Bombay High Court
Atikurrahaman Lais Mohammad And Ors vs The New India Assurance Co. Ltd. Mumbai on 28 July, 2026
CNR No : HCBM010385882022
903.FA-246.21.DOCX
ppn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by PRACHI
CIVIL APPELLATE JURISDICTION
PRACHI PRANESH
PRANESH NANDIWADEKAR
NANDIWADEKAR
Date: 2026.07.28
12:58:52 +0530
FIRST APPEAL NO.246 OF 2021
WITH
INTERIM APPLICATION NO.1407 OF 2021
The New India Assurance Co. Ltd.
Unit No.10, 'A' wing, 1st Floor,
Sita Premises Ltd., Vashi Naka,
Anik-Chembur, Mumbai - 400 074.
Through Mumbai Legal Hub,
41-B, 4th Floor, Maker Tower-E,
Near World Trade Centre, Cuffe Parade,
Mumbai - 400 005. ....Appellant/Applicant
(orig. Insurer)
V/s.
1. Atikurrahaman Lais Mohammad
Age 54 years present, Occ : Not known,
2. Mrs. Aasama Atikurrahaman
Age 48 years present, Occ : Not known,
Laxmi Nagar Society, Near Shankar Deoval,
Mahul Road, Vashi Naka, Chembur,
Mumbai - 400 074.
3. Mohd. Ashraf F. Kapadia(FA stands dismissed by order dt.6.9.23)
Age Adult, Occ : Not known,
Shiv Complex, Near H.P. Petrol Pump,
Rehnal Village, Tal. Bhiwandi,
Thane - 421 302. ....Respondents
(Resp. nos.1 & 2-orig. Claimants,
Resp. no. 3- orig. opposite party)
Page 1 of 31
903.FA-246.21.DOCX
WITH
INTERIM APPLICATION NO.211 OF 2023
IN
FIRST APPEAL NO.246 OF 2021
1. Atikurrahaman Lais Mohammad
Age 54 years present, Occ : Not known,
2. Mrs. Aasama Atikurrahaman
Age 48 years present, Occ : Not known,
Laxmi Nagar Society, Near Shankar Deoval,
Mahul Road, Vashi Naka, Chembur,
Mumbai - 400 074.
3. Mohd. Ashraf F. Kapadia(FA stands dismissed by order dt.6.9.23)
Age Adult, Occ : Not known,
Shiv Complex, Near H.P. Petrol Pump,
Rehnal Village, Tal. Bhiwandi,
Thane - 421 302. ....Applicants
V/s.
1. The New India Assurance Co. Ltd.
having office at Unit No.10, 'A' wing, 1st Floor,
Sita Premises Ltd., Vashi Naka,
Anik-Chembur,
Mumbai - 400 074.
2. Mohd. Ashraf F. Kapadia
Residing at Shiv Complex,
Near H. P. Petrol Pump,
Rehnal Village, Tal. Bhiwandi,
Thane - 421 302. ....Respondents
_____________________________________________________
Mr. Devendranath S. Joshi a/w Mr. Pradyumna Thakurdesai for
the appellants in FA.
Ms. Varsha Chavan for the respondents in FA.
______________________________________________________
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CORAM : JITENDRA JAIN, J.
DATED : 28 July 2026
JUDGMENT :
–
1. This appeal is filed by the insurance company challenging
an order dated 3 August 2020 passed by the Motor Accident
Claims Tribunal, Mumbai (‘Tribunal’) whereby an amount of
Rs.8,26,000/- alongwith interest has been awarded against the
owner of the vehicle and the insurance company, as compensation
for the accidental death of Shafiq Atikurrahaman, welder who
died due to blast while carrying out welding work on tanker.
2. By consent of the parties, the appeal is taken up for final
hearing. Admit.
Brief Facts :-
3. On 19 May 2015, a motor tanker came for repairing at the
workshop, where the deceased Shafiq Atikurrahaman was
working, at Om Sai Servicing Garage, Chembur. The deceased was
carrying out welding work on the said tanker when sudden blast
occurred, which could have been because of residual gas/fuel in
the tank not being removed, resulting in the death of the
deceased. An FIR came to be filed against the owner of the garage
by the relative of the deceased.
4. The dependents of the deceased filed a claim before the
Tribunal seeking compensation, which by the impugned order was
awarded. Being aggrieved by the order of the Tribunal, the
insurance company has filed present appeal. Before the Tribunal,
the owner of the vehicle did not appear.
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Submissions of the Appellant Insurance Company :-
5. Mr Joshi, learned counsel for the insurance company
submitted that since the vehicle was stationed at the garage for
repairing, same cannot be termed as “use” at the time of the
incident for imposing liability under Section 147 of the Motor
Vehicles Act, 1988 and, therefore, no liability should be imposed.
He further submitted that a “private garage” does not fall within
the meaning of the phrase “public place” as defined under Section
2 (34) of the Motor Vehicles Act, 1988 (‘the Act’) and therefore
provisions of Section 147 of the Act attracting liability are not
applicable. He further submitted that the deceased and the garage
owner were negligent and, therefore, the insurance company
cannot be made liable. The FIR was filed against garage owner by
the relative of the deceased. He further submitted that under
Section 166 of the Act, the deceased himself was negligent and,
therefore, no claim is maintainable. Mr. Joshi relied upon the
decision of the Hon’ble Supreme Court in the case of Minu B.
Mehta & Anr. v. Balkrishna Ramchandra Nayan & Anr.1 and
Surender Kumar Arora & Anr v. Manoj Bisla & Ors. 2 in support of
his above submission and prayed for quashing of the impugned
order.
Submissions of the Respondent Claimants :-
6. Ms. Varsha Chavan, learned counsel for the original
claimants submitted that the garage would fall within the
meaning of the term “public place” as defined under the Act and
since the incident occurred at a public place, the insurance1
(1977) 2 SCC 441
2
(2012) 4 SCC 552Page 4 of 31
903.FA-246.21.DOCX
company is liable though this point was not taken in written
statement by the insurance company. She further submitted that
when a vehicle is being repaired, it would amount to the vehicle
being put to “use”. It is her submission that the phrase “use of the
vehicle” would not mean only running of the vehicle. She further
submitted that the owner of the motor vehicle is liable since the
work is being carried out by the garage owner or the deceased on
behalf of the owner. It is her submission that if a third party dies
or suffers injury, the insurer becomes liable to pay compensation
by virtue of Section 146 of the Motor Vehicles Act, 1988. She
relied upon the decision of the Hon’ble Supreme Court in the case
of Shivaji Dayanu Patil & Anr. vs. Vatschala Uttam More 3,
Pandurang Chimaji Agale & Anr. vs. New India Life Insurance Co.
Ltd. & Ors.4 and Guru Govekar V. Filomena f. Lobo & Ors. 5 and
prayed for dismissal of the appeal.
7. I have heard learned counsel for the insurance company and
the claimants.
Analysis & Conclusions
8. Following three issues arises for my consideration :-
(i) Whether a vehicle can be said to be in “use” when it is
stationed at garage for the purpose of repairing ?
(ii) Whether a garage would fall within the definition of
“public place” as defined under Section 2(34) of the
Motor Vehicles Act, 1988 ?
(iii) Whether the Tribunal was justified in holding that the
driver/owner of the vehicle and/or the owner of the
garage were responsible and not the deceased ?
3
(1991) 3 SCC 530
4
1988 SCC OnLine Bom 29
5
(1988) 3 SCC 1Page 5 of 31
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Issue (i) – Interpretation of the word “use” :-
9. Section 147(1) of the Act provides that a policy of insurance
must comply with the requirements of Chapter XI of the Motor
Vehicles Act, 1988. The insurance policy should be issued by an
authorised insurer and it should insure a person or classes of
persons specified in the policy to the extent specified in sub-
section (2) of the Act against any liability which may be incurred
by him in respect of the death or bodily injury to any person,
including owner of the goods or his authorised representative or
damage to any property of a third party caused by or arising out of
the use of the motor vehicle in a public place. Explanation to
Section 147(1) provides by way of clarification that the death or
bodily injury to any person shall be deemed to have been caused
by or to have arisen out of the use of a vehicle in a public place
notwithstanding that the person who is dead or injured was not in
a public place at the time of the accident, if the act or omission
which led to the accident occurred in a public place.
10. The object of the Motor Vehicles Act, 1988 is to regulate all
the aspects of the vehicles driven on the road, including regulating
the provisions relating to compensation to be awarded in case of
an accident and providing for certain aspects with regard to
stationary vehicle. It is for this purpose that insurance of a motor
vehicle against third party risk is compulsory.
11. The phrase “use of the motor vehicle” used in Section 147
cannot be given a restrictive meaning to mean an accident
occurring only when the vehicle is moving. The phrase “use of the
motor vehicle” would not only include active use of movement but
also passive use of the motor vehicle for the purposes of its
movement. For example, if a vehicle is moving from place ‘A’ to
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place ‘B’ and it takes a break at a food mall, the fact that the
vehicle is parked at a food mall will be considered as use of the
motor vehicle. Similarly, if during the movement from place ‘A’ to
place ‘B’, the tyre of the vehicle is punctured and the vehicle has to
be moved to a garage for replacing the tyre or removing the
puncture, it will be treated as the vehicle being in use when tyre is
being replaced or puncture is removed. Repairs of a motor vehicle
is a part and parcel and integral aspects of its movement from one
place to another. Therefore, when a vehicle is taken to a workshop
or garage for being repaired, in my view, it would amount to use
of the motor vehicle. Any narrow interpretation of the phrase
“use” cannot be ascribed while dealing with the Motor Vehicles
Act, 1988 and more particularly while dealing with the
compensation to be awarded on account of death or bodily injury.
If the motor vehicle parked at a food mall is moving from place ‘A’
to place ‘B’ or being parked at the workshop for repairs, during the
course of it’s journey from place ‘A’ to place ‘B’, it can be said to be
in use, merely because the vehicle is taken to a garage and is at
garage for repairing, it cannot be said that it is not put to use.
Even in such a case, there is a movement of the vehicle from place
‘A’ to place ‘B’ and place ‘B’ being the garage or workshop.
12. Section 190 of the Motor Vehicles Act, 1988 provides for
provisions relating to using vehicle in unsafe condition. Sub-
section (1) provides that any person who drives a motor vehicle in
any public place while the vehicle has any defect, he shall be
punishable with fine and imprisonment if as a result of such defect
any injury is caused. In the instant case, the owner of the vehicle
knew that there was a defect in the tank. If such a vehicle is
permitted to be used on road without the defect being removed,
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then there would be violation of Section 190 of the Motor Vehicles
Act, 1988. Therefore, any act by the owner of the vehicle or a
driver to take the vehicle to a garage for removing the defect
would be in discharge of his obligation cast under Section 190 of
the Motor Vehicles Act, 1988 and, therefore, such an act cannot be
construed to mean that the vehicle was not in use for the purposes
of the Motor Vehicles Act, 1988.
13. Section 126 of the Motor Vehicles Act, 1988 provides for
duty of driver or person in charge of a vehicle with regard to
stationary vehicles. Section 122 provides for duty of a person
leaving vehicle to be abandoned or to remain at rest on any public
place which will cause inconvenience to others. Similarly, Section
132 provides for duty of driver to stop and remain stationary for
reasonable time in circumstances specified therein. The reference
to these provisions are made to support the conclusion drawn by
me that even the Act contemplates and regulates vehicles
stationed at one particular place and, therefore, it cannot be said
that same is not in “use” when the vehicle is stationed at a fixed
place. The consistent view of the Courts has been that even if a
vehicle is stationary it would amount to “use” for the purposes of
the Act. Even when car is parked for years at one place, it
depreciates without moving and the insurance company while
deciding premium and/or compensation considers depreciation. If
that be so, then restrictive interpretation cannot be given to the
word “use”.
14. This issue whether a vehicle stationed at a garage would
amount to use of a motor vehicle had come up for consideration
before the Goa Bench of this Court in the case of Cholamandalam
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MS General Insurance Co. Ltd v. Priyanka K. Mayekar and others 6.
This decision was brought to the notice of both the parties by the
Court.
15. In the above case, the deceased was also a welder who had
his own garage. While repairing a Tata Mobile vehicle, there was a
loud explosion of the tank fitted to the vehicle. As a result of this
explosion, the welder suffered injuries resulting in his death. The
Bombay High Court interpreted the phrase “arising out of the use
of motor vehicle” in paragraphs 18 to 25 of the said decision
which reads as under :-
“18. Thus, the crucial expression is “arising out of the use of motor
vehicles”. The issue of interpretation of this expression is no longer res
integra.
19. In Amir Basha (supra), the Division Bench of the Madras High Court
considered several decisions and made the following observations in
paragraph 12 while turning down the insurance company’s contentions:
“12. 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 expression “caused by” and “arising out of” have a wider
connotation. Though the accident should be connected with the use
of 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 a 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.
6
2022 SCC OnLine Bom 3789
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Accordingly, we hold that the death of Absar arose out of the use of
motor vehicle, and the claimants/respondents 1 and 2 herein are
entitled to compensation for the death of their son Absar.”
20. Amir Basha (supra) was a case where the claimant’s son died in a
garage where a lorry was being repaired. One of the witnesses deposed
that when the deceased Absar was vulcanizing a tube which got
punctured, another person was in the process of welding certain parts near
a diesel tank. Due to the process of welding by another person, the diesel
tank caught fire, thereby the deceased, who was doing work of vulcanizing
the tube got involved in the fire accident and sustained fatal injuries. The
insurance company had contended that the lorry was stationary and
parked in the roadside workshop for doing certain welding work, and the
deceased had nothing to do with the vehicle. Therefore, neither the owner
nor the insurance company of the lorry was responsible for the accident.
Such an accident, the insurance company contended, did not arise out of
the use of the motor vehicle.
21. In Shivaji Dayanu Patil (supra), the Hon’ble Supreme Court was
concerned with an accident involving a collision between a petrol tanker
and a truck. As a result of the collision, the petrol tanker went off the road
and fell on its left side at a distance of about 20 feet from the highway. As
a result of turning the petrol tanker, the petrol contained in it leaked out
and collected nearby. This happened at about 3 a.m. on October 29, 1987.
At about 7.15 a.m., an explosion occurred in the petrol tanker, resulting in
a fire. A number of persons who had assembled near had sustained burn
injuries, and a few succumbed to them. One of them was Deepak Uttam
More. His mother filed a claim petition. The question was whether Deepak
More had died in the accident from using the motor vehicle.
22. The Hon’ble Supreme Court held that the expression “use of a motor
vehicle” in Section 92-A covers accidents which occur both when the
vehicle is in motion and when it is stationary. The petrol 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 it cannot
be claimed that after the collision, the use of the tanker had ceased only
because it was disabled. The word “use” has a broader connotation to
cover the period when the vehicle is not moving and is stationary. The use
of a vehicle does not cease because the vehicle has been rendered
immobile on account of a breakdown or mechanical defect, or accident. In
the circumstances, it cannot be said that the petrol tanker was not in use
when it was lying on its side after the collision with the truck.
23. The Hon’ble Supreme Court further held that as compared to the
expression “caused by”, the expression “arising out of” has a broader
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 to award
compensation under Section 92-A, the causal relationship between the use
of the motor vehicle and the accident resulting in death or permanent
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disablement is not required to be direct and proximate, and it can be less
immediate. This would imply that an 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. It aligns with the beneficial object
underlying the enactment.
24. In the above case, the tanker carried petrol, a highly combustible and
volatile material. After the collision with the other motor vehicle, the
tanker had fallen on one of its sides on sloping ground, resulting in the
escape of highly inflammable petrol and the grave risk of explosion and
fire from the petrol coming out of the tanker. In these circumstances, it
could be said 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, was not unconnected but
related events and merely because there was an 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. Therefore, the explosion and fire
resulting in the injuries which led to the death of Deepak Uttam More were
due to an accident arising out of the use of the motor vehicle, viz., the
petrol tanker.
25. Applying the ratio in the above two decisions to the facts of the present
case, it is apparent that Kundan Mayekar died in an accident arising out of
the use of a TATA Mobile vehicle bearing registration No. GA-01-Z-1278. As
proved by the evidence on record, the facts in the present case are more or
less similar to the facts in Amir Basha (supra). Therefore, the nexus
between the TATA mobile vehicle in the present case and the accident
resulting in Kundan Mayekar’s death is much more proximate than the
nexus between Deepak More’s death and the petrol tanker that had fallen
on its left side at a substantial distance from the highway.”
(emphasis supplied)
16. In my view, the decision in the case of Cholamandalam MS
General Insurance Company Ltd. (supra) squarely applies to the
facts of the present case.
17. In view of above, the submission made by learned counsel
for the insurance company that in the instant case, when the
vehicle was being repaired, it was not put to use cannot be
accepted and such a contention is contrary to decision of the
Hon’ble Supreme Court in the case of Shivaji Dayanu Patil (supra),
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followed by the Goa Bench of this Court and various other Courts.
Issue (ii) – Meaning of the term “public place” : :-
18. The next issue which arises for my consideration is whether
a “garage” can be treated as a “public place” under Section 2(34)
of the Motor Vehicles Act, 1988. Section 2 (34) defines “public
place” to mean a road, street, way or other place whether a
thoroughfare or not, to which the public have a right of access and
includes any place or stand at which passengers are picked up or
set down by a stage carriage.
19. In this matter, I am concerned with the first part of the
definition viz., “a road, street, way or other place, whether a
thoroughfare or not, to which the public have a right of access.”
20. In the instant case, the accident occurred when the vehicle
was being repaired at the workshop. As per the FIR, the accident
happened on account of blast because of the work of welding
which was being carried out by the deceased.
21. The submission made by the learned counsel for the
insurance company that all the public should have a right of access
to the place for it to be termed as “public place” cannot be
accepted. There is no prohibition on any person to access the
garage. Merely because garage is a private property, it cannot be
said that public does not have a right of access. The phrase
“public” would mean a defined group of people. In the instant
case, public would mean people who approaches the garage either
for repairing their vehicles or for buying any accessories, etc. The
defined group of people owning a vehicle would constitute
“public” in the context of Section 2(34) of the Act.
22. I have not been shown any material which would indicate
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that there was a prohibition on any person from accessing the
garage under consideration. The definition itself gives an
indication when it uses the phrase “thoroughfare or not”. A
thoroughfare is a public road, street etc. that connects one area to
another. The definition says thoroughfare or not. Therefore, even
if a road etc. is not a public, it would fall within the meaning of
the term “public place” thereby including within its ambit even
private place having public access. If in a prohibited area, there is
an access by the public by paying an entry fee or by seeking
permission, then it would be a public place for the purposes of
Section 2(34) of the Motor Vehicles Act. Similarly, though garage
may be private property, but because it has an access to the public
it does not cease to be a public place.
23. The interpretation sought to be canvassed by the learned
counsel for the insurance company would defeat the very object of
the Motor Vehicles Act, 1988. If such an interpretation is accepted,
then many of the provisions which uses the expression “public
place” in the Act would become redundant. In my view, such an
interpretation, therefore, cannot be accepted.
24. The issue whether a “garage” would fall within the phrase
“public place” also came up for consideration before the Goa
Bench of this Court in the case of Cholamandalam MS General
Insurance Company Limited (supra) and the Court, after a
detailed discussion, has come to a conclusion that a garage is also
a “public place” under the Motor Vehicles Act, 1988. The relevant
paragraphs 32 to 42 reads as under :
“32. Be that as it may, even the issue of the interpretation of the expression
“public place” under Section 2(34) is no longer res integra.
33. In Pandurang Chimaji Agale v. New India Life Insurance Company a Full
Bench of our High Court, in the context of the definition of “public place”
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under Section 2(24) of the M.V. Act, 1939, which definition was identical
under Section 2(34) of the M.V. Act, 1988, has held that all places where the
members of the public have access, for whatever reasons, whether as of
right or controlled in any manner whatsoever, would be covered by the
definition of “public place” under Section 2(24) of the M.V. Act, 1939.
34. Therefore, even a place, the right of use of which is restricted, would be
a “public place”. Therefore, the observations in paragraphs 8, 9, and 10 from
the Full Bench decision are relevant, and the same read as follows:
“8. It is in the light of the object of the statute, its aforesaid relevant
provisions, and the scheme, that we have to appreciate the true
import of the expression “public place” for the purposes of Chapter
VIII of the Act. It has further to be remembered that the expression
“public place” is a term of art, the same having been defined
specifically by Sub-clause (24) of Section 2 of the Act. That definition
reads as follows:
’24. ‘Public place’ means a road, street, way or other place,
whether a thoroughfare or not, to which the public have a right
of access, and includes any place or stand at which passengers
are picked up or set down by a stage carriage.’The first thing to remember with regard to the definition
is that it is an inclusive one. Secondly, it in terms makes it
clear that any road, street, way or other place, whether a
thoroughfare or not, is a public place for the purposes of
the Act, the only condition being that the public should
have a right of access to it. Thirdly, the expression used in
the definition is “a right of access” and not “access as of
right”. Lastly, when it states that any place or stand at
which passengers are picked up or sat down by a stage
carriage, is a public place, it shows that it is not so much
concerned with the “ownership of the place as with its
user. Stage carriage is defined in Sub-clause (29) of
Section 2 and it means a motor vehicle which is used to
carry or adapted to carry more than six persons excluding
the driver and which carries passengers : for hire or
reward at separate fares paid by or for individual
passengers, either for the whole journey or for stages of
the journey. In short, it means a public passenger-carrier.
In other wards, by virtue of the last part of the definition,
the expression would include any place, including private,
where public passenger-carrier picks up or sets down
passengers.
The definition of “public place” under the Act is, therefore,
wide enough to include any place which members of
public use and to which they have a right of access. The
right of access may be permissive, limited, restricted or
regulated by oral or written permission, by tickets, passesPage 14 of 31
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or badges or on payment of fee. The use may be restricted
generally or to particular purpose or purposes. What is
necessary is that the place must be accessible to the
members of public and be available for their use,
enjoyment, avocation or other purposes.
9. It is also necessary to bear in mind the distinction between the
expression “right of access” and “access as of right”. The latter
expression denotes a place-where the members of public have a right
of, its use as members of public and as a matter of right, whether
regulated, restricted or not. They cannot, however, be denied the said
right except on legal grounds. On the other hand, where there is only
a right of access, the owner of the place, if he happens to be a private
owner, may deny the access to any member of the public on any
ground which he chooses. In other words, in the former case, the right
of the public to’ use the place is restricted compared to their right to
use in the latter case. The definition under the Act uses the expression
“right of access” as pointed out earlier. What is, therefore, significant
to note is that under the present definition even a place the right to
use of which is restricted is a public place. Once this is borne in mind,
much of the controversy raised before us around the correct meaning
of the expression “public place” loses its edge.
10. If we further bear in mind the overall object of the provisions of
Chapter VIII which deals with compulsory insurance of the vehicle to
cover risks to third parties and their property, with claims to be filed
for recovering compensation, no fault liabilities and liabilities arising
out of hit and run accidents, etc. the intention of the legislature is
clear. It is to secure compensation to the persons and property which
are exposed to’ the accidents caused by the vehicles. The very nature
of the motor vehicle and its use, mandate these provisions. The motor
vehicle in this respect can be likened to a wild animal. Whoever keeps
it does so at his risk. As pointed out earlier, some of the restrictions on
the use of the vehicle contained in the Act are irrespective of the
nature of the place where it is used and irrespective of whether it is
plied or kept stationery. The legislature was concerned not so much
with the nature of the place where the vehicle causes the accident as
where it was likely to do so. Hence all places where the members of
public and/or their property are likely to come in contact with the
vehicles can legitimately be said to be in its view when the legislature
made the relevant provisions for compulsory insurance. It will have,
therefore, to be held that all places where the members of public have
an access, for whatever reasons, whether as of right or controlled in
any manner whatsoever, would be covered by the definition of “public
place” in Section 2(24) of the Act. To hold otherwise would frustrate
the very object of the said Chapter and the Act.”
35. Following the Full Bench decision in Pandurang Chimaji Agale (supra),
the learned Single Judge of Andhra Pradesh High Court in Chinna
Page 15 of 31
Gangappa v. B. Sanjeeva Reddy held that an auto garage, even though
privately owned, or a workshop for loading and unloading goods, even
though privately owned, would be a place as defined under Section 2(24) of
the M.V. Act. 1939. As pointed out earlier, Section 2 (24) of the M.V. Act,
1939, is pari materia to the definition in Section 2 (34) of the M.V. Act,
1988.
36. The learned Single Judge of Madras High Court in National Insurance
Co. Ltd. thr. its Manager v. K. Ammaiyappan, following the Full Bench
decision of the Bombay High Court in Pandurang Chimaji Agale (supra),
held that a repair workshop is a public place.
37. The learned Single Judge of the Delhi High Court in Ramesh Kumar
Maini v. United Insurance Co. Ltd., following the decision of the Full Bench
of the Bombay High Court in Pandurang Chimaji Agale (supra), held that
the expression “public place” will cover all places, including those of private
ownership where the public has access, whether free or controlled in any
manner whatsoever. Accordingly, the Delhi High Court held that a godown
where the accident occurred was a public place because the public members
had the right to access the same.
38. A Division Bench of Madhya Pradesh High Court in Rajendra Singh v.
Tulsabai has held that the compound of the Diamond Cement Factory to
which the public had access and the vehicles were going there for business
purposes and where the accident occurred, was definitely a public place’
and, therefore the two insurance companies could not escape their liability
and were bound to indemnify the insured persons and pay the
compensation directly to the applicants. The Division Bench also followed
the decision of the Full Bench of the Bombay High Court in Pandurang
Chimaji Agale (supra).
39. The Division Bench of the Madhya Pradesh High Court, upon a detailed
analysis of several provisions on the subject, observed that almost all the
High Courts, including those who held a contrary view earlier, are veering
around to the illuminating dictum of Swant, J. (as His Lordship then was) in
the Full bench case of the Bombay High Court.
40. Even the Full Bench of the Madras High Court in United India Insurance
Co. Ltd. v. Parvathi Devi, following the Full Bench decision of the Bombay
High Court in Pandurang Chimaji Agale (supra), held that the expression
“public place” will cover all places, including those of private ownership
where members of the public have access, whether free or controlled in any
manner whatsoever.
41. Another Full bench of the Bombay High Court in Forbes Forbes Campbel
And Co. Ltd. v. Vilasrao Deshmukh held that the decision of the Full Bench
in Pandurang Agale (supra) clearly applied to the Bombay Dock Area, which
has to be held to be a public place within the meaning of Section 2(24) of
the 1939 Act.
Page 16 of 31
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42. Thus, applying the weight of the precedents to the proven facts, the
contentions that the accident in the present case did not occur in a public
place, as defined under Section 2(34) of the M.V. Act, will have to be
rejected. There is ample evidence on record, which was not even challenged
by cross-examination s-examination or otherwise that the accident occurred
in the garage “M/s. Mayekar Auto World”. This was a place that the public
had a right to access. Therefore, even the second point for determination
will have to be held against the Appellant-insurance Company.”
(emphasis supplied)
25. The issue whether garage constitutes a “public place” also
came up for consideration recently before the Andhra Pradesh
High Court in the case of Manepalli Ammalu and Another v. Kada
Hareesh Kumar and others7 and the Andhra Pradesh High Court,
after a detailed discussion, held that a garage would constitute a
“public place” under the Motor Vehicles Act, 1988. The relevant
paragraphs 26 to 34 reads as under:-
“26. Section 2 (34) of the Motor Vehicles Act, 1988 defines the public place
as follows:
“Public place means a road, street, way or other place, whether a
thoroughfare or not, to which the public have a right of access, and
includes any place or stand at which passengers are picked up or
set down by a stage carrier;
27. Access to the public cannot be equated to access to an employee or a
retired employee who approaches an office like RTC depot or garage where
office is also located.
28. It is the case of the claimants that the office is located in the
depot/garage. It is natural for an employee either serving or retire for
certain office and administrative purposes to visit the office. There is no
denial that the office is situated within the depot or garage. Therefore. the
contention that the entry of the deceased into the premises is unauthorized
and that he is a trespasser is found not acceptable ex-facie.
29. In a case between The New India Assurance Company Limited v.
Devchandbhai Khumansinh Ajanar, the Hon’ble High Court of Gujarat
found that if a place is accessible to the public even if privately owned, the
claim can be entertained by the tribunal. Observations in para Nos. 8 and 9
of the judgment with reference to Section 2(34) of the Motor Vehicles Act
and also another judgment of the Gujarat High Court in a case between
7
2025 SCC OnLine AP 2430
Page 17 of 31
United India Insurance Company Limited v. Gujarat Ship Trade Corporation
found relevant. They are as follows:
8. At the outset, the definition of ‘public place’ given in Section 2
(34) of the Motor Vehicle Act, 1988 is required to be read, which is
as follows:
“public place means a road, street, way or other place,
whether a thoroughfare or not, to which the public have a
right of access, and includes any place or stand at which
passengers are picked up or set down by a stage carriage;”
9. The simple reading of Section 2(34) of the Motor Vehicle Act,
1988 would imply that if public have a right of access though on
private land, it could be public place within the meaning of Section
2 (34) of the Motor Vehicle Act, 1988. The issue is no more res
integra as this Court in case of United India Insurance Company
Limited v. Gujarat Ship Trade Corporation, (1997) 3 Gau LR 2560,
addressed this issue. Relevant paras thereof are as under:
“12. It would be interesting to consider as to whether in the
light of the special circumstances obtainable from the evidence
on record could the accident be said to have occurred in a
‘public place’ or not. Before factual scenario put again into
focus it would be advisable to refer the statutory provisions of
Section 2(34) of the new Act which prescribes and provides as
to what is a ‘public place’. Its corresponding section of old Act
is Section 2(24), which reads as under ‘Public place’ means a
road, street, way or other place, whether a thorough-fare or
not, to which the public have a right of access, and includes
any place or stand at which passengers are picked up or set
down by a stage carriage.
13. It would be very well seen from the aforesaid provisions
that even user of the private place where public have access is
also included in the definition of the ‘public place’. It, therefore,
need not necessarily be a public property. Even in case of
private place where public have access without restrictions or
even limited with pass, etc., it could be characterised as a
public place in view of the clear definition supplied in Section
2(34) of the new Act.
14. ***
15. It would be very well visualised from the aforesaid
provisions that in order to hold the insurer liable for
compensation one of the requirements and conditions is
vehicular accident must have occurred in a ‘public place’.
Broadly speaking, when bodily injury to any passenger of
public service vehicle or when damage is caused to a third
party arising out of use of the vehicle in the ‘public place’Page 18 of 31
903.FA-246.21.DOCX
governs the field arising out of the use of the vehicle in a
‘public place’. That means there must be involvement of the
vehicle which is defined under the new Act.
16. Therefore, it can safely be concluded that there must be
user of the vehicle because of which injury to a person or
damage to the goods has been caused in a ‘public place’. The
expression ‘public place’ provided under Section 2(34) of the
new Act is of vital importance and wide amplitude. It is an
inclusive definition Therefore, definition of a ‘public place’
under the new Act would include any place which members of
public use and to which they have a right of access. The right
of access may be permissive, limited, restricted or regulated by
oral or written permission, by tickets, passes or badges or on
payment of fee. This is a settled principle of law. The use may
be restricted generally or to particular purpose or purposes.
What is paramountly significant is the place ought to have
access to take members of public and be available for their use,
enjoyment, avocation or any other purpose.”
30. The New India Assurance Company Limited v. Devchandbhai
Khumansinh Ajanar (1 supra) was a case of a minor son of the claimants
was sleeping by covering a plastic cover in an open place of the factory and
while reversing a tractor in the premises the accident has occurred and
minor son of the claimants died. The defense was similar to that of the
present case that the place is not a public place and within the four corners
of the compound of the factory which is the private place. In the said
context, the above observations are made by the Hon’ble High Court of
Gujarat.
31. Similarly in a case between K. Hanumantha Rao v. National
Aeronautical Laboratory, the Hon’ble High Court of Karnataka held that a
tribunal in terms of Motor Vehicles Act, 1939 had jurisdiction to adjudicate
claims for compensation in respect of accidents, regardless whether they
are occurred in public or private places as long as the tribunals jurisdiction
extends to the area where the accident takes place.
32. It was the case where this accident took place within the private
premises of National Aeronautic Laboratory, Kodihalli, Bangalore and it is
not a public place. Addressing the said situation, Hon’ble High Court of
Karnataka found that the observations of the learned MACT that it had no
jurisdiction as the place of accident is not a public place cannot be upheld
vide para No. 3 observed as under:
(3) THE incident in question happened on 5-8-1968. The accidents
claims Tribunals are constituted by virtue of the provisions of S. 110
of the Motor Vehicles Act, 1939. S. 110 (1) as i, t stood prior to its
amendment by 2-3-1970 reads as follows:
Page 19 of 31
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“A State Government may, by notification in the Official
Gazette, constitute one or more Motor Accidents Claims
Tribunals (hereinafter referred to as claims Tribunal) for such
area as may be specified in the notification for the purpose of
adjudicating upon claims for compensation in respect of
accidents involving the death of, or bodily injury to, persons
arising out of the use of motor vehicles.”
a reading of the above provision makes it plain that it
empowers the State government to constitute one or more
Motor Accidents Claims Tribunals by issuing a notification in
the Official Gazette and prescribing the area or areas over
which the Tribunals jurisdiction to adjudicate upon
compensation in respect of accidents involving the death of, or
would have bodily injuries to persons arising out of the use of
Motor Vehicles. It is also plain that the said section by itself
does not place any restrictions in regard to places by
characterising places either as public or as private places.
Hence it is necessary to make a reference to the notification
issued by the State Government while constituting the Motor
Accidents Claims tribunal at Bangalore. The First Additional
District Judge, Bangalore, was appointed as Member of the
said Tribunal by such a notification issued on 24-2-1968. A
reference to this notification shows that the jurisdiction of the
Tribunal extended over the whole of Bangalore District. The
notification has not made any distinction between private
places and public places in Bangalore District. A result of
reading of the provisions of this notification and S. 110 of the
Motor Vehicles Act, 1939, would clearly be that the State
Government by exercising its powers under S. 110 of the act,
constituted a Motor Accidents Claims Tribunal and appointed
the First additional District Judge as Member and fixed
Bangalore District as the area over which the Tribunal had
jurisdiction to adjudicte upon for claims of compensation in
respect of accidents involving the death of, or bodily injury to
persons arising out of the use of motor vehicles. We have
therefore no hesitation in holding that the conclusion of the
Tribunal that it had no jurisdiction in view of the fact that the
accident in question had taken place not in a public place but
in the National Aeronautic Laboratory, kodihalli, Bangalore,
cannot be upheld. The learned Member has nowhere in the
order passed by him made it clear as to why he was under the
impression that the Tribunal had jurisdiction only in regard to
claims arising out of accidents in public places.
33. Further, the Hon’ble High Court of Rajasthan in a case between United
India Insurance Company Limited v. Smt. Roop Kanwar, while answering
whether a motor garage is a public place answered the same affirmatively
that it is also a public place. While referring to the definition of public place
Page 20 of 31
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in terms of Section 2(24) of the Act of 1939 in para No. 15, the High Court
of Rajasthan made the following observations:
15. There is yet another aspect of the matter. Admittedly the accident
took place in the workshop of Kasim Khan, PW-3. It was public place
within the meaning of section 2(24) of the Act of 1939 as public had
a right of access in it. Any person could go inside it. His brother Kalu
Khan has categorically stated in his cross-examination that any person
could come in the Workshop for repairs of his vehicle. No suggestions
was put in the cross-examination of Kasim Khan that it was a private
place and not a public place. It has been observed in Pandarang v.
New India Life Insurance Company Ltd. (supras) paras 8, 10 and 11
as under:
“Para 8
It is in the light of the object of the statute, its aforesaid relevant
provisions and the schema, that we have to appreciate the true
import of the expression “public place” for the purposes of Chapter
VIII of the Act. It has further to be remembered that the expression
“public place” is a term of art, the same having been defined
specifically by sub-cl. (24), of S. 2 of the Act. Such definition reads as
follows:
“(24) public place means a road, street, way or other place,
whether a thorough fare or not, to which the public have a right
of access and includes any place or stand at which passengers
are picked up or set down by a stage carriage;”
“The first thing to remember with regard to the definition is that it is
an inclusive one. Secondly it in terms makes it clear that any road,
street way or other place, whether a thorough fare or not, is a public
place for the purposes of the Act, the only condition being that the
public should have a right of access to it. Thirdly, the expression used
in the definition is “a right of access” and not “access as of right”.
Lastly, when it states that any place or stand at which passengers are
picked up or set down by a stage carriage, is a public place, it shows
that it is not so much concerned with the ownership of the place as
with its user. Stage carriage is defined in sub-cl.(29) of S. 2 and it
means a motor vehicle which is used to carry or adapted to carry
more than six persons excluding the driver and which carries
passengers for hire or reward at separate fares paid by or for
individual passangers, either for the whole journey or for stages of
the journey. In short, it means a public passenger-carrier. In other
words, by virtue of the last part of the definition, the expression
would include any place, including private, where public passenger-
carrier picks up or sets down passengers.
The definition of “public place” under the Act is, therefore, wide
enough to include any place which members of public use and to
Page 21 of 31
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which they have a right of access. The right of access may be
permissive, limited, restricted or regulated by oral or written
permission, by tickets, passes or badges or on payment of fee. The use
may be restricted generally or to particular purpose or purposes.
What is necessary is that the place must be accessible to the members
of public and be available for their use, enjoyment, avocation other
purpose.
Para 10:
If we further bear in mind the overall object of the provisions of
Chapter VIII which deals with compulsory insurance of the vehicle to
cover risks to third parties and their property, with claims to be filed
for recovering compensation, no fault liabilities and liabilities arising
out of hit and run accidents, etc. the intention of the legislature is
clear. It is to secure compensation to the persons and property which
are exposed to the accidents caused by the vehicles. The very nature
of the motor vehicle and its use, mandate these provisions. The motor
vehicle in this respect can be likened to a wild animal. Whoever keeps
it does so at his risk. As pointed out earlier, some of the restrictions
on the use of the vehicle contained in the Act are irrespective of the
nature of the place where it is used and irrespective of whether it is
plied or kept stationary. The legislature was concerned not so much
with the nature of the place where the vehicle causes the accident as
where it was likely to do so. Hence all places where the members of
public and/or their property are likely to come in contact with the
vehicles can legitimately be said to be in its view when the legislature
made the relevant provisions for compulsory insurance. It will have,
therefore, to be held that_all places, where the members of public
have an access, for whatever reasons, whether as of right or
controlled in any manner whatsoever, would be covered by the
definition of “public place” in S. 2 (24) of the Act. To hold otherwise
would frustrate the very object of the said Chapter and the Act.
Para 11:
Although dictionary meaning of the expression is hardly of any use to
us, it will be instructive to refer to it. In Strouds Judicial Dictionary,
Fifth Edition, page 2094, public place has been defined as follows:
“A public place is a place to which the public can and do have
access; it doesnt matter whether they come at the invitation of
the occupier or merely with his permission, or whether some
payment or the performance of some formality is required
before access can be had…”
This definition is taken from the decision in R. v. Kane, [1965] 1 All
ER 705, and is a reproduction of only a part of it given there. The
other part reads as follows:-
“but a place such as the club in the present case, would be a private
Page 22 of 31
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place, if there was a real restriction of access to members and their
guests and that any other members of the public who got in was in
reality a trespasser.”
In this case what fell for consideration was whether for the purposes
of common law offeace of affray in a public place, the Stage and Press
Club where the offence took place was a public place. The other
definitions of public place given in the dictionary are with reference
to the provisions of the Vagrancy Act of 1824. They are hardly of any
relevance to us.
In Blacks Law Dictionary; Fifth Edition, page 1107, public place has
been defined as follows:
“A place to which the general public has a right to resort; not
necessarily a place devoted solely to the uses of the public, but a
place which is in point of fact public rather than private, a place
visited by many persons and usually accessible to the
neighbouring public (e.g. a park or public bench). Also, a place in
which the public has an interest as affecting the safety, health,
morals, and welfare of the community. A place exposed to the
public, and where the public gather together or pass to and fro.”
Neither the Act of 1923 nor the above-quoted endorsement No. 16
of the Policy Ex.A-19 requires that the accident should have taken
place in a public place. Thus the said contention of the learned
counsel for the appellant is also devoid of force.
34. It is also relevant to note the observations of the High Court of Orissa in
a case between Nakula Swain v. Ravi Suresh Ku. Gupta, wherein it is found
that the public place under Motor Vehicles Act should not be narrowly
considered and it includes the places which is the vehicle have access and it
was a case of deceased working as a coolie under the respondent while
sitting on road inside the factory premises, a vehicle suddenly moved
backward and dashed the deceased. It was a case of accident occurring
inside the factory premises. Relevant observations are made in para No. 6
which are as follows:
6. This Court in the case of M.K. Bhaumik (supra) referring to
various decisions of different High Courts has come to hold that the
definition of ‘public place’ u/s 2(34) of the M.V. Act is very wide and
the private place used with permission or without permission would
amount to a public place. This Court further observed that the term
‘public place’ cannot be given a restricted meaning, inasmuch as, it is
not to be taken as a place where public have uncontrolled access at
all times. ‘public place’ for the purpose of M.V. Act has to be
understood with reference to the places to which a vehicle has
access.”
(emphasis supplied)
Page 23 of 31
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26. The issue of interpretation of “public place” also came up for
consideration before the Gujarat High Court in the case of The
New India Assurance Co. Ltd. vs. Devchandbhai Khumansinh
Ajanar & Ors.8. The issue arose before the Court as to whether an
accident which took place within four walls of a ceramic factory,
which is a private property can be considered as a public place.
The Gujarat High Court, after referring to Section 2(34) of the Act
and relying upon its decision in the case of United India Insurance
Company Limited vs.Gujarat Ship Trading Corporation 9, rejected
the contention of the insurance company that an accident within
the factory premises cannot be considered as a “public place”.
27. The Rajasthan High Court in the case of United India
Insurance Co. Ltd. vs. Smt Roop Kanwar10, also took the view that
a garage is a “public place”. Similar views on identical facts have
been echoed by Chhattisgarh High Court in the case of Oriental
Insurance Co. Ltd. vs. Abdul Rashid & Ors. 11 and Punjab and
Haryana High Court in the case of National Insurance Co. Ltd. vs.
Mithu Singh & Ors.12.
28. Though in the written statement no specific plea is taken by
the insurance company on the issue of “public place”, in the
impugned order submissions have been canvassed on this and,
therefore, without going into technical objection of whether it can
be raised before me, I have adjudicated the same.
29. In my view, based on the above analysis, the contention of
the insurance company that a garage is not a “public place” under
Section 2 (34) of the Motor Vehicles Act, 1988 cannot be accepted.
8
First Appeal No. 1225 of 2020 decided on 10.10.2024
9
(1997) 3 GLR 2560
10
1990 SCC OnLine Raj 30
11
2013 SCC OnLine Chh. 274
12
2014 SCC OnLine P&H 25142
Page 24 of 31
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Issue (iii) – Negligence of Owner/Driver/Garage Owner :-
30. The third issue which arises for my consideration is whether
the deceased can be held to be negligent. The Act does not
provide for any provisions to determine this issue but same has
been evolved by judicial process. The claimant led the evidence of
the father of the deceased, in which the negligence was attributed
to the driver of the motor tanker for leaving the gas/fuel in the
tank. This evidence of the father of the deceased was not accepted
by the Tribunal on the ground that the father was not an
eyewitness to the incident. However, in paragraph 11 of the
impugned order, the Tribunal independently based on the
documentary evidence before it came to the finding that it was the
duty of the driver as well as the garage owner to empty the tank
before undertaking any welding work and since, both of them did
not take the necessary precaution, the accident took place. The
evidence led by the claimant, though rejected by the Tribunal, but
the Tribunal independently came to the same conclusion that it
was the driver as well as the garage owner who were responsible
for the accident.
31. It is important to note that the insurance company did not
lead any evidence in this matter. In my view, the insurance
company should have led the evidence of the vehicle owner and
the driver of the vehicle for dislodging the evidence of the
claimant. The initial onus of discharging the burden of proof was
satisfied by the claimant by filing the affidavit of its witness.
Though, this evidence was discarded, the Tribunal independently
also came to the same conclusion. The insurance company has
failed to lead any evidence in support of its submission that the
deceased was negligent and that the driver of the vehicle had
Page 25 of 31
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informed the deceased to empty the tank. Probably, the Insurance
Company was under a belief that since father was not an
eyewitness, claimant has not proved its case and, therefore, no
evidence was led.
32. Section 146 of the Motor Vehicles Act mandates insurance
against third party risk. Section 147 provides for compliance of
requirements of Chapter XI at the time of issuance of policy.
Section 147(1)(b)(i) provides for indemnification against any
liability which may be incurred by the person taking the insurance
policy in respect of the death or bodily injury to any person. In my
view, the phrase “any person” would include deceased in the
instant case. Under the common law, the vehicle owner would
have been liable to pay compensation to the deceased and,
therefore, since the present contract is a contract of
indemnification, the liability on the vehicle owner is required to
be indemnified by the Insurance Company. The Insurance
Company has not led any evidence to show that there was any
breach of terms and conditions of the policy nor any policy has
been produced in support of its submission that they are not liable
to compensate the deceased.
33. In my view, findings in paragraph 11 of the Tribunal’s order
that the driver and the garage owner are responsible and not the
deceased, cannot be faulted with.
34. When the vehicle is handed over to a repairer, the
relationship between them is that a bailor and bailee. As per
Section 150 of the Indian Contract Act, 1872 it is the duty of the
bailor (vehicle owner/driver) to inform bailee (garage owner) that
Page 26 of 31
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the contents of the tank has been emptied. In the instant case, the
Insurance Company has not led evidence of the vehicle owner to
show that such a disclosure was made. Therefore, the negligence
is on the part of the vehicle owner/driver. Section 151 of the
Contract Act provides that the bailee is bound to take as much
care of the goods bailed to him as a man of ordinary prudence
would under similar circumstance take of his own goods. In this
case, the garage owner is a bailee and he ought to have taken the
same care as that of bailor, as if the vehicle belonged to him. As a
consequence, bailor is vicariously liable for the acts of the bailee.
35. Since the insurance company has not proved that the
vehicle owner informed the garage owner about emptying of the
tank, therefore, garage owner cannot be made liable, but certainly
the vehicle owner can. Alternatively, if the vehicle owner had
informed the garage owner about emptying the tanker, then it is
the garage owner who is responsible and, consequently, the
vicarious liability for negligence of the garage owner would be on
the vehicle owner. Therefore, even on this count, the liability
would fall upon the bailor, that is the vehicle owner. In my view,
by applying the principles of bailor and bailee, the vicarious
liability, assuming the garage owner is negligent, liability can be
imposed upon the vehicle owner and since the vehicle is insured
by the insurance company, it is the duty of the insurance company
to make good the compensation awarded by the Tribunal.
36. The learned counsel for the insurance company has relied
upon the decision of the Hon’ble Supreme Court in the case of
Minu B. Mehta (supra) and Surender Kumar Arora (supra), in
support of the proposition that the claimant should prove the
Page 27 of 31
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negligence before any claim is awarded. There is no dispute on
this proposition, but in the instant case, same is not applicable
because the claimants have led the evidence to show the
negligence of the driver. Therefore, the onus shifted on the
insurance company to dislodge the same. However, the Tribunal
did not accept the evidence of the claimant but arrived at the
same finding which the witness was canvassing. Therefore, in the
facts of this case, the decisions relied upon by the learned counsel
for the insurance company are not applicable.
37. Merely because FIR is registered only against garage owner
and not against the vehicle owner and, therefore, insurance
company is not liable, cannot be accepted.
38. This issue was also considered by the Goa Bench of this
Court in the case of Cholamandalam MS General Insurance Co.
Ltd. (supra) and the relevant paragraphs 43 to 45 of the judgment
reads as under :-
“43. The third point for determination also will have to be
answered against the Appellant-Insurace Company. The
deceased, Kundan Mayekar, was neither the owner of the
insured vehicle nor was he the insurer. Therefore, it is not
understood why the Appellant-Insurance Company contends
that Kundan Mayekar was not a third party.
44. In Faqir Chand (supra), relied upon by Mr Vaze, the
learned Single Judge of the Jammu and Kashmir High Court
has held that other than contracting parties to the insurance
policy, the expression “third party” would include everyone,
be it a person travelling in another vehicle, one walking on
the road or a passenger in the vehicle itself which is the
subject-matter of the insurance policy.
45. Every insured takes out an insurance policy against a
third-party risk and enters into a contract with an insurer
only with the motive, intention and purpose of covering thePage 28 of 31
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risks which may arise from claims lodged against him by a
third party. By agreeing to issue the insurance policy, the
insurer undertakes to insure the insured and indemnify him
against all risks and concerning all claims lodged against him
by third parties. Narrowing the concept, scope and ambit of a
third party, and therefore, excluding the passengers in the
vehicle from its operation and purview, would not only defeat
the very purpose of taking out the insurance policy but the
very object of the Motor Vehicles Act which makes it a
mandatory requirement of law that all vehicles/owners of
vehicles must be compulsorily insured against third party
risks.”
(emphasis supplied)
39. The relationship between the owner of the vehicle and the
repairer was also examined in the context of Motor Vehicles Act,
1939 by the Hon’ble Supreme Court in the case of Guru Govekar
(supra) and the Hon’ble Supreme Court in paragraphs 9 and 13
observed as under :-
“When the owner of a motor vehicle entrusts his vehicle to a
repairer to carry out repairs he is in fact allowing the repairer
to use his vehicle in that connection. It is also implicit in the
said transaction that unless there is any contract to the
contrary the owner of the vehicle also causes or allows any
servant of the repairer who is engaged in the work of repairs
to use the motor vehicle for the purpose of or in connection
with the work of repairs and when such work of repair is
being carried out in a public place if on account of the
negligence of either the repairer or his employee, who is
engaged in connection with the work of repair, a third party
dies or suffers any injury either to his person or property, the
insurer becomes liable to pay the compensation by virtue of
provisions of sections 94 and 95 of the Act. Once the insurer
has issued a certificate of insurance in accordance with sub-
section (4) of section 95 the insurer has to satisfy any decree
which a person receiving injuries from the use of the vehicle
insured obtained against any person insured by the policy.”
(emphasis supplied)
40. This very same issue, on identical facts before me, came for
consideration before the Karnataka High Court in the case of
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Oriental Insurance Company Limited vs. Mrs. Parvathi 13 and all
the contentions raised by the Insurance Company before me were
considered and rejected by the Karnataka High Court.
41. Very similar issue also arose before the Uttaranchal High
Court in the case of Oriental Insurance Co. Ltd. vs. Banu Begum &
Anr.14, relevant paragraphs 19 and 20 reads as under :-
19. It is also relevant to mention that it is the case of the parties that
the accident had occurred while the tanker was being used for carrying
the explosive and the explosion took place in the tanker when it was
stationed to carry out the repair. Meaning thereby the tanker was
stationed while it was in use. Even if the tanker is empty the gases of
the explosive remain inside the tanker. The escape of the gases
contained in the tanker may cause the mischief. As such the vehicle
was standing there and the principle of strict liability arises in such
circumstances. The owner can be held liable for the wrongs even
though there was no negligence on the part of the owner and the
driver.
20. In view of the above discussion made in the foregoing paras, the
contentions raised by the learned counsel for the appellant are
misconceived and rejected outright. We are of the view that the tanker
while it was parked for welding it was the duty of the owner and the
driver to check the vehicle as to whether there are some explosive or
not inside the tanker. In case it was empty, it was the duty to see as to
whether there were gases inside the tanker which may cause explosion
in the tanker before getting the work of welding. The explosion in the
tanker is the consequence of the impact of welding and the gases. We,
accordingly, hold that the death of the deceased Mohd. Idrees had
occurred due to accident arising out of the use of motor vehicle and
the Motor Accidents Claims Tribunal has jurisdiction to entertain the
claim petition for compensation.
(emphasis supplied)
42. Therefore, in my view, the deceased cannot be held to be
negligent and no fault can be attributed to findings of the Tribunal
making owner/garage owner negligent, therefore, insurance
company cannot be absolved.
43. In view of above, the appeal of the Insurance Company is
required to be dismissed.
13
First Appeal No. 2676 of 2016 decided on 3 July 2025
14
2005 SCC OnLine Utt 47
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903.FA-246.21.DOCX
44. Statutory deposit of Rs.25,000/- alongwith interest to be
transferred to the concerned Tribunal and the parties are at liberty
to make an application for refund of the same. The claimants are
entitled to the decretal amount alongwith interest.
45. Appeal of the insurance company is dismissed. Interim
Application does not survive and is disposed of accordingly.
[ JITENDRA JAIN, J. ]
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