*THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD + CIVIL MISCELLANEOUS APPEAL No.488 of 2001 % Dated : 21.03.2011 # Sama Suryanarayana ..... Appellant AND $ Allu Veeraraghavulu $ The Oriental Insurance Company Ltd. ..... Respondents ! Counsel for Appellant : Sri N. Siva Reddy ^Counsel for 1st Respondent : Sri P. Rajesh Babu ^Counsel for 2nd Respondent : Smt. B. Naga Sai Lakshmi <GIST : >HEAD NOTE : ? Cases referred : 1985 (2) ALT 248 2002 (2) ALD 811 977 ACJ 118 (2010) 10 Supreme Court Cases 536 (2008) 16 Supreme Court Cases 115 AIR 2007 SUPREME COURT 2907 2011 (1) ALD 686 (DB) (2005) 6 Supreme Court Cases 172 AIR 2000 SUPREME COURT 1930 1991 ACJ 777 1967 ACJ 329 2009 ACJ 962 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.488 of 2001 Between: Sama Suryanarayana .. Appellant AND 1. Allu Veeraraghavulu 2. The Oriental Insurance Company Ltd. .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.488 of 2001 JUDGMENT: This appeal is directed against the award in O.P.No.326 of 1994, on the file of the Motor Accidents Claims Tribunal-cum- District Judge, East Godavari at Rajahmundry, dated 13.12.1995. 2. The appellant/claimant was working as a driver on tractor and trailer Nos.AP 5T 7439 and 6473, owned by the first respondent and insured with the second respondent, and at the age of 40 years, he was earning Rs.1,800/- per month including batta. On 10.04.1993, the appellant was driving the tractor and trailer with load of mud and at about 3.00 p.m., when he reached Choppella, a live electric wire fell on his head which he tried to remove with his left hand. He sustained an electric shock, fell down from the tractor and trailer and sustained severe injury on the left hand and multiple burn injuries on the right shoulder and left leg apart from a severe head injury. The appellant was first admitted in a private hospital and then in Government Hospital, Kakinada, where his left hand was amputated and he was undergoing treatment even after discharge. He was permanently disabled and hence, claimed a compensation of Rs.50,000/- from the owner and insurer of the tractor and trailer. 3. While the owner of the tractor remained ex parte before the Tribunal, the insurer contended that the appellant sustained injuries elsewhere and not in a motor accident and invented the story in collusion with the first respondent, owner of the tractor and trailer. The statement to the police was given by the injured at Kakinada instead of at Alamuru Police Station, that too only on 15.04.1993. Any claim should have been under the Workmen’s Compensation Act, 1923, and, hence, the second respondent/insurer desired the claim to be negatived. 4. The Tribunal framed issues about the accident occurring during the course of the employment of the appellant with the first respondent, the appellant holding a valid licence, the entitlement of the appellant to compensation and if so, for what amount and against whom. 5. During the course of enquiry, P.W.1 and R.W.1 were examined and Exs.A-1 to A-4 and B-1 were marked. 6. The Tribunal rendered the impugned award referring to the evidence of the injured P.W.1 and observing that the accident was not due to the use of the motor vehicle, but due to the live electric wire. The Tribunal also referred to the evidence of R.W.1 about his investigation on behalf of the second respondent/insurer and the Tribunal opined that even if the evidence of P.W.1 were to be accepted, it is not understandable how a claim under the Motor Vehicles Act, 1988, was maintainable. The Tribunal felt that either a claim under the Workmen’s Compensation Act, 1923, or a suit for damages should have been filed against the Electricity Department for leaving the live electric wire negligently. The decision reported in UNITED INDIA FIRE AND GENERAL INSURANCE CO. LTD., RAJAHMUNDRY VS. PITHANI VENKANNA[1] was referred to and it was considered not applicable as P.W.1 was not subjected to the accident due to the driving of or any defect in the vehicle or out of the use of the vehicle at the relevant time. The burn injuries sustained by him due to the fall of live electric wire on him have no nexus with the use of the motor vehicle in a public place and without going into the alleged negligence of the appellant himself resulting in the accident, the Tribunal also refused to consider the report of the Investigator-R.W.1 in the absence of any relevant evidence or supporting material or personal knowledge. Still, the Tribunal considered that no claim under fault liability or no fault liability can be maintained before the Tribunal due to the accident being not on account of use of the motor vehicle in a public place. Hence, the Tribunal dismissed the petition without costs. 7. The appellant filed the appeal questioning the dismissal of his claim and contending that the Tribunal should have noted that the accident occurred when the appellant was on the motor vehicle driving the same and the Tribunal should have concluded the insurer to be liable without opining that a claim shall be made under the Workmen’s Compensation Act, 1923, or through a civil suit. Hence, the claimant desired the compensation to be awarded as claimed. 8. Heard Sri Krishna Kishore Kovvuri, learned counsel representing Sri N. Siva Reddy, learned counsel for the appellant and Smt. B. Naga Sai Lakshmi, learned standing counsel for the second respondent/insurer and Sri P. Rajesh Babu, learned counsel for the first respondent/owner of the tractor and trailer. 9. The points that arise for consideration in this appeal are whether the appellant on the facts alleged by him is entitled to be compensated under the Motor Vehicles Act, 1988, and if so, by what quantum and from whom? 10. The learned counsel for the second respondent/insurer referred to various precedents on the aspect commencing from UNITED INDIA INSURANCE CO. LTD., ARMOOR BRANCH, NIZAMABAD DIST. VS. KORE LAXMI[2], wherein a learned Judge of this Court opined that the foundation for laying a claim under Section 166 of the Motor Vehicles Act, 1988, is based on a tort which flows from wrongful act, neglgect or default on the part of the person who is liable to pay compensation either independently or vicariously. When the accident occurred due to negligence on the part of the deceased driver himself, the owner is not vicariously or independently liable and the liability to pay compensation under the provisions of the Motor Vehicles Act, 1988, arises when the motor vehicle is in use and caused injury to any person. While holding that the claim for compensation under the Motor Vehicles Act, 1988, can be entertained by the Claims Tribunal only when it is shown that the accident occurred is due to the actionable negligence on the part of the driver of the vehicle or the accident causing injury or death to a third party, the learned Judge referred to various precedents on the aspect and the learned Judge distinguished the decision reported in PITHANI VENKANNA’s case (supra 1), which was distinguished by the Tribunal in the present case also. The learned Judge considered that an additional premium was paid by the owner in that case to cover the risk of the driver and the effect of the judgment of the Apex Court in MINU B. MEHTA VS. BALKRISHNA RAMCHANDRA NAYAN[3] was considered to have not been considered in VENKANNA’s case (supra 1). Proof of actionable negligence was, therefore, considered sine qua non by the learned Judge except under Section 140 of the Motor Vehicles Act, 1988. 11. The learned Counsel for the second respondent/insurer also relied on a decision reported in MAMTAJ BI BAPUSAB NADAF AND OTHERS VS. UNITED INDIA INSURANCE COMPANY AND OTHERS[4], wherein the Apex Court considered that in that case, the unloading of maize from the tractor and the death of the labourers due to suffocation by fall into the grocery pit have no proximate or direct connection and as the cause of death was not proximate to the actual use of the vehicle, the Apex Court considered the insurer to be not liable to compensate the legal representatives of the deceased workmen. 12. Similarly, in HARIJAN MANGRI SIDDAKKA AND OTHERS VS. ORIENTAL INSURANCE COMPANY LIMITED AND ANOTHER[5], the Apex Court found that there was no connection between the death and use of the vehicle in that case, but made it clear that it would depend upon the factual scenario in each case and there cannot be any straitjacket formula to be applied. 13. I n GOTTUMUKKALA APPALA NARASIMHA RAJU AND OTHERS VS. NATIONAL INSURANCE COMPANY LTD.[6], the Apex Court was considering a case where there was no documentary proof to establish the contract of employment, no independent witness was examined, the purpose for which the tractor was being used was not disclosed and how the accident took place was not borne out from the records of the case. The Apex Court opined that the ingredients for maintaining a proceeding under the Motor Vehicles Act, 1988, and the Workmen’s Compensation Act, 1923, are different and contract of insurance is mandatory under the Motor Vehicles Act, 1988, the provisions of which cannot be extended to the Workmen’s Compensation Act, 1923. 14. The learned counsel further referred to the decision of the Division Bench of this Court in ORIENTAL INSURANCE CO. LTD., PRODDATUR, CUDDAPAH DISTRICT VS. BHOOMI REDDY PEDDI REDDY LAKSHMI DEVI AND OTHERS[7], wherein the Division Bench held that the liability of the insurance company to indemnify the owner is strictly in accordance with the terms of the contract of insurance and until and unless the liability arises either under Section 147 of the Motor Vehicles Act, 1988, and under the terms of contract of insurance, the risk of the owner or any gratuitous passenger travelling in the vehicle of the owner is not covered merely because it is an act policy. 15. The principles laid down in the last of the decisions by the Division Bench are unexceptionable and the question herein is not about the appellant driver not being covered by the terms and conditions of the insurance policy or by the provisions of Section 147 of the Motor Vehicles Act, 1988, but whether the accident can be termed to have occurred during the use of the motor vehicle in a public place. The purpose for which the tractor and trailer was being used at the relevant time or the manner in which the accident had occurred are not seriously in dispute in the present case and at any rate, the claims of the injured P.W.1 are corroborated by the contents of Ex.A-1-General Diary Extract in the present case. The factual background of the case under consideration in GOTTUMUKKALA APPALA NARASIMHA RAJU’s case (supra 6), is different and distinct where any evidentiary proof, oral or documentary, was totally lacking to support the maintainability of a claim under the Motor Vehicles Act, 1988. Similarly, the case is not one where the falling of the live electric wire on the driver and the driving of the tractor and trailer have no link. It was when the tractor and trailer was on the move with the appellant driving it that the live electric wire fell on him and it cannot be said that the movement of the vehicle and the falling of the live electric wire injuring the appellant have no proximate or direct connection. While the principle that actionable negligence on the part of the owner of the vehicle is the basis for the claim under the Motor Vehicles Act, 1988, is not open to any doubt, instances are not uncommon where such actionable negligence is deduced from the factual matrix of a case though the owner might not have been straight away guilty of any direct act or omission leading to the accident. As pointed out by the Apex Court in HARIJAN MANGRI SIDDAKKA’s case (supra 5), it would depend on the factual scenario in each case without there being any straitjacket formula. In NATIONAL INSURANCE CO. LTD. VS. PREMBAI PATEL AND OTHERS[8] also, the need for the injured or the legal representatives of the deceased to establish by a preponderance of evidence that there was no negligence on the part of the injured or deceased and they were not responsible for the accident, was reiterated which principle is unexceptionable and has no application to the facts of the present case where the falling of the live electric wire on the appellant driving a moving tractor and trailer can, by no means of imagination, be attributed to any element of negligence on his part. 16. On the other hand, Sri Krishna Kishore Kovvuri, learned counsel representing Sri N. Siva Reddy, learned counsel for the appellant relied on a decision reported in SMT. RITA DEVI AND OTEHRS VS. NEW INDIA ASSURANCE CO. LTD. AND ANOTHER[9], wherein the Apex Court was dealing with the murder of the driver of an auto rickshaw in the course of stealing the same. The Apex Court, referring to the precedents from other jurisdictions, concluded that the murder of the driver in the process of stealing of the auto rickshaw was only incidental to the act of stealing and it has to be considered as due to an accident arising out of the use of the motor vehicle. The Supreme Court took into account the fact that the Motor Vehicles Act, 1988, is a beneficial legislation, the approach of Courts in construing which is to advance the beneficent purpose underlying the enactment in preference to a construction which tends to deviate that purpose. Stealing of the auto rickshaw or the murder of the auto rickshaw driver could not have been connected to the owner or insurer of the motor vehicle in any manner in the normal course, but with reference to the beneficial provisions of the Motor Vehicles Act, 1988, the Apex Court fastened the liability to compensate the legal representatives of the deceased auto rickshaw driver. 17. In the other decision reported in SHIVAJI DAYANU PATIL AND ANOTHER VS. VATSCHALA UTTAM MORE[10], referred to by Sri Krishna Kishore Kovvuri, learned counsel, a petrol tanker exploded resulting in fire and burn injuries to many persons, one of whom died. The claim by the legal representatives of the deceased was under consideration of the Apex Court and the expression “arising out of the use of Motor vehicle” was considered in depth by the Apex Court. With reference to the various precedents on the aspect, the Apex Court considered that arising out of the use of motor vehicle has to be construed in a wider sense to include the period when the vehicle is not moving and is stationary also. It was pointed out that in the matter of interpretation of beneficial legislation, the approach of the Courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to deviate the purpose. Referring to the relevant provisions of the Motor Vehicles Act, 1988, and a similar approach adopted by the Apex Court in construing the relevant provisions, the Apex Court held that the expression ‘use’ has been used in a wider sense and it covers all employments of the motor vehicle in public places including its driving, parking, keeping stationary, repairing or leaving unattended on the road or for any other purposes. The expression ‘arising out of the use of a motor vehicle’ was held to imply a casual relationship between the user of the motor vehicle and the accident which has resulted in death or disablement. 18. Apart from the interpretation of ‘the use of a motor vehicle’ in such liberal terms by the Apex Court, Sri Krishna Kishore Kovvuri, learned counsel also brought to notice a decision of the High Court of Australia reported in GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES VS. R.J. GREEN & LIOYD PTY. LIMITED[11], wherein considering the provisions of a comparable legislation, it was held that in choosing the expression ‘the use of the motor vehicle’ as the basis for the requirement of a policy of insurance and for the delimitation of the area of the indemnity to be obtained, the act indicates an intention to cover a very wide field, a field more extensive that what might be called the traffic use of the motor vehicle. It was held by a Four Judge Bench that the act does not evidence any intention to limit the injury against the liability for which the injured is to be indemnified to the injury caused by or arising out of a negligent use of the motor vehicle. While noting that the liability of the owner to the injured person may require some tortious act, usually negligence for which the owner is responsible, the necessity for some tortious or other basis of the liability of the owner does not require any qualification of the word ‘use’ in the statutory expression. It was held that it is the injury which must be caused or arise out of the use not the liability for the injury. It was opined that any use that is not utterly foreign to its character as a motor vehicle is covered by the words ‘injury caused by or arising out of the use of a motor vehicle’. The words postulate a casual relationship between the use of the vehicle and the injury. The word ‘arising out of’ extends the relationship of cause and effect to a result that is less immediate, but it still carries a sense of consequence. 19. In ORIENTAL INSURANCE CO. LTD. VS. RABINDRA MANDAL AND OTHERS[12], a learned Judge of the Orissa High Court was considering an identical question as herein and in that case, a monkey jumped on the deceased working as a labourer in a truck on which the deceased lost his balance, fell down, came into contact with a live electric wire and died due to electrocution, while undergoing treatment. The learned Judge held that the deceased was on duty at the time of accident and in the absence of any fraud behind the conclusions about the employment and death, the learned Judge refused to interfere with the compensation awarded by the Workmen’s Compensation Commissioner. 20. The direct precedent is of great persuasive value and even otherwise, the interpretation of the relevant expressions by the Apex Court in the widest possible terms makes the injuries suffered by the appellant due to fall of a live electric wire on him while the tractor and trailer driven by him was in motion liable to be construed as arising out of the use of the motor vehicle. Such factual conclusion can be based on not only in the evidence of the injured himself as P.W.1, but even the Investigator appointed by the insurer who deposed as R.W.1. While the owner of the tractor did not contradict the claims of the injured appellant by any pleading or evidence and the owner never denied the employment of the appellant with him or his being on duty while driving the tractor at the relevant time, the Tribunal itself found that the Investigator’s Report cannot be considered at all in the absence of any relevant evidence and supporting material or personal knowledge. The Tribunal also concluded that it was obvious that the appellant/claimant sustained injuries during the course of his employment while driving the tractor and trailer due to the live electric wire falling on him. On such conclusion, the injuries suffered and the consequences that ensued should have to be construed as giving a cause of action for the appellant to make a claim for compensation against the owner of the vehicle and its insurer. The ownership of the vehicle with the first respondent and its subsisting insurance with the second respondent were not disputed and the insurer did not claim the claim to have not been otherwise covered by the terms and conditions of the insurance. Referring the appellant to a claim under the Workmen’s Compensation Act, 1923, or a suit for damages will be, therefore, unjust and unreasonable and the appellant has to be concluded to be entitled to the compensation he claimed. 21. Coming to the quantum of compensation which has to be awarded, Ex.B-1-Investigator’s Report itself shows that the appellant was admitted in Government Hospital, Kakinada, after the accident and that his left hand was amputated. The positive findings of the Investigator, R.W.1, against the happening of the accident itself were not acted upon by the Tribunal and the findings of the Tribunal were not under challenge by the insurer. The amputation of the left hand being admitted, the compensation of Rs.50,000/- claimed by the appellant in this appeal is, in fact, meagre and conservative, while he claimed a higher compensation of Rs.90,000/- in the claim petition. The claimant was claimed to be aged 40 years at the time of the accident and to be earning Rs.1,800/- per month including batta as a driver. Without any need for classification of the heads of pecuniary and non-pecuniary damages to which the appellant is entitled to on the amputation of his left hand in the accident, in view of the very limited claim made in this appeal, the amount of Rs.50,000/- has to be straight away granted as compensation against both the respondents jointly and severally. 22. However, considering the length of time for which interest and has to be paid on such sum, interest can be limited to 6% per annum, while proportionate costs, of course, shall follow suit. 23. Accordingly, the award, dated 13.12.1995, in O.P.No.326 of 1994, on the file of the Motor Accidents Claims Tribunal-cum-District Judge, East Godavari, at Rajahmundry, is set aside and the said O.P.No.326 of 1994 is ordered by granting a compensation of Rs.50,000/- in favour of the petitioner/claimant against both the respondents jointly and severally with interest on such sum of Rs.50,000/- at 6% per annum from the date of the petition till the date of realization and proportionate costs. 24. The Civil Miscellaneous Appeal is allowed, accordingly, without costs. ___________________ G. BHAVANI PRASAD, J Date: 21st March, 2011 Note: L.R. copy to be marked. (B/o) KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.488 of 2001 Date: 21st March, 2011 KL [1] 1985 (2) ALT 248 [2] 2002 (2) ALD 811 [3] 1977 ACJ 118 [4] (2010) 10 Supreme Court Cases 536 [5] (2008) 16 Supreme Court Cases 115 [6] AIR 2007 SUPREME COURT 2907 [7] 2011 (1) ALD 686 (DB) [8] (2005) 6 Supreme Court Cases 172 [9] AIR 2000 SUPREME COURT 1930 [10] 1991 ACJ 777 [11] 1967 ACJ 329 [12] 2009 ACJ 962