J.S. Verma, J.
1. This is an appeal by the claimant under Section 110D of the Motor Vehicles Act against the order dated 27-3-1974 passed by the Motor Accidents Claims Tribunal, Bhopal, in Misc. Civil Case No. 19 of 1967, rejecting the entire claim arising out of a motor accident. The Tribunal has, however, held that in ease the claimant was entitled to the award of any compensation, the amount of Rs. 5,000 would be adequate compensation in its view.
2. On 16-1-1967, the claimant V.G. Sumant who was posted as Post Master at Balaghat, happened to be in Bhopal. That day In the evening while he was in the market for making some purchases from a hardware shop in Jumerati Mohalla, Bhopal, and happened to be sitting on a stool outside the shop, a jeep car MPB 2844 owned by respondent No. 2 Shivnarayan Seth was parked at some distance from where he was sitting. Respondent No. 1 Shailendra Kumar, a minor son of respondent No. 2, was alleged to have driven the jeep negligently as a result of which it ran over the claimant fracturing his right ankle. The claimant contends that he spent about Rs. 1,000 over his treatment. In all, compensation of Rs. 50,000 was claimed. Respondent No. 3 is the Insurance Company with which the said jeep was insured.
3. The defence of respondents l and 2 was that the jeep was parked near the shop of respondent No. 2 when some children got into the jeep without the knowledge or consent of its owner the respondent No. 2 and it appears that somehow the jeep was set in motion by the mischievous children who had got into the motor vehicle with the result that the jeep started sliding down the slope on the road and injured the claimant who happened to be sitting on the road. It was also contended that the accident did not occur as a result of the use of the motor vehicle on account of which the Tribunal had no jurisdiction to entertain the claim.
4. The Tribunal has come to the conclusion that the motor vehicle was set in motion in the manner alleged by the respondents while it was parked on the road, and when it was sliding down the slope, it struck the claimant causing the injury. On this finding, the Tribunal came to the conclusion that the jeep was then not being driven on account of which the accident cannot be said to arise out of the use of a motor vehicle and, therefore, the Tribunal had no jurisdiction to entertain the claim. For this reason, the entire claim has been dismissed as not maintainable. As earlier stated, the Tribunal has assessed the quantum of compensation at Rs. 5,000 only in case the claimant is held entitled to award of compensation in these proceedings.
5. Learned counsel for the appellant contends that the Tribunal erred in holding that it has no jurisdiction to entertain the claim. He argues that even on the findings reached by the Tribunal, the accident arose out of the use of the vehicle so that the Tribunal had jurisdiction to entertain the claim. It is also contended that Rs. 5,000 is inadequate compensation for the injury sustained by the claimant.
6. We shall first advert to the question of quantum of compensation before coming to the maintainability of the claim and the jurisdiction of the Tribunal, which is the main controversy in the present case. On the quantum of compensation, all that we know is that the claimant sustained fracture of the right ankle for which he had to be treated in a hospital. There is no cogent evidence to support the claim for special damages made by the claimant. Learned counsel for the appellant contends that the claimant has suffered a permanent disability as a result of the injury and has started limping. There is no cogent evidence to support this contention. However, it is not difficult to visualise that some money must have been spent on treatment of the fracture sustained in the right ankle by the claimant. In the light of comparable cases relied on by the Tribunal, in our opinion the award of a lump sum compensation of Rs. 5,000 to the claimant, in case he is entitled to award of any compensation in these proceedings, for the injury sustained by him in the accident, is reasonable. At any rate, no case for enhancement of that amount has been made out. We hold accordingly.
7. We now come to the main question relating to the jurisdiction of the Tribunal to entertain this claim. The finding of the Tribunal is that the accident occurred when the jeep was set in motion by some mischievous child who entered the jeep while it was parked outside the shop of its owner respondent No. 2. It is not difficult to visualize that the gear of the jeep was brought to the neutral position by some mischievous child that being the only obstruction to the movement of the vehicle placed by the driver while parking the vehicle before leaving it unattended on the road, the same being removed the vehicle was set in motion and it started sliding down the slope in the direction where the claimant was sitting on the edge of the road. This finding reached by the Tribunal appears to be quite reasonable in the facts and circumstances of the case either proved or no longer in controversy. The question then is whether an accident happening in this manner can be said to arise out of the use of a motor vehicle so as to attract the jurisdiction of Tribunal to entertain such a claim.
8. It is nobody's case that the jeep was in a defective condition or that it was not in a fit condition for mechanical propulsion. The case is that the jeep which was in a fit condition was driven up to that place and had been parked on the road outside the shop of its owner respondent No. 2 by the driver who then left it unattended; some mischievous children got into it and later the jeep started moving down the slope. What we have to decide is whether an accident happening as a result of rolling down the slope of a motor vehicle parked on the slope of a road, the motor vehicle being in a fit condition and left unattended on the road in this manner, can be said to arise out of the use of a motor vehicle. The view taken by the Tribunal and supported by the respondents' counsel Shri D.M. Dharmadhikari and Shri P.C. Naik is that unless the engine of the motor vehicle is switched on and it is driven by someone, it cannot be said that the motor vehicle is being used. In our opinion, the narrow view suggested by the respondents' counsel and accepted by the Tribunal cannot be upheld.
9. We may mention at the outset that a distinction has to be drawn between a motor vehicle which is in a fit condition for mechanical propulsion like the jeep in the present case and a vehicle which is not in that condition. A vehicle which is out of use being incapable of mechanical propulsion on account of some defect and being negligently parked starts rolling would be in a different category. Not so a motor vehicle which la fit for mechanical propulsion on the road and which during its use has been parked negligently on the road and later starts sliding down the road without being mechanically propelled by starting the engine.
10. Some of the statutory provisions which may be referred are Sections 81 and 84 of the Motor Vehicles Act, 1939, dealing with stationary vehicles. It is laid down that no person driving or in charge of a motor vehicle shall leave the vehicle in circumstances as are likely to cause danger to other users of the road or cause or allow the vehicle to remain stationary in any public place unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. It is obvious that none of these statutory precautions embodied in Sections 81 and 84 were taken in respect of the aforesaid Jeep when it was parked on the slope of ft road outside the stop of its owner respondent No. 2. It need hardly be added that the precautions needed while parking a motor vehicle on a slope are natuarlly greater because the tendency of the vehicle to slide down the slope is obvious. Admittedly, no such precautions enjoined by law were taken in respect of the said jeep. Sections 81 and 84 occur in Chap. VI of the Motor Vehicles Act, 1939, pertaining to 'control of traffic' on a highway. This itself indicates that such necessary precautions relate to the use of a motor vehicle on a highway. There is no other reason for laying down such precautions to be observed while using the motor vehicle on a highway.
11. We may add that the duties enjoined on a driver of a motor vehicle to take certain precautions while parking a motor vehicle on a public highway during the use of that motor vehicle obviously relate to the use of that motor vehicle on a public highway. It necessarily follows that any negligence of the driver in this respect which leads to an accident must obviously lead to the conclusion that such an accident arises out of the use of the motor vehicle. The expression 'accidents......... arising out of the use of motor vehicles' cannot be narrowly construed and must take within its ambit all accidents which are related to the use of a motor vehicle as a motor vehicle, i.e. any mechanically propelled vehicle adapted for use upon roads as defined in Section 2 (18) of the Motor Vehicles Act. The definition of 'motor vehicle' given in Section 2 (18) must be read to mean any such vehicle which is capable of mechanical propulsion for use upon roads and, therefore, a vehicle, which for the time being is incapable of mechanical propulsion ceases to fall within the ambit of the definition. A motor vehicle which being fit is capable of mechanical propulsion and for use as such but for the time being has only been parked or left stationary at any place is included within the definition. We find no reason why provisions like Sections 81 and 84 would be made in the Motor Vehicles Act in Chap. VI relating to 'control of traffic' and dealing with the duties of a driver who leaves the vehicle parked or stationary on a public road unless it was intended to regulate the use of motor vehicles at such places during its use We are, therefore, unable to uphold the contrary view taken by the Tribunal on this point.
12. According to learned counsel appearing on both sides, the only reported decision directly on the point is General Manager, Karnataka State Road Transport Corporation v. Sangappa Satalingappa Goudar, AIR 1979 Kant 10. That was a case in which the motor vehicle which had been stationed by the driver unattended on a slope suddenly started moving and dashed against a tea-stall causing considerable damage to the stall and resulting in certain injuries to the claimant. On a claim for compensation being filed before the Motor Accidents Claims Tribunal under Section 110A of the Motor Vehicles Act, a simliar objection to the maintainability of that claim and the jurisdiction of the Tribunal to adjudicate the same was taken. It was held that the accident had occurred due 'to the negligence of the driver in parking the motor vehicle in such a manner and not taking adequate precautions as required by Sections 81 and 84 of the Motor Vehicles Act, with the result that the accident arose out of the use of the motor vehicle. On this conclusion it was held that the claim was maintainable and the Motor Accidents Claims Tribunal constituted under Section 110 (1) of the Motor Vehicles Act had jurisdiction to entertain and decide the same. No decision taking a contrary view has- been cited before us. We find ourselves in agreement with the view taken in this decision.
13. We would now refer to some decisions which indirectly support the above view. The first decision is 'Martin v. Stanborough, (1924) 41 TLR 1. The Court of Appeal held that to leave a motor-car unattended on a fairly steep slope in a public highway, with the brakes out of order and with only an easily removable block of wood to keep the car in position, so that the car could easily be started downhill by any mischievous person, constituted evidence of negligence. That too was a case in which the mischief of moving the motor vehicle by removing the obstruction had been committed by a child aged 10 years. No doubt, that was a case deciding only the question of negligence of the driver and no question relating to jurisdiction like the one with which we are concerned was involved in that case. However, the decision is instructive to show that the finding of negligence was reached in respect of the use of a motor vehicle on a highway by its driver. In that sense the decision throws light on the question before us and indicates that such negligence is related to use of a motor vehicle and is not unconnected with it. The other decision which has also been relied on by Karnataka High Court in the above cited case is Maguire v. Crough, (1941) 1 KB 108. Section 50 of the Road Traffic Act, 1930, was similar to the above quoted statutory provisions occurring in the Motor Vehicles Act and enjoined a duty on the person in charge of the vehicle leaving that vehicle at rest on the road to ensure that it was left in such a position or condition or circumstances so as to avoid any likelihood of causing danger to other persons using the road. In that case, a trolly bus was left by the driver at rest at the Dear side of a road and in a position where the front wheels of the vehicle were on a slight down gradient, and the driver failed to leave the hand-brake so applied as to hold the vehicle securely, and in consequence it moved forward of its own weight and knocked down and injured a pedestrian. It was held that the driver's act amounted to contravention of Section 50 of the Road Traffic Act, 1930. For the same reason this case also supports the view taken by the Karnataka High Court with which we are in respectful agreement.
14. Some cases relied on by Shri D.M. Dharmadhikari to support the Tribunal's conclusion are not apposite. The first case is Shrikishan v. Dayaram, 1967 Acc CJ 104 (M. A. C. Tri.-Jodhpur). That was a case in which a truck chassis without engine was being pushed when one of the boys who was pushing the chassis fell down and was run over. It was held that the truck chassis was without engine and was not, therefore, a motor vehicle within the meaning of the term as defined in Section 2 (18) of the Motor Vehicles Act, 1939. The jurisdiction of the Motor Accidents Claims Tribunal was, therefore, not attracted to entertain a claim for compensation arising out of that accident. This case is clearly distinguishable on account of the fact that a truck chassis without an engine does not fall within the definition of motor vehicle contained in Section 2 (18) of the Motor Vehicles Act, being incapable of mechanical propulsion. We have already pointed out the distinction between a vehicle incapable of mechanical propulsion and therefore not falling within the definition of motor vehicle given in Section 2 (18) of the Motor Vehicles Act and one which does not suffer from any such disability and has been for the time being stationary on account of it being parked.
Another decision referred to and relied on also by the Tribunal is A.W. Joachim v. I.D. Dharmadasa, 1970 Acc CJ 251. That is a decision of the Supreme Court of Ceylon. Following certain English decisions which held the view that a person who was at the wheel of a disabled vehicle for the purpose of steering while it was being towed by another motor vehicle, was not a driver and was not driving a mechanically propelled vehicle within the meaning of Section 11 of the Road Traffic Act, 1930, and therefore could not be convicted of being a person driving motor-car in a dangerous manner, it was held that mechanical propulsion is an essential attribute of a vehicle in order that it may be treated as a motor vehicle. It was further held that when one deals with offences of dangerous or negligent driving, one is entitled to consider only vehicles which are not divested permanently or temporarily of the character or attribute of mechanical propulsion at the time of the alleged offence. On this view it was held that where a person was at the steering wheel of the vehicle which was being pushed and an accident occurs, it cannot be said that he drove the motor vehicle negligently so as to make him liable for punishment of a criminal offence. The principle adopted for reaching that decision has been followed also by us in reaching the above conclusion. This case too is distinguishable on facts for the reason already given.
The last decision relied on is Manoj Kumar v. Hari Gopalrao, 1977 MPLJ 287, That was a case in which a trailer detached from motor vehicle being negligently parked over another such trailer had rolled and caused certain injury. The question was whether a claim for compensation lay to the Motor Accidents Claims Tribunal. It was held that the trailer so parked was incapable of mechanical propulsion and could not, therefore, be treated as a motor vehicle for the purpose of giving jurisdiction to the Claims Tribunal. The same reasoning was followed in reaching that conclusion placing reliance on Shrikishan's case (supra). That case too is distinguishable on facts for the same reason. We find no assistance to the respondents' contention in any of these cases.
15. The result is that the aforesaid accident having arisen out of the use of a motor vehicle, the present claim was maintainable and the Tribunal had the jurisdiction to entertain and decide the same.
16. As a result of the aforesaid discussion, this appeal is allowed and the claim made by the appellant partly succeeds. The appellant shall get in all Es. 5,000 (rupees five thousand) as compensation from respondents 2 and 3 (non-applicants 2 and 3) i.e. the owner and insurer of the motor vehicle together with interest at the rate of 6% per annum from the date of the claim until payment of the amount. The appellant shall also get coats throughout from these respondents to the extent of his success. The respondent shall bear their own costs throughout. Counsel's fee Rs. 200, if certified.