WAS THE ACCIDENT INVOLVING EXPLOSION AND FIRE IN THE PETROL TANKER CONNECTED WITH THE USE OF TANKER AS A MOTOR VEHICLE

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3744 OF 2005



New India Assurance Company Ltd. ... Appellant

Versus

Yadu Sambhaji More & Ors. ... Respondents




JUDGMENT



AFTAB ALAM, J.



1. This is an appeal under Article 133 of the Constitution of India read

with Order XV Rule 1 of the Supreme Court Rules,1966 on a certificate

granted by the Bombay High Court under Article 134A(b) of the

Constitution. The appellant is the insurance company and it seeks to assail

the judgment and order passed by the High Court in an appeal from a motor

accident claim case. In order to properly appreciate the issue in regard to

which the High Court has granted the certificate to appeal, it would be useful

to take note of some basic facts of the case.
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2. In the early hours of October 29, 1987 a petrol tanker bearing

registration no.MXL7461, was proceeding on National Highway 4, coming

from the Pune side and going towards Bangalore. As it reached near village

Kavathe, in the district of Satara, Maharashtra, a truck, bearing registration

no.MEH4197, laden with onions, was coming from the opposite direction.

At the point where the two vehicles crossed each other, there was a pile of

rubble on the left side of the road. As the two vehicles crossed each other,

the rear right side of the petrol tanker was hit by the rear left side of the

truck. As a result of the impact, the petrol tanker was thrown off the road

and it came to rest on its left side/ cleaner's side on the kutcha ground, about

5 feet below the road. As a result of the collision and the falling down of the

petrol tanker on its side, petrol started leaking from the tanker. The tanker

driver was unable to stop the leak even though he tried to tighten the lid. The

accident took place at around 3:15am. Shortly after the accident, another

tanker, coming from the Bombay side passed by. In that tanker, apart from

the driver, there was also an officer of the Indian Oil Company. Both of

them assured the driver of the fallen down tanker that they would report the

accident at the police station and asked him to wait near the place of the

accident. Later on, yet another tanker from Sangli arrived at the spot and

then the cleaner of the ill-fated tanker and the owner of the Sangli tanker
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together went to village Kavathe in search of a telephone to inform the

tanker owner about the accident. After they came back from the village all of

them, the driver and the cleaner of the tanker that had met with accident and

the owner, the driver and the cleaner of the tanker coming from Sangli

waited near the accident site. At daybreak, the local people started collecting

near the fallen down tanker and some of them brought cans and tried to

collect the petrol leaking out from the tanker. The driver of the tanker tried

to stop them from collecting petrol or even going near the tanker, explaining

to them that doing so would be risky and dangerous. No one, however,

listened to him and he was even manhandled. In the melee, the petrol caught

fire and there was a big explosion in which 46 persons lost their lives.

3. The heirs and legal representatives of those people who died at the

accident site filed claim petitions for compensation under section 110A of

the Motor Vehicles Act, 1939 before the MACT, Satara, against the owner

of the petrol tanker and its insurer, the present appellant. In all the cases,

claims were also made for payment of Rs.15,000/- as no fault compensation

under section 92A of the Act. The owner of the tanker and the insurer (the

respondents before the Tribunal) contested the claim petitions filed by the

applicants under section 92A of the Act and questioned the jurisdiction of

the Claims Tribunal to entertain such petitions on the ground that the fire
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and the explosion causing the death of those who had assembled at the

accident site could not be said to be an accident arising out of the use of a

motor vehicle. The Claims Tribunal upheld the objection raised by the

insurer and the owner of the petrol tanker, and by a common order dated

December 2, 1989, dismissed all the claim petitions filed under section 92A

of the Act on the ground that the fire and the explosion could not be said to

be accident arising out of the use of the petrol tanker and hence, the

provisions of section 92A of the Act were not attracted. The Claims Tribunal

pointed out that there was a time gap of about 4 hours between the tanker

meeting with the road accident and the fire and explosion of the tanker and

there was absolutely no connection between the road accident and the fire

accident that took place about 4 hours later. The Claims Ttribunal also

observed that the local people were trying to steal petrol from the petrol

tanker and the fire and the explosion were the result of their attempt to steal

the petrol leaking out from the tanker. In other words, it was the people who

had assembled at the accident site and some of whom eventually died as a

result of it who were responsible for causing the fire and explosion accident

and the later accident had no causal connection with the earlier road accident

of the tanker. The fire and the explosion could not be said to be an accident

arising out of the use of the tanker. Against the order of the Claims Tribunal
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passed on December 2, 1989, appeals were filed before the High Court. One

such appeal was filed by Vatschala Uttam More, whose son Deepak Uttam

More was one of the persons who died as a result of injuries caused by the

fire and explosion of the petrol tanker. A learned single judge of the High

Court allowed the appeal and by judgment dated February 5, 1990, reversed

the order passed by the Claims Tribunal. Against the decision of the single

judge, the owner of the petrol tanker and the insurance company filed a

Letters Patent Appeal which was dismissed by a division bench of the High

Court by judgment dated August 16, 1990.

4. The owner of the petrol tanker and the insurance company then

brought the matter to this court in SLP no.14822 of 1990 challenging the

judgment and order of the High Court passed on August 16, 1990. The SLP

was dismissed by this court by judgment and order passed on July 17, 1991.

In this judgment, reported as Shivaji Dayanu Patil & Anr. vs. Vatschala

Uttam More, (1991) 3 SCC 530 the Court considered at length, the questions

whether the fire and explosion of the petrol tanker in which Deepak Uttam

More lost his life could be said to have resulted from an accident arising out

of the use of a motor vehicle, namely the petrol tanker. The court answered

the question in the affirmative, that is to say, in favor of the claimant and

against the insurer.
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5. The judgment of this Court, thus, put an end to the objections raised

by the owner and the insurer of the petrol tanker against the claim of no fault

compensation by and/or on behalf of the victims of the fire and explosion

accident.

6. But next came the turn of the main applications filed under section

110A of the Act. There were altogether 44 claim applications in which, case

no.168 of 1988 was treated as the lead case. In the main claim cases too, the

owner and the insurer of the tanker inter alia raised the same objections as

taken earlier against the claim of no fault compensation. In view of the

pleadings of the parties, the Claims Tribunal framed five issues in which

issue no.3, being relevant for the present, was as follows:

"3. Whether sustaining of injuries was (sic) arising out of use of
the petrol tanker and was the result of negligence on the part of
the petrol tanker driver?"

7. On the basis of the evidences led before it, the Claims Tribunal

answered the issue in the negative and as a consequence dismissed all the

claim cases by its judgment and order dated July 31, 1997.

8. Against the judgment and order passed by the Claims Tribunal, the

applicant of MACP no.168 of 1988, preferred an appeal before the High

Court (being First Appeal no.149 of 1999). (The other claimants whose

claims were similarly dismissed by the Claims Tribunal are also said to have
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preferred their respective appeals before the High Court which are pending

awaiting the result of the present appeal before this Court).

9. Before the High Court it was contended on behalf of the claimants

that the question whether the death of the victims resulted from an accident

arising out of the use of the petrol tanker was concluded by the decision of

this Court in Shivaji Dayanu Patil and any finding recorded by the Claims

Tribunal contrary to the decision of this Court was completely illegal and

untenable. On the other hand, on behalf of the insurer and the owner of the

petrol tanker, it was argued that the decision of this Court in Shivaji Dayanu

Patil was rendered on a claim for no-fault compensation under section 92A

of the Act. It was, thus, a judgment against an interlocutory order, before any

evidences were recorded in the proceeding and, therefore, the decision in

Shivaji Dayanu Patil cannot be taken as binding and it was open to the

Claims Tribunal or the High Court to come to a different finding on the basis

of the evidences adduced in course of the main proceeding. It was further

argued, on behalf of the insurer and the owner of the petrol tanker that an

order under section 92A is, in nature, an interim order that is passed without

following the formal procedure of recording evidence. The decision of this

Court in Shivaji Dayanu Patil had not decided the issue finally and

conclusively and, hence, the claimants could not draw any benefit from it in
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the main proceeding under section 110A of the Act based on the principle of

fault or negligence of the driver of the vehicle. The High Court did not

accept the arguments advanced on behalf of the owner and the insurer of the

petrol tanker, but agreed with the claimants that the decision of this Court in

Shivaji Dayanu Patil was conclusive on the issue that the death of the

victim, caused by the fire and explosion of the petrol tanker, had resulted

from an accident arising out of the use of the motor vehicle, namely, the

petrol tanker and it was not open to the Claims Tribunal to take a contrary

view. It, accordingly, allowed the appeal and by judgment and order dated

March 24, 2005, set aside the judgment of the Claims Tribunal and allowed

the claim petition with costs.

10. Though, having held against the insurer, the High Court, on a prayer

made before it, granted certificate to appeal to this Court by order dated

April 28, 2005, in the following terms:

"1. Heard advocates for the appellant and respondents. The
issue involved that is for the purpose of this leave to go to the
Supreme Court is, whether the order of the Supreme Court
under section 92A was for all purposes an interim order or it
concluded and decided the question as to whether the vehicle
i.e. the tanker was in use when exploded. Though, I have held
against the respondents, looking to the question involved,
certificate as prayed, is granted. No stay to the order of
payment. Certified copy expedited."
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11. Mr. Ramesh Chandra Mishra appearing on behalf of the appellant

advanced the same arguments before us as were advanced before the High

Court in support of the judgment passed by the Claims Tribunal. Learned

counsel submitted that the decision of this Court in Shivaji Dayanu Patil was

rendered on an application under section 92A of the Act and, therefore, any

finding recorded in that decision would not be binding on the Claims

Tribunal in the main proceeding under section 110A of the Act that was to

be decided on the basis of the evidences adduced before the Tribunal.

12. On hearing Mr. Atul Nanda, the amicus curiae and Mr. Ashok Kumar

Singh, counsel appearing on behalf of the respondent, we are unable to

accept the submissions made by Mr. Ramesh Chandra Mishra and we are in

complete agreement with the view taken by the High Court.

13. In a given case, on the basis of the evidences later on adduced before

it in the main proceeding under section 110A of the Act, it may be possible

for the Claims Tribunal to arrive at a finding at variance with the finding

recorded by a superior court on the same issue on an application under

section 92A of the Act. But the variant finding by the tribunal must be based

on some material facts coming to light from the evidences led before it that

were not available before the superior court while dealing with the

proceeding under section 92A of the Act. In this case, however, as correctly
10


noted by the High Court, the position is entirely different. It is true that the

case Shivaji Dayanu Patil arose from the claim for no-fault compensation

under section 92A but all the material facts were already before the court

and all the contentions being raised now were considered at length by this

Court in that case. In Shivaji Dayanu Patil the Court took note of the

relevant facts in paragraphs 2 and 3 of the judgment. In paragraph 4 of the

judgment, the Court noted the three limbs of argument advanced by Mr.

G.L. Sanghi, learned counsel appearing for the owner of the petrol tanker in

support of the plea that the explosion and fire in the petrol tanker could not

be said to be an accident arising out of the use of a motor vehicle. Paragraph

4 of the judgment reads as under:

"4. Shri G.L. Sanghi, the learned Counsel appearing for the
petitioners, has urged that in the instant case, it cannot be said
that the explosion and fire in the petrol tanker which occurred at
about 7.15 A.M., i.e., nearly four and half hours after the
collision involving the petrol tanker and the other truck, was an
accident arising out of the use of a motor vehicle and therefore,
the claim petition filed by the respondent could not be
entertained under Section 92-A of the Act. Shri Sanghi has
made a three-fold submission in this regard. In the first place,
he has submitted that the petrol tanker was not a motor vehicle
as defined in Section 2(18) of the Act at the time when the
explosion and fire took place because at that time the petrol
tanker was lying turtle and was not capable of movement on the
road. The second submission of Shri Sanghi is that since before
the explosion and fire the petrol tanker was lying immobile it
could not be said that the petrol tanker, even if it be assumed
that it was a motor vehicle, was in use as a motor vehicle at the
time of the explosion and fire. Thirdly, it has been submitted by
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Shri Sanghi that even if it is found that the petrol tanker was in
use as a motor vehicle at the time of the explosion and fire,
there was no causal relationship between the collision which
took place between the petrol tanker and the truck at about 3
A.M. and the explosion and fire in the petrol tanker which took
place about four and half hours later and it cannot, therefore, be
said that explosion and fire in the petrol tanker was an accident
arising out of the use of a motor vehicle."

14. After having considered each of the 3 limbs of Mr. Sanghi's

arguments and having rejected all of them, the Court, in paragraph 37 of the

judgment, held and observed as follows:

"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 sides on the 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
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."
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15. We have examined the evidences of the OWs adduced before the

Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of

the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the

driver of the ill-fated petrol tanker who was examined as OW2. We have

also gone through the judgment of the Tribunal. In the evidences of the

OWs, there was no new material fact that wasn't already before this Court in

Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite

party, no new points were raised before the Claims Tribunal, that can be said

to have not been raised before this Court in Shivaji Dayanu Patil. The High

Court was, therefore, perfectly justified in observing in paragraph 26 of the

judgment coming under appeal as follows:

"... But whether the vehicle was in use or not was a question
before the Supreme Court and even after evidence that aspect
has not changed. Time at which the accident occurred, viz.
catching the fire by the petrol has remained the same. The
circumstances preceding this particular point have also
remained the same. The manner in which the petrol tanker came
near the spot and how it was hit by a vehicle or truck coming
from opposite direction also remained the same even after
evidence and therefore when facts which were before the
Supreme Court have not at all changed inspite of the full trial
and evidence, the judgment of the Supreme Court has to be
accepted and taken as a concluded judgment so far as the issue
as to whether the vehicle was "in use" or "arising out of the use
of the motor vehicle", fully and concluding. Secondly,
questions before the Supreme Court was about the
interpretation of the words "arising out of use of motor
vehicle". The situation namely occurring explosion to the petrol
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tanker has not changed so far as this particular aspect is
concerned...."

16. In light of the discussions made above, it must be held that in the facts

and circumstances of the present case, the decision rendered in Shivaji

Dayanu Patil was completely binding on the Claims Tribunal and it was not

open to the Claims Tribunal to come to any finding inconsistent with the

aforesaid decision of this Court. The issue framed by the High Court is

answered accordingly. There is no merit in the appeal and it is, accordingly,

dismissed with costs.




....................................J.
(AFTAB ALAM)



....................................J.
(R.M. LODHA)


New Delhi
January 7, 2011.