The interpretation of 'use of motor vehicle' under Section 163A of the Motor Vehicles Act, 1988 and the absence of the claimants' burden to prove negligence under the same section.

1. - The appellant, the New India Assurance Company Ltd. is aggrieved by the award dated 21.9.2013 passed by the Additional District & Sessions Judge, No.4 and Motor Accident Claims Tribunal, Jaipur District, Jaipur, whereby the learned Tribunal has awarded a compensation of Rs. 5,18,000/- in favour of the claimants-respondents.

2. The brief facts of the case are that on 9.1.2008, around 10:00 PM, Ahmed along with his two friends, Asfaar Ahmed and Manshad, were going on a motorcycle, bearing Registration No. RJ-14 SE 8876 (the offending vehicle in this case) from Muhana Mandi to their homes. When they were crossing Sonu Kirana Store located at Vaishnav Chamber, Afsaar Ahmed asked Manshad to stop the vehicle as he needed to make a call on his mobile phone. While Afsaar Ahmed was talking on the mobile, suddenly a Mahindra Pick-up truck came, which was being driven rashly and negligently, and hit the motorcycle. Ahmed, who was sitting on the motorcycle, sustained grievous injuries. Although, he was rushed to the SMS Hospital, Jaipur, he expired in the night. Since the claimants lost their sole bread earner, they filed a claim petition before the learned Tribunal. In order to support their case, the claimants examined two witnesses and submitted nine documents. The insurance company, on the other hand, neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, the learned Tribunal granted the compensation as aforementioned. Hence, this appeal on behalf of the insurance company before this Court-

3. Mr. P.K. Kasliwal, the learned counsel for the appellant has raised the following contentions before this Court-

Firstly, the words "use of motor vehicle" contained in Section 163A of Motor Vehicles Act, 1988 ('the Act' in short) need to be interpreted. According to the learned counsel since the motorcycle on which Ahmed was sitting, was stationary at the time of accident, therefore, the motorcycle "was not in use". Hence, the case does not fall within the ambit of 163A of the Act. Secondly, the claimants have failed to prove the negligence on part of driver of the offending vehicle. Hence, the learned Tribunal has erred in granting them the compensation. Thirdly, relying on the case of United India Insurance Company Ltd. v. Sunil Kumar & Anr., Civil Appeal No. 9694 of 2013 (SLP (Civil) No. 7586 of 2012, decided on 29.10.2013 , he has pleaded that the interpretation of Section 163-A of the Act has been referred to a Larger Bench of the Apex Court. Therefore, the impugned award needs to be interfered with.

4. Heard the learned counsel for the appellant and perused the impugned award.

5. As far as the case of Sunil Kumar & Anr. (supra) is concerned, the issue involved in the reference made to the Larger Bench is totally different from the interpretation sought before this Court by the appellant. In the case of Sunil Kumar & Anr. (supra) the issue, which has been referred to the Larger Bench is whether Section 163-A of the Act is based on the "no fault principle" or "on fault principle"? The said issue is not an issue before this Court. The issue before this Court is whether the employment of the "use of motor vehicle" implies that the motor vehicle must be in motion, or would it also include a vehicle which is stationary, but which is being employed for transporting people or things. Thus, the case of Sunil Kumar & Anr. (supra) is not germane to the controversy before this Court. Hence, reliance on the said case is misplaced.

6. Section 163-A of the Act is as under:-

"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 authorized 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 in