New India Assurance
Company Ltd. Vs Yadu Sambhaji More & Ors.
JUDGMENT
AFTAB ALAM, J.
1.
This
is an appeal under Article 133 of the Constitution of India read with Order XV
Rule 1 of the Supreme Court Rules,1966 on a certificate granted by the Bombay
High Court under Article 134A(b) of the Constitution. The appellant is the
insurance company and it seeks to assail the judgment and order passed by the
High Court in an appeal from a motor accident claim case. In order to properly
appreciate the issue in regard to which the High Court has granted the
certificate to appeal, it would be useful to take note of some basic facts of
the case.
2.
In
the early hours of October 29, 1987 a petrol tanker bearing registration
no.MXL7461, was proceeding on National Highway 4, coming from the Pune side and
going towards Bangalore. As it reached near village Kavathe, in the district of
Satara, Maharashtra, a truck, bearing registration no.MEH4197, laden with
onions, was coming from the opposite direction. At the point where the two
vehicles crossed each other, there was a pile of rubble on the left side of the
road. As the two vehicles crossed each other, the rear right side of the petrol
tanker was hit by the rear left side of the truck. As a result of the impact,
the petrol tanker was thrown off the road and it came to rest on its left side/
cleaner's side on the kutcha ground, about5 feet below the road. As a result of
the collision and the falling down of the petrol tanker on its side, petrol
started leaking from the tanker.
The tanker driver was
unable to stop the leak even though he tried to tighten the lid. The accident
took place at around 3:15am. Shortly after the accident, another tanker, coming
from the Bombay side passed by. In that tanker, apart from the driver, there
was also an officer of the Indian Oil Company. Both of them assured the driver
of the fallen down tanker that they would report the accident at the police
station and asked him to wait near the place of the accident. Later on, yet
another tanker from Sangli arrived at the spot and then the cleaner of the
ill-fated tanker and the owner of the Sangli tanker together went to village
Kavathe in search of a telephone to inform the tanker owner about the accident.
After they came back from the village all of them, the driver and the cleaner
of the tanker that had met with accident and the owner, the driver and the
cleaner of the tanker coming from Sangli waited near the accident site.
At daybreak, the
local people started collecting near the fallen down tanker and some of them
brought cans and tried to collect the petrol leaking out from the tanker. The
driver of the tanker tried to stop them from collecting petrol or even going
near the tanker, explaining to them that doing so would be risky and dangerous.
No one, however, listened to him and he was even manhandled. In the melee, the
petrol caught fire and there was a big explosion in which 46 persons lost their
lives.
3.
The
heirs and legal representatives of those people who died at the accident site
filed claim petitions for compensation under section 110A of the Motor Vehicles
Act, 1939 before the MACT, Satara, against the owner of the petrol tanker and
its insurer, the present appellant. In all the cases, claims were also made for
payment of Rs.15,000/- as no fault compensation under section 92A of the Act.
The owner of the tanker and the insurer (the respondents before the Tribunal)
contested the claim petitions filed by the applicants under section 92A of the
Act and questioned the jurisdiction of the Claims Tribunal to entertain such
petitions on the ground that the fire and the explosion causing the death of
those who had assembled at the accident site could not be said to be an
accident arising out of the use of a motor vehicle.
The Claims Tribunal
upheld the objection raised by the insurer and the owner of the petrol tanker,
and by a common order dated December 2, 1989, dismissed all the claim petitions
filed under section 92Aof the Act on the ground that the fire and the explosion
could not be said to be accident arising out of the use of the petrol tanker
and hence, the provisions of section 92A of the Act were not attracted. The
Claims Tribunal pointed out that there was a time gap of about 4 hours between
the tanker meeting with the road accident and the fire and explosion of the
tanker and there was absolutely no connection between the road accident and the
fire accident that took place about 4 hours later. The Claims Tribunal also observed
that the local people were trying to steal petrol from the petrol tanker and
the fire and the explosion were the result of their attempt to steal the petrol
leaking out from the tanker. In other words, it was the people who had
assembled at the accident site and some of whom eventually died as a result of
it who were responsible for causing the fire and explosion accident and the
later accident had no causal connection with the earlier road accident of the
tanker.
The fire and the
explosion could not be said to be an accident arising out of the use of the tanker.
Against the order of the Claims Tribunal passed on December 2, 1989, appeals
were filed before the High Court. One such appeal was filed by Vatschala Uttam
More, whose son Deepak Uttam More was one of the persons who died as a result
of injuries caused by the fire and explosion of the petrol tanker. A learned
single judge of the High Court allowed the appeal and by judgment dated
February 5, 1990, reversed the order passed by the Claims Tribunal. Against the
decision of the single judge, the owner of the petrol tanker and the insurance
company filed a Letters Patent Appeal which was dismissed by a division bench
of the High Court by judgment dated August 16, 1990.
4.
The
owner of the petrol tanker and the insurance company then brought the matter to
this court in SLP no.14822 of 1990 challenging the judgment and order of the
High Court passed on August 16, 1990. The SLP was dismissed by this court by
judgment and order passed on July 17, 1991.In this judgment, reported as
Shivaji Dayanu Patil & Anr. vs. Vatschala Uttam More, (1991) 3 SCC 530 the
Court considered at length, the questions whether the fire and explosion of the
petrol tanker in which Deepak Uttam More lost his life could be said to have
resulted from an accident arising out of the use of a motor vehicle, namely the
petrol tanker. The court answered the question in the affirmative, that is to
say, in favor of the claimant and against the insurer.
5.
The
judgment of this Court, thus, put an end to the objections raised by the owner
and the insurer of the petrol tanker against the claim of no fault compensation
by and/or on behalf of the victims of the fire and explosion accident.
6.
But
next came the turn of the main applications filed under section110A of the Act.
There were altogether 44 claim applications in which, caseno.168 of 1988 was
treated as the lead case. In the main claim cases too, the owner and the
insurer of the tanker inter alia raised the same objections as taken earlier
against the claim of no fault compensation. In view of the pleadings of the
parties, the Claims Tribunal framed five issues in which issue no.3, being
relevant for the present, was as follows: "3. Whether sustaining of
injuries was (sic) arising out of use of the petrol tanker and was the result
of negligence on the part of the petrol tanker driver?"
7.
On
the basis of the evidences led before it, the Claims Tribunal answered the
issue in the negative and as a consequence dismissed all the claim cases by its
judgment and order dated July 31, 1997.
8.
Against
the judgment and order passed by the Claims Tribunal, the applicant of MACP
no.168 of 1988, preferred an appeal before the High Court (being First Appeal
no.149 of 1999). (The other claimants whose claims were similarly dismissed by
the Claims Tribunal are also said to have preferred their respective appeals
before the High Court which are pending awaiting the result of the present
appeal before this Court).
9.
Before
the High Court it was contended on behalf of the claimants that the question
whether the death of the victims resulted from an accident arising out of the
use of the petrol tanker was concluded by the decision of this Court in Shivaji
Dayanu Patil and any finding recorded by the Claims Tribunal contrary to the
decision of this Court was completely illegal and untenable. On the other hand,
on behalf of the insurer and the owner of the petrol tanker, it was argued that
the decision of this Court in Shivaji DayanuPatil was rendered on a claim for
no-fault compensation under section 92Aof the Act. It was, thus, a judgment
against an interlocutory order, before any evidences were recorded in the
proceeding and, therefore, the decision in Shivaji Dayanu Patil cannot be taken
as binding and it was open to the Claims Tribunal or the High Court to come to
a different finding on the basis of the evidences adduced in course of the main
proceeding. It was further argued, on behalf of the insurer and the owner of
the petrol tanker that an order under section 92A is, in nature, an interim
order that is passed without following the formal procedure of recording
evidence.
The decision of this Court
in Shivaji Dayanu Patil had not decided the issue finally and conclusively and,
hence, the claimants could not draw any benefit from it in the main proceeding
under section 110A of the Act based on the principle of fault or negligence of
the driver of the vehicle. The High Court did not accept the arguments advanced
on behalf of the owner and the insurer of the petrol tanker, but agreed with
the claimants that the decision of this Court in Shivaji Dayanu Patil was
conclusive on the issue that the death of the victim, caused by the fire and
explosion of the petrol tanker, had resulted from an accident arising out of
the use of the motor vehicle, namely, the petrol tanker and it was not open to
the Claims Tribunal to take a contrary view. It, accordingly, allowed the
appeal and by judgment and order dated March 24, 2005, set aside the judgment
of the Claims Tribunal and allowed the claim petition with costs.
10.
Though,
having held against the insurer, the High Court, on a prayer made before it,
granted certificate to appeal to this Court by order dated April 28, 2005, in
the following terms: "1. Heard advocates for the appellant and
respondents. The issue involved that is for the purpose of this leave to go to
the Supreme Court is, whether the order of the Supreme Court under section 92A
was for all purposes an interim order or it concluded and decided the question
as to whether the vehicle i.e. the tanker was in use when exploded. Though, I
have held against the respondents, looking to the question involved, certificate
as prayed, is granted. No stay to the order of payment. Certified copy
expedited."
11.
Mr.
Ramesh Chandra Mishra appearing on behalf of the appellant advanced the same
arguments before us as were advanced before the High Court in support of the
judgment passed by the Claims Tribunal. Learned counsel submitted that the
decision of this Court in Shivaji Dayanu Patil was rendered on an application
under section 92A of the Act and, therefore, any finding recorded in that decision
would not be binding on the Claims Tribunal in the main proceeding under
section 110A of the Act that was to be decided on the basis of the evidences
adduced before the Tribunal.
12.
On
hearing Mr. Atul Nanda, the amicus curiae and Mr. Ashok Kumar Singh, counsel
appearing on behalf of the respondent, we are unable to accept the submissions
made by Mr. Ramesh Chandra Mishra and we are incomplete agreement with the view
taken by the High Court.
13.
In
a given case, on the basis of the evidences later on adduced before it in the
main proceeding under section 110A of the Act, it may be possible for the
Claims Tribunal to arrive at a finding at variance with the finding recorded by
a superior court on the same issue on an application under section 92A of the
Act. But the variant finding by the tribunal must be based on some material
facts coming to light from the evidences led before it that were not available
before the superior court while dealing with the proceeding under section 92A
of the Act. In this case, however, as correctly noted by the High Court, the
position is entirely different. It is true that the case Shivaji Dayanu Patil
arose from the claim for no-fault compensation under section 92A but all the
material facts were already before the court and all the contentions being
raised now were considered at length by this Court in that case.
In Shivaji Dayanu
Patil the Court took note of the relevant facts in paragraphs 2 and 3 of the
judgment. In paragraph 4 of the judgment, the Court noted the three limbs of
argument advanced by Mr. G.L. Sanghi, learned counsel appearing for the owner
of the petrol tanker in support of the plea that the explosion and fire in the
petrol tanker could not be said to be an accident arising out of the use of a
motor vehicle. Paragraph4 of the judgment reads as under: "4. Shri G.L.
Sanghi, the learned Counsel appearing for the petitioners, has urged that in
the instant case, it cannot be said that the explosion and fire in the petrol
tanker which occurred at about 7.15 A.M., i.e., nearly four and half hours
after the collision involving the petrol tanker and the other truck, was an accident
arising out of the use of a motor vehicle and therefore, the claim petition
filed by the respondent could not be entertained under Section 92-A of the Act.
Shri Sanghi has made a three-fold submission in this regard. In the first
place, he has submitted that the petrol tanker was not a motor vehicle as
defined in Section 2(18) of the Act at the time when the explosion and fire
took place because at that time the petrol tanker was lying turtle and was not
capable of movement on the road.
The second submission
of Shri Sanghi is that since before the explosion and fire the petrol tanker
was lying immobile it could not be said that the petrol tanker, even if it be
assumed that it was a motor vehicle, was in use as a motor vehicle at the time
of the explosion and fire. Thirdly, it has been submitted by 11 Shri Sanghi
that even if it is found that the petrol tanker was in use as a motor vehicle
at the time of the explosion and fire, there was no causal relationship between
the collision which took place between the petrol tanker and the truck at about
3 A.M. and the explosion and fire in the petrol tanker which took place about
four and half hours later and it cannot, therefore, be said that explosion and
fire in the petrol tanker was an accident arising out of the use of a motor
vehicle."
14.
After
having considered each of the 3 limbs of Mr. Sanghi's arguments and having
rejected all of them, the Court, in paragraph 37 of the judgment, held and
observed as follows: "37. Was the accident involving explosion and fire in
the petrol tanker connected with the use of tanker as a motor vehicle? In our
view, in the facts and circumstances of the present case, this question must be
answered in the affirmative. The High Court has found that the tanker in
question was carrying petrol which is a highly combustible and volatile material
and after the collision with the other motor vehicle the tanker had fallen on one
of its sides on the sloping ground resulting in escape of highly inflammable
petrol and that there was grave risk of explosion and fire from the petrol
coming out of the tanker.
In the light of the
aforesaid circumstances the learned Judges of the High Court have rightly
concluded that the collision between the tanker and the other vehicle which had
occurred earlier and the escape of petrol from the tanker which ultimately
resulted in the explosion and fire were not unconnected but related events and
merely because there was interval of about four to four and half hours between
the said collision and the explosion and fire in the tanker, it cannot be necessarily
inferred that there was no causal relation between explosion and fire. In the
circumstances, it must be held that the explosion and fire resulting in the
injuries which led to the death of Deepak Uttam More was due to an accident
arising out of the use of the motor vehicle viz. the petrol tanker No. MKL 7461."
15.
We
have examined the evidences of the OWs adduced before the Claims Tribunal, in
particular the depositions of Shivaji Patil, the owner of the petrol tanker,
who examined himself as OW1 and Dhondirama Mali, the driver of the ill-fated
petrol tanker who was examined as OW2. We have also gone through the judgment
of the Tribunal. In the evidences of the OWs, there was no new material fact
that wasn't already before this Court in Shivaji Dayanu Patil. And on the basis
of the evidences led by the opposite party, no new points were raised before
the Claims Tribunal, that can be said to have not been raised before this Court
in Shivaji Dayanu Patil. The High Court was, therefore, perfectly justified in
observing in paragraph 26 of the judgment coming under appeal as follows:
"... But whether
the vehicle was in use or not was a question before the Supreme Court and even
after evidence that aspect has not changed. Time at which the accident
occurred, viz. catching the fire by the petrol has remained the same. The circumstances
preceding this particular point have also remained the same. The manner in
which the petrol tanker came near the spot and how it was hit by a vehicle or
truck coming from opposite direction also remained the same even after evidence
and therefore when facts which were before the Supreme Court have not at all
changed in spite of the full trial and evidence, the judgment of the Supreme
Court has to be accepted and taken as a concluded judgment so far as the issue as
to whether the vehicle was "in use" or "arising out of the use of
the motor vehicle", fully and concluding. Secondly, questions before the
Supreme Court was about the interpretation of the words "arising out of
use of motor vehicle". The situation namely occurring explosion to the
petrol tanker has not changed so far as this particular aspect is concerned...."
16.
In
light of the discussions made above, it must be held that in the facts and
circumstances of the present case, the decision rendered in Shivaji Dayanu
Patil was completely binding on the Claims Tribunal and it was not open to the
Claims Tribunal to come to any finding inconsistent with the aforesaid decision
of this Court. The issue framed by the High Court is answered accordingly.
There is no merit in the appeal and it is, accordingly, dismissed with costs.
....................................J.
(AFTAB ALAM)
....................................J.
(R.M. LODHA)
New
Delhi
January
7, 2011.
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