Jharkhand High Court
Sanghini Bhagtain vs Raza Waris on 17 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 62 of 2009
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1. Sanghini Bhagtain
2. Samya Kachhap (minor)
3. Tabi Kachhap (minor)
4. Madhuri Kachhap (minor)
5. Sanjay Bhagat (minor)
6. Ropana Bhagat (minor) .... .... Claimants/Appellant(s).
Versus
1. Raza Waris
2. The United India Insurance Co. Ltd. .... .... Respondent(s)
M.A No. 243 of 2003
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1. Sanghini Bhagtain
2. Samya Kachhap (minor)
3. Tabi Kachhap (minor)
4. Madhuri Kachhap (minor)
5. Sanjay Bhagat(minor)
6. Ropna Bhagat(minor) .... .... Appellant(s).
Versus
1. Raza Waris
2. The Divisional Manager, United India Insurance Co. Ltd.
.... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(s) : Mr. Nikhil Ranjan, Advocate
For the Respondent : Mr. H.K. Singh, Advocate
10/Reserved on 27.09.2021 Pronounce on: 17 / 3/23
Heard the parties.
2. Both these appeals are filed by the same claimants in relation to an accident
involving a Tanker bearing Registration No. UP 78B 7215.
3. M.A Case No. 243 of 2003 arises out of the order dated 17.4.2003 passed under
Section 140 of the Motor Vehicles Act, in relation to Compensation Case No. 57 of
2002. M.A Case No. 62 of 2009 arises out of the judgment and award dated 21.11.2008
passed under Section 166 of the Motor Vehicles Act, 1988 from same compensation
case being Compensation Case No. 57 of 2002. In both the impugned orders, the
Tribunal has dismissed the claim application filed by the claimants.
4. The claimants filed an application under Section 166 of the Motor Vehicles Act
before the Tribunal claiming compensation. It is the case of the claimants that on
07.01.2002, the deceased Mahabir Bhagat was in a hotel. Next to the hotel, a petrol
tanker was parked by the side of the road. Few people were pilfering petrol from the
tanker and were filling the same in containers when suddenly the tanker exploded as a
result of which several persons received grievous burn injuries including the deceased
Mahabir Bhagat. Mahabir Bhagat was taken to the hospital where he died during the
course of his treatment on 11.01.2002. The accident was caused due to use of motor
vehicle bearing Registration No. UP 78B 7215. The vehicle was duly insured by the
respondent-Insurance Company, thus the claimants who are the heirs of the deceased,
claimed compensation under the Motor Vehicles Act.
5. On being noticed, the Insurance Company appeared before the Tribunal and
filed their written statement/show-cause. They denied the fact that accident occurred due
to use of the motor vehicle. Their claim is that it is not an accident, rather the facts stated
in the FIR narrates a different story. Admittedly, the deceased died due to burn injuries
which cannot be said to have been caused due to the accident. It is the specific case that
the during course of pilfering of petrol from the said tanker which was parked, by the
side of the road, the tanker caught fire and several persons including the deceased who
was also trying to steal petrol, sustained burn injuries and later on died, thus it cannot
be said that the deceased died due to use of the motor vehicle. The fact that the said truck
was insured by the Insurance Company is not disputed.
6. The owner of the truck appeared and filed their written statement/show-cause
to the application under Section 140 of the Motor Vehicle Act. They also admit that an
FIR being Chanho P.S. Case No.3 of 2002 under Section 435, 407, 379 & 34 of the IPC
was registered against five named persons on account of the incident which had taken
place. The tanker was in a static position on the road and there was no negligence on the
part of the driver, thus the entire incident cannot be said to be a Motor Accident which
can attract payment of compensation. He stated that the vehicle was duly insured with
the respondent-Insurance Company on the date of the accident and there was no
violation of the terms & condition of the policy and the driver also had a valid driving
licence.
7. The Tribunal on the basis of the pleadings framed six issues which are as under:-
"1. Whether the Compensation Case No. 57 of 2002 filed
under Section 166 of the M.V. Act is maintainable in its
present form?
2. Whether the claimants have got the valid cause of action
for instituting this compensation case?
3. Whether the deceased Mahabir Bhagat died in a motor
vehicle accident occurred on 7.1.2002, due to rash and
negligent driving of the driver of the Tanker No. UP 78B
7215.
4. Whether the Tanker No. UP 78B 7215 was insured with
the O.P No.2, the United India Insurance Co. Ltd. at the time
of accident?
5. Whether the claimants are entitled to get the amount of
compensation as prayed for? If so, to what extent and by
whom?
6. To what other relief or relieves the claimant are entitled to? "
8. Two witnesses were adduced by the claimants. C.W-1 Sanghini Bhaktain who
is the wife of the deceased and C.W-2 Anand Kumar Nath Sahdeo. Three documents
were also exhibited which are certified copy of the FIR & certified copy of the charge-
sheet as Exhibits 1 & 2 respectively, the post-mortem report has been marked "X" for
identification. The Insurance Company did not adduce any oral evidence but produced
a photocopy of the Insurance policy which was marked Exhibit-A. The Trial Court after
considering the evidence on record held that the accident did not occur due to the use of
motor vehicle, thus dismissed the application under Section 166 of the Motor Vehicle
Act. Be it noted that the application under Section 140 of the Motor Vehicle Act also got
dismissed more or less on the same ground, considering the FIR.
9. Learned counsel appearing on behalf of the claimants submitted that the
Tribunal has wrongly interpreted the word "use of motor vehicle". In the instant case, it
is not necessary that only a motor vehicle which is plying on a road can be said to have
been used. According to him even if a vehicle which is in static condition, and if any
accident has occurred including an explosion and causes damage to life and property,
the victim can seek compensation under Section 166 of the Motor Vehicles Act. He
submits that the statement made in the FIR could not have been taken to be gospel truth
when there are evidence of eye witness to suggest that the deceased was not involved in
any manner with pilfering of petrol from the tanker. The statement adduced during trial
and the evidence recorded would definitely prevail over the FIR. He also submitted that
while dealing with no fault liability, the Tribunal proceeded in the wrong angle and
dismissed his application under Section 140 of the Motor Vehicle Act without
considering any cogent ground.
10. Counsel appearing on behalf of the Insurance Company admitted that the tanker
was duly insured during the period when the accident had occurred, but denied payment
of compensation on the ground that admittedly, the vehicle was in static condition and
was not in movement, thus it cannot be said that the vehicle was in use when the accident
occurred. Further, he heavily relied upon the FIR which suggests that the some persons
including the deceased were indulging in pilfering of petrol from the tanker when
suddenly the tanker caught fire, engulfing the deceased and others. The deceased
sustained severe burn injuries and later on expired. As per the counsel this fact clearly
suggests that the deceased was involved in a criminal act of pilfering petrol from the
tanker, thus his heirs are not entitled to get any benefit of compensation.
11. From the argument raised by the parties, this Court wants to examine as to
whether the injury of the deceased was caused out of use of motor vehicle and if yes,
what would be the quantum of compensation.
12. To analyse this, I have gone through the oral evidence adduced by the claimants.
Claimants witness no.1 is the wife of the deceased. She stated that the deceased was at
the road side hotel in the morning hours on 07.01.2002 where a tanker was stationed.
While others were extracting petrol from the tanker, there was explosion resulting in the
injury of her husband and later on he died. She admits that an FIR was registered under
Sections 435, 407, 379 & 34 of the IPC. As per the wife of the deceased, he was earning
Rs.3000/- per month. In cross-examination she admits that she is not an eye witness to
the occurrence. No other statement could be extracted from her. Claimants witness No.2
is Anand Kumar Nath Sahdeo. He claims himself to be an eye witness to the occurrence.
He stated that the tanker was parked near the hotel and some persons were taking petrol
from the said tanker and were filling jerkins, when the explosion took place as a result
of which several persons got injured including the deceased. The deceased was a
resident of the same village and was working in the hotel. In cross-examination he stated
that he was also working in the said hotel. The vehicle was kept stationed near the hotel
since 12 midnight. The driver and the cleaner of the said tanker were filling the jerkins
and were keeping them in the hotel. In paragraph no.13 of his cross-examination he
stated that the deceased at that point of time was washing the utensil in front of the hotel.
These are the only materials which surfaced in oral evidence. Exhibit -1 is the FIR of
Chanho P.S. Case No. 3 of 2002 and Exhibit -2 is the charge-sheet. FIR has been lodged
by one Parash Nath Sharma Sub-Inspector Chanho P.S, who stated that he received
information over telephone that a hutment, which is a road side hotel, had caught fire.
When he reached near the place of occurrence, he saw that the road side hotel which
was in fact a hutment was fully gutted. Oil tanker parked in front of the hotel had also
caught fire. There were 22 oil drums in the said hotel, which also caught fire due to the
said accident. In the FIR he stated that he asked persons of the locality, who stated that
the hotel was taken on rent by one Abdul Rajjak, who also sustained burn in the accident.
He also got information from the some local people that some persons including
deceased were involved in pilfering of petrol from the tanker bearing Registration No.
UP 78B 7215, which was parked near the hotel and during course of such act, the tanker
caught fire and the fire spread to the hotel and the drums, in which the petrol was
unloaded, resulting in injury to many person. The FIR was registered under Sections
435, 407, 379 & 34 of the IPC. Charge-sheet was also submitted. These are the only
material evidence which is available on record.
13. From the aforesaid oral and documentary evidence, I find that there are some
discrepancies. The fact that the deceased got burnt and ultimately died, is not disputed.
In the FIR, it has been stated that the deceased and the others were involved in pilfering
of petrol from the tanker which was stationed in front of the road side hotel as a result
of which tanker caught fire and the deceased also got injured and later on died, whereas
an eye witness to the occurrence which is C.W.2 stated that he had seen the occurrence
when some persons were trying to pilfer petrol from the tanker and the deceased who
was an employee of the hotel was washing utensils nearby the said tanker and as a result
of an explosion and the fire, he also sustained injury and later on died.
14. Now the question is whether the statement made in the FIR has to be considered
to be the correct version or the statement of C.W.2. The FIR is based on the fardbeyan
of the Police Sub-Inspector. In the fardbeyan he mentioned that he got the aforesaid
information from the people of the locality, but those persons were not brought as a
witness. The FIR is based on a hearsay version of unknown. The Hon'ble Supreme in
catena of decision has held that FIR is not a substantive piece of evidence. (Ref. Amish
Devgan Vrs. Union of India reported in (2021) 1 SCC 1 & State of UP Vrs. Krishna
Master & Ors. reported in (2010) 12 SCC 324).
What has been stated in the fardbeyan needs to be corroborated by other
evidence. In this case, the statement which finds place in the fardbeyan is not
corroborated by any witness, rather C.W2 has stated that the deceased was washing
utensils when some other persons were trying to pilfer petrol as a result of which fire
broke out which engulfed the deceased resulting in his death. Thus the statement of the
eye witness should be given preference over the uncorroborated statement of Fardbeyan.
Thus, I hold that though there was some pilferage committed by some person, but it was
not the deceased due to whom the incident had occurred.
15. Now the question is whether the entire incident can be said to be an accident
arising out of use of motor vehicle. It is now well settled that it is not necessary for the
vehicle to be in movement to meet with an accident. Even a vehicle which is in static
position can be a subject matter of an accident and the said motor vehicle can be said to
be in use, when such accident occurred. More or less similar situation fell for
consideration before the Hon'ble Supreme Court of India in the case of Shivaji Dayanu
Patil & Anr. Vrs. Vatschala Uttam More (Smt.) reported in 1991 (3) SCC 530. In the
aforesaid case there was head on collision between tanker and other vehicle and the
tanker turned turtle and was lying in the field when the inflammable fluid leaked from
the said tanker. After few hours when several person gathered there to collect the said
fuel there was an explosion resulting in death.
Considering the aforesaid facts of the case, the Hon'ble Supreme Court considered
whether the said accident can be said to be "arising out of use of motor vehicle". In the
said judgment the Hon'ble Supreme Court has discussed the definition of motor vehicle
and also defined the word "use of motor vehicle". It was concluded that the use of motor
vehicle cannot be confined to the period when it is in motion. It may also be used when
it is stationary. The word has to be construed in a wider sense to include the period when
the vehicle is not moving, either being parked on the road or it is not in a position to
move due to some break down also. It has been held that if accident had occurred in any
of the aforesaid stages i.e in movement or in static position, the vehicle can be said to
be in use.
16. The Hon'ble Supreme Court also discussed an expression "arising out of" and
ultimately held that victim are entitled for compensation even they are the stand byers
when there is no evidence to suggest that the persons who were collecting the material
were involved.
17. In this case as held earlier there is no evidence to suggest that deceased was
involved in pilfering petrol. Though in the FIR, the police officials mentioned that the
deceased was one of them who was involved in pilfering the petrol but this statement
has been negated by an eye witness. As held earlier, the statement made in the fardbeyan
cannot be taken to be relevant when there is an eye witness who is C.W2.
18. After concluding that the claimants are entitled for compensation the case could
have been remanded to the Tribunal, but I do not intend to do so. This is because the
record of the Tribunal is before me and there are sufficient evidence to dispose this
appeal. When there are sufficient evidence to dispose a matter, it is not proper for this
Court to remand the case to the trial court which will unnecessarily delay the disposal.
19. Thus, I hold that the accident occurred due to use of the motor vehicle as there
were some person trying to pilfer the petrol when the tanker caught fire and exploded
injuring the deceased who was cleaning utensils beside the said tanker near the hotel.
Thus the claimants are entitled for compensation.
20. Now the question is what would be the amount of compensation. The deceased
was earning Rs.3000/- per month. C.W.1 & 2 clearly disposed that the deceased was
working in the said road side hotel when the accident had occurred and was earning Rs.
3000/- per month. This statement goes unrebutted. Thus, I hold that the deceased was
earning Rs.3000/- per month. There are six dependents. Thus the amount of deduction
under personal expenses would be 1/4th. The age of the deceased was 37 years thus the
multiplier would be 15.
In terms of the judgment of the Hon'ble Supreme Court in the case of National
Insurance Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680,
40% enhancement has to be awarded on account Future Prospect and under
Conventional Head Rs.70,000/- should be paid.
Rs.3000/-x12x15= Rs.5,40,000/-
Rs. 5,40,000/- -1/4th = Rs.4,05,000/-
Rs. 4,05,000/- +40% =Rs.5,67,000/-
Rs. 5,67,000/- + Rs.70,000/- =Rs.6,37,000/-
21. According to this Court aforesaid is the just amount of compensation. This amount
includes the amount which is supposed to be paid under "no fault liability" as the application
under Section 140 of the Motor Vehicles Act was also rejected by the Tribunal. Admittedly, the
vehicle was insured on the date of accident and nothing has been brought on record by the
parties to suggest that there is violation of terms and condition of policy. Thus, I direct the
Insurance Company to pay the Rs. 6,37,000/- to the claimants after proper verification. This
amount will carry an interest @ 6% per annum from the date of judgment i.e dated 21.11.2008
till December, 2021. The amount should be paid within a period of two months from today.
22. Accordingly, the both the appeals stands allowed.
(ANANDA SEN , J)
anjali/cp2
