus Kesar Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Ashok Kumar Aggarwal, Advocate for the appellants. None for respondents No. 1 and 2. Mr. Nilesh Bhardwaj, Advocate for respondent No.3. T.P.S. MANN, J. By one judgment, the Court intends to dispose of F.A.O. Nos. 700 to 725 of 1992 as all of them involve identical questions of law and facts. Moreover, the orders under challenge in the respective appeals are same and similar. An unfortunate incident occurred on March 22, 1991 when more than two dozen employes of Swaraj Foundry Division, who, after performing their duties were returning home in bus No. CHW-8865, were gunned down by some militants after hijacking the same. The militants F.A.O. No.700 of 1992 -2- after hijacking the bus had taken it on a different route where they carried out the shooting spree. The legal heirs of the deceased employees filed their respective claim petitions under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for the grant of compensation to them, as according to them, it was the driver of the bus in question, who allowed those unwanted persons to sit in the bus after stopping the same. Therefore, the deaths of the victims occurred due to the rash and negligent driving of the bus by respondent No.1, which bus was owned by respondent No. 2 and insured with respondent No.3, who, according to the claimants, were required to pay them adequate compensation on account of deaths of their family members upon whom they claimed to be dependents. All the claim petitions were contested by the respondents. According to respondent No.3, it was a case of intentional killing of the employees and the killings did not arise out of use of a motor vehicle. The killing was by the militants, who were neither the driver nor the owner of the bus. Moreover, the killing of the employees took place outside the bus and, therefore, had no connection with use of the vehicle. As such the case was not covered under the provisions of the Act. On the basis of the pleadings of the parties, learned Tribunal framed the following preliminary issue in all the claim petitions :- “Whether the petition is maintainable and the Tribunal has jurisdiction to adjudicate the claim ? OPP.” F.A.O. No.700 of 1992 -3- After hearing learned counsel for the parties and perusing the pleadings of the claimants and the Insurance Company, learned Tribunal held that bus No. CHW-8865 was not in any way involved in the accident and the driver was neither rash nor negligent in driving the vehicle. Relying upon a Full Bench judgment of this Court in Rajpal Singh v. Union of India and others, 1986 ACJ 344 learned Tribunal held that it had no jurisdiction to adjudicate and entertain the claim petitions since the deaths had not occurred on account of an accident arising out of the use of a motor vehicle and neither the vehicle in question nor its driver, in any manner, was involved in the same. Accordingly, the preliminary issue framed was decided by the learned Tribunal against the claimants and in favour of the respondents. The claim petitions were, accordingly, dismissed vide separate but identical orders dated January 03, 1992 which have been challenged by the claimants by filing their respective appeals under Section 173 of the Act. Mr. Ashok Kumar Aggarwal, learned counsel for the appellants submitted that the learned Tribunal erred in law in holding that the deaths had not occurred on account of an accident arising out of the use of a motor vehicle as the expression “use of motor vehicle” in Section 92-A of the Act covered accidents which occurred both when the vehicle was in motion and when it was standing. The words used had wider connotation to cover the period when the vehicle was not moving and was stationary as the use of the vehicle did not cease on account of the F.A.O. No.700 of 1992 -4- vehicle having been rendered immobile because of a breakdown or mechanical defect or accident. Accordingly, any accident connected with the use of motor vehicle would be covered under Section 140 of the Act even if there was no direct or immediate connection with the deaths of the victims. It was also submitted that the bus in connection had been hired by Punjab Tractors Limited (for short 'the Company') on regular basis for transporting its employees and, therefore, it was obligatory on the part of the staff of the bus, i.e. the driver and the conductor, that no outsider was allowed inside the bus enroute. Therefore, the impugned orders be set aside and the matters remanded to the learned Tribunal for their adjudication on merits after framing the issues on facts and recording the evidence of the parties in respect thereof. Mr. Nilesh Bhardwaj, learned counsel for respondent No. 3 submitted that since the deaths had not occurred on account of an accident arising out of the use of a motor vehicle and the driver was not involved in any manner, therefore, the Tribunal had no jurisdiction to entertain and adjudicate upon the claim petitions. He, accordingly, prayed for dismissal of all the appeals. It is not in dispute that the Company, which had employed the deceased employees, had engaged the services of respondent No.2 to arrange for a bus for transporting its employees to and fro their work place. In turn, respondent No.2 had permitted respondent No.1 to drive its bus No. CHW-8865 for the said purpose. Even on the date of the F.A.O. No.700 of 1992 -5- incident, the deceased employees were returning home in the aforementioned bus after performing their duties. The bus had covered some distance when some militants managed to stop it. Those militants then boarded the bus and were successful in forcing respondent No.1 to drive the bus on a route different from the one which it was to take otherwise. After covering some distance, the militants got the bus stopped and then directed the employees present in the bus, to come out. After the employees came out, the militants opened fire and killed all of them. According to the claimants, it was respondent No. 1 who was rash and negligent in driving the bus by allowing unwanted persons to stop it and board the same. The act of stopping the bus and allowing unwanted persons to board it was considered by the claimants to be a rash and negligent act on the part of the bus driver and as the employees were later gunned down, their legal heirs, i.e. the claimants, were entitled to the grant of compensation. According to the claimants, the bus was solely used by the employees of the Company and the driver and the conductor of the bus were not permitted to allow any other person other than the employees inside the bus enroute. In this regard the claimants have referred to the stand taken by respondents No.1 and 2 in their written statement. The main thing to be seen is as to whether the motor vehicle in question contributed to the causing of the accident or not in any way. As per the claimants themselves, after taking the bus on to a side road and F.A.O. No.700 of 1992 -6- covering some distance, the militants stopped the bus and asked each and every employee sitting in the bus to alight. After all the employees came out of the bus, it was at that stage that the firing spree started. Apparently, it was an incident not connected with the use of the motor vehicle. The only part played by the driver of the bus was that he was transporting the employees in the bus after those employees had performed their duties and was required to leave them at their respective places. In case any accident had occurred while the bus had been in motion and its occupants receiving the injuries, it could have been safely concluded that the accident had occurred on account of use of a motor vehicle. It could also be considered the use of motor vehicle in case the vehicle in which the employees were travelling had come to a halt and the employees receiving injuries while they were still inside the bus. Such injuries may be caused on account of some other vehicle dashing against the bus or may be some person standing outside the bus firing or doing an act resulting in injuries to those employees in the bus. However, the use of the motor vehicle came to an end once the employees, as admitted by the claimants, had come out of the bus. Any act of the militants or third party in causing injuries to the employees would then absolve the driver, the owner and the insurer of the motor vehicle, of the liability. The argument on behalf of the claimants that the driver was not permitted to allow any outsider to board the bus enroute, and, as he had done so, he would be considered rash and negligent in driving the F.A.O. No.700 of 1992 -7- bus, is too farfetched. It may be for any reason that the driver had to stop the bus as a result of which some outsiders were able to board the bus. In a given situation, the driver would find it next to impossible to disallow an outsider from boarding the bus. For instance, a motor vehicle is always required to stop at a manned railway crossing till the time the gates at such a crossing remain closed on account of a train approaching the said place. During such a stop some outsiders may force their entry into the bus. Similarly, if some persons, who are being referred to in the present case as militants, armed to their teeth had stopped the bus after coming in its front and brandishing the fire arms, the driver of the bus would have no other option but to bring the bus to a halt. In the event of his not doing so, he might fear danger to his own life. Under these circumstances, by no stretch of imagination, it can be said that it was the bus driver who was rash and negligent in driving the bus while allowing some outsiders to board the bus which outsiders turned out to be militants, who after taking the bus to a distance, forced all the employees sitting inside the bus to come out and then firing and killing all of them. An identical situation arose in the case of Rajpal Singh (supra) where an accident between a car and railway engine at a manned railway crossing occurred when the level crossing was lying open and there was no red light to stop the traffic on either side of the gate. When the car driver tried to cross the level crossing, the train suddenly approached, the engine whereof was without lights and struck against the F.A.O. No.700 of 1992 -8- car and its driver sustained injuries and the car was damaged. Rajpal Singh, who was driving the car and had received injuries in the accident, filed a claim petition and sought compensation from the respondents therein which, inter alia, included the Union of India, General Manager of Northern Railways and Station Master, Chandigarh, besides the driver and guards of the train and the gateman. Preliminary issue regarding the jurisdiction of the Tribunal to try the matter was decided against the claimant who then filed an appeal. The appeal was referred to a large Bench. The Division Bench, in turn, referred the same to a still larger Bench. The appeal was, accordingly decided by a Full Bench. Separate but opposing judgments were rendered by Justice D.S. Tewatia and Justice S.P. Goyal. However, Chief Justice P.C. Jain agreed with the view taken by Justice S.P. Goyal. After tracing the history of the Motor Vehicles Act and referring to a catena of judgments, Justice S.P. Goyal held that the claim had been filed against railway authorities alone on the ground that the accident took place entirely because of their carelessness and negligence and that of the driver of the train and the gateman. However, as there was no allegation that the motor vehicle in any way contributed to the cause of the accident, it could not be said that the same had arisen out of the use of the motor vehicle. Accordingly, the claim petition was not found to be entertainable by the Tribunal and instead would be competent only in a civil Court. The appeal of the claimant against the decision arrived at by the Tribunal against him was, accordingly, dismissed. The relevant observations made by F.A.O. No.700 of 1992 -9- Justice S.P. Goyal are reproduced here-in-below :- “As stated above, my learned brother Tewatia, J. has relied on Bhagwati Prasad's case, 1983 ACJ 13 (Allahabad), for laying down the proposition that the claim would be triable by the Tribunal if in the accident a motor vehicle is involved, no matter whether the accident had been caused by use of the motor vehicle or not. However, a close analysis of the facts and the observations made in the said case would show that the learned Judges there even did not go that far. The claim was filed in that case both against the owner and the tempo-taxi as well as the Union of India represented by the General Manager, Northern Railway which would necessarily mean that the allegation of negligence was both against the driver of the motor vehicle as well as the railway authorities, may be in the alternative or in a composite form. The conclusion arrived at by the Bench was also that in the circumstances the only reasonable interpretation which appealed to them was the one suggested by the learned counsel for the claimants, namely, that the claims were maintainable against the railway also. It is, therefore, apparent that F.A.O. No.700 of 1992 -10- neither there was any question before the said Bench as to whether the claim would be maintainable against the railway authorities alone nor any opinion was expressed in this regard. The observations of the Bench in that case that they saw no reason either on the plain language of Section 110 or in any other allied provision or the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of the Claims Tribunal to entertain an application for compensation in respect of third parties, that is the railway, have to be appreciated in the context of the facts there. When so done, it would be evident that these observations related to a case where the claim was of composite nature and not against a third party alone, that is, the railway. I am, therefore, of the considered view that nothing said even in Bhagwati Prasad's case, 1983 ACJ 13 (Allahabad), can be understood to mean that the claim petition would be entertainable by the Tribunal where the motor vehicle has not contributed to the cause, howsoever slight it may be, of the accident resulting in the death or bodily injury. The claim in the present case has been filed against the railway authorities along alleging that the F.A.O. No.700 of 1992 -11- accident took place entirely because of their carelessness and negligence and that of the driver of the train and the gateman. There being no allegation that the motor vehicle in any way contributed to the cause of the accident, it cannot be said that the same had the arisen out of the use of the motor vehicle. As such the present claim would not be entertainable by the Tribunal and instead would be competent only in a civil court. This appeal, therefore, must fail and is accordingly dismissed. No costs.” In the present case also, the accident in question was not on account of use of a motor vehicle. The driver of the bus was not rash and negligent in driving the vehicle or in allowing the militants to board the bus. Once the bus had come to a stop, the passengers, on being forced by the militants, alighted from it. Once out of the bus, the passengers were fired at and killed by the militants. Under these circumstances, the Tribunal was justified in non-suiting the claimants as it had no jurisdiction to try the claim petitions filed under Section 166 of the Act. Accordingly, there is no merit in all the appeals. They are, therefore, dismissed. No costs. ( T.P.S. MANN ) May 22, 2009 JUDGE satish