Manikumar, J.@mdashAggrieved by the award dated 31.3.2008 made in M.A.C.T.O.P. No. 83 of 2006 on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Arni, the appellant insurance company has preferred this appeal. Heard Mr. M. Krishnamoorthy, the learned counsel appearing for the appellant, and Mr. P. Satheesh Kumar, learned counsel for the respondents.
2. In an accident which occurred on 30.8.2005, son of the respondent Nos. 1 and 2, aged 20 years, died. The respondent Nos. 3 and 4 are the brother and sister of the deceased. They claimed compensation of Rs. 7,00,000.
3. The appellant insurance company resisted the claim petition on the ground that the deceased was not a cleaner in the lorry and, therefore, the appellant is not liable to pay compensation. It was also contended that if the deceased was actually electrocuted as pleaded, the driver of the lorry, sitting in the cabin, would also have felt the shock. They disputed the manner of accident, the age and income of the deceased.
4. The Tribunal, on evaluation of pleadings and evidence, awarded Rs. 2,58,104 as compensation with interest at the rate of 7.5 per cent per annum from the date of claim petition till the date of realization.
5. Assailing the correctness of award, Mr. M. Krishnamoorthy, learned counsel for the appellant, submitted that Tribunal has erred in overlooking the evidence of RW 1 and that in the absence of any clear finding that the deceased was a cleaner at the time of accident, the appellant insurance company is not liable to indemnify the insured.
6. Referring to Exh. P4, post-mortem certificate dated 13.9.2004 and inviting the attention of this court to the delay of one day in lodging F.I.R. dated 1.9.2004, Exh. P1, learned counsel for the appellant submitted that when the Forensic Surgeon has given a clear opinion that the deceased would have died due to complication of the burns, the Tribunal has committed a serious irregularity in concluding that the deceased died due to electrocution. He further submitted that the Tribunal has overlooked the aspect that the grinders were stored in the body of the vehicle and there was no necessity for the deceased to climb over the cabin and come in contact with a live electric wire. For the above said reasons, he submitted that the insurance company cannot be mulcted with the liability to pay compensation.
7. Per contra, the learned counsel for the respondents-claimants submitted that the deceased was engaged as a cleaner in Vigesh Lorry Service. On the fateful day, grinder machines were being transported for delivery to a shop. On instructions from the driver, when the deceased was unloading the grinders, the driver without noticing the same started the vehicle and the deceased came in contact with a live wire. On hearing the alarm, the vehicle was stopped and thereafter, the owner of Raj Metals and the driver of the vehicle took him for emergency treatment to Thiruvannamalai, but considering the gravity of injuries and the condition of the injured, he was referred to Government Medical College & Hospital, Kilpauk, Chennai. In spite of intensive treatment, he died on 3.9.2005.
8. Placing reliance on a decision of this court in Tamil Nadu State Trans. Corpn. v. Alavandar, 2006 (2) TN MAC 94, learned counsel for the respondents submitted that when the F.I.R. is corroborated by the evidence of an eyewitness, there is no question of alleging contributory negligence on the part of the deceased. He also submitted that when the use of the motor vehicle on the date of accident has not been disputed, the compensation awarded has to be sustained. He further submitted that only after recording a finding that the deceased was a cleaner, the Tribunal has awarded the compensation to the claimant and, therefore, the contention to the contra cannot be countenanced.
9. Before the Tribunal, apart from the father of the deceased, who was examined as PW 1, Mahendran, an eyewitness to the accident, was also examined as PW 2. Father of the deceased, PW 1, reiterated the averments made in the claim petition and deposed that at the time of accident, his son was working as a cleaner in Vigesh Lorry Service and when he was unloading the grinders, he came in contact with a live electric wire, due to which he sustained burn injuries. He has further deposed that due to electrocution, his son''s shirt was also burnt. It is his further evidence that the driver of the vehicle did not exercise due care and attention when unloading was done. Though PW 1 has not witnessed the accident, his version is duly supported by eyewitness. PW 2, and corroborated by F.I.R. dated 1.9.2005, Exh. P1.
10. Rebutting the evidence let in on behalf of the claimants, appellant insurance company has examined a Senior Assistant in the company as RW 1, who has deposed that upon perusal of the Inquiry Report, it is revealed that on the date of accident, the deceased did not work as a cleaner of the vehicle. When negligence of the driver of the offending vehicle is attributed as the cause for the accident, the attempt of the appellant insurance company to discredit the evidence of the claimants, through a Senior Assistant working in the said company, cannot be legally accepted. There is no reason why the driver of the vehicle was not summoned and examined by the insurance company.
11. Evidence of a Senior Assistant, sitting in the office of the appellant insurance company on the basis of a report said to have been drawn up by him that deceased was not a cleaner at the time of accident and denying the manner of the accident, cannot be given any credence at all. Moreover, even the alleged report has not been marked by the insurance company. Mere oral evidence of the officer in the absence of examination of the driver of the offending vehicle cannot be accepted. He cannot step into the shoes of the driver and deny the personal act of negligence. That apart, there are no details as to who were the persons examined by him and no reasons have been given as to why those informers were not examined before the trial to discredit the version of the claimants.
12. Yet another aspect put forth by the insurance company to reject the claim is that there was a delay of one day in lodging the F.I.R. and, therefore, they disputed the very accident itself. The evidence adduced by the claimants before the Tribunal is that due to the contact with a live electric wire, the shirt of deceased was burnt and that he sustained burn injuries. Immediately, he was taken to Thiruvannamalai Government Hospital and for better treatment, he was rushed to the Government Medical College & Hospital, Kilpauk, Chennai.
13. It is natural that whenever a person sustained serious injuries, the immediate reaction of the kith and kin, near relatives or even a good spirited person would be to take the injured to a nearest hospital to provide an intensive and emergency treatment to save the life of the injured person. If the injured is treated in a government hospital, it is the duty of the hospital authorities to report about the accident to the concerned police station within whose jurisdiction the accident has occurred.
14. In the case on hand, it is the evidence of the claimants that when the injured was rushed to Thiruvannamalai Government Hospital for treatment, he was not admitted in the said hospital, but was immediately referred to Government Medical College & Hospital at Kilpauk, Chennai, for appropriate treatment of burn injuries and in spite of intensive treatment, he died on 3.9.2005. It is to be noted that the accident is said to have occurred at 3 p.m. on 30.8.2005. From Thiruvannamalai, the parents in their anxiety have rushed to Chennai to see that their injured son was out of danger and in such circumstances, no one would expect the parents or near relatives to stay back at Thiruvannamalai for lodging a report with the police. When the cumulative evidence let in by the claimants prove that there was an accident on 30.8.2005, followed by hospitalisation of the injured in Kilpauk Government Medical College & Hospital, Chennai, the attempt on the part of the insurance company to dislodge the claim, on the ground of delay of just one day in lodging the F.I.R., is untenable. As regards the delay in lodging the F.I.R., there is not even a whisper in the counter-affidavit or in the grounds of appeal. The contention of the learned counsel for the appellant without any pleadings and evidence is rejected.
15. As regards the contention that the death was not due to electrocution and if the deceased was actually electrocuted as pleaded by the claimants, the driver sitting in the cabin would have felt the shock and having regard to the opinion of the Forensic Surgeon that death was due to the complication of burn injuries and, therefore, the company is not liable to pay compensation, it is relevant to consider the dictionary meaning of the word ''electrocute''. As per Oxford Dictionary, it means that, ''injure or kill somebody by electric shock''.
16. In the case on hand, the version of PW 1 is that on contact with a live electric-wire his son''s clothes were burnt and that he suffered burn injuries and was rushed to the hospital. Evidence of eyewitness, PW 2, is cogent and corroborated by F.I.R., Exh. P1. The fact that the accident has occurred out of the use of motor vehicle and negligence, is proved. Electrocution due to high intensity can cause severe shock and instantaneous death or it could cause even severe burn injuries, leading to death. The Forensic Surgeon, who examined the corpse on 3.9.2005, has noted the following injuries:
(1) Infected superficial burns seen over the face, neck, left side of the chest, front and back of both the lower limbs, front of left elbow and shoulder, back of left forearm (44 per cent burns). Both lips and thumbs are spared. G.V., ink mark in left thumb.
17. On examination, the Forensic Surgeon has opined that the deceased would have died due to the complications of the burn injuries. If the cause of death was not due to the accident, the police, on investigation, would have referred to the same as ''a mistake of fact'' or even as a false case. No contra evidence has been let in by the appellant insurance company as to how the deceased could have sustained the above said injuries. The injuries noted by the Forensic Surgeon also support the case of the claimants that after coming into contact with the live electric wire, the shirt of the deceased was burnt and consequently, there were bodily injuries. While analysing the evidence in entirety, this court is of the considered view that the finding of the Tribunal that the deceased sustained burn injuries in the accident and succumbed to death later, cannot be termed as perverse.
18. The contention of the appellant that driver would have also felt the shock and be electrocuted in the accident, cannot be accepted for the simple reason that immediately after the deceased came in contact with the high intensity electric wire, his shirt was burnt and consequently, he sustained burn injuries. It is not necessary to presume that in every case of electrocution the current would have passed through the entire objects kept in the vehicle or its body, so that the effect of the electric current could have been felt by the driver. Whenever a person comes into contact with a high intensity electric current, he would either suffer severe shock or bodily injuries and could even be thrown away from the place of contact. Going through the award in entirety, this court is of the considered view that the accident had arisen out of the use of the motor vehicle and hence, the insurance company is liable to indemnify the insured for the negligence of the driver of the motor vehicle. On the facts of this case, it could be noticed that the respondent''s son died, while he was on the offending vehicle, by electric shock, when he was unloading the grinders from the roof of the vehicle and thus, the accident had taken place because of the negligence of the driver of the vehicle, who had stopped the vehicle near the high intensity electric wire and allowed him to go to the rooftop for the purpose of unloading grinders and without noticing the cleaner, started the vehicle. The accident has taken place while the vehicle was used and due to negligence of the driver. Therefore, it is apparent that the use of the vehicle insured with the appellant insurance company was the proximate cause for the death. In this context, it is worthwhile to extract few decisions as regards liability of the insurance company to pay compensation for the accident arising out of the use of the motor vehicle.
19. The Division Bench of this court in
It is clear from the above decisions and in view of the object of the enactments, both under the Motor Vehicles Act, 1939 and 1988 the expressions ''caused by'' and ''arising out of have a wider connotation. Though the accident should be connected with the use of the motor vehicle, but the said connection need not be direct and immediate. The expression ''arising out of use of motor vehicle'' as mentioned in section 92-A of the 1939 Act and section 165 of 1988 Act enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. From the expression employed, namely, ''accident arising out of the use of motor vehicle'' in the place of ''accident caused by the use of motor vehicle'', it is clear that the legislature wanted to enlarge the scope of the word ''use'' and not to restrict it for denying compensation in deserving cases; accordingly we are of the view that the test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not forget that these provisions are made in order to help the victims. We are of the view that restrictive interpretation should not be given for the word ''use''. We are also of the view that the expression ''arising out of the use of motor vehicle'' has to be given a wider meaning. We are also of the view that ''use of motor vehicle'' need not necessarily be so intimate and closely direct as to make it ''a motor accident'' in the sense in which that expression is used in common parlance. Accordingly, we hold that the death of Absar arose out of the use of motor vehicle and the claimants-respondent Nos. 1 and 2 herein are entitled to compensation for the death of their son Absar.
In the above reported case, motor vehicle/lorry remained stationary and parked in roadside workshop for doing some welding work. While vulcanizing the tube, the deceased sustained fatal injury in the accident. The court held that the expression ''arising out of use of motor vehicle'' in section 92-A of 1989 Act and section 165 of 1988 Act enlarges the field of protection made available to the victims of accident and it is in consonance with the beneficial object underlying the enactment. The court further held that use of the word ''use'' should not be given restrictive interpretation and that ''use of motor vehicle'' need not necessarily be so intimate and closely direct as to make it ''a motor accident'' in the sense in which that expression is used in common parlance.
20. In a decision in
21. The Division Bench of Karnataka High Court in
22. In
23. In a decision in
the expression ''arisen out of had a wider connotation. It is not necessary that there should be direct and proximate action between the use of the motor vehicle and the accident resulting in death or permanent disablement. It is enough if the accident can be connected with the use of the motor vehicle...the construction of the expression ''arisen out of the use of a motor vehicle'' in section 92-A of the Act enlarged the field of protection made available to the victims of an accident and was in consonance with the beneficial object underlying the enactment. In other words, the expression ''arisen out of cannot be equated to the expression ''caused by''.
24. As the findings recorded by the Tribunal are based on the evidence of the eyewitness and other material documents, I see no reason to interfere with the same. In this context, the judgment of this court made in Tamil Nadu State Trans. Corpn. v. Alavandar (supra), relied on by learned counsel for respondents-claimants, can be made applicable to the case on hand. In the result, the civil miscellaneous appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also closed.
