FAO No.537 of 2008

18th December, 2015.

Petitioner Counsel: Mr. ASHWANI K. SHARMA, Sr. Adv. with Ms. MONIKA SHUKLA
Respondent Counsel: Mr. B.N. SHARMA

Cases Cited:
Shivaji Dayanu Patil & Anr. Vs. Vatschala Uttam More, 2015 ALL SCR (O.C.C.) 289=1991 ACJ 777 [Para 25]
Rita Devi (Smt) & Ors. Vs. New India Assurance Co. Ltd. & Anr., (2000) 5 SCC 113 [Para 27]
Union of India Vs. Bhagwati Prasad (D) & Ors., 2002(2) ALL MR 615 (S.C.)=AIR 2002 SC 1301 [Para 29]
Malikarjuna G. Hiremath Vs. Oriental Insurance Co. Ltd. & Anr., 2009 ALL SCR 612=II (2009) ACC 738 (SC) [Para 30]
Surinder Kumar Arora & Anr. Vs. Dr. Manoj Bisla & Ors., 2012(6) ALL MR 471 (S.C.)=2012 AIR SCW 2241 [Para 31]
Lachoo Ram & Ors. Vs. Himachal Road Transport Corporation, 2015(1) ALL MR 483 (S.C.)=(2014) 13 SCC 254 [Para 32]
Oriental Insurance Company Limited Vs. Premlata Shukla & Ors., 2007 ALL SCR 1750=2007 AIR SCW 3591 [Para 33]
Bimla Devi & Ors. Vs. Himachal Road Transport Corpn. & Ors., 2009 ALL SCR 1771=2009 AIR SCW 4298 [Para 33]
Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr., 2009(4) ALL MR 429 (S.C.)=AIR 2009 SC 3104 [Para 39,41]
United India Insurance Company Ltd. Vs. Smt. Kulwant Kaur, Latest HLJ 2014 (HP) 174 [Para 48]
Nagappa Vs. Gurudayal Singh & Ors., 2014 ALL SCR (O.C.C.) 17=AIR 2003 SC 674 : (2003) 2 SCC 274 [Para 49,50,52]
State of Haryana & Anr. Vs. Jasbir Kaur & Ors., 2003(4) ALL MR 742 (S.C.)=AIR 2003 SC 3696 [Para 49]
The Divisional Controller, K.S.R.T.C. Vs. Mahadeva Shetty & Anr., AIR 2003 SC 4172 [Para 49]
A.P.S.R.T.C. & Anr. Vs. M. Ramadevi & Ors., 2008 ALL SCR 696=2008 AIR SCW 1213 [Para 49]
Ningamma & Anr. Vs. United India Insurance Co. Ltd., 2010(1) ALL MR 441 (S.C.)=2009 AIR SCW 4916 [Para 49,51]
Oriental Insurance Co. Ltd. Vs. Mohd. Nasir & Anr., 2009(4) ALL MR 938 (S.C.)=2009 AIR SCW 3717 [Para 52]
Devki Nandan Bangur & Ors. Vs. State of Haryana & Ors., 1995 ACJ 1288 [Para 52]
Syed Basheer Ahmed & Ors. Vs. Mohd. Jameel & Anr., 2009(1) ALL MR 914 (S.C.)=(2009) 2 SCC 225 [Para 52]
National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, 2007(3) ALL MR 834 (S.C.)=(2007) 3 SCC 700 [Para 52]
Punjab State Electricity Board Ltd. Vs. Zora Singh & Ors., (2005) 6 SCC 776 [Para 52]
State of Haryana & Ors. Vs. Shakuntla Devi, 2008 ALL SCR 2686=2008 (13) SCALE 621 [Para 52]
Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmedabad Municipal Transport Service, 2013(6) ALL MR 981 (S.C.)=2013 AIR SCW 5800 [Para 53]

JUDGMENT

JUDGMENT :- Appellant-insurer has thrown challenge to the judgment and award, dated 26.06.2008, made by the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, H.P. (for short "the Tribunal") in M.A.C. Petition No. 79 of 2004, titled as Talaru Ram and another versus Sh. Vinod Kumar and another, whereby compensation to the tune of Rs.2,54,000/- with interest @ 7½% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimants and the appellant-insurer was saddled with liability (for short "the impugned award").

2. The claimants and the owner-insured of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.

3. Appellant-insurer has questioned the impugned award on various grounds taken in the memo of appeal. Precisely, the challenge to the impugned award is on the ground that the claim petition was not maintainable for the reason that deceased-Dharam Pal, son of the claimants, was brutally murdered.

4. A very important question of law has been raised in the memo of appeal, which was also raised before the Tribunal.

5. In order to determine the issue, it is necessary to give brief resume of the case, the womb of which has given birth to the appeal in hand:

6. Claimants filed a claim petition before the Tribunal under Section 163A of the Motor Vehicles Act, 1988 (for short "the MV Act") and claimed compensation to the tune of Rs. ten lacs, as per the break-ups given in the claim petition.

7. It has been averred in the claim petition that deceased-Dharam Pal was running an auto electrician shop in Village Kingal, was travelling in a newly purchased Maruti Van, which, later on, was registered as HP-02-0190, was being driven by Shri Santosh Kumar. The driver as well as the deceased-Dharam Pal were murdered in between Oddi and Narkanda and their dead bodies were thrown in Thachru Nallah. Further averred that the deceased was earning Rs.6,000/- from the profession of auto electrician and also helping his parents in agricultural vocation.

8. The claimants have stated in para 22 of the claim petition that the accident was outcome of use of motor vehicle. It is apt to reproduce para 22 of the claim petition herein:

"22. Cause of accident. : Sh. Dharam Pal deceased was travelling as passenger and illfated vehicle from Kingal to Narkand & when he was going in the vehicle was murdered arised out of the use of the said vehicle alognwith the driver of the vehicle and his dead bodies was thrown in Thacru Nala in between Oddi and Narkanda. The murdered must has some enmity with the driver."

9. The driver of the offending vehicle was also murdered, that is why, he was not arrayed as party-respondent in the array of respondents.

10. The insurer and the owner-insured of the offending vehicle resisted the claim petition on the grounds taken in the memo of objections.

11. Following issues came to be framed by the Tribunal on 29.04.2005:

"1. Whether Sh. Dharam Pal had died on account of use of motor vehicle No. HP-02-0190? OPP

2. If issue No. 1 is proved to what amount of compensation and from whom are the petitioners entitled to? OPP

3. Whether this Tribunal has no jurisdiction to proceed with the trial of the claim petition? OPR-2

4. Whether vehicle No. HP-02-0190 was under the insurance cover of respondent No. 2, if not with what effect? OPR-2

5. Relief."

12. The claimants examined Shri Sadanand as PW-1, Shri Rajesh Bharti as PW-3 and claimant-Talaru Ram himself appeared in the witness box as PW-2. The respondents in the claim petition have examined Shri Ashok Negi, Shri Shyam Lal, Shri Tek Singh, Shri Sudhir Pandey and Shri Ganga Ram as their witnesses. Parties have also placed on record copies of final report submitted under Section 173 of the Code of Criminal Procedure (for short "CrPC"), FIR, post-mortem report, birth certificate and other documents including the documents of the offending vehicle, i.e. registration certificate, insurance cover note and the route permit. All the documents stand exhibited.

Issues No. 1 and 3:

13. After scanning the evidence, oral as well as documentary, the Tribunal held that the accident was outcome of use of the vehicle.

14. Learned Senior Counsel appearing on behalf of the appellant argued that the accident was not out of use of motor vehicle, but was a crime - a brutal murder. Thus, the claim petition was not maintainable and the findings returned by the Tribunal on issue No. 1 are not legally correct.

15. It is admitted fact that the driver and deceased-Dharam Pal were murdered in the vehicle. The owner-insured of the vehicle has specifically averred that the death of the deceased and the driver was because of criminal assault. FIR No. 74/2004, dated 26.08.2004, was lodged at Police Station Kumarsain. Investigation was conducted and final police report was presented against accused Rajinder Singh Thakur, Vijay Thakur and Surjit Khachi for commission of offence under Sections 302 and 392 read with Section 34 of the Indian Penal Code (for short "IPC").

16. The perusal of final report, Ext. PW-1/ A, too discloses that the driver, deceased-Dharam Pal and the accused persons were travelling in the vehicle, had enmity with the driver, killed him and also killed Dharam Pal in the vehicle. The crime was committed with a fine lace like thread inside the vehicle and the bodies were thrown in the nallah.

17. The police report and other evidence on the file have remained unrebutted. Even, learned senior counsel for the appellant has not been able to show that the crime was not committed in the vehicle.

18. The question is - whether the death/murder of Dharam Pal is out of use of vehicle in the given circumstances of the case? The answer is in the affirmative for the following reasons:

19. The legal representatives of the driver of the vehicle have not made any claim. The claim, which is being adjudicated upon, is by the legal representatives/heirs/dependents of deceased-Dharam Pal.

20. As discussed hereinabove and as recorded by the Tribunal, the entire offence was committed inside the vehicle, thus, out of 'use of motor vehicle'. The claimants have filed claim petition under Section 163A of the MV Act and not under Section 166 of the MV Act. In a claim petition filed under Section 166 of the MV Act, the claimants have to plead and prove that the accident was outcome of rash and negligent driving of the vehicle by its driver. Sine qua non for maintaining the claim petition under Section 166 of the MV Act is the rashness and negligence on the part of the driver of the vehicle, but in a claim petition under Section 163A of the MV Act, rashness and negligence is not a sine qua non and it is also not even an ingredient in the said provision.

21. It is worthwhile to reproduce Section 163A of the MV Act herein:

"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 authorised 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 indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation. - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."

22. While going through this provision of law, the words used are 'use of motor vehicle'.

23. The Court has to be cautious and has to draw a fine distinction. If the motive, criminal intention and conspiracy was to kill Dharam Pal, perhaps the remedy was anywhere else.

24. The facts, the final report and other circumstances do disclose that the prima facie motive and intention of the accused persons were to kill the driver of the vehicle and not Dharam Pal. Thus, Dharam Pal became the victim because of travelling in the vehicle and his death is outcome of 'use of motor vehicle'.

25. The Apex Court in the case titled as Shivaji Dayanu Patil and another versus Vatschala Uttam More, reported in 1991 ACJ 777 : [2015 ALL SCR (O.C.C.) 289], has interpreted the words and expression 'use of motor vehicle' and held that these have a wide connotation. It is apt to reproduce paras 31 to 36 of the judgment herein:

"31. The words "arising out of" have been used in various statutes in different contexts and have been construed by Courts widely as well as narrowly, keeping in view the context in which they have been used in a particular legislation.

32. In Heyman v. Darwins Ltd., 1942 AC 356, while construing the arbitration clause in a contract, Lord Porter expressed the view that as compared to the word 'under', the expression 'arising out of' has a wider meaning. In Union of India v. E.B. Aaby's Rederi A/S, 1975 AC 797, Viscount Dilhorne and Lord Salmon stated that they could not discover any difference between the expression "arising out of" and "arising under" and they equated "arising out of" in the arbitration clause in a Charter Party with "arising under."

33. In Samick Lines Co. Ltd. v. Owners of the Antonis P. Lemos, (1985) 2 WLR 468, the House of Lords was considering the question whether a claim for damages based on negligence in tort could be regarded as a claim arising out of an agreement under section 20(2)(1)(h) of the Supreme Court Act, 1981 and fell within the admiralty jurisdiction of the High Court. The words "any claim arising out of any agreement relating to the carriage of goods in a ship or to the use of hire of a ship" in section 20(2)(1)(h) were held to be wide enough to cover claims, whether in contract or tort arising out of any agreement relating to the carriage of goods in a vessel and it was also held that for such an agreement to come within paragraph (h), it was not necessary that the claim in question be directly connected with some agreement of the kinds referred to in it. The words "arising out of" were not construed to mean "arising under" as in Union of India v. E.B. Aaby's A/S, 1975 AC 797, which decision was held inapplicable to the "The words" injury caused by or ar ising out construction of S. 20(2)(1)(h) and it was observed by Lord Brandon:

"With regard to the first point, I would readily accept that in certain contexts the expression 'arising out of' may, on the ordinary and natural meaning of the words use, be the equivalent of the expression 'arising under', and not that of the wider expression 'connected with'. In my view, however, the expression 'arising out of' is, on the ordinary and natural meaning of the words used, capable, in other contexts, of being the equivalent of the wider expression 'connected with'. Whether the expression 'arising out of' has the narrower or the wider meaning in any particular case must depend on the context in which it is used."

Keeping in view the context in which the expression was used in the statute it was construed to have the wider meaning viz. 'connected with'.

34. In the context of motor accidents the expressions 'caused by' and 'arising out of' are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. This distinction has been lucidly brought out in the decision of the High Court of Australia in Government Insurance Office of N.S.W. v. R.J. Green & Lloyd Pty. Ltd., 1967 ACJ 329 (HC, Australia), wherein Lord Barwick, C.J., has stated :

"Bearing in mind the general purpose of the Act I think the expression' arising out of' must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words caused by'. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression 'arise out of' as used in the Act and in the policy."

35. In the same case, Windeyer, J. has observed as under :

"The words 'injury by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. 'Caused by' connotes a 'direct' or 'Proximate' relationship of cause and effect. 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence."

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 92-A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under section 92-A, 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 the use of a motor vehicle" in section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."

26. While going through the judgment (supra), one comes to an inescapable conclusion how the accident and injury/death have relationship with use of motor vehicle.

27. The Apex Court in another case titled as Rita Devi (Smt) and others versus New India Assurance Co. Ltd. and another, reported in (2000) 5 Supreme Court Cases 113, has discussed the scope of Section 163A of the MV Act and the expression 'death due to accident arising out of the use of motor vehicle' occurring in Section 163A of the MV Act. It is profitable to reproduce paras 9 to 18 of the judgment herein:

"9. A conjoint reading of the above two sub-sections of Sec. 163-A shows that a victim or his heirs are entitled to claim from the owner / insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle (emphasis supplied), without having to prove wrongful act or neglect or default of anyone. Thus, it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle, then contention of the Insurance Company which was accepted by the High Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words "death due to accident arising out of the use of motor vehicle".

10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is to kill any particular person, then such killing is not an accidental murder, but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act, then such murder is an accidental murder.

11. In Challis v. London and South Western Rly. Co., (1905) 2 KB 154, the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone wilfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held :

"The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words, it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously.

12. In the case of Nisbet v. Rayne & Burn, (1910) 2 KB 689, where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers' workmen, was robbed and murdered. The Court of Appeal held :

That the murder was an accident from the standpoint of the person who suffered from it and that it arose out of an employment which involved more than the ordinary risk, and consequently, that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case, the Court followed its earlier judgment in the case of Challis (supra). In the case of Nisbet (supra) the Court also observed that it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word accident negatives the idea of intention. In my opinion, this contention ought not to prevail, I think it was an accident from the point of view of Nisbet, and that it makes - no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet."

13. The judgment of the Court of Appeal in Nisbet case (supra) was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School v. Kelly, 1914 AC 667.

14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto-rickshaw, was dutybound to have accepted the demand of fare-paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto-rickshaw and in the course of achieving the said object of stealing the auto-rickshaw, they had to eliminate the driver of the auto-rickshaw then it cannot but be said that the death so caused to the driver of the auto-rickshaw was an accidental murder. The stealing of the auto-rickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the auto-rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing theft of the auto-rickshaw.

15. Learned Counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word "death" and the legal interpretations relied upon by us are with reference to the definition of the word "death" in the Workmen's Compensation Act the same will not be applicable while interpreting the word death in the Motor Vehicles Act, because according to her, the objects of the two Acts are entirely different. She also contends that on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto-rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts is to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours, we are supported by Sec. 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence the judicially accepted interpretation of the word death in the Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also.

16. In the case of Shivaji Dayanu Patil v. Vatschala Uttam More, (1991) 3 SCC 530 this Court while pronouncing on the interpretation of Section 92-A of the Motor Vehicles Act, 1939 held as follows : (SCC p. 532, para 12)

"... Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no-fault liability. In the matter of interpretation of a beneficial legislation the approach of the Courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose."

17. In that case, in regard to the contention of proximity between the accident and the explosion that took place, this Court held : (SCC pp. 549-50, para 36)

"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 92-A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under Section 92-A, 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 the use of a motor vehicle in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."

18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial Court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle."

28. In this judgment, the Apex Court has also discussed the intention, motive and other aspects in order to make a distinction and to arrive at a prima facie finding whether the accident falls within the expression 'use of motor vehicle'. The case in hand is squarely covered by para 10 of the judgment (supra).

29. In the case titled as Union of India versus Bhagwati Prasad (D) and others, reported in AIR 2002 Supreme Court 1301 : [2002(2) ALL MR 615 (S.C.)], the Apex Court has discussed the concept of joint tortfeasor and maintainability of claim petition, jurisdiction of the Claims Tribunal and the expression 'accident arising out of use of motor vehicle'. Though, the judgment is not directly applicable to the facts of the case, but the principle is applicable for the reason that the expression 'use of motor vehicle' stands thrashed out. It is apt to reproduce relevant portion of para 3 of the judgment herein:

" 3. .......... In our considered opinion, the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of a motor vehicle depends essentially on the fact whether there had been any use of motor vehicle and once that is established, the Tribunals jurisdiction cannot be held to be ousted on a finding being arrived at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the motor vehicle in question. We, are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India v. United India Insurance Co. ltd., 1997 (8) SCC 683 to the effect -

"It is ultimately found that mere is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Sec. 110(1) of the Act because the case would men become one of exclusive negligence of the Railways. Again, if the accident had arisen only on account of the negligence of persons other than the driver/ owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided."

30. The Apex Court in another case titled as Malikarjuna G. Hiremath versus Oriental Insurance Co. Ltd. & Anr., reported in II (2009) ACC 738 (SC) : [2009 ALL SCR 612], has discussed the scope of Section 3 of the Workmen's Compensation Act, 1923 and the expression 'accident arising out of and in the course of employment'. The Apex Court has also discussed the entire law dealing with the principles for grant of compensation, which are applicable in this case also. It is apt to reproduce paras 10 to 19 of the judgment herein:

"10. The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) AC 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly (1914) A.C. 676 as follows:

"I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer."

11. The above position was highlighted by this Court in Jyothi Ademma v. Plant Engineer, Nellore and Anr., V (2006) SLT 457=III(2006) ACC 356 (SC)=III(2006) CLT 178(SC)=2006(5) SCC 513.

12. This Court in ESI Corpn. v. Francis De Costa, 1996 (6) SCC 1 referred to, with approval, the decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig, 1940 AC 190, wherein it was held: (All ER p. 563 )

"Nothing could be simpler than the words 'arising out of and in the course of the employment . It is clear that there are two conditions to be fulfilled. What arises 'in the course of the employment is to be distinguished from what arises 'out of the employment . The former words relate to time conditioned by reference to the man s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment-- that is, directly or indirectly engaged on what he is employed to do gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified."

13. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Ltd., 1903 AC 443 by the Court of Appeal:

"I come, therefore, to the conclusion that the expression 'accident is used in the popular and ordinary sense of the word as denoting an unlookedfor mishap or an untoward event which is not expected or designed."

Lord Lindley opined:

"The word 'accident is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word 'accident is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events."

14. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.'s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:

(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.

15. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.

16. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:

(1) stress and strain arising during the course of employment,

(2) nature of employment,

(3) injury aggravated due to stress and strain.

17. In G.M., B.E.S.T. Undertaking v. Agnes, 1964 (3) SCR 930 referring to the decision of the Court of Appeal in Jenkins v. Elder Dempster Lines Ltd., 1953 (2) All ER 1133, this Court opined therein that a wider test, namely, that there should be a nexus between accident and employment was laid down. It also followed the decision of this Court in Saurashtra Salt Mfg. Co. v. Bai Valu Raja, AIR 1958 SC 881.

18. In Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak, 1969 (2) SCC 607, this Court held:

"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment mean 'in the course of the work which the workman is employed to do and which is incidental to it . The words 'arising out of employment are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered . In other words there must be a causal relationship between the accident and the employment. The expression 'arising out of employment is again not confined to the mere nature of the employment. The expression applies to employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment . To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act."

19. The above position was again highlighted in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Anr., VIII (2006) SLT 654=IV (2006) ACC 769 (SC)=2007 (11) SCC 668."

31. The Apex Court in the case titled as Surinder Kumar Arora & another versus Dr. Manoj Bisla & others, reported in 2012 AIR SCW 2241 : [2012(6) ALL MR 471 (S.C.)], held that rash and negligent driving of the driver is sine qua non for maintaining claim petition under Section 166 of the MV Act, which is not the essential ingredient for maintaining claim petition under Section 163A of the MV Act. It is apt to reproduce paras 9 and 10 of the judgment herein:

"9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent No.1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help respondent No.1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in the case of Kaushnuma Begum (Smt.) & Ors. (AIR 2001 SC 485 : 2001 AIR SCW 85) (supra) would have come to the assistance of the claimants.

10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co. Ltd. (AIR 2007 SC 1609 : 2007 AIR SCW 2362) (supra). In the said decision the Court stated:

"....Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."

32. Learned Senior Counsel for the appellant tried to make the foundation of his case by pressing into service the judgment made by the Apex Court in the case titled as Lachoo Ram and others versus Himachal Road Transport Corporation, reported in (2014) 13 Supreme Court Cases 254 : [2015(1) ALL MR 483 (S.C.)]. The very foundation is without any basis, as discussed hereinabove.

33. The Apex Court has examined the scope of Sections 163A and 166 of the MV Act in the case titled as Oriental Insurance Company Limited versus Premlata Shukla & others, reported in 2007 AIR SCW 3591 : [2007 ALL SCR 1750], and Bimla Devi & Ors. versus Himachal Road Transport Corpn. & Ors., reported in 2009 AIR SCW 4298 : [2009 ALL SCR 1771], and made a fine distinction.

34. The principle laid down by the Apex Court in the said judgments is of no help to the appellant for the reason that the claim petition in hand was filed before the Tribunal in terms of Section 163A of the MV Act, whereas the petitions filed in the cases relied upon by the learned Senior Counsel for the appellant were filed under Section 166 of the MV Act and the question involved was as to whether the petition under Section 166 of the MV Act was maintainable without proving the rashness and negligence, which is not the case here.

35. Having said so, the arguments of the learned Senior Counsel for the appellant are misconceived. Accordingly, findings returned by the Tribunal on issues No. 1 and 3 are upheld.

36. Before I deal with issue No. 2, I deem it proper to determine issue No. 4.

Issue No. 4:

37. Learned Senior Counsel for the appellant has not questioned the liability and has not even disputed the factum of insurance. However, the Tribunal has rightly discussed issue No. 4 and the findings returned on the said issue are to be upheld. Accordingly, the findings returned by the Tribunal on issue No. 4 are upheld.

Issue No. 2:

38. The claimants have pleaded and proved that deceased-Dharam Pal was 22 years of age at the time of the accident and the claimants were 38 and 36 years of age at the time of filing of the claim petition.

39. It is beaten law of land that multiplier is the best method to assess the compensation. The Tribunal has applied multiplier of '15', which is just and appropriate in view of the Second Schedule appended with the MV Act read with the ratio laid down by the Apex Court in the case titled as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 : [2009(4) ALL MR 429 (S.C.)] and upheld by a larger Bench of the Apex Court in the case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR SCW 3120 : [2013(3) ALL MR 460 (S.C.)].

40. The claimants have specifically pleaded that the deceased was earning Rs.6,000/- per month and have also proved the same. Thus, by guess work, it can be safely held that the income of the deceased was not less than Rs.5,000/- per month from all vocations.

41. In view of the law laid down by the Apex Court in Sarla Verma's case, [2009(4) ALL MR 429 (S.C.)] (supra) and upheld by a larger Bench of the Apex Court in Reshma Kumari's case, [2013(3) ALL MR 460 (S.C.)] (supra), 50% was to be deducted towards the personal expenses as the deceased was bachelor.

42. Viewed thus, the claimants-parents have lost source of income/dependency to the tune of Rs.2,500/- per month. Accordingly, the claimants are held entitled to compensation to the tune of Rs.2,500/- x 12 x 15 = Rs.4,50,000/- under the head 'loss of income/dependency'. The appellants-claimants are also held entitled to compensation to the tune of Rs.10,000/- under the head 'loss of love and affection', Rs.10,000/- under the head 'loss of estate' and Rs.10,000/- under the head 'funeral expenses'.

43. The moot question is whether the Tribunal or Appellate Court is/are within its/their jurisdiction to enhance the compensation without the prayer being made for the same?

44. The poor claimants have not questioned the adequacy of compensation, have been dragged to the lis right from 29.10.2004 and are still waiting for the day to receive the compensation. More than eleven years have elapsed, they have suffered and are still suffering.

45. It would be profitable to reproduce Section 168 (1) of the MV Act herein:

"168. Award of the Claims Tribunal. - On receipt of an application for compensation made under section 166 , the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:

......................"

46. The mandate of Section 168 (1) (supra) is to 'determine the amount of compensation which appears to be just'.

47. Keeping in view the object of granting of compensation and the legislature's wisdom read with the amendment made in the MV Act in the year 1994, it is for the Tribunal or the Appellate Court to assess the just compensation and is within its powers to grant the compensation more than what is claimed and can enhance the same.

48. This Court in a case titled as United India Insurance Company Ltd. versus Smt. Kulwant Kaur, reported in Latest HLJ 2014 (HP) 174, held that the Tribunal as well as the Appellate Court is/are within the jurisdiction to enhance the compensation and grant more than what is claimed.

49. The same principle has been laid down by the Apex Court in the cases titled as Nagappa versus Gurudayal Singh and others, reported in AIR 2003 Supreme Court 674 : [2014 ALL SCR (O.C.C.) 17]; State of Haryana and another versus Jasbir Kaur and others, reported in AIR 2003 Supreme Court 3696 : [2003(4) ALL MR 742 (S.C.)]; The Divisional Controller, K.S.R.T.C. versus Mahadeva Shetty and another, reported in AIR 2003 Supreme Court 4172; A.P.S.R.T.C. & another versus M. Ramadevi & others, reported in 2008 AIR SCW 1213 : [2008 ALL SCR 696]; and Ningamma & another versus United India Insurance Co. Ltd., reported in 2009 AIR SCW 4916 : [2010(1) ALL MR 441 (S.C.)].

50. It is apt to reproduce para 10 of the judgment in Nagappa's case, [2014 ALL SCR (O.C.C.) 17] (supra) herein:

"10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."

51. It would also be profitable to reproduce para 25 of the judgment in Ningamma's case, [2010(1) ALL MR 441 (S.C.)] (supra) herein:

"25. Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty bound and entitled to award "Just Compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court."

52. The Apex Court in the case titled as Oriental Insurance Co. Ltd. versus Mohd. Nasir & Anr., reported in 2009 AIR SCW 3717 : [2009(4) ALL MR 938 (S.C.)], also laid down the same principle while discussing, in para 27 of the judgment, the ratio laid down in the judgments rendered in the cases titled as Nagappa v. Gurudayal Singh & Ors, (2003) 2 SCC 274 : [2014 ALL SCR (O.C.C.) 17]; Devki Nandan Bangur and Ors. versus State of Haryana and Ors. 1995 ACJ 1288; Syed Basheer Ahmed & Ors. versus Mohd. Jameel & Anr., (2009) 2 SCC 225 : [2009(1) ALL MR 914 (S.C.)]; National Insurance Co. Ltd. versus Laxmi Narain Dhut, (2007) 3 SCC 700 : [2007(3) ALL MR 834 (S.C.)]; Punjab State Electricity Board Ltd. versus Zora Singh and Others (2005) 6 SCC 776; A.P. SRTC versus STAT and State of Haryana & Ors. versus Shakuntla Devi, 2008 (13) SCALE 621 : [2008 ALL SCR 2686].

53. The Apex Court in a latest judgment in a case titled Sanobanu Nazirbhai Mirza & others versus Ahmedabad Municipal Transport Service, reported in 2013 AIR SCW 5800 : [2013(6) ALL MR 981 (S.C.)], has specifically held that compensation can be enhanced while deciding the appeal, even though prayer for enhancing the compensation is not made by way of appeal or cross appeal/objections. It is apt to reproduce para 9 of the judgment herein:

"9. In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants."

54. Having said so, the Tribunal/Appellate Court is within its powers to award the just compensation. Applying the ratio, I deem it proper to enhance the compensation.

55. Having glance of the above discussions, the claimants are held entitled to total compensation to the tune of Rs.4,50,000/- + Rs.10,000/- + Rs.10,000/- + Rs.10,000/- = Rs.4,80,000/- with interest as awarded by the Tribunal.

56. The appellant-insurer is directed to deposit the enhanced awarded amount before the Registry within eight weeks. The awarded amount already deposited be released in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper identification. After deposition of the enhanced awarded amount, the same be also released in favour of the claimants through payee's account cheque or by transferring to their respective accounts.

57. In view of the above, the impugned award is modified and the appeal is disposed of, as indicated hereinabove.

58. Send down the record after placing copy of the judgment on Tribunal's file.

Ordered accordingly.