FA/490/1990 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 490 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE CO LTD - Appellant(s) Versus KRISHNABEN BHIKHABHAI MARVADI & 6 - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1, MR BHARAT T RAO for Defendant(s) : 1 - 2. UNSERVED-EXPIRED (R) for Defendant(s) : 3 - 4. RULE UNSERVED for Defendant(s) : 5 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 06/08/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr. Sunil B. Parikh for learned advocate Mr.RH Mehta for the appellant Insurance Company and learned advocate Mr. BT FA/490/1990 2/7 JUDGMENT Rao for respondent NO. 1-2. 2. Appellant insurance company has filed this appeal against the award of compensation made by the claims tribunal (Main) Vadodara in MAC Application NO. 80/85, 81/85, 82/85, 83/85, 84/85, 85/85,86/85, 87/85 and 846/85 dated 31st August, 1988. Learned Advocate Mr. Parikh for appellants submits that the other appeals arising from the said award have been dismissed by this court looking to the smallness of the amount and this appeal is confined to award made by the claims tribunal in MAC Case No. 846/85. 3. The accident occurred on 17.8.84 at about 4.00 to 4.15 a.m. at Nava Yad, Lalpura, Locality within the city of Vadodara because of the collision of the tanker No. GTK-7796 (with the attached trailor No. GAA-7763) and tanker No. GTI-8469 (with attached trailor No. GRQ-8657). Both the above said vehicles belonged to opponent NO.3 M/s. Mysore Ammonia Supply Corporation Chhani Road, Vadodara. The former tanker was being driven by opponent no.1 while the latter tanker was being driven by opponent NO.2. It was the case of the claimants before the claims tribunal that the former tanker had a break down and the lever gas pipel ine had broken and therefore the former tanker along with the attached trailor was standing on the road near Nava Yard, Lalpura within the city of Vadodara. Because of the breakage in the lever- gas-pipe, there was some spread of ammonia gas. FA/490/1990 3/7 JUDGMENT But at that time, the latter tanker owned by the same company i.e. Opponent no.3 and being driven by opponent no.2, the driver had come there and it had given a dash to the stationary tanker and the trailor as a result of which the damage to the former tanker's trailor had become extensive and there was a vast leakage of gas resulting into the inhalation injuries to various persons. The ammonia gas had spread in the houses situated in the vicinity and the deceased Bhikhabhai Marvari had had sustained grave inhalation injuries wherein one person was taken to SSG Hospital where later on, during the course of treatment, he had lost his life. Rest of the applicants had sustained various inhalation injuries and they were required to be hospitalized. In MAC Case NO. 846/85, heirs and legal representatives of deceased Bhikhabhai Marvari have claimed total compensation of Rs.1,28,000.00on thebasis that the deceased was aged about 23 years and used toe arn Rs.20.00 per day. The case of the applicant is that the deceased had received inhalation injuries and he was admitted at SSG Hospital Vadodara on 17.8.84 but he had succumbed to injuries on 22.8.84 and, therefore, claim for compensation of Rs.1,28,000.00 was made by the claimants in the said claim petition before the claims tribunal. Claims tribunal awarded Rs.1,08,000.00 in favour of the claimants therein. 4. Learned Advocate Mr. Parikh for the insurance FA/490/1990 4/7 JUDGMENT company submits that the insurance company would not be liable to satisfy the award because death and injuries were the result of inhaling ammonia gas in excessive quantity in the private place and, therefore, it cannot be considered to be vehicular accident and, therefore, insurance company is not responsible. 5. This question has been examined the Division Bench of this Court also examined such question in case of United India Insurance CO. Ltd. Versus Ravjibhai Karsanbhai Rathod reported in 2004 (1) GLH 578 wherein decision of the apex court in National Ins. Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, (2002)7 SCC 456 and Shivaji Dahanu Patil v. Varschala Uttam More reported in 1991 ACJ 777 were considered and the question raised by learned Advocate Mr. Parikh was answered in the negative by the division bench of this Court. Relevant observations made by the Division Bench of Court in United India Insurance Co. Ltd. (supra) para 4 are repfoduced as under: “4. Being aggrieved by and dissatisfied with the award, the appellant challenges the same through these appeals. The first submission advanced by Shri A.R.Mehta, learned counsel for the appellant is that the Claims Tribunal rejected the application of the appellant under section 170 of the Act erroneously. Precisely, submission is that when the insured had not filed written statement nor examined witnesses and contested the claim, case of collusion between the claimants and the insured was made out, therefore, the Claims Tribunal ought to have allowed the application. Shri Mehta in support of this submission places reliance on a decision of the Apex court in National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, (2002) 7 SCC 456. In para 31 of the FA/490/1990 5/7 JUDGMENT judgment, the Apex Court held that : "31. We have already held that unless the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further the Tribunal does not implead the insurance company to contest the claim, in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and insurer is allowed to contest the claim on merits, in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneously rejected, the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of section 149 of the 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award. (emphasise supplied). Therefore, Shri Mehta proceeds to submit that on merits, the awards are liable to be set aside. Making reference to the accident, it is forcefully contended that the accident did not arise out of use of motor vehicle. The tanker turned turtle and was stationary when the accident took place to Naphta at the lighting of match-stick by the deceased/claimants who gathered at the site for taking away the liquid assuming it to be kerosene. Reference is made to first information report, the statement of Fire Officer and by some of the deceased in dying declarations that someone lit match stick at thesite. We are not satisfied with these submissions. There is no dispute that tanker carrying Naphta was met with accident, turned turtle resulting in leakage of Naphta liquid. Simply because the vehicle became stationary on account of accident having turned turtle, it cannot be said that the accident did not arise out of use of motor vehicle. The expression "arising out of the use of motor vehicles" has to be given broader meaning and, therefore, simply because the vehicle happens to be stationary at the time when the accident took place, but the dominant purpose of the journey was use thereof for carrying Naphta liquid. There is direct nexus between the injuries suffered by the deceased/injured and the accident (see Shivaji Dayanu Patil v. Vatschala FA/490/1990 6/7 JUDGMENT Uttam More, 1991 ACJ 777). Another facet of the question is whether the deceased/injured were negligent/responsible for causing the accident by lighting match-stick. Frankly speaking, we are not satisfied with the evidence sought to be pleaded by the appellant in support of its contention that the deceased/injured were responsible for the fire having lit the match-stick. Evidence in criminal case is not relevant to prove cases under the Motor Vehicles Act, 1988. Even otherwise, maker of First Information Report has not been produced to prove the contents thereof nor the person who recorded the same. Further, the best persons to throw light how accident actually took place was the driver and conductor of the vehicle. Neither the driver nor conductor of the vehicle has been produced to establish that the deceased/injured caused the accident by lighting match-stick. Therefore, we find no difficulty in accepting the version of the claimants that fire accident took place in which some died and others suffered grievous injuries. There is no dispute about it. Assuming that there is no evidence how it took place, principle of res ipsa loquitur applies in such a case. Therefore, from both angles, taking place of accident is proved. With regard to responsibility, obviously, the tanker was carrying Naphta, highly inflammable material, therefore, high degree of care and caution was required from the owner/driver of the vehicle and it should not have been driven in a way that it turned turtle. The driver should have foreseen that going to side may cause accident and which could result in serious consequences because he was carrying highly inflammable material in the vehicle. These facts are enough to demonstrate that the driver and the conductor of the vehicle were thoroughly negligent in driving the vehicle.” 6. Claims tribunal has awarded Rs.108000.00 in favour of the respondents claimants after examining panchanama of occurrence at Exh. 65 and thereafter, the claims tribunal has examined merits of the matter including question of jurisdiction of the tribunal and the tribunal has held that it has jurisdiction because it is an accident due to motor vehicle and injury received and death took place due to inhalation of gas while in their respective houses. FA/490/1990 7/7 JUDGMENT Negligence of the driver is also held by the claims tribunal and thereafter compensation has been awarded by the claims tribunal. Claims tribunal has passed detailed judgment and award and detailed reasons have been given in support of its award after perusing entire record on perusal of the award, it cannot be considered to be perverse and, therefore, when the contention raised by the learned advocate Mr. Parikh is squarely covered by the aforesaid decisions, one of this court and the another of the Hon'ble apex court, no further question is to be examined by this court. Compensation awarded by the claims tribunal cannot be considered to be on higher side or unreasonable and, therefore, no interference is required by this court. Therefore, this appeal is required tob e dismissed. 7. Accordingly, this appeal is required to be dismissed with no order as to costs. (H.K. Rathod,J.) Vyas