C. Y. SOMAYAJULU, J.

( 1 ) AWARD passed in favour of Respondents 1 to 5 who are the legal representatives of the deceased victim in a motor vehicle accident, caused by the driver of the bus belonging to the 8th respondent, is challenged by the insurer of the said bus, on the ground that the deceased was not a passenger in the vehicle and that he did not die as a result of the accident caused by the use of the bus.

( 2 ) THE case of Respondents 1 to 5 is that when the deceased was about to board the bus, 7th respondent, the cleaner of the bus, negligently dropped a bag of karivepaku from the top of the bus, which fell on the deceased and resulted in his death. The Tribunal having observed that the death of the deceased was due to the careless dropping of the karivepaku bag from the top of the bus by the employee of the owner, held that the owner of the bus is vicariously liable, and consequently made the insurer of the bus also liable to pay the compensation payable.

( 3 ) CONTENDING that dropping of a bag from the top of the bus does not amount to an accident caused by the bus the insurer filed this appeal.

( 4 ) THE contention of the learned counsel for the appellant that dropping of a bag from the top of the bus does not amount to an accident caused by the use of the bus, cannot be accepted because, the word use in the expression arising out the use of motor vehicle1, covers the period when the vehicle is not in motion or is stationary. Several High Courts in several decisions held that the expression arising out of the use of motor vehicle should be given a wider but not, a restricted meaning. The fact that a bag of karivepaku was loaded on the top of the bus shows that the bus was used for carrying of the said bag. Dropping of that bag negligently by the cleaner, which resulted in the death of the deceased, amounts to the deceased - dying due to use of the bus , and so I am not able to accept the contention of the learned Counsel for appellant that petition for compensation under the Motor Vehicles Act is not maintainable.

( 5 ) EVEN otherwise - since the contention of the appellant in this appeal, in effect and in substance, is that the accident involving the deceased did not take place due to the negligence of the employees of the owner of the bus in view of the ratio of the Supreme Court in National Insurance company Ltd. v. Nicolleta Rohtagi, 2002 (6) ALD 1 (SC) = 2002 7 SCC 456, where it is held that the defences open to the insurer are very limited, and that it cannot, without obtaining the leave of the Tribunal under Section 170 of the Motor Vehicles act, 1988 (which corresponds to 110c (2) (a) of the Motor Vehicles Act, 1939) maintain an appeal questioning the quantum of compensation or the finding of negligence of the employee of the insured, this appeal filed by the insurer, which admittedly did not obtain permission from the Tribunal to take the defences open to the owner, is not maintainable.

( 6 ) SO, the appeal is dismissed. No order as to costs.

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