The question is whether the death/murder of
Dharam Pal is out of use of vehicle in the given circumstances of
the case? The answer is in the affirmative for the following
reasons:
The legal representatives of the driver of the vehicle
have not made any claim. The claim, which is being adjudicated
upon, is by the legal representatives/heirs/dependents of
deceasedDharam Pal.
As discussed hereinabove and as recorded by the
Tribunal, the entire offence was committed inside the vehicle,
thus, out of 'use of motor vehicle'. The claimants have filed
claim petition under Section 163A of the MV Act and not under
Section 166 of the MV Act. In a claim petition filed under
Section 166 of the MV Act, the claimants have to plead and
prove that the accident was outcome of rash and negligent
driving of the vehicle by its driver. Sine qua non for maintaining
the claim petition under Section 166 of the MV Act is the
rashness and negligence on the part of the driver of the vehicle,
but in a claim petition under Section 163A of the MV Act,
rashness and negligence is not a sine qua non and it is also not
even an ingredient in the said provision.
21. It is worthwhile to reproduce Section 163A of the MV
Act herein:
"163A. Special provisions as to payment
of compensation on structured formula
basis. (1) Notwithstanding anything
contained in this Act or in any other law for
the time being in force or instrument having
the force of law, the owner of the motor
vehicle or the authorised insurer shall be
liable to pay in the case of death or
permanent disablement due to accident
arising out of the use of motor vehicle,
compensation, as indicated in the Second
Schedule, to the legal heirs or the victim, as
the case may be.
Explanation. For the purposes of this subsection,
"permanent disability" shall have the
same meaning and extent as in the
Workmen's Compensation Act, 1923 (8 of
1923).
(2) In any claim for compensation under subsection
(1), the claimant shall not be required
to plead or establish that the death or
permanent disablement in respect of which
the claim has been made was due to
any wrongful act or neglect or default of the
owner of the vehicle or vehicles concerned or
of any other person.
(3) The Central Government may, keeping in
view the cost of living by notification in the
Official Gazette, from time to time amend the
Second Schedule."
22. While going through this provision of law, the words
used are 'use of motor vehicle'.
23. The Court has to be cautious and has to draw a fine
distinction. If the motive, criminal intention and conspiracy was
to kill Dharam Pal, perhaps the remedy was anywhere else.
24. The facts, the final report and other circumstances
do disclose that the prima facie motive and intention of the
accused persons were to kill the driver of the vehicle and not
Dharam Pal. Thus, Dharam Pal became the victim because of
travelling in the vehicle and his death is outcome of 'use of motor
vehicle'.
25. The Apex Court in the case titled as Shivaji
Dayanu Patil and another versus Vatschala Uttam More,
reported in 1991 ACJ 777, has interpreted the words and
expression 'use of motor vehicle' and held that these have a wide
connotation. It is apt to reproduce paras 31 to 36 of the
judgment herein:
"31. The words "arising out of" have been
used in various statutes in different
contexts and have been construed by
Courts widely as well as narrowly, keeping
in view the context in which they have been
used in a particular legislation.
32. In Heyman v. Darwins Ltd., 1942 AC
356, while construing the arbitration
clause in a contract, Lord Porter expressed
the view that as compared to the word
'under', the expression 'arising out of' has
a wider meaning. In Union of India v.
E.B. Aaby's Rederi A/S, 1975 AC 797,
Viscount Dilhorne and Lord Salmon
stated that they could not discover any
difference between the expression "arising
out of" and "arising under" and they
equated "arising out of" in the arbitration
clause in a Charter Party with "arising
under."
33. In Samick Lines Co. Ltd. v. Owners of
the Antonis P. Lemos, (1985) 2 WLR 468,
the House of Lords was considering the
question whether a claim for damages
based on negligence in tort could be
regarded as a claim arising out of an
agreement under section 20(2)(1)(h) of the
Supreme Court Act, 1981 and fell within
the admiralty jurisdiction of the High
Court. The words "any claim arising out of
any agreement relating to the carriage of
goods in a ship or to the use of hire of a
ship" in section 20(2)(1)(h) were held to be
wide enough to cover claims, whether in
contract or tort arising out of any
agreement relating to the carriage of goods
in a vessel and it was also held that for
such an agreement to come within
paragraph (h), it was not necessary that
the claim in question be directly connected
with some agreement of the kinds referred
to in it. The words "arising out of" were
not construed to mean "arising under" as
in Union of India v. E.B. Aaby's A/S,
1975 AC 797, which decision was held
inapplicable to the "The words" injury
caused by or ar ising out construction of S.
20(2)(1)(h) and it was observed by Lord
Brandon:
"With regard to the first point, I
would readily accept that in certain
contexts the expression 'arising out
of' may, on the ordinary and natural
meaning of the words use, be the
equivalent of the expression 'arising
under', and not that of the wider
expression 'connected with'. In my
view, however, the expression
'arising out of' is, on the ordinary
and natural meaning of the words
used, capable, in other contexts, of
being the equivalent of the wider
expression 'connected with'. Whether
the expression 'arising out of' has the
narrower or the wider meaning in
any particular case must depend on
the context in which it is used."
Keeping in view the context in which the
expression was used in the statute it was
construed to have the wider meaning viz.
'connected with'.
34. In the context of motor accidents the
expressions 'caused by' and 'arising out of'
are often used in statutes. Although both
these expressions imply a causal
relationship between the accident resulting
in injury and the use of the motor vehicle
but they differ in the degree of proximity of
such relationship. This distinction has
been lucidly brought out in the decision of
the High Court of Australia in
Government Insurance Office of N.S.W. v.
R.J. Green & Lloyd Pty. Ltd., 1967 ACJ
329 (HC, Australia), wherein Lord
Barwick, C.J., has stated :
"Bearing in mind the general
purpose of the Act I think the
expression' arising out of' must be
taken to require a less proximate
relationship of the injury to the
relevant use of the vehicle than is
required to satisfy the words caused
by'. It may be that an association of
the injury with the use of the vehicle
while it cannot be said that that use
was causally related to the injury
may yet be enough to satisfy the
expression 'arise out of' as used in
the Act and in the policy."
35. In the same case, Windeyer, J. has
observed as under :
"The words 'injury by or arising out
of the use of the vehicle' postulate a
causal relationship between the use
of the vehicle and the injury. 'Caused
by' connotes a 'direct' or 'Proximate'
relationship of cause and effect.
'Arising out of' extends this to a
result that is less immediate; but it
still carries a sense of consequence."
36. This would show that 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)(i) and (ii) and 96(2)(b)(ii)
of the Act. In section 92A, Parliament,
however, chose to use the expression
'arising out of' which indicates that for the
purpose of awarding compensation under
section 92A, the causal 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 92A enlarges the
field of protection made available to the
victims of an accident and is in
consonance with the beneficial object
underlying the enactment."
26. While going through the judgment (supra), one
comes to an inescapable conclusion how the accident and
injury/death have relationship with use of motor vehicle.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 537 of 2008
Decided on: 18.12.2015
United India Insurance Company Ltd. …Appellant.
Versus
Sh. Talaru Ram and others …Respondents.
Coram
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Citation;2016(3) ALLMR(JOURNAL)30
