Venugopala Pillai S/O Madhavan Pillai v. Perinayagam, Sreekanth Padmanabhan Devi Trading and Agencies, and The Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **MACA.No. 69 of 2014** **AGAINST THE AWARD IN OPMV 831/2002 of M.A.C.T.,KOLLAM DATED 29-11-2013** ## **APPELLANT/PETITIONER:** **VENUGOPALA PILLAI S/O.MADHAVAN PILLAI, ATHIRA BHAVAN, PADINJATTUM MURI, KUNNATHUR VILLAGE, KOLLAM DISTRICT.** **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**PERINAYAGAM**| |---|---| ||**S/O.NARAYANAN, KADAVOM STREET, KUMARAGIRI,**| ||**THOOTHUKUDI, TAMIL NADU STATE, PIN - 600 040.**| |**2**|**SREEKANTH PADMANABH**| ||**DEVI TRADING AND AGENCIES, 18/B, VICTORIA STREET,**| ||**NEAR HEAD POST OFFICE, THOOTHUKUDI, TAMIL NADU**| ||**STATE, PIN - 600 040.**| |**3**|**THE ORIENTAL INSURANCE COMPANY LIMITED**| ||**RAMAKRISHNA BUILDING, ARISTO JUNCTION,**| ||**THIRUVANANTHAPURAM, PIN - 695 001.**| ||**BY ADVS.**| ||**SRI.O.V.MANIPRASAD**| ||**SRI.VPK.PANICKER**| ||**SRI.SAJU J PANICKER**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 69 of 2014 2 ## **JUDGMENT** This appeal is preferred against the award in O.P.(MV)No. 831/2002 of the Motor Accidents Claims Tribunal, Kollam by the injured. On 12.12.2001 at 1.15 pm, the appellant sustained injuries in a motor accident, while he was working as a watchman at St.Paul's Cashew Company at Ivarkala. His case is that on that day, after lunch he proceeded to the wash basin near the store room, at that time a lorry TN69/D 7751 was parked near the store room for unloading the goods loaded in that vehicle. As per the direction of the driver of the vehicle, the cleaner of the lorry removed the tarpaulin covered on the load and loosened the rope. The cashew sacks loaded on the platform of the lorry fell down and he sustained serious injuries. Immediately, he was removed to hospital. 2. In the lower court, the driver of the lorry was set ex-parte. The owner contended that the injury was not due to the use of a motor vehicle. The injured was an employee of the Cashew factory and he is entitled to get compensation MACA.No. 69 of 2014 **==> picture [8 x 8] intentionally omitted <==** according to the Workmen Compensation Act (Employees Compensation Act). The insurer admitted the insurance of the vehicle and disputed the liability and contended that right to claim is limited to Employees Compensation Act. In the lower court, the claimant's evidence consist of oral testimony of PW1 to PW3 and documentary evidence of Exts.A1 to A13. The disability certificate was marked as Ext.C1. The document of the respondent was marked as Ext.B1. The learned Tribunal dismissed the claim petition, being aggrieved by that, the claimant preferred this appeal. 3. Section 165 of the Motor Vehicles Act, 1988 says about claim Tribunals. It says about the words “arising out of the use of Motor Vehicles” in the Section as follows: _**165. Claims Tribunals.** -(1) A state Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both._ MACA.No. 69 of 2014 4 A reading of the aforesaid Section makes it clear that the Tribunal can adjudicate the claims for compensation in respect of accidents out of the use of Motor Vehicles. Therefore, the primary requirement is that the accident should have occurred out of the use of Motor Vehicles. When there is no use of Motor Vehicle, there will not arise the question of accident. 4. Keeping in view the aforesaid legal aspect, I have analysed the facts whether the use of Motor Vehicle in this case is sufficient to treat as a vehicular accident. The phrase “arising out of the use of a Motor Vehicle” pertained in Section 92 A of the Motor Vehicles Act, 1939 (for short 'the 1939 Act') has been discussed by the apex court in _**Shivaji**_ ## _**Dayanu Patil v. Vatschala Uttam More (1991 3 SCC 530)**_ wherein it was held as follows: _“_ _**14** . The learned counsel for the petitioner therein urged for placing a narrow meaning on the word “use” by confining it to a situation only when the vehicle is mobile. On behalf of the respondent, it was suggested that a wider connotation for the word “use” should be taken so as to include the period when the vehicle is stationary. On behalf of the respondents, observations made in Elliott v. Grey, Govt. Insurance Office of New South Walves v. R.J._ MACA.No. 69 of 2014 5 _Green & Lloyd Pty. Ltd., Pushpa Rani Chopra v. Anokha Singh, Karnataka SRTC v. Sangappa Satalingappa Goudar and Oriental Fire and General Insurance Co. Ltd. v. Suman Navnath Rajguru were pressed into service. The Court, after referring to the decisions cited by the respondent and the analysis made by the High Court, opined: (Patil case, SCC p.546, para 26)_ _“26....In our opinion, the word “use” has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on it side after the collision with the truck.”_ _“_ _**18** . The tow-Judge Bench, appreciating the wider connotation, proceeded to lay down: (Patil case, SCC pp.549-50 para 36)_ _“36. 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) and 96(2) (b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression “arising out of “ which indicates that for the purpose of awarding compensation under Section 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_ MACA.No. 69 of 2014 6 _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 expression “arising out of the use of a motor vehicle” in Section 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.”_ _“_ _**25** . From the aforesaid authorities, it is limpid that the expression “use of the vehicle” under certain circumstances can be attracted when the vehicle is stationary or static. A Single Judge Bench of the High Court of Orissa in Kanhei Rana v. Gangadhar Swain while dealing with a situation where the deceased labourer after loading the truck with logs lost his life. The Tribunal had categorically found that death was on the account of fall of a log, when the truck was being loaded with logs. The learned Single Judge, in appeal, had concurred with the view of the Tribunal by opining that the fall of the log had no nexus with the use of the vehicle not even remotely, and there was no material to show that the fall of the log was occasioned due to use of the vehicle. He had further held that the careless handling of goods being loaded on or unloaded from a vehicle had no connection to the vehicle itself. Reversing the conclusion of the learned Single Judge, the Division Bench opined that the concept of movement being not intrinsically or inherently connected with the use and the term “use” having been connotatively expanded, there can be no_ MACA.No. 69 of 2014 7 _doubt that the same can also be extended to the arena/sphere of a claim advanced under Section 110 of the 1939 Act. Heavy onus is cast on the driver to avoid negligence while the vehicle is in use. If the term “use” in its conceptual sweep engulfs no motion or no movement or stationariness, then by logical corollary it is made essential that the driver or for that matter any agent of the owner should be careful and non-negligent. Negligence in driving is regarded as a fact that the vehicle is in motion. But the definition of “use” having been expended in its broader canvas, it has to clothe in its sweep other categories of negligence. To elaborate, when a vehicle remains static, it cannot constitute that the driver is negligent because of his rash and negligent driving. On the contrary, it has to embody some other different types of negligence. Of course that would depend upon the facts and circumstances of each case. The Division Bench of the High Court went on to say that the Apex Court in Patil was dealing with the negligence so far as it was concerned with Section 92 of the Act, but as the language of Section 92-A and Section 110 of the old Act used the same phraseology and there is absence of any etymological distinction, the same meaning should be given to the expression under Section 110 of the old Act. The appellate Bench held that there was causal relationship with the accident which had resulted in the death of the claimant.”_ MACA.No. 69 of 2014 8 ## 5. Apex court in _**Kalim Khan and others vs.**_ ## _**Fimidabee and others (2018 7 SCC 687)**_ held as follows: _The expression “use of the vehicle” under certain circumstances can be attracted when the vehicle is stationary or static. Negligence in driving is regarded as a fact that the vehicle is in motion. But the definition of “use” having been expanded in its broader canvas, it has to clothe in its sweep other categories of negligence. To elaborate, when a vehicle remains static, it cannot constitute that the driver is negligent because of his rash and negligent driving. On the contrary, it has to embody some other different types of negligence. Of course that would depend upon the facts and circumstances of each cases._ The aforesaid provisions make it clear that the Tribunal can adjudicate the claim for compensation in respect of accident arising out of the motor vehicle. The fundamental principle is that the accident should arise out of the use of a motor vehicle and if there is no use of motor vehicle in a public place, no such liability arises to the insurer. 6. In _**Kalim Khan's**_ case (supra) Para 10 held as follows: _“_ _**10** . Keeping the aforesaid definitions in view, we are required to analyse whether the use of the vehicle in the manner in which it is done can be treated as use_ MACA.No. 69 of 2014 9 _of the vehicle to cause a vehicular accident. This court in_ _**Shivaji Dayanu Patil v. Vatschala Uttam More** was dealing with conceptual meaning of the phrase “arising out of the use of motor vehicle” as contained in Section 92-A of the Motor Vehicles Act, 1939 (hereinafter referred to as “the 1939 Act”). We may note with profit that Section 92-A(1) used the words “an accident arising out the use of a motor vehicle” and Section 165 of the Act that has been reproduced herein above also uses the words “arising out of the use of motor vehicles”. Thus, there has been no change in this part of the provision.”_ Apex court in _**Shivaji Dayanu Patil v. Vatschala Uttam More (1991 3 SCC 530)**_ considered the question of phrase arising out of the use of motor vehicles as contained in Section 92-A of the Motor Vehicles Act, 1939. 7. In the lower court, the employer was examined as PW1. The doctor, who treated the injured was examined as PW2. The claimant was examined as PW3. A perusal of Ext.A4 wound certificate shows that he sustained bilateral posterior dislocation of both knee joints, absent distal pulsation, contusion right side of chest and surgical emphysema right side. The discharge summary dated 12.12.2001 and 25.04.2003 shows that he sustained serious injuries and was MACA.No. 69 of 2014 10 admitted in the hospital for further treatment. PW1 contended that he was a temporary cashew labourer working in the Cashew factory. PW1 admitted that PW3 is his worker. Exts.A9 and A12 are the medical bills. PW1 admitted that he issued Ext.A5 certificate. On 15.11.2005, he was dismissed from his service. On 12.12.2001 he sustained serious injuries in the above incident, thereafter he was disabled. If that be the position, the finding of the Tribunal is not proper. Ext.C1 disability certificate shows that the appellant has permanent disability of 86%. Ext.A1 is the F.I.R registered by the Police. 8. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held as follows: _“where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a_ MACA.No. 69 of 2014 11 _corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation._ 9. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. When two persons sustain similar injury, that can attract the same compensation, but the heads under MACA.No. 69 of 2014 12 which, compensation can be attributed are truly amazing. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 10. Lower court failed to appreciate the facts and dismissed the claim petition ignoring the pleadings and documentary evidence. In the circumstances, the dismissal of the application is hereby set aside. Expression “use” of motor vehicle, held, very wide can include non-traffic use when vehicle is stationary. Words “arising out of the use of motor vehicle have to be interpreted keeping in mind statutory purpose of beneficial legislation. Here the accident occurred due to the use of the motor vehicle as stated under Section 165 (1) of the Motor Vehicles Act and he is entitled to get compensation under Section 166 of the Motor Vehicles Act, 1988. MACA.No. 69 of 2014 13 The Tribunal is directed to fix the quantum and dispose the matter as per law. Both parties are directed to appear before the Tribunal on 10.12.2018. Sd/- **P.D.RAJAN JUDGE** bng/04.10.18