IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE P. SWAROOP REDDY CIVIL MISCELLANEOUS APPEAL NO.3829 OF 2004 DATED:30.11.2010 Between: Zahira Begum and others … Appellants And The Regional Manager National Insurance Company Ltd., Regional Office, Basheerbagh, Hyderabad … Respondents THE HON’BLE SRI JUSTICE P. SWAROOP REDDY CIVIL MISCELLANEOUS APPEAL NO.3829 OF 2004 JUDGMENT: This is a claimants’ appeal filed against the order dt.22.5.2000 passed by the Chairman, Motor Accidents Claims Tribunal-cum- II Additional District Judge, Nalgonda, in O.P. No.126 of 1997. The appellants - claimants are the parents, brother and sister of the deceased – Mohammed Fareed. Their case is that on 21.8.1996 at about 8.30 p.m., the deceased Mohammed Fareed was repairing the axle of the oil tanker by fixing a jack beneath the tanker bearing No.ADB 6216. At that time, heavy air of a passing heavy vehicle caused a jerk, on account of which the jack slipped and the vehicle fell towards left side and hit Mohammed Fareed who died. One more person also died in the accident. A case in Crime No.81 of 1996 under Section 304 A of Indian Penal Code was registered in Police Station, Mothey, against the driver of the tanker. The claimants filed the O.P., before the Tribunal, claiming an amount of Rs.1,25,000/-. The respondents denied the liability. On the basis of the pleadings, the following points were framed by the Tribunal. 1) Whether the deceased Mohd. Fareed died in a Motor Accident due to the negligent parking on he part of the driver of Petrol tanker bearing No. ADB 6216? 2) Whether the petitioners are entitled for any compensation? If so, to what quantum, against whom? 3) To what relief. On behalf of the appellants – claimants, P.Ws.1 and 2 were examined and Exs.A.1 to A.6 were marked. On behalf of the respondents, no oral or documentary evidence was adduced. On the basis of the material brought on record, the learned trial Judge though observed that an amount of Rs.1,03,680/- is payable to the claimants as compensation, but ultimately held that the appellants are not entitled for any compensation, as according to the learned trial Judge, the accident has not taken place when the vehicle was in motion and the accident was due to the negligence of the deceased. Aggrieved by the same, the present appeal is filed. The facts in this case are not in serious dispute, that is, while the deceased was attending to some repair work, sitting beneath the tanker by fixing a jack, the jack slipped and the tanker fell on the deceased and he died. There is some dispute as to whether the jack fell on account of heavy air caused by another passing heavy vehicle, by the side of the standing vehicle. Whether the accident was caused on account of passage of another vehicle by the side of the vehicle in question, is irrelevant, as the fact that the jack fixed to the tanker slipped, the tanker fell to left side and hit the said Mohammed Fareed and he died, is not disputed. The learned trial Judge held that the tanker was not in motion at the time of the accident and the accident was due to negligence of the deceased and as such the claimants are not entitled for compensation. Now, the question that is to be decided is whether the tanker in the case was not exactly in motion, and an accident caused when the vehicle is not in motion, amounts to accident occurred while the motor vehicle is being used ? The learned counsel for the appellants contends that, as the accident occurred on account of use of the vehicle, the appellants – claimants are entitled for compensation. She relied on a decision of the Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More[1] in support of her case. I n Shivaji Dayanu Patil (supra) also, the vehicle involved incidentally was a tanker, as in the present case. In the said case, while the tanker was going on the road, there was collision between the tanker and another vehicle, and the tanker fell by the road side and petrol was leaking from the tanker. Several villagers gathered around the tanker to pilfer the petrol from the tanker and after about four-and-half hours, the tanker exploded and caught fire resulting in injuries to several persons, and a few of them, including the son of the claimant therein, succumbed to injuries. The claimant filed a petition before the Tribunal against the owner and the insurer of the tanker, who opposed the claim petition contending that after collision between the two vehicles, the tanker fell towards road side motion less and in that stage, the explosion took place and as such it cannot be treated as accident arising out of the use of a motor vehicle. The Tribunal dismissed the claim petition. The claimant preferred an appeal before the High Court and the High Court allowed the appeal. Aggrieved thereby, the owner of the vehicle and the insurer filed a special leave petition before the Supreme Court. The Supreme Court, after discussing various decisions on the question, held that the explosion and fire resulting in the injuries, which led to the death of Deepak Uttam More (the deceased therein), was due to an accident arising out of the use of the motor vehicle, viz., the petrol tanker. On the basis of the principle laid down by the Supreme Court, in Shivaji Dayanu Patil (supra), it has to be held that the accident in the present case was caused during the use of motor vehicle. The learned Standing Counsel for the respondent - Insurance Company is not able to show any provision of law or decision against the principle laid down by the Supreme Court in the case cited supra. In the present case, in fact, the position is much better, when compared to the case in Shivaji Dayanu Patil (supra), as, in the said case, after collision of two vehicles, the tanker was lying road side, petrol was leaking from it and after about four-and-half hours, an explosion took place, and there was a doubt as to whether the explosion was caused on account of certain acts of some of the persons, who gathered there. In the present case, the deceased was attending to repair work under the tanker and the jack slipped and the tanker fell to left side and the deceased died. Therefore, on the basis of the law laid down by the Supreme Court in Shivaji Dayanu Patil (supra), I have no hesitation to hold that the accident occurred while the vehicle was in use and the appellants - claimants are entitled for compensation. Coming to the quantum of compensation, the claim was for Rs.1,25,000/-. The deceased was aged 18 years and was said to be a cleaner. As such, the entire claim is liable to be allowed. The appeal is accordingly allowed. The appellants – claimants are entitled to compensation of Rs.1,25,000/- with interest at 6% per annum from the date of petition till realization. All the appellants shall be entitled to the amount in equal proportions. Appellant No.1 shall be paid compensation immediately, and compensation payable to appellant No.2 shall be paid after one year of payment of compensation to appellant No.1 and the compensation payable to appellants 3 and 4 shall be paid after one year after payment of compensation to appellant No.2. Till the amounts are paid to the respective claimants, their amounts shall be kept in fixed deposit. No costs. _____________________ P. SWAROOP REDDY, J 30.11.2010 bnr [1] 1991 ACJ 777