The central legal point established in the judgment is that an accidental death during the course of employment in connection with a vehicle, even if the vehicle is stationary, can entitle the claimants to compensation under the Motor Vehicles Act.

BHASKAR BHATTACHARYA, J. :- This appeal under Section 173 of the Motor Vehicles Act, 1988 is at the instance of the claimants and is directed against the order dated 25th June, 2003 passed by the learned Judge, Special Court-cum-Motor Accident Claims Tribunal, Burdwan in M.A.C. Case No. 77/386 of 2002 thereby rejecting the application under Section 163A of the Act.

2. It appears from the application under Section 163A of the Act that the victim was a khalashi of a truck and while the said truck was waiting at petrol pump for the purpose of filling up fuel, four unidentified persons attacked the petrol pump and started firing, as a result, the driver of a different truck and the victim who was a khalashi of the insured truck involved herein died on the spot.

3. The claim-application was filed by the father, mother and the sister of the victim.

4. The mother of the victim alone gave evidence before the Tribunal. The Insurance policy covered by the vehicle, the postmortem report of the victim and the F.I.R. were produced at the time of trial. It appeared from the post-mortem report that the victim really died of the accident occcurred at the relevant time. It further appears that the truck of which the victim was the khalashi was covered by the insurance.

5. The Tribunal below, however, came to the conclusion that although the truck was taking fuel at the petrol pump, the extremists really attacked the petrol pump and not the vehicle. According to the Tribunal, no evidence was there as to whether the victim was at the relevant time at the spot. The Tribunal below had drawn adverse inference against the claimants for non-examination of the driver and accordingly, came to the conclusion that the deceased died in an accident not arising out of the use of the said vehicle.

6. Being dissatisfied, the claimants have come up with the present appeal.

7. After hearing the learned counsel for the parties and after going through the decisions of the Supreme Court in the case of Smt. Rita Devi v. New India Assurance Co. Ltd., reported in 2000 (2) TAC 213 : (AIR 2000 SC 1930), we are of the view that in this case, the death of the victim arose out of an accident during the course of his employment in connection with the vehicle in question. It appears from the post-mortem report thai he really died out of the bullet injury in connection with the accident mentioned in the claim-application and that the vehicle in question was also covered by the insurance as it appears from the copy of the insurance seized from the vehicle by the Investigating Officer. The khalashi of the vehicle was duty bound to be present with the vehicle while on duty for the purpose of filling petrol in course of its journey and if, at that stage, a firing takes place at the petrol pump as a result of which the khalashi dies, it cannot but be said that the death so caused was an accidental death due to his involvement with the vehicle. The present case is similar to the case of Rita Devi (supra), where the driver of an auto-rickshaw was murdered in connection with the stealing of the autorickshaw. We, therefore, find substance in the contention of Mr. Banik, the learned advocate appearing on behalf of the

appellants that the learned Tribunal erred in law in holding that this was not a case of accidental death in connection with the vehicle concerned. As pointed out by the Supreme Court in the case of Shivaji Dayanu Patil v. Vatschala Uttam More, reported in 1991 ACJ 777 : (AIR 1991 SC 1769), in order to attract the provision of the Motor Vehicles Act, it is not necessary that the motor vehicle in question must be in use. Even a stationary motor vehicle can be involved in an accident and the expression "arising out of means the causal relationship between the use of motor vehicle and the accident resulting in death and it need not be direct or proximate and it can be less immediate.

8. We, therefore, find that the Tribunal illegally turned down the prayer of the appellan