J. C. S. RAWAT, J.

( 1 ) APPEAL No. 219 of 2003 has been preferred by the opposite party Oriental Insurance Co. Ltd. against the judgment and award dated 21. 5. 2003 passed by Motor Accidents Claims Tribunal/additional District Judge, Haldwani, district Nainital in Motor Accident Claim case No. 68 of 2002, by which the claim petition filed by the claimant has been allowed for compensation of Rs. 95,000. It has further been ordered that the amount of compensation shall be paid by insurance company, opposite party No. 1, within a period of one month from the date of order, failing which claimant shall also be entitled to get interest at the rate of 9 per cent per annum from the date of application till the date of payment, whereas Appeal No. 242 of 2003 has been preferred by the claimant appellant against the same judgment and award for enhancement of the amount of award.

( 2 ) BRIEF facts giving rise to this appeal are that the deceased Mohd. Idrees, husband of the claimant was in the employment with Sewa Singh and was welder in the workshop owned by Sewa Singh. On 10. 2. 2002 at 5 p. m. the deceased was doing repair work in tanker No. UP 08-1356. During the course of employment when the deceased was doing repair work, all of a sudden the said tanker exploded and due to explosion deceased Mohd. Idrees died on the spot after sustaining injuries. At the time of his death Mohd. Idrees was 30 years old and was getting Rs. 4,200 per month as salary. Opposite party Nos. 1 and 2, insurance company and the owner of the said vehicle (tanker) No. UP 08-1356 respectively contested the claim petition before the Tribunal and necessary issues were framed by the learned Tribunal on the pleadings of the parties.

( 3 ) WE have heard the learned counsel for the parties.

( 4 ) THE learned counsel for the insurance company contended that Mohd. Idrees was employee of Sewa Singh, owner of the workshop and he died during the course of employment when the tanker was stationed for repair and welding work. The learned counsel for the insurance company further contended that the claimant was entitled to present the 'claim petition under the provisions of Workmen's Compensation Act, 1923 against the employer Sewa Singh. It was further contended that the learned Tribunal had no jurisdiction to entertain the claim petition and, as such, the judgment and the award rendered by the Tribunal is not just in the eyes of law and further contended that the appellant cannot be held habile to pay the compensation under the award to the claimant.

( 5 ) THE contentions were refuted by Mr. Z. U. Siddique, the learned counsel for the claimant. To appreciate the contentions of the parties, it is relevant to quote the provisions of sub-section (1) of section 165 of the Motor Vehicles Act, 1988 which read as under:

"165. Claims Tribunals.- (1) A State government may, by notification in the official Gazette, constitute one or more motor Accidents Claims Tribunals (hereafter in this Chapter referred to as claims Tribunal) for such area as may be: specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Explanation.- For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles' includes claims for compensation under section 140 and section 163-A. "

( 6 ) THE moot question to be considered for the decision of this case, therefore, is whether the death of the deceased who died as a result of accident due to explosion of the tanker while it was in a state of rest, could be said to be arising out of the 'use' of motor vehicle. The answer to the question dspends on the interpretation of the word 'use' in the expression 'aris

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