T. Chandrasekhara Menon, J.
1. The appellant is the proprietor of a transport service known as Kaitheri Transport. He has got a bus KLC 3507. This vehicle was comprehensively insured with the Madras Motor and General Insurance Co. Ltd., the respondent. When the bus was sent for servicing in the petrol pump station of one Moidu and two boys of the station were cleaning the bus, it sliding away from the parallel ramps of the station, where it was placed, dashed against the K.R. Biscuit Co. causing damage to the building of the company and the articles stored therein. The managing partner of the biscuit company filed a suit against the appellant for damages to the tune of Rs. 3,000. The suit was decreed for Rs. 2,500 with interest at 6 per cent, and cost besides an amount of Rs. 152.70 directed to be given to the fifth defendant in that suit as costs. Though the insurance company was not a party to that suit, notice had been given to it about the pendency of the suit and it had engaged a counsel to watch the proceedings. The appellant then filed the present suit against the insurance company that as insurer the company was liable to pay the amount decreed as against him and costs thereon.
2. The insurance company resisted the claim on the ground that it was liable under the contract of insurance only if the claim was made as a result of damage to the property caused by the use of the vehicle, that taking the vehicle for servicing and placing the same in a service station did not amount to user of the vehicle and the accident was not a result of the user of the vehicle.
3. The courts below having held against the appellant's claim as plaintiff in the suit, he has come up in appeal here. The decision of the courts below is based on the fact found that the damage has been caused at a time when the driver was not present inside the bus and when nobody was there to control its motion and, therefore, it cannot be said that damage was caused to the property by the use of the bus so as to enable the plaintiff in this suit to claim the amount from the insurer.
4. In the earlier suit it had been found that the accident took place on account of the negligence of the employees of the appellant, the present plaintiff, the owner of the bus. The evidence in this case as given by the driver of the vehicle, P.W. 2, was that the bus was taken to the servicing station and he is positive that the bus was placed along with parallel ramps in a safe condition and that he even placed wooden pieces at the back of the wheel so as to prevent the bus from moving.
5. Section II-1 of the Contract of Insurance provides (Ex. A.-1 is the contract) for indemnity subject to the limits of liability including claimant's costs and expenses which the insured shall become legally liable to pay in respect of (1) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle, (2) damage to the property caused by the use (including the loading and/ or unloading) of the motor vehicle. The appellant would be entitled to claim the amount if damage to the biscuit company was caused by the user of the motor vehicle. According to the plaintiff-appellant, Ex. A-1 is a comprehensive insurance policy and it covers all liabilities and damages. According to him, the bus was taken to the service station for servicing, anything which happens then will be when the bus is in use. The courts below, as noted earlier, held otherwise.
6. The admitted facts of the case would show that the damage was caused when the bus was being serviced at the station, when the driver was not at the wheels nor anybody being in control of the vehicle, or when the vehicle was being put in motion. Accidentally (and there is no evidence it was due to the negligence or default of the plaintiff or his driver or any other servant of his), it slid down and dashed against the company building. Can by any stretch of imagination it be said that the damage was caused by the user of the vehicle I am of the view that the courts below were right in the decision they took in the matter.
7. I might point out here that on the evidence there is no negligence proved as against the plaintiS or his driver. If that be so, the insurance company is not liable to compensate for any injury. The judgment and decree in the suit filed by the biscuit company against the plaintiff is not binding on the insurance company. The claim cannot be considered as one under the Motor Vehicles Act since the Act, as it stood at the time of the accident, did not require the insurer to cover third party liability for any damage to property. The insurance company was not impleaded as a party to the earlier suit. The present plaintiff had moved there for impleading the present defendant, namely, the insurance company, as a party to the suit under Order 7A, CPC, but that application was dismissed.
8. Even on the basis of the provisions of the Motor Vehicles Act, the liability of the owner of a motor vehicle to compensate the victim in a car accident due to the negligent driving of his servant is based on the Law of Torts. Regarding the negligence of the servant, the owner is made liable on the basis of vicarious liability. The Supreme Court has dealt with this question in the decision reported in Minu B. Mehta v. Balkrishna Ramchandra Nayan  47 Comp Cas 736 (SC). There, differing from the view taken in Haji Zakaria v. Naoshir Cama, AIR 1976 AP 171, where it had been held that the liability of the insured and consequently of the insurer to compensate a third party dying or being injured on account of the use of the insured vehicle is irrespective of whether the death, injury, etc., has been caused by rash and negligent driving. Kailasam J., speaking for the Bench, said that the liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the Law of Torts. Regarding the negligence of the servant, the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. The liability of the owner will arise only if negligence is proved. Under Section 95(1)(b)(i) of the Motor Vehicles Act, it is required that the policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury. The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. Therefore, if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The expression 'liability which may be incurred by him' is meant as covering any liability arising out of the use of the vehicle. A person is not liable unless he contravenes any of the duties imposed on him by common law or by statute. In the case of a motor accident, the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. Proof of negligence is, therefore, necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case.
9. The Supreme Court there also referred to the decision of the Patna High Court in New India Assurance Co. Ltd v. Sumitra Devi  40 Comp Cas 789;  ACJ 58 (Pat), where it had been held that the liability of the insurance company is absolute but is only limited to the extent provided by the insurance policy. The Supreme Court points out that against this view all the other High Courts have held that the liability to compensate arises only on a finding of negligence. It may not be out of place to mention that though automobile accidents are subject to the law of negligence, modern proposals consistently favour the social insurance model under which benefits are payable directly by a fund without any reference at all to the injurer while retaining the option for the victim to claim either limited benefits on a non-fault basis or full damages for negligence. Justice Kailasam, in the decision, speaks with approval about the following observations of justice Krishna Iyer in Kesavan Nair v. State Insurance Officer  ACJ 219 (Ker);  KLJ 407, where Krishna Iyer J. expressed himself thus (at. p. 751 of 47 Comp Cas):
'Out of a sense of humanity and having due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers.'
10. Therefore, in the absence of proof of negligence of the appellant or his driver in this case (the decision in the earlier case being not binding on the insurance company), the company cannot be held liable. The indemnity that the insurance company has taken is in respect of loss or damage suffered by the insured on account of his being made legally liable for damages. In this connection the decision in Manoji Kumar Mundi v. Hari Gopal Rao Devasthale  ACJ 92; AIR 1978 MP 29, may be apposite. A Division Bench of the Madhya Pradesh High Court held there that even on the allegations made in the application by the appellants in that case, the accident did not arise out of the use of the two trailers which were parked on a public lane. The court said that it is not alleged that at the time of the accident, the two trailers, one of which caused injuries to appellant No. 1, were in use as a motor vehicle. All that is contended is that the two trailers, placed one over the other, were parked on the side of the public lane and were not in motion or used as a motor vehicle at the time when the accident took place. This decision would be helpful in coming to the conclusion that the vehicle concerned in this case was not being in use to attract the liability.
11. Another decision of some relevance is that in Shrikriskan v. Devaram  ACJ 104, referred to by the Madhya Pradesh High Court in Manoj Kumar Mundi v. Hari Gopal Rao Devasthale  ACJ 92. In Shrikrishan's case  ACJ 104, the chassis of a truck without engine was being pushed by a couple of boys and which it was so being pushed one of the boys fell down and was run over. An application was made for award of compensation and it was urged that the bodily injury was caused because of the accident resulting from the use of the motor vehicle. The learned judge took the view that it was not a case where it could be said that the accident was because of the use of a motor vehicle. It was also held that unless the vehicle is mechanically propelled and an accident takes place because of the use of such a mechanically propelled vehicle, any claim for compensation for injuries arising from such an accident would not be maintainable.
12. Mr. Subramoni, learned counsel for the appellant, relied on the decision in Annamma Varghese v. Regional Transport Officer, Alleppey [l915] KLT 707, in support of his contention that the vehicle was in 'use' at the time of the accident. That was a case concerned with the provisions of the Motor Vehicles Taxation Act, 1963. Tax would be attracted under that Act when a motor vehicle is capable of being used or intended to be used on the road. Speaking for the Bench, Govindan Nair C.J. said that neither the charging section nor the definition of the term 'motor vehicle' would enable the court to say that the court should understand the word 'used' in Section 3(1) of the Act as a particular type of user. The distinction that when a vehicle is taken to the garage it is only used on the road and that the vehicle cannot be said to be used, with respect, did not appeal to the court. The only qualification introduced by the section is that such user must be in the State.
14. I do not think this decision would be of any relevance in this case. In this view, I dismiss the second appeal. In the circumstances of the case, I make no order as to costs.