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Madhya Pradesh High Court · body

2007 DIGILAW 806 (MP)

UNITED INDIA INSURANCE CO. LTD. v. UMED KUNWARBAI

2007-07-27

A.M.SAPRE, MANJUSHA P.NAMJOSHI

body2007
Judgment A.M.Sapre, J. ( 1. ) This is an appeal filed by Insurance Company under section 30 of Workmens Compensation Act (for short "the Act") against an award dated 17.08.2005 passed by Commissioner in case No.W.C.F.25/01 .By impugned award, the Commissioner has partly allowed the claim petition filed by the respondents (claimants) under the Act and has accordingly awarded a total sum of Rs.3,89,000/- to the claimants for the death of one Lakhan. Facts in brief are these. ( 2. ) On 12.09.99, Lakhan a cleaner/helper working on tractor/trolley bearing number MP-09-M-2509/2510 belonging to Rl/NA-1 and in his employment on a monthly salary of Rs.4,000/-was going to the field of R-1 in night of 12.09.99 on the said tractor/trolley. It is at that point of time i.e. while he (Lakhan) was going on tractor/trolley alongwith one Santosh, some unknown miscreants came and attacked on Lakhan by sticks. The miscreants then looted money from Lakhan and put the tractor/trolley on fire. They then ran away. In this incident, Lakhan received severe injuries and later succumbed to them. It is this incident, which gave rise to filing of claim petition by the legal representatives of Lakhan (R-l to 4) under the provision of Workmens Compensation Act against R-5 (NA 2) i.e.- his employer and appellant herein (NA-2) i.e. Insurer of vehicle in question before Commissioner. It was alleged in the claim petition that accident in question occurred while deceased was in the employment of R-5/NA-2 (Jujhar Singh) and it arose during the course of his employment i.e. while he (deceased) was going on the tractor/trolley in his capacity as cleaner/helper of the vehicle in question. It was, therefore, alleged that claimants being deceaseds legal representatives are entitled to claim compensation for the untimely death of Lakhan who died in the course of employment and arising out of employment. It was further alleged that since the accident in question occurred while the vehicle in question i.e. tractor/trolley was in use or/and involved in the incident and hence the claimants are entitled to claim compensation from the Insurer of the vehicle i.e (appellant company) by taking recourse to the provisions of Motor Vehicle Act as also under the provisions of Workmens Compensation Act. The case was contested by the non-applicants i.e. Insured (NA-1) and Insurer (NA-2). Parties adduced evidence. By impugned award, the Commissioner, Workman Compensation partly allowed the claim petition of claimants. The case was contested by the non-applicants i.e. Insured (NA-1) and Insurer (NA-2). Parties adduced evidence. By impugned award, the Commissioner, Workman Compensation partly allowed the claim petition of claimants. It was held that deceased was in employment of NA-1 (Insured) as cleaner/helper and was attending the vehicle belonging to NA-1 at the time of incident. It was held that accident in question occurred during the course of his employment as also arose out of his employment with NA-1 (Insured) and that too when vehicle in question was in use. The Commissioner then worked out the compensation payable to claimants for the death of workman under the provisions of Workmens Compensation Act and finding that vehicle was insured with appellant, awarded compensation against both i.e. Insurer and Insured. It is against this determination made by Commissioner by impugned award, the Insurance Company i.e. NA-2/Insurer has filed this appeal. ( 3. ) Heard Shri S.V. Dandwate, Advocate for appellant and Shri J.M. Punegar, Advocate for respondent No. 1 to 4 and Shri S. Verma, Advocate for respondent No.5. ( 4. ) Learned counsel for the appellant while assailing the legality of impugned award, contended that the manner, in which the accident is said to have occurred, does not attract the provisions of either Workmens Compensation Act or Motor Vehicle Act. According to learned counsel, the evidence adduced by the parties would go to show that neither vehicle was involved nor deceased employer whereas the deceased was attacked by mob of some miscreants, which resulted in murder of deceased. Learned counsel, thus, contended that looking to the background in which deceased died, which can be safely construed as a case of murder, no case of any liability arising out of alleged accident can be fastened upon the Insurer of the vehicle i.e. appellant herein under any of the 2 Acts. In reply, learned counsel for respondent supported the impugned award. ( 5. ) Having heard the learned counsel for the parties and having perused the record of the case, we find no merit in this appeal. ( 6. ) The question as to whether death of Lakhan was a case of murder or a case of sheer accident causing death of Lakhan within the meaning of Motor Vehicle Act or Workmens Compensation Act need examination on facts, evidence adduced and law governing the field. ( 7. ( 6. ) The question as to whether death of Lakhan was a case of murder or a case of sheer accident causing death of Lakhan within the meaning of Motor Vehicle Act or Workmens Compensation Act need examination on facts, evidence adduced and law governing the field. ( 7. ) The law on this subject came up for debate before the Supreme Court in Rita Devis case reported in 2000 ACJ 801 (Rita Devi Vs. New India Assurance Co.). In Rita Devi, a driver of Autorickshaw was found murdered by some unknown killer in the Autorickshaw which he used to drive. It is this incident, which gave rise to filing of claim petition by his legal representatives i.e. driver of Autorickshaw under section 163 .A of the Motor Vehicle Act claiming compensation for his death. On these facts, the question arose before the Apex court as to whether claimants are entitled to claim compensation for the death of driver of Autorickshaw from the Insurer and Insured of the Autorickshaw under the provisions of Motor Vehicle Act ? and secondly whether murder in the given case can be regarded as "accident" within the meaning of the expression "death occurred due to accident arising out of the use of motor vehicle." Answering the question in favour of claimants on the facts involved in that case and laying down the law on the subject, their lordship speaking through Hegde, J. held as under ; "10. The question, therefore, is: can a murder be an accident in any given case ? there is not doubt that murder, as it is understood, in the common parlance is a 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. 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. In Challis V. London and South Western Railway Company, 91905) 2 KB 154, the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the court rejecting an argument that the said incident cannot be treated as an accident held: "The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously." 12. In the case of Nisbet V. Rayne and Bum, (1910) 1 IB 689, where a cashier, while traveling in a railway to a colliery with a large sum of money for the payment of his employers workmen, was robbed and murdered. In the case of Nisbet V. Rayne and Bum, (1910) 1 IB 689, where a cashier, while traveling in a railway to a colliery with a large sum of money for the payment of his employers workmen, was robbed and murdered. The Court of Appeal held: "That the murder was an accident from the standpoint of the person who suffered from it and that it arose out or an employment which involved more that the ordinary risk, and consequently that the widow was entitled to compensation under the Workmens Compensation Act, 1906. In this case the court followed its earlier judgment in the case of Challis V. London and South Western Railway Company, (1905) 2 KB 154. In the case of Nisbet, the court also observed that it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word accident negatives the idea of intention. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet." 13. The judgment of the Court of Appeal in Nisbets case (1910) 1 KB 689, was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School V. Kelly, 1914 AC 667. 14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the" deceased, a driver of the Autorickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of mis duty, if the passengers had decided to commit an act of felony of stealing the Autorickshaw and in the course of achieving the said object of stealing the Autorickshaw, they had to eliminate the driver of the Autorickshaw then it cannot but be said that the death so caused to the driver of the Autorickshaw was an accidental murder. The stealing of the Autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the Autorickshaw is only incidental to the act of stealing of the Autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the Autorickshaw. ( 8. ) Applying the principles laid down in the above case to the facts of the case in hand, we find that deceased was admittedly in the employment of NA-1 (R-5) as cleaner/helper and was working on vehicle involved in the incident which belongs to NA-2/R-5. It has also come in evidence of PW-1 that at the time of incident, deceased was actually on duty and was going with the tractor/trolley in question with one Santosh, when unknown miscreants made attempt to ransack the tractor, looted money from deceased, assaulted him, put the tractor to fire and then fled away from the scene. ( 9. ) In our view on facts as they emerge from evidence, a clear case of accident which resulted in death of Lakhan during the course of his employment and arising out of his employment with the use of vehicle in question is made out. In this case, the act of felony was robbery by miscreants. The ransacking was the object of felony and the beating was caused in the said process of robbery by miscreants to deceased. In other words, the cause of death- was incidental to the act of Robbery committed by miscreants with the occupants of tractor/trolley i.e. deceased and Santosh. If the dominants intention of the act of felony was to kill deceased and Santosh then such killing would have been held as "murder simpliciter". However, in our view, the act of felony in this case was to commit robbery and its commission wherein the miscreants not only beat the deceased by Lathies and caused him serious injuries but also put the tractor to fire. Therefore, it has to be held that on the facts and circumstances of this case, the death of deceased. (Lakhan) was caused accidentally in the process of committing the Robbery while he was going on tractor/trolley as helper/cleaner. Therefore, it has to be held that on the facts and circumstances of this case, the death of deceased. (Lakhan) was caused accidentally in the process of committing the Robbery while he was going on tractor/trolley as helper/cleaner. We, thus, hold accordingly and uphold the finding of commissioner thereby making Insurer (appellant) and Insured (employer) liable to suffer the liability arising out of accident. ( 10. ) Coming to applicability of 2 Acts and award of compensation in such case, the answer can be found in para 15 of the decision rendered in Rita Devis case, which reads as under; "15.-Learned counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word death and the legal interpretations relied upon by us are with reference to definition of the word death in Workmens Compensation Act, the same will not be applicable while interpreting the word death in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the Autorickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the objects of the two Acts, namely, the Motor Vehicles Act and the Workmens Compensation Act are in any way different. In our opinion, the relevant object of both the Acts is to provide compensation to the victims of accidents. The only difference between the two enactment is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours, we are supported by section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicle Act. In this conclusion of ours, we are supported by section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicle Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word death in Workmens Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also." ( 11. ) In view of foregoing discussion, we are of the view that it was a case of accident and not that of murder simpliciter that resulted in death of Lakhan and since it arose out of his employment and during the course of his employment, Lakhan being workman and died while the vehicle in qua status was in use, the claimants were entitled to seek compensation under any of the 2 Acts holding the field. The claimants having chosen to file a claim petition under the provisions of Workmens Compensation Act, no fault can be found in the said approach as the same is in accord with the requirement of section 167 of Motor Vehicle Act, which provides for choosing of the fora out of two remedies available under these Acts having the same beneficial object. ( 12. ) Learned counsel for the appellant then made attempt to question the quantum of compensation determined by the Commissioner. We find no merit in this submission. In the first place, Company cannot challenge the quantum. Secondly and assuming that this being an appeal under Workmens Compensation Act and hence the same can be challenged by the Company. We do not find any such infirmity or/and illegality in the same. An award of Rs.3,89,000/-for the death of a person aged-35 years and drawing a monthly salary of Rs.4,000/-cannot be said to be in any way excessive or against the provisions of Act. We, thus, uphold the determination made by Commissioner and concur with the same calling no interference. ( 13. ) As a consequent of foregoing discussion, the appeal is found to be devoid of any merit. It fails and is dismissed. Appeal dismissed.