1 IN THE HIGH COURT’ OF KARNATAKA cIRCUIT BENCH AT DHARWAD DATED THIS THE 23M DAY OF SEPTEMBER 2011 BEFORE THE HONtE MR.JUSTICE V. SUM APPA RAO BETWEEN: MFA No.11593/2007 (MV) THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO LTD., DIVISIONAL OFFICE, CLUB ROAD, BELGAUM NOW REP BY IS REGIONAL MANAGER, THE NEW INDIA ASSURANCE CO LTD., REGIONAL OFFICE 2-B, UNITY BUILDING ANNEXE, P KALINGA RAO ROAD, BANGALORE-27. (BY SRI V. R. DATAR, ADV.) AND TANAJI@DHANAJI, Sb MAHADEV NIRMALE, NOW AGED ABOUT 34 YEARS, 0CC: BUSINESS, RIO ANDOLAN NAGAR, NIPPANI, TQ CHIKODI DIST BELGAUM. 2. MAHADEV S/O YASHWANT NIRMALE, AGE MAJOR. OWNER OF CAR, R/O ANDOLAN NAGAR NIPPANI, TQ CHIKODI DIST BELGAUM. RESPONDENTS (BY Ri - R2 SERVED) THIS MFA IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGEMENT AND AWARD DATED 07.06.2007 PASSED IN MVC NO.313/2003 ON THE FILE OF CIVIL JUDGE (SR.DN.) & ADDITIONAL MACT. CHIKODI, AWARDING A COMPENSATION OF RS.50,500- WITH INTEREST AT 6” P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALISATION, AND ETC. THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT The Divisional Manager. New Indian Assurance Company has filed this appeal under Section 173(1) of the Motor Vehicles Act, 1973, against the judgment and award dated 7.6.2007 passed in MVC.313/2003 whereby the Tribunal has awarded compensation of Rs.50,500/- to the I respondentc1aimant on account of the injuries sustained by him. 2. The relevant facts leading to this appeal are as follows: On 31.10. 1988 at 6 p.m.. petitioner was in Nippani bus stand with his car bearing No.KA-23,’M 2042 for hire, At that time. three persons came and engaged the ear for hire to go to Gokak. Accordingly, the petitioner agreed for the same and proceeded with them in the car and when the \ i_— reached Naganur village, one of the passengers asked the petitioner to stop the car on the pretext of answering calls of nature. When the petitioner stopped the car, one of the 3 accused got down from the car and others held him and tied his neck with a nylon rope and stabbed him with knife and fled away with the car. As a result of stabbing, the petitioner-claimant suffered grievous injuries and he was shifted to District Hospital, Belgaum. Thereafter the petitioner-claimant lodged the complaint, on the basis of which case was registered under Sections 420, 307 r/w 34 of IPC against the offenders. 3. The petitioner-claimant filed a claim petition under Section 166 of the Motor Vehicles Act, in MVC.313/2003 against the owner of the car (2rn respondent herein) and the appellant-Insurance Company claiming compensation of Rs.5,00,000/-, 4. During the course of trial, the 1 respondent claimant has clearly stated in his evidence that on 31.10.1998 at 6.30 p.m. when he was standing at Nippani bus-stand along with his car bearing No.KA-23/M-2042 for 4 the purpose of hiring the car, three persons came and engaged his car to go to Gokak. Accordingly, when they were proceeding towards Gokak at that time near Naganur village, one of the 3 passengers asked the 1 respondent herein to stop the car on the pretext of answering the calls of nature. When the 1 respondent stopped the car, one of the 3 passengers got down from the car and others tied the neck of the 1st respondent with a nylon rope and one of them stabbed his stomach and caused grievous injuries and all of them fled away with his Car. 5. On going through the facts of this case, I am of the opinion that it is not a motor vehicle accident case. The 1st respondent claimant has wrongly invoked the provisions of the Motor Vehicles Act on the ground that he sustained injuries due to the use of the vehicle and he is entitled for claiming compensation. The Tribunal has accepted the contention of the injured claimant and proceeded to award compensation. At para9 of the impugned judgment, the learned trial Judge has observed as follows: “In the present case, vehicle is used for causing injury to the petitioner, it is nothing but using motor vehicle in a rash and negligent manner for causing injury to the victim, the petitioner sustained the injuries due to accident arising out of the use of the motor vehicle. The petitioner proves that he has sustained injuries due to accident, which has arising out of use of vehicle car bearing No.IKA-23/M 2042.” 6. In this connection, it is relevant to refer the provisions of Section 140 and Section 166 of the Motor Vehicle Act. Section 140 of the Motor Vehicles Act deals with the liability to pay compensation in certain cases on the principle of no fault. It reads as follows: “140 Liability to pay compensation in certain cases on the principle of no fault. (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.” Under Section 140 of the Motor Vehicles Act. the expression employed by the legislature is the accident arising out of the use of a motor vehicle. The test should be whether the accident was reasonably proximate to the use of 6 the vehicle and whether or not the motor vehicle was in motion. Section 166 of the Act deals with the application for claiming compensation. It reads thus:, “166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: In the instant case, admittedly as per the contents of the claim petition and as per the evidence of the injured petitioner, the incident of assault took place in the car by the inmates of the car who had hired the car of the injured claimant on the pretext of going to Gokak. It is also admitted fact that on the domplaint lodged by the petitioner a case was registered by the police against the offenders for the offences punishable under Sections 420, 307 read with Section 34 of IPC. Ex.P.9- the charge sheet, clearly 7 indicates, after completion of investigation the police filed charge sheet against the offenders for the offences punishable under Sections 397 and 120(B) and 109 IPC. 7. In the case of Babu vs. Remesan and others, reported In AIR 1996 Kerala 95, it is held that the accident should be reasonably proximate to use of motor vehicle, whether or not the motor vehicle was in motion, then the word ‘use’ cannot be given restrictive meaning ‘loading of motor vehicle’. The Division Bench has further held at para-4 of its judgment as follows: “The expression ‘arising out of use of motor vehicle’ has received a pragmatic interpretation from the apex Court. In the decision reported in Shivaji Dayanu Path v. Smt. Vatschala Uttam More, AIR 1991 SC 1769- their Lordships held that the expression “use of a motor vehicle” covers the accidents which occur both when the vehicle is in motion and when it is stationary. The word “use” has a wider connotation to cover the period when the vehicle is not moving and is stationery and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a break-down or mechanical defect or accident.” $ In this case, admittedly the vehicle belonging to the 2 respondent was driven by the 1st respondent-claimant. The vehicle was not at all involved in any accident while it was moving or in motion. The inmates of the vehicle who took the vehicle on hire have instructed the l respondent - driver of the vehicle to stop the vehicle on the pretext of answering natures call and when the car is stopped, the three accused have committed the offence punishable under Sections 397, 120-B and 109 IPC. Therefore, the incident was not arising out of use of motor vehicle and the injuries sustained by the claimant-petitioner were stab injuries caused to him with a knife by one of the inmates of the car. Therefore, the claimant cannot invoke the provisions of Section 166 of the Motor Vehicles Act to claim compensation, in respect of the stab injuries caused by the offenders. 8. The learned trial Judge has erroneously come to the conclusion that the petitioner sustained injuries due to the accident arising out of use of the motor vehicle. In view of the facts and circumstances of the case, the incident in question cannot be termed as an accident arising out of use of motor vehicle. Therefore, the learned trial Judge was not 9 justified in awarding compensation invoking the provisions of Section 166 of the Motor Vehicles Act. 9. In the result, the appeal is allowed. The impugned award passed by the learned trial Judge is hereby set aside. The statutory deposit made by the appellant-Insurance Company shall be refunded to the appellant. Sd/ JUDGE Sub/