Case: Kalim Khan &amp; Others Vs. Fimidabee &amp; Others

the act. 25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said score. 26. Having said that, we have to presently analyse on whom the liability should be mulcted. As is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policy. The rival contention in this behalf has been considered by the tribunal in the following words:- 29. The Respondent No.2 has admitted the fact that Insurance Policy of offending tractor was for the agricultural purpose. The insurance of offending tractor was taken at Jaipur, Rajasthan. It was brought for commercial activity namely the blasting work. The blasting machine was found on the tractor. No permission from Competent Authority was taken for the blasting work and therefore, the Respondent No.2 has used tractor for commercial purpose and consequently there was fundamental breach of the Insurance Policy. The Respondent No.2 committed fundamental breach of the Insurance Policy allowing the use of tractor for commercial purpose and therefore, the decision cited supra is inapplicable. And again in paragraphs 35, 36 and 37, the tribunal has observed: 35. The Respondent No. 1 has come with the case that digging work with blasting operation was given with sole responsibility of Respondent Nos. 2 and 3. The Respondent Nos. 2 and 3 have come with the case that blasting work for digging of well was taken at the risk of Respondent No.1 to 3 have not produced documentary evidence showing that digging work of well with blasting operation was being done on the sole responsibility either of Respondent No.1 or of the respondent Nos. 2 and 3. In absence of such evidence, the Respondent Nos. 1 to 3 are jointly and severally liable to pay compensation. 36. It was submitted on behalf of Respondent No.4 that Respondent No.2 committed fundamental breach of Instruction Policy by using the tractor for commercial purpose and therefore, Respondent No.4 cannot be directed to make the payment to petitioners and recover the same from the owner of offending tractor. xxx xxx xxx 37. The Respondent No.2 allowed the use of offending tractor for doing the blasting work and therefore there was fundamental breach of the Insurance Policy. Since there was fundamental breach of the Insurance Policy for using the offending tractor for commercial purpose and consequently, Respondent No. 4 is not liable to pay the compensation and directed to pay the same and recover the same from Respondent No. 2 owner of offending tractor. xxx xxx xxx The High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act. 27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. As is noticeable, the High Court has recorded a finding that the battery was practically detached from the vehicle. The correctness of this finding is required to be determined first. It is necessary to note here that the tribunal has treated the accident to be a vehicular accident and entertained the claim. As we find, the High Court has not analyzed any evidence brought on record to come to the conclusion that the battery of the vehicle was practically detached from the vehicle and was not a part of the vehicle. On the contrary, the Tribunal had noticed that the panchnama of the tractor, Ex-42, clearly showed that the tractor was in the field and the blasting machine was found on tractor with wrapped gas pipe and an explosive battery found on the tractor with the wooden cover. It has referred to Ex-41 and other oral evidence to record the finding that the blasting machine was kept on the tractor driven by the driver engaged by the owner and the tractor was used for digging of the well with the blasting machine. The insurer, as is evident, had only raised a singular plea with regard to use of the tractor, namely, `commercial purpose and on that foundation, it had advanced the stance that there had been fundamental breach of the insurance policy. Keeping in view the evidence on record, we agree with the view expressed by the tribunal that the battery was still installed on the vehicle and the power was drawn from the battery for explosive purposesWe may note with profit that Section 92-A(1) used the words an accident arising out of the use of a motor vehicle and Section 165 of the Act that has been reproduced hereinabove also uses the words arising out of the use of motor vehicles. Thus, there has been no change in this part of the provisionThe aforesaid analysis throws immense light to understand the concept of related events and causal relation. They have been distinguished from an event which is not connected. Needless to say, the appreciation of causal relation is a question of fact in each case and is to be weighed and appreciated on the basis of the materials brought on record23. We entirely agree with the aforesaid analysis, for it is in accord with the view of the decisions of this Court24. It may be reiterated here that the causal relationship should exist between violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident. The word `use as has been explained by the authorities of this Court need not have an intimate and direct nexus with the accident. The Court has to bear in mind that the phraseology used by the legislature is accident arising out of use of the motor vehicle. The scope has been enlarged by such use of the phraseology and this Court taking note of the beneficial provision has placed a wider meaning on the same. There has to be some causal relation or the incident must relate to it. It should not be totally unconnected. Therefore, in each case what is required to be seen is whether there has been some causal relation or the event is related to the act25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said scoreAs is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policyThe High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal.