The Branch Manager Vs Mrs. Parvathi

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.01.2016 PASSED IN MVC NO.3410/2007 ON THE FILE OF THE MEMBER PRL,MACT AT BANGALORE, AWARDING THE COMPENSATION OF RS

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HC-KAR

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13,08,000/- WITH INTEREST AT THE RATE OF 6% PER ANNUM FROM THE DATE OF PETITION TILL REALISATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is by the insurer/respondent No.1 against the judgment and award dated 30^th January 2016 passed in MVC No.3410/2007 by the Member Principal Motor Accident Claims Tribunal, Bangalore, (SCCH-1), ( for short ‘Tribunal’).

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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Brief facts of the case are that, on 14.11.2006 at about 12.30 p.m., the driver of the Gas tanker lorry bearing Reg.No.KA-5-C-2376 brought the said vehicle for welding the tanker. The driver of the said lorry without emptying the gas from the tank, requested the owner of the garage to weld the tanker to avoid the leakage of the gas. As per the request of the driver of the said vehicle,

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the deceased started welding the top portion of the tanker; the said tanker busted with loud sound, resulting in throwing away of the deceased as well as two others who were sitting on the top of the tanker. Due to the impact, the deceased-Shivakumar @ Kumar sustained fatal injuries and died on the way to the hospital.

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It is further the case of the claimants, who are

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the wife and children of the deceased that the deceased was aged about 25 years at the time of accident, and was employed as a Welder at Mallige Engineering Works and was earning Rs.6,000/p.m. The claimants were dependent upon the earnings of the deceased. With these reasons, they prayed to award compensation of Rs.25,00,000/-

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Respondent No.1 is the insurance company, it denied the contents of the claim petition and it also contended that there was no employer and employee relationship between the deceased and owner of the lorry. The alleged incident did not occur due to the use of the

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vehicle in question and it was not plying on the road at the time of accident. Therefore, there cannot be any liability on the Respondent No.1-insurer to pay the compensation. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed the necessary issues, for its

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determination.

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The claimants to prove their case examined two witnesses as PW-1 and PW-2 and marked 10 documents, as per Exs.P-1 to P-10. The Respondents examined two witness as RW-1 and RW-2 and marked documents as Exs.R-1 to R-4.

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The Tribunal after hearing both parties and appreciating the evidence available on record, held that the accident occurred due to the user of the vehicle and

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awarded the following amount of compensation:

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Particulars	Amount in Rs.
Loss of dependency	11,47,500/-
Compensation to the family	1,00,000/-
members for loss of love and

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affection, deprivation of protection,
social security etc.
Compensation to the widow of the 50,000/-
deceased for loss of love and
affection, pain and sufferings, loss
of consortium, deprivation of
protection, social security etc.
Cost incurred on account of funeral 10,000/-
and ritual expenses
Total 13,07,500/-

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Being aggrieved by the said finding, the insurer

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preferred this appeal.

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I have heard the arguments of learned counsel appearing for the both sides.

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The contentions of the learned counsel for appellant are as follows:

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(A). The said incident, did not occur in a public place. The deceased was not an employee of owner of the vehicle but was an employee of the garage owner. Therefore, if any claim is to be made, it shall be against the owner of

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the garage and not against the owner and insurer of the offending vehicle. The Tribunal has not considered Ex.R-3, and before giving the vehicle for repair, the driver of the vehicle emptied the gas content in the said tanker. Therefore, the contention of the claimants that without emptying the gas, the driver asked the deceased to weld the said tanker, which resulted in the incident, is not tenable. The amount of compensation awarded is on the higher side. With these reasons, prayed for interference of the said findings.

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(A).1. Learned counsel for respondent No.1-claimant submits that the incident took place in a public place and the said vehicle was parked at side of the main road, in front of the garage.

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(B) The manner in which the incident occurred is not in dispute. The said tanker busted when he was welding. Without the tanker containing inflammable articles, it is unimaginable that it would burst while welding.

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(C) Though he was an employee of the garage owner, he sustained injuries and died due to the use of the vehicle. Therefore, the claimants are entitled to claim the compensation under the Motor Vehicles Act.

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(D). Under Section 147 of the MV Act, a public place defined as a place where the public has access. Since the incident took place on the side of the main road, it falls within the purview of a public place. With these reasons, prayed to dismiss the appeal.

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Learned counsel for respondent No.1-claimant has also relied on the judgment of Hon’ble Apex Court in the case of Shivaji Dayanu Patil and Anr Vs. Vatschala

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Uttam More¹ .

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13. The following point arise for consideration:

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Whether the T ribunal is justified in awarding compensation though incident occurred in a private place?

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1 1991 (3) SCC 530

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Findings on the above point:

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The fact of the incident is not in dispute. The complaint was lodged by one Nagaraju, who was working in a Rise Mill, situated next to the Mallige Engineering Works. According to him, the accident occurred around 12.30 p.m., and the deceased was welding the tanker lorry sitting on top of it. At that time, it busted and three persons sitting on the top of the tanker fell down. Due to the said incident, Shivakumar @ Kumar sustained severe burn injuries and died. The other two were shifted to the hospital. After the investigation, charge sheet was filed by the police against the driver of the lorry as well as the owner of the garage, named Mallige Engineering Works. These facts are not in dispute.

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The first contention is that, as per Ex.R-3, the said tanker was emptied by the driver of the vehicle and his statement was recorded by the police. It is pertinent to note that the said driver is an accused in the criminal case. Under such circumstances, and obviously to protect his own interest, he might not have stated the true facts

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before the police. In addition to that, he was not examined by the insurer to prove the contents of the said documents

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nor was the claimant given an opportunity to cross-examine him in respect of the said statement.

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The next question that arises is, if the tanker did not contain any inflammable article, then how could it burst while welding the top of the tanker? Either it was not completely empty or still it contained some inflammable substance because of which the incident took place. Under those circumstances, the fact of Ex.R-3 was not referred in the impugned judgment does not mean that the Tribunal has not applied its mind in respect of the said facts and the said contention is not probable.

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The second contention of the insurer is that claimants cannot apply under Section 166 of the MV Act as they are employees of accused No.2 in a criminal case. Admittedly, the deceased was an employee of the said garage. If at all they are entitled to compensation, they must approach the Tribunal under the Workmen

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Compensation Act. This contention is also not tenable. According to the provisions of the Motor Vehicles Act, by user of the vehicle, if any person sustained injuries or died, then owner or insurer of the vehicle is responsible for paying the compensation. The law laid down by the Hon’ble Apex Court in the case of Shivaji (supra), in paragraph No.12 of the said judgment, elaborately considered this point and held that under such circumstances, it shall be considered that by the user of the vehicle accident in question occurred and the owner and insurer are liable to pay the compensation under Section 166 of the MV Act. The facts of that case are more or less similar to the present case. In that case, it was alleged that the persons who sustained the injuries and died were trying to steal the petrol stored in the tanker. At that time it bursted, causing injury and death to some of the persons. Elaborate discussions were made in the said judgment and held that in such circumstances, the insurer is liable to pay the compensation. Therefore, the second ground is also not tenable.

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The third contention is regarding public

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places. As per the cross-examination of PW-2, the incident took place on the side of the main road in front of Mallige Garage and the incident did not take place inside the garage.

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The Tribunal after considering the merits of the case and assessing the age, income, multiplier etc., has awarded a just and fair amount of compensation. This does not call for any interference. The claimants have not filed any appeal against the impugned judgment for enhancement of compensation. Under these

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circumstances, there is no need to reconsider the same.

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For the above said discussion, I answer above

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point in the affirmative.

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In the result, I proceed to pass the following:

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ORDER

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i) The Appeal is dismissed .

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ii) The judgment and award dated 30^th January 2016, passed in MVC.No.3410/2007, by the Member Principal

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Motor Accident Claims Tribunal, Bengaluru, (SCCH-1), is confirmed.

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iii) Whatever amount has been deposited by the appellant shall be transmitted to the Tribunal for disbursement in accordance with award passed by the Tribunal.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal.

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Sd/(UMESH M ADIGA) JUDGE

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AMA List No.: 1 Sl No.: 7 CT: BHK

The Branch Manager v. Mrs. Parvathi

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The Branch Manager v. Mrs. Parvathi

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