Oriental Insurance Company Limited vs Arvindbhai Nathabhai Mer Koli Since ...
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Gujarat High Court

Oriental Insurance Company Limited vs Arvindbhai Nathabhai Mer Koli Since ... on 13 January, 2025

                                                                                                                NEUTRAL CITATION




                              C/FA/1405/2013                                    ORDER DATED: 13/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 1405 of 2013
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                                   ORIENTAL INSURANCE COMPANY LIMITED
                                                  Versus
                        ARVINDBHAI NATHABHAI MER KOLI SINCE DECD. THROUGH HEIRS &
                                                  ORS.
                       ==========================================================
                       Appearance:
                       MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
                       JAIVIK UDAY BHATT(7319) for the Defendant(s) No. 6
                       MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2,3,4,5
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                            Date : 13/01/2025

                                                             ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 04.02.2013 passed by the Motor Accident Claims Tribunal, Rajkot in Motor Accident Claim Petition No.517 of 2011.

2. Learned advocate Ms.Rahevar for the appellant raised two fold submissions. Firstly, it is submitted that accident took place within premises of High Tech Reclaim Pvt. Ltd. and it is not public place. She further referred to section 147(1)(b)(i) of the MV Act to submit that since accident took place in factory premises, not in public place, insurance company is not liable to pay compensation. Secondly, she would submit that at the time of accident, when deceased was pulling iron pole from Crane No.GJ-3-SS-6620, one of the pole touched to electric wire and

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due to short circuit, deceased succumbed to injuries and therefore, there is no use of motor vehicle in the road accident and pole touching with wire could be treated as use of motor vehicle and therefore, it is submitted that learned Tribunal committed serious error in fastening liability on insurance company on both counts.

2.1. On above submissions, it is submitted to dismiss the appeal.

3. On the other hand, learned advocate Mr.Hemal Shah referred to judgment of this Court in the case of Harsh Bharathbhai s/o. Late Bharat Jamnadas Pandit vis. Kapilaben w/o. Late Kantibhai Patel [First Appeal No.3835 of 2023 and other allied matter] as well as judgment in the case of Kalim Khan vs. Fimidabee [AIR 2018 SC 3209] to submit that factory of High Tech Reclaim Pvt. Ltd. is place, where public has right to access, it cannot be treated as area where there is no entry or no right to access. He would submit that factory premises of High Tech Reclaim Pvt. Ltd cannot be treated as private property within realm of Motor Vehicle Act. He would submit that while deceased was pulling one iron pole, crane was used as it touched with live wire and as such deceased having electrocuted succumbed to it and therefore, use of motor vehicle is established. It is submitted that learned Tribunal has not committed any error. Therefore, he submits to dismiss the appeal.

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4. Learned advocate Mr.Bhatt appearing for the owner also supported and adopted the arguments of learned advocate Mr.Shah.

5. Having heard learned advocates for the parties, firstly let refer facts to understand accident resulting into death of deceased. On ill fated day i.e. on 03.12.2010 driver of crane was pulling pole and deceased was holding pole on one side. Pole touched with live electric wire and passed electric current. Deceased having received live electric current and having been electrocuted, he was succumbed to it. In this fact situation, claimant being legal heirs of deceased preferred petition under section 163A of the MV Act arraigning owner and insurance company of the crane seeking compensation of Rs.5,00,000/- along with interest and costs. Learned Tribunal noted that driver of Crane No.GJ-3-SS-6620 at the time of accident was engaged in pulling iron pole and such iron pole touched with live electric wire. Deceased holding one of the iron pole, received live electricity and succumbed to it.

6. Mainly on above aspects, learned Tribunal drawn impugned judgment and award. Learned advocate Ms.Rahever raised contention that place in which accident took place is private place and therefore, insurance company is not liable to pay compensation. Noticeably, insurance company did not enter into witness box to lead evidence. Section - 2 (34) of MV Act defines public place, which reads as under :-

"Public place means a road, street, way or other place,

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whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;"

7. It is not the case of the insurance company that factory premises of High Tech Reclaim Pvt. Ltd. is not place where public cannot ordinarily have thoroughfare or have right to access. Insurance company has not lead any evidence to prove that it is private place where person cannot have entry or exit. To be noted that deceased was not employee of High Tech Reclaim Pvt. Ltd., yet he was permitted to enter into factory premises.

8. In view of above provisions, submission made by learned advocate Ms. Rahaver that accident took place in private place sans merit.

9. Another submission of learned advocate Ms.Rahaver that there is no vehicular accident involved in the accident. Even as per PM report, deceased expired having been electrocuted and having received burn injuries. What could be noticeable, that use of motor vehicle is not denied in the facts of the case. At the time of accident, driver of crane was pulling iron pole and one pole was held by deceased and during such time, one of the iron poles touched live electric wire and on passing live electric current through iron pole, it snatched life of deceased. Reading of section 165 of MV Act itself is indicative that use of motorcycle resulting into injury or death of person is sufficient to involve jurisdiction of Motor Accident Claim Tribunal in view of notification under section 165 of MV Act.

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10. In Shankarbhai Motibhai Prajapati heirs and Lrs of Jignesh Shankarbhai v/s. Ishwarbhai Gangarambhai [2013 (2) GLR 1127], learned Single Judge of this Court in identical fact situation held in para 18 and 19 as under :-

"18. As regards liability, I find substance in the contention of Mr. Mehta, appearing on behalf of the Insurance Company that the entire negligence is of the Electricity Company. It appears from the evidence adduced on behalf of the Electricity Company that there has been a violation of the statutory height to be maintained by keeping such live wire within 13 ft. of the ground level. In view of such fact, the driver of the truck did not commit any mistake by parking it under the presumption that the hanging wire was at least not a live wire. There being an admitted violation of the statutory rules at the instance of the Electricity Company in keeping such a live wire, in my opinion, the entire liability should fall upon the Electricity Company.

19. Since the truck in question is involved in the accident upon which the victim climbed, the proceedings under section 166 of the MV Act is very much maintainable. The Claims Tribunal constituted under the Motor Vehicles Act is entitled to maintain an application where other agencies than a motor vehicle is also contributing to causing the accident. [See GUJARAT STATE ROAD TRANSPORT CORPORATION V. UNION OF INDIA & ORS. reported in 1987(1) GLH 344]. In the case before me, but for the

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parking of the stationary vehicle, the accident could not have occurred. Similarly, the Electricity Company's negligence is the sole cause and, therefore, the Tribunal is also entitled to adjudicate the liability between the owner of the vehicle and the Electricity Company when the fatal accident occurred by the use of a motor vehicle in a public place."

11. The issue also arose before the Hon'ble Apex Court in the case of Kalin Khan (supra). Relevant para of said judgement reads as under :-

"22. 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 Division Bench of the High Court of Orissa in Kanhei Rana and another v. Gangadhar Swain and others15 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

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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 15 AIR 1993 ORI 89 connotatively expanded, there can be no 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 nonnegligent. 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 case. The Division Bench of the High Court went on to say that the apex Court in Patil (supra) was dealing with the negligence so far as it was concerned with Section 92 of the Act, but as the language of Section 92A 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

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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."

12. The contention raised by the insurance company squarely covers by above judgment. Factory premises of High Tech Reclaim Pvt. Ltd. cannot be said to be private place, since public have right to access in factory premises. Factory premises of High Tech reclaim Pvt. Ltd. having large foot fall squarely covers within definition of public place within realm of section 2(34) of MV Act. It is indisputable that deceased was electrocuted while use of crane. As stated herein above Crane was pulling iron poles, and one of the pole was hold by deceased by one side. Live electric current passed through iron pole and thereafter through body of deceased, and he expired. Apt to note that in given fact of the case 'use of motor vehicle' envisaged in section 165 of MV Act is proved. Learned Tribunal under section 165 of MV Act was holding jurisdiction to try and decide claim petition.

13. Thus, both the contentions raised by insurance company are negated.

14. In view of above reasons, the appeal sans merit and deserves to be dismissed. Accordingly, the first appeal is dismissed. Record and proceedings be sent back to the concerned Tribunal, forthwith.

(J. C. DOSHI,J) SATISH