IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MACA.No. 507 of 2007() ---------------------- OPMV.1697/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- NEW INDIA ASSURANCE COMPANY LTD, IRINJALAKUDA, THRISSUR DISTRICT REPRESENTED BY ITS ADMINISTRATIVE OFFICER BY ADV. SRI.KKM.SHERIF SRI.P.A.MOHAMMED ASHROF SRI.A.A.ZIYAD RAHMAN SMT.RUKMA S RAJ RESPONDENT(S): PETITIONER & RESPONDENT NO.1 AND 2 ------------------------------------------------- 1. REMYA, D/O SASI, KARIPPERI HOUSE, PERUNGAMKULAM DESOM, KODAKARA VILLAGE, PERAMBRA P.O, MUKUNDAPURAM TALUK, THRISSUR DIST. 2. A.B.SUNILKUMAR, ANALIPARAMBIL HOUSE, KUZHIKATTUSERRY P.O. 3. DILEEP, S/O PULIKKA BALAN, PERAMBRA P.O, THRISSUR DISTRICT. ADV. SRI.P.V.BABY FOR R.1 SRI.A.N.SANTHOSH FOR R.1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, ALONG WITH MACA NO. 816 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- M.A.C.A. Nos.507 and 816 of 2007 ------------------------------------------------- Dated this the 2nd day of November, 2011 JUDGMENT Basant,J. How is the expression “accident arising out of the use of motor vehicle” in Sec.163A of the Motor Vehicles Act (for short `the M.V. Act’) to be construed? Does that expression take in every accident suffered in the course of use of a motor vehicle? Is the causal connection that the accident was suffered when the victim was actually travelling in a motor vehicle sufficient? Can the expression “accident arising out of the use of motor vehicle” be read down to mean “accident connected with the use of the motor vehicle”? Does the purpose and context of Sec.163A of the M.V. Act justify such an expansion of meaning for the expression? These are the first set of questions that arise in these appeals. 2. The second question that arises for determination is as to how the expression “permanent disablement” in the body of Sec.163A is to be understood? This, in turn, calls for an interpretation of the scope and ambit of Entries 25, 26 and 26A of Part II Schedule I of the Workmen’s Compensation Act also. M.A.C.A. Nos.507 and 816 of 2007 -: 2 :- 3. To the vitally relevant facts at the outset. The claimant Remya, a minor girl aged about 12 years suffered injuries while she was travelling in an autorikshaw owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent insurance company (we refer to the parties in the manner in which they are ranked before the Tribunal). While she was travelling in the auto rikshaw, a beer bottle thrown from some other vehicle had hit her on her face and consequently she had suffered injuries. She lost vision of one eye completely. She allegedly suffered partial loss of vision of the other eye. She claimed an amount of Rs.2,75,000/- as compensation. The claim was lodged under Sec.163A of the M.V.Act. 4. The accident and the suffering of injuries by Remya/the claimant were not disputed. A contention is raised that Sec.163A of the M.V. Act does not cover the claim. In short, the contention raised is a contention in law. The argument raised is that the accident in this case did not arise out of the use of the motor vehicle. There are disputes regarding the extent of permanent disablement and the quantum of compensation payable also. 5. The Tribunal by the impugned award allowed the M.A.C.A. Nos.507 and 816 of 2007 -: 3 :- petition and directed payment of an amount of Rs.1,10,000/- as compensation. The claimant has preferred M.A.C.A.No.816/07 aggrieved by the quantum of compensation awarded. The insurance company has preferred M.A.C.A. No.507/07 raising the contention that the accident in the instant case did not arise out of the use of motor vehicle and hence no compensation is liable to be paid under Sec.163A of the M.V. Act. 6. It is in this context that the expression “ arising out of the use of motor vehicle” falls for consideration in these appeals. It will be advantageous, at the very out set, to extract Sec.163A of the M.V. Act: “163A. Special provisions as to payment of compensation on structured formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. M.A.C.A. Nos.507 and 816 of 2007 -: 4 :- Explanation.-- For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” (emphasis supplied) 7. Sec.163A of the M.V. Act had come up for detailed consideration in the Supreme Court in two decisions. It will be advantageous to refer to the decisions in Deepal Girishbhai Soni v. United Insurance Co. Ltd., (AIR 2004 SC 2107). That decision was rendered by a three Judge Bench consequent to a reference made to it doubting the dictum in the earlier M.A.C.A. Nos.507 and 816 of 2007 -: 5 :- decision of the Supreme Court in Oriental Insurance Co. Ltd., v. Hansrajbhai V. Kodala and others [(2001) 5 SCC 175]. 8. The purpose, object, scheme etc., of Sec.163A have been considered in detail by the Supreme Court in the said decisions. It is now trite that Sec.163A creates a different, distinct, separate and absolute statutory liability. Such liability is not founded on the law of torts. It is an absolute statutory liability imposed on an authorized insurer of the vehicle or (if there be no authorized insurer) on the owner of the vehicle. Negligence is irrelevant in a claim under Sec.163A. Consequently contributory negligence is also irrelevant in a claim under Sec.163A of the M.V. Act. Amount specified in the Second Schedule to the M.V. Act is payable to the legal heirs of the victim or the victim as the case may be, if it is shown that death or permanent disablement due to accident arising out of the use of the motor vehicle had resulted. Sec.163A read along with the Second Schedule is a code in itself. In National Insurance Co. Ltd., v. P.C. Chacko (2011 (3) KLT 693) these aspects have been considered in detail by another Division Bench (judgment rendered by one of us). 9. We may advantageously refer to paragraph-39 of Deepal Girishbhai Soni (supra) which we extract below: M.A.C.A. Nos.507 and 816 of 2007 -: 6 :- “39. Section 163-A was introduced in the Act by way of a social security scheme. It is a code by itself. x x x x x x”. 10. We refer to this paragraph-39 at the out set because the approach made by the Supreme Court must impress on us the real contours of Sec.163A of the M.V. Act which, in turn, would help us to better understand the expression “accident arising out of the use of motor vehicle” in the body of Sec.163A (1). 11. We do note that the expressions “accident arising out of the use of motor vehicle”, “accident caused by the use of motor vehicle” and “accident connected with the use of motor vehicle” are all expressions used in various statutes relating to the Insurance of Motor Vehicles. The expression “accident arising out of and in the course of employment” is available in Sec.3 of the Workmen’s Compensation Act also. After hearing all counsel we are certainly of the opinion that the expression “arising out of the use of motor vehicle” in the context of Sec.163A can be better understood by reference to precedents under the M.V. Act. The expressions may have different meanings in different contexts as we shall later advert to in M.A.C.A. Nos.507 and 816 of 2007 -: 7 :- detail. 12. In Secs.147(1), 140, 165 and Sec.163A of the M.V. Act we find the expression “arising out of the use of motor vehicle” employed by the statute. We do not think it necessary to extract the said statutory provisions in detail in this judgment. While the expression “caused by or arising out of the use of motor vehicle” is used twice in Sec.147(1) of the M.V. Act the expression “arising out of the use of motor vehicle” is employed in all other Sections. 13. The learned counsel for the appellant/insurance company Sri.Ziyad Rehman laboriously builds up an argument that the three expressions i.e., (1) “Caused by the use of motor vehicle”; (2) “arising out of the use of motor vehicle”; and (3) “connected with the use of motor vehicle” are entirely different concepts. The extent of connection/nexus between the cause (use of the motor vehicle) and the effect (accident) is crucial for correctly understanding the dimensions or contours of these three expressions. The learned counsel argues that for an accident to be described as one “caused by the use of motor vehicle” a direct, immediate and intimate connection must be established between the use of the motor M.A.C.A. Nos.507 and 816 of 2007 -: 8 :- vehicle and the accident in which the injuries are suffered. 14. So far as the expression “arising out of the use of motor vehicle” is concerned it must also have a causal connection between the use of the motor vehicle and the accident that has resulted. But the linkage, nexus or connection need not be as immediate, as proximate, as specific or as direct as it ought to be when the expression employed is “caused by the use of motor vehicle”. 15. Thirdly, it is contended that the expression “accident connected with the use of the motor vehicle” is wider in its sweep and that the connection between the cause and the effect need not be as pronounced as immediate or as intimate as in either of the two cases referred above. 16. The learned counsel for the insurance company builds up an argument that inasmuch as the legislature has advisedly used the expression “arising out of the use of motor vehicle” and not “connected with the use of motor vehicle” in Sec.163A, there must be more direct and pronounced linkage/nexus between the use of the motor vehicle and the accident which has resulted. A mere casual causal connection is not sufficient. A sense of consequence must still be there, argues counsel. 17. Employing that test of the linkage/connection/nexus M.A.C.A. Nos.507 and 816 of 2007 -: 9 :- between the use of the motor vehicle and the accident, the learned counsel for the insurance company argues that the accident in this case cannot be said to have arisen out of the use of motor vehicle. The accident was not a consequence of the use of motor vehicle, contends counsel. If the legislature had employed the expression “accident connected with the use of motor vehicle”, probably the accident in this case can be said to fall within the legislative intent; but inasmuch as the legislature has advisedly used only the expression “arising out of the use of motor vehicle” the very casual, distant, non-specific and vague, linkage/nexus between the use of the motor vehicle and the accident cannot bring the claim within the sweep of Sec.163A of the M.V. Act. This is the contention urged. 18. Our attention has been drawn to the precedents on the point. We must, first of all, note that there is no dispute raised as to whether the accident in this case is an accident or not. Viewed from the point of view of the victim or the ones who were responsible for throwing the beer bottle out of their vehicle, the effect was not intended and in that view of the matter, we are in complete agreement that accident in this case has been proved satisfactorily. In the absence of a dispute for anyone, it is unnecessary for us to delve deeper into that aspect M.A.C.A. Nos.507 and 816 of 2007 -: 10 :- of the matter. We hold that the accident has been proved. 19. On the question whether the accident arose out of the use of a motor vehicle, the counsel relies on the decision in Shivaji Dayanu Patil v. Vatchala Uttam More (AIR 1991 SC 1769). Paragraph-26 onwards of that decision deals with this specific question. The crucial dictum, according to us, appears in paragraph-35 which we extract below: “This would show that as compared to the expression “caused by”, the expression “arising out of” has a wider connotation. The expression “caused by” was used in Sections 95(1)(b)(i) and (ii) of the Act. In S.92-A, Parliament, however, chose to use the expression “arising out of” which indicates that for the purpose of awarding compensation u/s, 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the M.A.C.A. Nos.507 and 816 of 2007 -: 11 :- expression “arising out of the use of a motor vehicle” in S.92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.” (emphasis supplied) The supreme Court in that case was called upon to interpret the identical expression in Sec.92A of the M.V. Act (present Sec.140). Delving deeper into the distinction between the expression “caused by” and “arising out of” the Supreme Court observed that the latter expression has a wider connotation. It implies that the accident should be connected with the use of the motor vehicle; but the said connection need not be direct or immediate. In consonance with the beneficent object underlying the statutory provision, the expression “arising out of the use of motor vehicle” deserves a wider construction. It is clearly held so in paragraph-35 which we have extracted above. 20. The Supreme Court in that case had occasion to consider the use of identical expressions in other statutes and the attempt in earlier precedents to explain such expressions. The Supreme Court referred in paragraph-32 of the decision to M.A.C.A. Nos.507 and 816 of 2007 -: 12 :- the distinction between the expression “arising out of” and “arising under”. The words of Lord Bradon in Samick Lines Co. Ltd., v. Owners of the Antonis P. Lemons [(1985) 2 WLR 468] were quoted by the Supreme Court, where the learned Judge explained the ordinary and natural meaning of the words “arising under” “arising out of” and “connected with”. Lord Bradon had said: “With regard to the first point, I would readily accept that in certain contexts the expression “arising out of” may, on the ordinary and natural meaning of the words use, be the equivalent of the expression “arising under”, and not that of the wider expression “connected with”. In my view, however, the expression “arising out of” is, on the ordinary and natural meaning of the words used, capable, in other contexts, of being the equivalent of the wider expression “connected with”. Whether the expression “arising out of” has the narrower or the wider meaning in any particular case must depend on the context in which it is used”. (emphasis supplied) 21. The Supreme Court in paragraph-33 proceeded to M.A.C.A. Nos.507 and 816 of 2007 -: 13 :- consider how the High Court of Australia attempted to understand the expression “arising out of” used in an insurance statute there. Lord Barwick, C.J in N.S.W V. R.J. Green's case [1965 (114) CLR 437] had stated thus and that is extracted by the Supreme Court in para.33 as follows: “Bearing in mind the general purpose of the Act I think the expression `arising out of' must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words `caused by'. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression `arise out of' as used in the Act and in the policy.” The observation of Windeyer, J. in the same decision is also seen extracted in para.34 in the following words: “The words `injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. `Caused by' connotes a `direct' or `proximate' relationship of cause and effect. `Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence.” M.A.C.A. Nos.507 and 816 of 2007 -: 14 :- 22. From the above discussions, following conclusions appear to emerge: (i) The expressions “caused by”, “arising out of” and “connected with” are used by legislature to indicate the connection between the cause and the effect - use of the motor vehicle being the cause and the accident being the effect/result. The expression “caused by” when used demands that there must be an immediate, proximate and direct nexus between the use of the motor vehicle and the accident. (ii) On the contrary, if the expression “arising out” is employed, it indicates that the nexus need not be as immediate, as proximate or as direct as in the former case; but certainly the effect must be a consequence of the cause. (iii) If the expression “connected with” is used to link accident and the use of the motor vehicle, it is enough if the accident occurs in the course of the use of the motor vehicle. Even a very casual causal connection will be sufficient between the cause and the effect when the expression “connected with” is used by the legislature. (iv) The legislature may use these expressions interchangeably. Context gives colour and meaning. In a M.A.C.A. Nos.507 and 816 of 2007 -: 15 :- given context though the expression used is “arising out of” the intention of the legislature may only be to convey what is intended by the use of the expression “connected with”. The decision in Samick Lines Co. Ltd., v. Owners of the Antonis P. Lemons [(1985) 2 WLR 468] by House of Lords is a clear case on the point. In that decision it was held that though the expression used was “arising under” it was construed to have a wider meaning viz. “connected with”. 23. In the given case Sec.163A of the M.V. Act as also Sec.140 of the M.V. Act use the expression “arising out of”. The Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More (AIR 1991 SC 1769) wanted the expression “arising out of” used in Sec.140 of the M.V. Act (Sec.92A then) to be enlarged so that the field of protection will be available to the victims of an accident in consonance with the beneficial object underlying the enactment. 24. If that be the situation in Sec.140 of the M.V. Act, a still wider interpretation has necessarily got to be given when courts consider the identical expression in Sec.163A of the M.V. Act. Sec.140 of the M.V. Act deals with a specified amount which even allegedly is not complete compensation for the loss suffered. Under Sec.140 of the M.V. Act and its predecessor M.A.C.A. Nos.507 and 816 of 2007 -: 16 :- provisions the principle of no fault liability was introduced into the Indian law relating to compensation for motor accidents. Now under Sec.163A of the M.V. Act the relief is not interim and is not to be adjusted towards the compensation to be determined finally. It is in this context the Deepal Girishbhai Soni (supra) states that Sec.163A is a code by itself and is introduced by way of a social security scheme. This Court trying to give life and meaning to the provision of Sec.163A must necessarily give the expression as wide an interpretation as is possible to serve the cause of a social security scheme which Sec.163A is declared to be in Deepal Girishbhai Soni (supra). In the given context therefore it is essential that the expression “arising out of” must be given a wide and expansive meaning as to take within its beneficent scheme all accidents connected with the use of motor vehicle. 25. So reckoned, we come to the conclusion that the expression “arising out of” both in Sec.163A and Sec.140 of the M.V. Act must be read and understood in such a manner as to include all accidents connected with the use of motor vehicle. 26. If that be so, certainly the expression “arising out of use of the motor vehicle” appearing in Sec.147 of the M.V. Act and Sec.165 of the M.V. Act must also receive identical M.A.C.A. Nos.507 and 816 of 2007 -: 17 :- consideration. The liability under Sec.163A must certainly be a compulsorily insurable liability under Sec.147 of the M.V. Act. Similarly, all claims under Secs.140 and 163A of the M.V. Act must be held to be falling within the sweep of Sec.165 of the M.V. Act as has been made clear by the explanation. 27. To sum up, the conclusion appears to be inevitable that the expression “arising out of the use of vehicle” in Sec.147 (1) and its proviso and the expression “arising out of use of the motor vehicle” in Sec.165 of the M.V. Act as also the expression “arising out of the use of motor vehicle” in Sec.140 and Sec.163A of the M.V. Act must cover all cases of accidents connected with the use of motor vehicle. Such a wider and expansive meaning ought to be assigned to the expression “arising out of the use of motor vehicle” in order to serve the statutory purpose and the legislative intention; particularly, in the context of Sec.163A of the M.V. Act. 28. We come to the facts of the case. Without dispute, the accident occurred in connection with the use of the motor vehicle. Nay we would go further and observe unambiguously that the accident arose out of the use of the motor vehicle. The victim child was travelling in an autorikshaw. She happened to be present at the spot where the accident occurred primarily M.A.C.A. Nos.507 and 816 of 2007 -: 18 :- because of her position as a traveller in the vehicle. It is idle to contend that even if she were there, otherwise than in her capacity as a passenger of the vehicle she might still have suffered the accident. That definitely is not the yardstick by which the expression “arising out of the use of motor vehicle” is to be construed. Her presence at the spot of the accident to be a victim of the accident was certainly connected with and arose out of the use of the motor vehicle by her as a passenger of such transport vehicle. The risk is one which any user of a vehicle may be exposed. By no stretch of imagination can it be held that the accident did not arise out of much less that it was not connected with the use of the motor vehicle. Inasmuch as we have already held that the expression “arising out of” has to be equated to “connected with” to give true effect and purpose of