Point of Law: Motor Accident - The expression “use of the vehicle” can be attracted even where the vehicle is stationary.

JUDGMENT :

C.V. BHADANG, J.

1. This Appeal is taken up for final hearing by consent of parties.

2. The Appellant-Insurance Company is challenging the judgment and award dated 15 February 2010 passed by the Motor Accident Claims Tribunal, Mumbai (‘Tribunal’ for short) in Application No. 2840/2002. By the impugned award, the Tribunal has awarded a compensation of Rs. 2,16,398/- (inclusive of the no fault liability) to the first Respondent-claimant alongwith interest at the rate of 6% per annum from 28 October 2008 (the date on which the first Respondent tendered his evidence) till realisation.

3. The first Respondent-claimant was serving as a Salesman in a Gift Centre known as “Greet and Gift Celebration” at Ghatkopar (West), Mumbai. On 15 September 2002, at about 5.30 p.m. the employer of the first Respondent had asked him to bring a Garland. Therefore, the first Respondent had proceeded to a Floweriest Shop on foot. When the first Respondent reached near Smruti Building on Mehta Road at Ghatkopar (West), Mumbai and while he was walking on a footpath, he was hit by the iron bars which were being unloaded from a Motor Lorry bearing No. MCY-3239. As a result of the same, the first Respondent suffered a head injury. He was admitted in the hospital and had spent Rs. 10,000/- on medical treatment. According to the first Respondent, he had also incurred loss of the actual salary for about two to three months as he could not attend to his duties on account of the injuries sustained which comprised of a depressed fracture of left frontal bone with intra-cerebral hemorrhage. Further according to the first Respondent, as a result of the injuries he had suffered an impaired vision resulting into permanent partial disability. The concerned vehicle was at the relevant time owned by the second Respondent and was covered by a policy of insurance by the Appellant.

4. The first Respondent filed the Petition before the Tribunal seeking a compensation of Rs. 1,50,000/-. The first Respondent examined himself alongwith his employer Mr. Karan Mange and Dr. Ramesh Patankar. The Tribunal by the impugned award has granted compensation as aforesaid.

5. I have heard the learned counsel for the Appellant and the learned counsel for the first Respondent.

6. It is submitted by the learned counsel for the Appellant that the injuries suffered by the first Respondent cannot be said to be arising out of an accident, of the nature specified under sub Section 1 of Section 165 of the Motor Vehicles Act, 1988 (‘the Act of 1988’ for short). Thus, according to the learned counsel, the injuries sustained by the first Respondent cannot be said to be arising out of the ‘use of motor vehicle’ within the meaning of sub-section 1 of Section 165 of the Act of 1988.

7. The learned counsel pointed out that the first Respondent was passing by the footpath when the vehicle was stationary and thus by no stretch of imagination, the accidental injury sustained by the first Respondent on account of being hit by the iron bars which were being unloaded from the vehicle, can be said to be arising out of the use of the vehicle.

8. The learned counsel has placed reliance on the decision of this Court in Ananda Dattatraya Patankar vs. Kishore Narayan Patil and Others, 2002 (5) Bom. C.R. 565 and the decision of the Supreme Court in Minu B. Mehta and Another vs. Balkrishna Ramchandra Nayan and Another, AIR 1977 SC 1248(1). It is submitted that the Tribunal was in error in granting compensation when there was no liability which could have arisen having regard to the nature of the accident. Except this, there are no other contentions raised.

9. The learned counsel for the first Respondent, has supported the impugned award. It is submitted that the expression accident arising out of the ‘use of the motor vehicle’ under sub Section 1 of Section 165 of the Act of 1988 has been consistently interpreted widely. It is submitted that the accident in this case is squarely covered by the said provision. The le