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Judgment
A suit was filed by the respondents against the petitioners for recovery of Rs.1,50,000/- towards damages which had been decreed by the Court on 25th February, 1997. The facts which led to filing of the suit are narrated in the judgement of the trial Court as follows:
"On 6-3-1984 the 3rd defendant who is the present petitioner illegally and unauthorisedly transported Ammonia Gas cylinders in lorry Bearing No. AAW 4333 with other transportable goods. Ammonia Gas is a poisonous gas and it was being illegally transported in gas cylinders. The lorry with the cylinders was kept in godown cum office in Singarajuvari street, Kothapet, Vijayawada where the office of the petitioner is located. There was leakage in the gas and the present petitioner acted negligently without taking any interest to rectify the leakage. The gas from the damaged cylinders leaked and spread all over the neighbouring area. The first plaintiff''s father in law inhaled the gas, he was admitted to hospital where he died."
The suit was contested by the defendants and the following issues were framed:
(1) Whether the 3rd defendant kept the lorry AAW 4333 containing Gas cylinders loaded with Ammonia gas at Godown cum office in Singarajuvari street, Kothapet, Vijayawada-1?
(2) Whether inspite of the fact made about the leakage of ammonia gas, the third defendant acted very negligently without taking least care and interest and any suitable or remedial measures in arresting the leakage of gas. What do you say?
(3) Whether the 1st plaintiffs father in law Rambhotlu aged 61 years inhaled the gas leaked out from the damaged cylinders and spread over the neighbouring area as a result of which he died?
(4) Whether late Rambhotlu was hale and healthy and managing and looking after the family of the plaintiffs earning Rs.12,000/- and Rs.15,000/-per annum at the time of his death?
(5) Whether the plaintiffs are entitled for damages claimed from the defendants?
(6) Whether the driver of the lorry AAW 4333 Chalamalasetti Venkateswara Rao and the owner of the consignment Sheik Mohiddin are the necessary and proper parties to the suit?
(7) Whether the leakage of Ammonia gas is due to the negligence of the driver of the lorry AAW 4333 and not due to the defendants?
(8) To what relief?
Evidence was led and finally the Court passed the decree for Rs.40,000/- with 6% interest. After the decree was passed the petitioner filed a revision before the Subordinate Judge Court, Vijayawada who dismissed it on the ground that an appeal was available.
This Court is not clear as to under what provision of law the revision was filed, which was dismissed. The appeal was not filed according to the petitioner and he has challenged the decree by way of this writ petition. Since an appeal is provided and the remedy has not been availed of by the petitioner, this Court is of the view that the writ petition cannot be entertained at (his stage. However, the learned Counsel for the petitioner submits that the decree itself is a nullity and therefore it can be challenged by way of writ petition. His argument is that, u/s 175 of the Motor Vehicles Act, 1988 there is a bar to the jurisdiction of the civil Courts in matters of accidents arising out of use of Motor vehicles, therefore the suit could not have been at all entertained by a civil Court. He relied on a judgement of Supreme Court in State of Madhya Pradesh v. Babu Lal AIR 1977 SC 1718, in which the Supreme Court held that, if a judgement is illegal and in clear violation of law the party cannot be forced to go to a civil Court for declaration of such judgement and decree as null and void and such a judgement and decree can be quashed by High Court in its jurisdiction under Article 226 of the Constitution. In Para 5 of the judgement the Supreme Court held:
One of the principles on which certiomri is issued is where the Court acts illegally and there is error on the face of record. If the Court usurps the jurisdiction, the record is corrected by certiorari. This case is a glaring instance of such violation of law. The High Court was in error in not issuing Writ of Certiorari.
There is no dispute with the principle laid down by the Supreme Court, but this judgement has to be applied keeping two things in view. One, whether the matter before the civil Court was one which was hit by Section 165 of the MV Act, secondly it has to be kept in view that this writ petition is being filed after more than 30 months of the decree.
Coming to the first question first, Section 165 of the MV Act establishes the Tribunals and it lays down:
"165. Claims Tribunals :--(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both."
By going through the section it becomes clear that the Tribunal has the jurisdiction to try claims for compensation in respect of accidents involving death or bodily injury to persons arising out of the use of motor vehicles. Going by the judgement of the Subordinate Court the motor vehicle was not being used as a motor vehicle and it was being used as a store at the time when the accident occurred. For deciding the jurisdiction of civil Courts in terms of Section 175 of the MV Act the condition precedent is that the jurisdiction to try the matter should not be with the Tribunal in terms of Section 165. u/s 165 the jurisdiction vests with Tribunals in all those accidents which are result of use of motor vehicles. Clearly on facts the accident which is subject mailer of this writ petition was not the outcome of use of motor vehicle but of storing of motor vehicle. A poisonous gas was stored in the motor vehicle. Therefore, I am of the view that the jurisdiction of the civil Court in this matter was not excluded and on facts it was the Tribunal which had no jurisdiction to try the matter.
However, the learned Counsel for the petitioner relies on another judgement being Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More, , in which Use of Motor vehicle was considered by the Supreme Court. The facts of the case were altogether different in the case before the Supreme Court. The following facts gave rise to the matter before the Supreme Court:
On October 29, 1987 at about 3-00 a.m., there was a collision between a petrol tanker bearing Registration No.MKL 7461 and a truck bearing Registration No.MEH 4197 on the National Highway No.4 near village Kavatha, in District Satara, Maharashtra. The petrol tanker was proceeding from Pune side to Bangalore whereas the truck was coming from the opposite direction. As a result of the said collision, the petrol tanker went off the road and fell on its left side at a distance of about 20 feet from the highway. As a result of the overturning of the petrol tanker, the petrol contained in it leaked out and collected nearby. At about 7.15 a.m., and explosion took place in the said petrol tanker resulting in fire. A number of persons who had assembled near the petrol (anker sustained burn injuries and a few of them succumbed to the said injuries. One of those who died as a result of such injuries was Deepak Uttam More the respondent is the mother of Deepak Uttam More. Petitioner No. 1 is the owner of the said petrol tanker and petitioner No.2 the insurer of the same.
The findings of the Court came in Para 26 which is reproduced.
The only other question which remains to be considered is whelher the explosion and fire which caused injuries to the deceased son of the respondent can be said to have taken place due to an accident arising out of the use of a motor vehicle viz. The petrol (anker. Shri Sanghi has urged that the expression ''arising out of the use of a motor vehicle'' implies a causal relationship between the user of the motor vehicle and the accident which has resulted in death or disablement and that in the present case it cannot be said that the explosion and fire which took place in the petrol tanker four and half hours after the collision and after the tanker had turned turtle was an accident arising out of the use of the petrol tanker. In this regard, Shri Sanghi has emphasised that the persons who sustained injuries as a result of the explosion and fire in the petrol tanker were pilfering petrol which had leaked out from (he petrol tanker and the explosion and fire was the result of the said unlawful activity of those persons and that it was not on account of he user of the petrol tanker. Shri Sanghi, in this connection, has placed reliance on the decision in Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, , wherein this Court has construed (he expression ''arising out of employment'' appearing in Section 3 of the Workmen''s Compensation Act, 1923 and has laid down that there must be a casual relationship between the accident and the employment. Shri Sanghi has urged that similarly there must be a casual relationship between the accident and the user of the motor vehicle for the purpose of maintainability of a claim u/s 92-A of the Act.
While going through the facts of the case before the Supreme Court and findings of the Supreme Court it becomes clear that, when the accident took place the vehicle was being used as a vehicle but in the present case the vehicle was being used as a store and not as a vehicle. Therefore, I am not convinced that this writ petition can be entertained.
Even if this Court agrees with the learned Counsel for the petitioner that the decree is a nullity in view of bar u/s 175 of the MV Act still this petition cannot be entertained on the ground of laches. It appears to this Court that only to cover the problem of limitation the petitioner has tried to use the Forum of High Court by filing this writ petition. There is no explanation whatsoever given in the writ petition as to why it took the petitioner to file this writ petition thirty months after the decree was passed.
For all these reasons, I do not find any merit in this writ petition which is accordingly dismissed. No costs.