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2007 DIGILAW 210 (GAU)

Jogendra Chandra Kar v. Haradhan Saha

2007-03-14

RANJAN GOGOI

body2007
JUDGMENT Ranjan Gogoi, J. 1. The ambit of the expression "...accidents involving the death of, or bodily injury to persons arising out of the use of Motor Vehicles...." as appearing in Section 165 of the Motor Vehicles Act, 1988 is the precise issue arising for the courts determination in the present case. The said question arises in the following facts. 2. The claim case out of which this appeal has arisen had been instituted by the respondent who are the parents of one late Amar Chandra Kar who was a T.S.R. Personnel. On 25.5.1993 the deceased was returning from Rajchantai by a vehicle bearing Registration No. TRT 1556 (Jeep). He along with other TSR personnel were proving security cover to the staff of the Rubber Board who were carrying money withdrawn from the Bank for payment of salary. When the vehicle reached a spot near Rajchantai, extremists opened fire on the vehicle as a result of which Amar Chandra Kar along with another Rifleman and the driver of the Vehicle died on the spot. Death was on account of bullet injuries suffered. Claiming that their son had died in a vehicular accident, the claimants instituted a claim proceeding registered and numbered as TS (MAC) 101/93 before the Motor Accident Claims Tribunal, West Tripura. A total compensation of Rs. 7,00,416.00 was claimed. 3. The owner of the vehicle as well as the insurance company, who were impleaded as opposite parties in the said claim petition, filed their respective written statements in the case. The stand taken by the opposite parties in the claim petition is that the death of Amar Chandra Kar did not occur in a vehicular accident; rather such death was caused by bullet injuries suffered on account of firing by the extremists. Consequently, it was contended that the claimants will not be entitled to any compensation under the Act. 4. On the pleadings of the parties the learned Tribunal framed as many as four issues for trial in the case which may be extracted herein below: (i) Is the claim petition maintainable in law and in its form ? (ii) Has the death of Amar Chandra Kar occurred following any vehicular accident on 25.5.1993 at 3 PM at Pukur Netai (near Rajchantai Buzar) on Borakha Rajchantai Road arising out of rash and negligent driving of the vehicle No. TRT 1556 (Jeep) ? (ii) Has the death of Amar Chandra Kar occurred following any vehicular accident on 25.5.1993 at 3 PM at Pukur Netai (near Rajchantai Buzar) on Borakha Rajchantai Road arising out of rash and negligent driving of the vehicle No. TRT 1556 (Jeep) ? (iii) Are the claimants entitled to any compensation, if so what is the quantum and which of the O.P. has to pay it? (iv) To what other relief(s) are the parties entitled ? 5. The learned Tribunal by its award dated 15.3.1999 thought it proper to take the view that as the death of Amar Chandra Kar was occasioned by an attack of the extremists and the said person died on account of bullet injuries sustained, it can not be said that the deceased had died due to a accident on account of the use of a motor vehicle. On the said finding recorded, the learned Tribunal came to the conclusion that the claim petition is not maintainable and accordingly dismissed the same. Aggrieved this appeal has been filed. 6. I have heard Mr. S. Deb, learned senior counsel for appearing for the appellants, Mr. P.K. Biswas, learned Counsel appearing for the respondent No. 1 as well as Shri P. Gautam, learned Counsel appearing for the respondent No. 4. None has appeared on behalf of respondent Nos. 2 and 3 in spite of due service of notice. 7. The arguments advanced by the learned Counsels for the respective parties may now be noticed. Shri Deb, learned senior counsel appearing for the appellant has submitted that under the provisions of Motor Vehicles Act, 1988 a right to receive fair compensation is vested in a claimant on account of death caused or bodily injury that may have been suffered in an accident arising out of the use of a motor vehicle. Shri Deb has urged that the entitlement to receive compensation depends on two principal factors. Firstly, death or bodily injury must be on account of an accident. Secondly, such accident must arise out of the use of a motor vehicle. According to Shri Deb, keeping in mind that the Motor Vehicles Act is essentially a piece of beneficial Legislation, the expressions "accident" and "arising out of use of motor vehicle" have and must receive a wide meaning. Secondly, such accident must arise out of the use of a motor vehicle. According to Shri Deb, keeping in mind that the Motor Vehicles Act is essentially a piece of beneficial Legislation, the expressions "accident" and "arising out of use of motor vehicle" have and must receive a wide meaning. Shri Deb, learned Counsel for the appellant by relying on several decisions, the details of which will be noticed, has contended that in the present case the death of the son of the claimants was on account of an accident and such death had arisen out of use of a motor vehicle. Accordingly, Shri Deb, has urged that the learned Tribunal below was not justified in holding that the claim made by the appellants is not maintainable in law.. 8. Insofar as the respondents are concerned the argument advanced has been that in the present case death had occurred on account of an incident of extremist firing which cannot be understood to be an accident. It is further argued that the death of Amar Chandra Kar did not arise out of the use of a motor vehicle. There was no accident involving, the motor vehicle. There was no vehicular accident on account of rash and negligent driving. The proximate cause of death is extremist firing and not the use of a motor vehicle. It is, therefore, urged that the claim is not maintainable in law and was rightly rejected by the learned Tribunal. 9. Shri Gautam, learned Counsel for the Insurance Company has additionally urged that in the present case the Insurance cover provided by the respondent-Insurance Company did not extend to death of passengers in the vehicle on account of extremist firing. Likewise, P.K. Biswas, learned Counsel for the respondent No. 1, the registered owner of the vehicle has additionally submitted that at the relevant point of time the vehicle was hired by the Rubber Board who was in full control of the same. Therefore, it is the Rubber Board who must be deemed to be the owner of the vehicle within the meaning of Section 2(30) of the Motor Vehicles Act, 1988. 9. What is the precise ambit of the expression "accident" as appearing in Section 165 of the Motor Vehicles Act has been considered by the Apex Court in several cases. Therefore, it is the Rubber Board who must be deemed to be the owner of the vehicle within the meaning of Section 2(30) of the Motor Vehicles Act, 1988. 9. What is the precise ambit of the expression "accident" as appearing in Section 165 of the Motor Vehicles Act has been considered by the Apex Court in several cases. A careful reading of the judgments of the Apex Court in this regard would go to show that the Apex Court had concurred with the wider meaning of the said expression as given by the English Courts. Similar has been the view of the Apex Court with regard to the expression "arising out of the use of motor vehicles" as appearing in the same section, i.e., Section 165 the Act, in this regard the Apex Court has held that the word "accident" must be given its plain and ordinary meaning and be understood as an unexpected event or happening from the stand point of the person who had suffered physical damage. Furthermore, it is the view of the Apex Court that the use of the vehicle need not necessarily be the immediate cause of death or bodily injury suffered and as long as there is some casual relationship between the death that has occurred or the bodily injury suffered and the use of the vehicle, the same will be sufficient to entitle a claimant to receive compensation under the Act. 10. Though a large number of precedents have been cited at the Bar, it will be sufficient for the purpose of the present case to restrict the consideration of the court to what has been perceived to be leading decisions on the point at issue. In Rita Devi (Smt.) and Ors. v. New India Assurance Co. Ltd. (2000) 5 SCC 113 the Apex Court was in seisin of a claim of compensation raised by the legal heirs of a person who was working as a driver of a autorickshaw belonging to another person. The autorickshaw was hired by some persons who stole the same and thereafter killed the driver. The Insurance Company, depending the appeal before the Apex Court raised the plea that on the above facts the High Court was justified in holding that death was on account of a murder committed and in reversing the view taken by the Tribunal that it was a case of an accident. The Insurance Company, depending the appeal before the Apex Court raised the plea that on the above facts the High Court was justified in holding that death was on account of a murder committed and in reversing the view taken by the Tribunal that it was a case of an accident. The Apex Court, however, agreed with the trial court by disagreeing with the views expressed by the High Court that it was the case of a murder. Relying on several English decisions, i.e., Challis v. London and South Western Rly. Co. (1905) 2 KB 154 and Nisbet v. Rayne Burn (1910) 2 KB 689, the Apex Court took the view that a felonious act causing dead can also amount to accident. The following observation of the Apex Court contained in paragraph 10 of the judgment would amply sum up the situation: 10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that "murder" as it is understood, in the common parlance is an felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder. 11. The decision of the Apex Court in Shivaji Dayanu Patil and Anr. v. Vatschala Uttam More (Smt.)(1991) 2 SCC 530, may also be noticed. In the said case the Apex Court was considering as to whether in the facts and circumstances noted below a death that had occurred could be said to have arisen out of the use of a motor vehicle. A collision between a petrol tanker and a truck took place on a National highway. In the said case the Apex Court was considering as to whether in the facts and circumstances noted below a death that had occurred could be said to have arisen out of the use of a motor vehicle. A collision between a petrol tanker and a truck took place on a National highway. The petrol tanker went off the road and fell on its left side at a distance of about 20 ft. from the highway. As a result of the overturning of the petrol Tanker, the petrol contained therein leaked and got collected nearby. After about four hours of the incident an explosion took place in the Oil Tanker causing burn injuries resulting in death. The Apex Court took the view that in contra distinction to the expression "caused by" the expression arising out of has a wider connotation and that the said expression as appearing in the Motor Vehicles Act, indicates a casual relationship between the use of a motor vehicle and an accident resulting in death or bodily injury which need not be direct and proximate and can be less immediate. Such immediate proximity between the use of the vehicle and death or bodily injury, according to the Apex Court, would be covered by the expression "caused by". 12. Applying the above parameters of the law to the present ease, what this Court finds is that though the death of the claimants' son had occurred on account of firing by the extremists, such death must be held to be on account of an accident inasmuch as the event was beyond the contemplation or expectation of the deceased. Insofar as the deceased is concerned it was a wholly unintended occurrence. The felonious act, insofar as those who had committed it is concerned, was intentional but insofar as the victim who had suffered adverse physical consequences the same was wholly unintended. Keeping in mind the ordinary meaning of the word "accident" and discarding its technical meaning and keeping in view the beneficial nature of the statute in which the said expression, i.e., "accident" finds place, this Court is of the view that in circumstances noted above, death must be understood to have occurred due to an accident. 13. In the present case, the son of the claimant was traveling in the vehicle to provide security cover to the staff of the Rubber Board. 13. In the present case, the son of the claimant was traveling in the vehicle to provide security cover to the staff of the Rubber Board. At a particular point of the journey, extremists opened fire on the vehicle causing bullet injuries to the deceased to which injuries he succumbed. While it is that correct the immediate cause of death is firing by the extremists, such firing having taken place while the deceased was travelling in the vehicle, the use of the motor vehicle has some reasonable connection with the incident leading to the death. The relationship between the use of the vehicle and the accident may not have been direct; but such direct casual relationship is not necessary and as long as there is some reasonable nexus between the accident and the death that had occurred it cannot be said that death was not on account of the use of the motor vehicle. The views of the court while examining a claim of compensation under the Act must always be broad and liberal as emphasized by the Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors. (2004) 3 SCC 297 (paragraph-72). 14. For the foregoing reasons, I am of the view that the conclusion reached by the learned Tribunal below that the claim petition is not maintainable in law cannot be sustained. I, therefore, set aside the award dated 15.3.1999 passed by the learned Tribunal. As the learned Tribunal has not adjudicated the claim on merits, I remit the matter for due adjudication by the leaned Tribunal in accordance with law. Needless to say, as a long period of time has elapsed since the date of the accident, the Tribunal will make every endeavor to dispose of the case at the earliest.