The definition of 'public place' in the Motor Vehicles Act should be given a wide interpretation to include any place which the members of public use and to which they have a right of access, whether free or controlled in any manner whatsoever.

G. B. PATTANAIK, J.

( 1 ) AN interesting question of law that arises for consideration in this appeal is whether the road inside the Orissa Secretariat at New Capital, Bhubaneswar can be said to be 'public place' so as to fasten the liability on the insurer of the vehicle under S. 95 (1) (b) (i) of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'act' ).

( 2 ) THE insurer is the appellant who was opposite party No. 3 before the Tribunal. Respondent No. 1 was the claimant in an application filed under S. 110-A of the Act. It was alleged in the claim petition that on 26-2-1983 at 3. 30 p. m. while the claimant was going to his office in the Secretariat and was walking on his left side of the road, the vehicle - a Jeep bearing registration No. ORJ 4715 came from behind with great speed being driven rashly and negligently and dashed him from the back in consequent of which he became unconscious and sustained several injuries. The right leg of the claimant had been fractured and in spite of prolonged treatment, the fractured bones did not unite for which he suffered permanent disablement of his right leg. He made a claim of Rs. 87,000/ -. The owner of the vehicle took the stand in the written statement that there was no negligence and rashness on the part of the driver and the vehicle was being driven cautiously by giving continuous horn but the injured was moving on the middle of the road and did not move to the side. When the jeep approached near him blowing continuous horn, the injured suddenly became conscious and dumb founded and fell down on the jeep on account of which he sustained minor injuries. According to the respondent No. 2 the injuries on the claimant were due to his own negligence and therefore, no amount of compensation can be awarded. It was also pleaded that even if compensation is payable, it is the insurer of the vehicle who is liable to pay. The Insurance Company who is the appellant in the present appeal also filed a written statement denying the allegations made in the claim petition and further required the insured to file the original policy along with the road permit, fitness certificate and the driving licence of the driver etc.

( 3 ) ON these pleadings, the Tribunal framed four issues. He came to the conclusion that the driver of the vehicle did not take sufficient care and caution to take his vehicle to the road side leaving sufficient space between him and the claimant to avoid any possible accident and that he was overtaking the claimant closely by his side when the leftside bumper of the jeep hit the claimant and thus the driver caused the accident by rash and negligent driving. On the question of quantum of compensation, the Tribunal came to the conclusion that due compensation would be Rs. 45,000/- and accordingly, he awarded the same. It is this award which is being challenged in this appeal.

( 4 ) MR. S. S. Basu, learned counsel for the appellant, raised the only contention that the accident having taken place inside the Secretariat compound, and the said place not being a public place, the Insurance Company will not be liable to pay the compensation. The learned counsel for the respondents, on the other hand, contended that such a plea had not been taken in the written statement and therefore, the question being not a pure question of law, the same cannot be permitted to be urged in this appeal. He further contended that the Secretariat compound will be a public place as public have right of access subject to permission being granted. Lastly he contended that the accident took place before the Secretariat gate and therefore, there cannot be any manner of doubt that the road in front of the gate is a public place. The rival contentions require careful examination.

( 5 ) AT the outset, it is conceded by the learned counsel for the appellant that the Insurance Company had not taken the stand in the written statement. But according to Mr. Basu the point is available to be urged on