Baldev Kaur and Others vs Nazar Singh and Others

Amarjeet Chaudhary, J.—Baldev Kaur widow, Bhajanjit Kaur minor daughter, Harkirat Singh minor son and Ind Kaur mother of Onkar Singh deceased filed Claim petition u/s 166 of the Motor Vehicles Act, 1988 for the grant of compensation to the tune of Rupees twenty lacs on account of death of Onkar Singh son of Shri Harnek Singh, in Motor Vehicular accident.

The case of appellant as pleaded in their claim petition is that on 22-10-1989, Bharat Harvestor Combine belonging to respondents No. 2 to 5 was engaged for harvesting paddy crop in the fields of Jugraj son of Shri Ujjal Singh. The same got stuck in the field and in order to pull it out, five tractors were engaged. One of those tractors was of Harnek Singh on which Onkar Singh deceased was sitting. The other tractors belonged to Kaur Singh, Jugraj Singh, Jana Singh, Harminder Singh and Harwinder Singh. The driver of combine was Nazar Singh, respondent No. 1. While the tractor were pulling out Combine, the driver of the same rashly and negligently drove it and struck against an electric wire, as a result of which electric current passed in the Harvestor Combine and thereafter in all the tractors. As a result of the impact of Harvestor Combine with the naked electric live wire, Onkar Singh fell down and was electrocuted. The respondent-Punjab State electricity Board was also negligent as the electric wire was naked and was hanging very low. The vertical distance of the cable was only 10 feet, whereas according to Indian Electricity Rules, it should be 15 feet and, thus, it was in clear violation of the Rules. The accident has been caused due to the negligence of the respondents as a result of which Onkar Singh died. It was also pleaded that it was a case of composite negligence of Onkar Singh and the respondents are jointly and severally liable for payment of compensation to the claimants.

Dr. B.L. Bhardwaj conducted Post-Mortem examination on the dead body of deceased in Civil Hospital Sangrur. The Harvestor combine was insured with the Oriental Insurance Company Limited Sangrur. The claimants have suffered great mental shock, pain and agony and as such are entitled to receive compensation.

The claim was resisted by the respondents No. 1 to 5 who stated that the liability, if any, is of the Insurance Company with which the Harvestor Combine was insured. It is further averred that in case there is any negligence, it was due to the action of the Punjab State Electricity Board.

The Punjab State Electricity Board also refuted the averments of the claimants. It pleaded that the claimants are not entitled to any compensation and that it was not in any way negligent or responsible for the accident.

The Insurance Company also opposed the claim of the claimants. It is averred that the Combine owned by Udham Singh, Desa Singh, Megh Singh and Rai Singh was insured with the Nabha Branch. It is also averred that if it is proved that the accident was caused by respondent No. 1 Nazar Singh while driving the Combine, its liability will arise only if Nazar Singh was holding a valid driving licence at the time of accident.

The learned Tribunal framed the following issues:-

Whether Onkar Singh died due to rash and negligent driving of Harvestor Combine No. PCI-4344 on 23.10.1989 ? OPP

Whether the claim petition is bad for nonjoinder of necessary parties i.e. drivers, owners and the Insurance Company of the five tractors engaged in pulling the Harvestor Combine ? OPR

If issue No. 1 is proved, whether the respondent No. 1 was holding a valid driving licence on the day of accident ? OPR

Whether the claimants have no cause of action against respondents No. 1 to 8 ? OPR.

To what amount and from whom the claimants are entitled to claim compensation ? OPP.

Relief.

The parties led evidence on the above issues. The learned Tribunal after going through the evidence and hearing arguments of both sides, decided issues No. 1, 4 and 5 against the claimants. Issues No. 2 and 3 were held to have become redundant. The claim petition was accordingly dismissed by the learned Tribunal vide its order dated October 29, 1992.

The counsel for the claimants contends that in the written statement, the respondents have admitted the accident and the death of Onkar Singh. There is also no dispute that on 22.10.1989, Bharat Harvestor Combine belonging to respondents No. 2 to 5 was engaged for harvesting paddy crop in the fields of Jugraj. It got stuck in the wet land and in order to pull it out, five tractors were engaged. While the tractors were pulling out the Combine, its driver Nazar Singh, rashly and negligently drove it and struck against an electric wire as a result of which electric current passed in the Harvestor Combine and thereafter in all the tractors. As a result of impact of Harvestor Combine with the naked electric live wire, Onkar Singh fell down and got electrocuted. Counsel contends that the accident took place due to rash and negligent driving of Nazar Singh, respondent No. 1. He further contends that in this case, the learned Tribunal has wrongly held as under :-

"An application for compensation is maintainable in respect of accident involving the death or bodily injuries to a person arising out of the use of motor vehicles including claims for compensation. In this case the death of Onkar Singh was solely caused on account of the fact that a loose electric live wire was hanging and it touched the Harvestor Combine with the result electric current passed through it and to the tractors with which it was being toe chained. In these circumstances, the provisions of Section 165(1) of the Motor Vehicles Act, 1988 are not attracted because the over-head electric wire lying at a height of 10 feet from the ground resulted in the accident."

It was further held as under:-

"The death of Onkar Singh was not caused due to motor vehicle accident, but was due to electrocution when the live electric wire touched the Combine and current passed into it and tractors with which the same was being bulled out. In these circumstances, I am of the view that the present claim petition under the Motor Vehicles Act, is not maintainable and this Tribunal has no jurisdiction to entertain the same. Consequently, I find that the death of Onkar Singh has not been caused due to rash and negligent driving of Combine No. PCI - 4344 by respondent No. 1 and the claim petition is not maintainable under the Act."

The learned counsel for the respondents, on the other hand, contends that no fault can be attributed to the driver of the Harvestor Combine. The deceased had died due to electrocution and as such the respondents are not liable to compensation.

I have heard learned counsel for the parties and perused the paper book.

In "Smt. Inder Mohini and Ors. v. Lakhvinder Pal Singh Duggal and Ors. " 1992 (2) PLR 488 it was held as follows:-

"Averment that on account of negligence and rash driving of the driver the vehicle could not be stopped with the result that it came within the range of crossfire and this is how the use of the vehicle resulted in death. In case the claimants can prove this averment, then certainly the petition is maintainable. Tribunal has jurisdiction to entertain and try the petition."

In Gouri Bi Vs. Khemraj, , it was held as under;

"Claims arising out of the use of motor vehicle. Driver took the petrol tanker to the extreme left of the road. The tanker toppled and fell in a land adjacent to the road. Tanker burst and caught fire and 70 of the passers-by who were onlookers to the happening were killed and 35 others were injured. Owner contended that the driver took the tanker to the extreme left in order to save a person who suddenly tried to cross the road and thereafter the driver and the conductor went to answer calls of nature. Persons from neighbouring village brought buckets etc. to take away petrol thinking it to be kerosene and while they were stealing petrol, the tanker caught fire from a beedi or cigarette of one of them. Owner pleaded that the accident did not happen due to the use of the vehicle and the tribunal has no jurisdiction to entertain the claims. Tribunal without recording any evidence held that the accident did not arise due to the user of the vehicle and it has no jurisdiction to try the claim petitions. Whether jurisdiction depends entirely on the averments in the claim petition. Held: yes; plea raised by the respondents has a bearing only on the question of actionable negligence and quantum of compensation, but is not germane to the question of jurisdiction of the Tribunal to adjudicate the claim; in the background of order meaning given to the term ''arising out of the use of motor vehicle'', the Tribunal has jurisdiction to entertain these petitions; cases remitted for fresh trial"

In Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More, was observed as under:-

"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), and (ii) and 96(2)(b) (ii) of the Motor Vehicles Act. In section 92-A, Parliament, however, chose to use the expression ''arising out of which indicates that for the purpose of awarding compensation u/s 92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and 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".

Again in " Himachal Road Trans. Corpn. and Others Vs. Om Prakash and Others, , it was observed as under:-

"A bomb planted by someone in the bus exploded when the bus had covered a short distance after starting from bus stand causing injuries to some and proving fatal to other passengers. Whether the death of or bodily injuries to persons arose out of the use of motor vehicle and the Claims Tribunal has jurisdiction to entertain the claim petitions-Held Yes"

In the light of law enunciated in the above cited authorities which has a direct bearing on the facts of the case, I am of the considered view that the order of the learned Tribunal cannot be sustained. The claimants in their claim petition had made clear averment that on account of rash and negligent driving of Harvestor Combine by Nazar Singh respondent No. 1 it struck against an electric wire, as a result of which electric current passed in the Harvestor Combine. On account of impact of the Harvestor Combine with the naked electric live wire, Onkar Singh deceased fell down and was electrocuted. The claimants in their petition had made a clear averment that had the driver of the Harvestor Combine controlled the vehicle, tragedy would have been averted. The rash and negligent driving of Harvestor Combine has got direct connection with the death of Onkar Singh and once it is held in the context of the factual position as has been noticed above that Nazar Singh was negligent in driving, it can safely be held on a point of law that claim petition u/s 166 of the Motor Vehicles Act is maintainable. If the view of the tribunal is to be upheld, it would inevitably follow that whatever be the extent of negligence of the driver of a vehicle, a sufferer under no circumstances can get the claim only because the death of person was not caused due to the motor vehicle accident. In my considered view, the Tribunal has gone wrong in holding that the claim petition was not maintainable as the death of Onkar Singh was not caused due to the accident of a motor vehicle. As had been observed above, if the death of person has got direct connection with the negligence of the driver of a motor vehicle, a victim if he is injured or his legal representatives if he dies, are entitled to maintain the claim petition under the provisions of the Motor Vehicle Act. In this view of the matter, I am of the considered opinion that in case the claimants are able to prove that the driver of the Harvestor Combine was rash and negligent in driving Harvestor Combine, the Tribunal would have no option but to accept the claim petition. The claim petition would be maintainable and the Tribunal would have jurisdiction to entertain and dispose of the petition according to procedure.

For the foregoing reasons, I have reached at the inevitable conclusion that the matter requires reconsideration by the Tribunal.

In the result, the orders passed by the learned Tribunal are set aside. The case is remanded to the Motor Accident Claims Tribunal Sangrur with direction to frame issues arising from the pleadings of the parties denovo and then to afford opportunities to both sides to adduce evidence on all the issues including that of jurisdiction and thereafter to dispose of the case according to law. Parties to appear before the learned Tribunal on October 31,1996 to receive further directions.