JUDGMENT Rajes Kumar, J.
1. The present appeal has been filed by United India Insurance Co. Ltd., the insurer of tractor-trolley No. UP 54-0055 against the judgment and award dated 28.10.1995 passed by the 1st Additional District Judge/Motor Accidents Claims Tribunal, Mau by which a sum of Rs. 1,35,000 was awarded towards compensation, out of which the appellant has been held liable for 50 per cent.
2. The brief facts of the case which has been finally concluded by the Tribunal after the statement of the witnesses and the other evidence which have not been disputed now by the appellant are that on 27.7.1990 at about 2.45 p.m. bus No. UTH 9443 coming from Varanasi was driven rashly and dashed with tractor-trolley No. UP 54-0055 which was standing on the patri adjacent to the road near police lines. As a result of which, the trolley overturned and fell on Munir Ahmad causing his death. At that time, Munir Ahmad was 43 years, 7 months old. The Claims Tribunal awarded compensation of Rs. 1,35,000 to the dependants. The liability of appellant was fixed 50 per cent of the total amount of compensation. Being aggrieved by the order of the Claims Tribunal fixing 50 per cent liability on the appellant, the present appeal has been filed.
3. I have heard Mr. K.S. Amist, learned counsel for the appellant and Ms. Pratima Srivastava, holding brief of Mr. N.K. Srivastava and Mr. A.K. Trivedi, holding brief of Mr. J. Azmi, learned counsel for the respondents.
4. The learned counsel for the appellant has not disputed the fact of the accident and have also not disputed the quantum of the compensation. His argument is that the death was not caused by the tractor-trolley and was caused by the bus and, therefore, the appellant was not liable for compensation under the provisions of Section 147 of the Act. He contended that the tractor-trolley was standing and as a result of being dashed by the bus, the trolley turned and fell on the deceased, Munir Ahmad. He submitted that if the bus would not have been dashed, there would not be any involvement of the tractor-trolley in the accident. He submitted that the liability of the insurance company under Section 147 would only be in the circumstances when accident is caused by the vehicle insured by the insurance company. For the meaning words 'caused by' used in Section 147 he relied on the judgment of the Supreme Court in the case of Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 ACJ 777 (SC). In reply to the above submission Ms. Pratima Srivastava holding brief on behalf of respondent No. 15, National Insurance Co. Ltd., the insurer of the bus, contended that accident was caused both by the bus and by the tractor-trolley and, therefore, the sharing of the liability between both insurance companies by the Tribunal was correct. She submitted that the deceased died on account of overturn of the tractor-trolley. Therefore, the accident was caused by the tractor-trolley, which was standing on the patri.
5. Having heard learned counsel for the parties and perused the order of the Tribunal in my opinion, the submissions of the learned counsel for the appellant are not acceptable. Section 147(1) reads as follows:
"147. Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."
6. The facts found by the Tribunal and are not in dispute, and the findings of fact are that Munir Ahmad died on the fall of the tractor-trolley. Therefore, the cause of the death was fall of the tractor-trolley on the deceased. It is a different matter that the tractor-trolley fell because it was dashed by the rash and negligent driving of the bus but the involvement of the tractor-trolley in the accident is not disputed.
7. In the case of Kartar Kaur v. Shiv Darshan Sahney, 2002 (2) TAC 181, Punjab and Haryana High Court, under similar circumstances, held that stationary vehicle is also responsible for the accident. Paras 6, 7 and 8 of the judgment are referred as below:
"The learned counsel for the appellant, in the first instance, urged vehemently that the learned Tribunal was in error in concluding that there was contributory negligence on the part of the appellant. The witnesses to the accident are Gajjan Singh, PW 4 and Harbans Singh, PW 5. They both stated that truck No. PUK 825 was parked at G.T. Road within the municipal limits of Khanna near the house of Gajjan Singh. It had been brought from Bassi on way to Ludhiana with a load of steel pipes. It has been asserted that the part of the truck was parked at the kacha berm. The offending vehicle came and rammed into the stationary vehicle. As a result of the same, Nishan Singh died while Harbans Singh received injuries.
In this regard, certain basic facts cannot be lost sight of. The truck had to be parked on one side of the road. The light on the back side had to be switched on. During the course of statements, no such evidence has been led. On court questioning, Harbans Singh got wiser and deposed that lights on the back side of the truck had been switched on. In this process, he twisted the version and it has necessarily to be held that it cannot be believed that light on the back side had been switched on while the truck was parked at night.
Another reason put forward for parking the truck at that time and place was that certain pipes had been placed in the truck. They were slipping and getting loose. The truck was parked there to arrange the same. This contention cannot be accepted because if both the driver and the cleaner were arranging the pipes, necessarily they would have been crushed. Harbans Singh received minor injuries. Even in the first information report, there is no mention about this fact. Consequently, the findings of the learned Tribunal must be approved when it is recorded that there was contributory negligence in parking the truck by the driver and the cleaner with half portion still on the pucca road."
8. The submission of learned counsel for the appellant is that the words 'caused by' used under Section 147(1) do not cover the case of present nature. He submitted that the words 'caused by' have a narrow meaning. The statement of learned counsel for the appellant has no force. Section 147(1)(b)(i) used the words 'caused by' or 'arising out of the use of the vehicle'. The words 'arising out of use of the vehicle' came up for consideration before Hon'ble Apex Court in the case of Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 ACJ 777 (SC). The fact of the case was that there was collision between a truck and petrol tanker and the tanker turned turtle. After 4 1/2 hours of the accident, the tanker exploded and caught fire resulting in injuries to and death of several persons assembled near it. Petrol tanker was proceeding from Poona side to Bombay whereas truck was coming from opposite side, as a result of the said collision the petrol tanker went off the road and fell on his leftside at the distance of about 20 ft. from the highway. As a result of overturning of petrol tanker, petrol contained in it leaked out and collected nearby. At about 7.15 a.m. about 4 1/2 hours of accident an explosion took place in the said petrol tanker, resulting in fire, causing death and injuries to few persons. The case on behalf of petrol tanker was that at the time when explosion and fire took place, the petrol tanker which was lying turtle was not suitable or fit for use on the roads and hence was not a motor vehicle as defined in Section 2(18) of the Act. Therefore, it cannot be said that the death or injury arose out of use of vehicle. The Hon'ble Apex Court after relying upon various decisions has held as follows:
"(26) These decisions indicate that the word 'use', in the context of motor vehicles, has been construed in a wider sense to include the period when the vehicle is not moving and is stationary, being either parked on the road and when it is not in a position to move due to some breakdown or mechanical defect. Relying on the above-mentioned decisions, the appellate Bench of the High Court has held that the expression 'use of a motor vehicle' in Section 92A covers accidents which occur both when the vehicle is in motion and when it is stationary. With reference to the facts of the present case the learned Judges have observed that the tanker in question while proceeding along National Highway No. 4 (i.e., while in use) after colliding with a motor lorry was lying on the side and that it cannot be claimed that after the collision the use of the tanker had ceased only because, it was disabled. We are in agreement with the said approach of the High Court. In our opinion, the word 'use' has wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in use at the time when it was lying on its side after the collision with the truck.
(36) This would show that as compared to the expression 'caused by', the expression 'arising out of has a wider connotation. The expression 'caused by' was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92A, Parliament, however, chose to use the expression 'arising out of which indicates that for the purpose of awarding compensation under Section 92A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression 'arising out of use of a motor vehicle' in Section 92A enlarges the field of protection made available to victims of an accident and is in consonance with the beneficial object underlying the enactment.
(37) Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its side on sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between the collision and explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More, was due to an accident arising out of the use of the motor vehicle, viz., the petrol tanker No. MKL 7461."
9. As per the judgment of the Supreme Court, Shivaji Dayanu Patil, 1991 ACJ 777 (SC), the expression 'use of a motor vehicle' has a wider connotation to cover the period when the vehicle is not moving and is stationary and use of vehicle does not cease on account of the vehicle having been rendered immobile on account of breakdown or mechanical defect or accident. Thus, even if as in the present case, tractor-trolley was stationary but the death was caused on account of it being fallen on the deceased Munir Ahmad. Therefore, it is a case where the accident arose out of use of vehicle. The tractor-trolley was standing at a patri adjacent to the road which was not parking place and there is no evidence that any back light or any signal on it being standing was reflected. In the circumstances, in my opinion, the Tribunal has rightly held that the accident was caused and arose by both the vehicles.
10. In the result, the appeal is dismissed.