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Madhya Pradesh High Court · body

2008 DIGILAW 1390 (MP)

UNITED INDIA INSURANCE CO LTD v. GAYATRI YADAV

2008-12-01

S.K.GANGELE

body2008
Judgment ( 1. ) THE appellant-Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 07-12-2006, passed by the 1st Additional Motor Accident Claims Tribunal, Shivpuri,in Claim Case No. 82/2006. ( 2. ) CLAIMANTS filed an application before the Claims Tribunal for compensation on account of death of Prakash Yadav. Claimants are wife, sons, daughters and mother of the deceased. They pleaded that on 25-9-2004, the non-applicant No. 2 dashed Prakash Yadav by his tractor at around 12 o clock in the night. In the aforesaid accident, Prakash Yadav was died. The report of the case was lodged vide crime No. 81/2004 and police registered a case under Section 302, 34, 294 ipc. The Fourth Additional Sessions Judge vide judgment dated 17-2-2005, passed in Case No. 269/2004, acquitted the accused from the charge of murder. It is further pleaded that the tractor bearing registration No. MP33-M/7065 was insured by the appellant-Insurance Company, hence, the Insurance Company is also liable for payment of compensation. The claimants claimed total compensation of Rs. 10,82,000/ -. ( 3. ) THE non-applicant No. 2 denied the accident. He further pleaded that there was no accident caused by his tractor. He has already been acquitted by the criminal Court. Subsequently, the claimants filed the present application for getting compensation. The appellant-Insurance Company in its written statement stated that the police registered a case under Section 302, 34, 294 IPC. The tractor was used as a weapon to kill the deceased Prakash Yadav. It was a case of murder. Hence, the vehicle was used in contravention to the Insurance Policy. Consequently, the Insurance Company is not liable for payment of compensation. ( 4. ) THE Claims Tribunal after appreciation of evidence and documents on record has held that the accident occurred due to rash and negligent driving of the driver of the tractor. The driver had valid licence. The tractor was insured by the Insurance company. The deceased was died due to accident and awarded a total compensation of Rs. 4,39,000/ -. The Tribunal further held that the Insurance Company would also liable for payment of compensation because the deceased was third party. ( 5. The driver had valid licence. The tractor was insured by the Insurance company. The deceased was died due to accident and awarded a total compensation of Rs. 4,39,000/ -. The Tribunal further held that the Insurance Company would also liable for payment of compensation because the deceased was third party. ( 5. ) LEARNED counsel for the appellant-Insurance Company has submitted that the tractor was used as a weapon to kill the deceased Prakash Yadav and the death of the deceased did not occur due to accident. In such circumstances, the insurance Company is not liable to pay compensation to the claimants. In support of her contentions, learned counsel for the appellant-Insurance Company relied on the following judgments :- 1. AIR 1995 MP 122 (M. P. State Road Transport corporation Vs. Vaijanti and others); 2. AIR 2000 SC 1930 (Smt. Rita Devi and others Vs. New India Assurance Co. Ltd. and another); 3. 2001 (3) T. A. C. 591 M. P.) (Kaushalya Bai and others vs. Ramkishan Kirar and others); 4. 2003 (1) T. A. C. 229 (Pat.) (Ranju Rani Alias Ranju devi and others Vs. Branch Manager, New India Assurance company Ltd.); 5. 2006 ACJ 1824 (Ramesh Vs. State of Maharashtra); 6. 2006 ACJ 2165 (Jyothi Ademma Vs. Plant Engineer,nellore Thermal Station and another); 7. 2007 (3) T. A. C. 11 (SC) (Oriental Insurance Company Ltd. Vs. Premlata Shukla and others); 8. MACD 2008 (SC) 106 (Naresh Giri Vs. State of M. P.) and; 9. 2008 (1) T. A. C. 259 (M. P.) (Smt. Afsana and others vs. Kedar Nath Sharma and others) ( 6. ) CONTRARY to this, learned counsel for the claimants submitted that the deceased was died due to accident. The criminal court has acquitted the accused persons from the offence of murder, hence, the Tribunal has rightly passed the award. ( 7. ) AS per the pleadings of the claimants, deceased was died on account of accident caused by the tractor. The accident is dated 25. 9. 2004 at around 12 o clock in the night. The report of the incident was lodged on 26. 9. 2004 at around 7. 00 in the morning. It was lodged by Virendra Singh Yadav. It has been mentioned in the F. I. R. that on 25. 9. 2004 at around 9 o clock in the night, there was a quarrel between Prakash Yadav and Lakhan, Panchu. The report of the incident was lodged on 26. 9. 2004 at around 7. 00 in the morning. It was lodged by Virendra Singh Yadav. It has been mentioned in the F. I. R. that on 25. 9. 2004 at around 9 o clock in the night, there was a quarrel between Prakash Yadav and Lakhan, Panchu. Thereafter Lakhan Singh left the spot along with Prakash, Panchu and Santu on his Swaraj Tractor No. 722 saying that he was going to lodge a report. Thereafter, at around 12 o clock his brother Prakash had gone to a nearby pond to wash his hands. When he was washing his hands, at that time Lakhan Singh came driving his tractor on which prakash, Panchu and Santu were sitting, they shouted to kill Prakash Yadav and lakhan Singh dashed Prakash Yadav by the tractor and he was died. On the basis of the aforesaid report, a case under Section 302 of the IPC was registered. The witness Virendra Singh also in his statement before the police mentioned the same fact. The copy of the statement given by Virendra Singh to police has been filed as Ex. P/13 and copy of the F. I. R. has been filed as Ex. P/1. He admitted his signature on the report of the F. I. R. (Ex. P/l) in his evidence before the Claims tribunal. He further admitted that he had lodged a correct report at the police station and further admitted that there was a quarrel between Lakhan Singh, Panchu, Santu and his brother Prakash Yadav on 25. 9. 2004 at around- 9 o clock in the night. ( 8. ) BEFORE the trial Court in criminal case, all the witnesses have become hostile, hence, the accused persons Santu, Prakash, Panchu and Lakhan Singh have been acquitted from the charge under Section 302 of IPC by the Sessions Court. The wife of the deceased in her statement before the Claims Tribunal also admitted the fact that Lakhan Singh had dashed her husband by tractor Except two witnesses, nobody has been examined before the claims Tribunal on behalf of the claimants. The Insurance Company examined one Rakesh Kumar Shukla, who was working at the relevant time as Administrative officer of the United Insurance Company Limited. The Insurance Company examined one Rakesh Kumar Shukla, who was working at the relevant time as Administrative officer of the United Insurance Company Limited. He stated that the tractor was insured by the Insurance Company for the purpose of agriculture and in the present case the tractor was used for killing the deceased. ( 9. ) FROM the aforesaid oral evidence of the wife of the deceased and also brother of the deceased, it is clear that Lakhan Singh had dashed the tractor on the deceased. It has clearly been mentioned in the F. I. R. that the intention was to kill the deceased. Lakhan Singh intentionally drove the tractor and hit the deceased by the tractor. From the aforesaid facts of the case, it is clear that the tractor was used by Lakhan Singh as a weapon to kill the deceased. It was not a simplicitor accident. Although, the accused persons have been acquitted by the criminal court, as clear from the judgment of the criminal court. The acquittal is on account of facts that the witnesses had been turned hostile. In such circumstances, the findings recorded in the criminal case cannot be held to be a conclusive findings in Claim case under the provisions of the Motor Vehicles Act. ( 10. ) THE Constitution Bench of the Honble Supreme Court in the case of Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another, reported in 2005 4 SCC 370 , with regard to binding nature of findings recorded in criminal proceedings in civil case has held as under :- "coming to the contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. " ( 11. ) FURTHER Honble Supreme Court in the case of Rita Devi and others V. New India Assurance Co. " ( 11. ) FURTHER Honble Supreme Court in the case of Rita Devi and others V. New India Assurance Co. Ltd. and another, reported in 2000 ACJ 801 with regard to deciding the fact that whether a murder be an accident in any given case ? has held as under :- "9. A conjoint reading of the above two sub-sections of section 163-A shows that a victim or his heirs are entitled to claim from the owner/insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle, without having to prove wrongful act or neglect or default to prove wrongful act or neglect or default of any one. Thus, it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the insurance company which was accepted by the High Court is that the death of the deceased (Dasrath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words death due to accident arising out of the use of motor vehicle. 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 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. 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. " ( 12. " ( 12. ) THE Division Bench of Kerala High Court in the case of Krishnan Sreemathy and others V. Padmanabhan Gangadharan and another, reported in 2006 ACJ 57, with regard to accident has held as under :- 4. "the word accident is not defined in the Motor Vehicles Act or Workmens Compensation Act. therefore, the word accident should be understood in the popular and ordinary sense as denoting an untoward event which is not expected or designed. The meaning of accident in Oxford English Dictionary is unfortunate event, disaster,mishap; as also anything that happens without foresight or expectation; an unusual event, which proceeds from unknown cause or is an unusual effect in non-cause; a contingency, a casualty. In Websters 3rd New International Dictionary, accident has been defined as sudden event or change without intend or volition through carelessness, unawareness, ignorance or a combination of causes and producing an unfavourable result; an unexpected happening causing loss or injury which is not due to any fault or misconduct on the part of the person injured but from the consequences of which he may be entitled to some legal reliefs. In Chambers 20th Century Dictionary accident has been defined to mean an unforeseen or unexpected event, a chance. Lord Atkinson has observed as follows in Clover, Clayton and co. Ltd. v. Hughes, 1910 AC 242: "i think the meaning put upon the word accident in Fenton v. Thorley, 1903 AC 443, must now be accepted in all cases turning on the construction of the phrase injury by accident used in the Workmens Compensation Act, 1906, as its true meaning, namely, an unlooked for mishap or an untoward event which is not expected or designed. It must exclude disease. What is unlooked for or unexpected must, in every case, exist either in the external influences to which the sufferer is subjected or in the effect upon him which those influences produce. " the test whether an occurrence is unexpected so as to be an accident is whether it is unexpected by the person who suffers from it and not whether it would be expected by medical men or persons other than the deceased or injured person. " the test whether an occurrence is unexpected so as to be an accident is whether it is unexpected by the person who suffers from it and not whether it would be expected by medical men or persons other than the deceased or injured person. A Division Bench of this court in Mathew Joseph v. Johny Sunny, 1995 ACJ 1183 (Kerala), held that "the term accident for the purpose of the law relating to compensation for personal injuries sustained by workmen and the employers liability in that behalf includes any injury which is not designed by the workmen himself and it is of no consequence that the injury was designed and intended by the person inflicting the same. " ( 13. ) FROM the evidence on record of the case, it is clear that the vehicle was used to murder the deceased. As has held by the Constitution Bench of the Honble Supreme Court that the findings recorded by the criminal court cannot be treated as binding findings in the civil cases. Looking to the acquittal of the accused persons in the criminal case on account of witnesses turned hostile, it cannot be held that for the purpose of deciding the claim case, the judgment passed by the Sessions Court is binding. As held by Honble Supreme Court in the case of Rita Devi (supra) that a murder is felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. From the facts of the case it is clear that there was a quarrel between lakhan Singh and other persons and deceased and thereafter to take revenge the deceased was killed, it is clear from the version of the F. I. R. In such circumstances, the vehicle was used as a weapon. For the purpose of deciding the claim application the Court can draw an inference that for what purpose the vehicle was used. ( 14. ) LOOKING to the above facts of the case, this Court comes to the conclusion that the tractor was used to kill the deceased, in such circumstances, in my opinion, the Insurance Company is not liable for payment of compensation because the vehicle was used contrary to the terms and conditions of the Insurance Policy. Consequently, the appeal filed by the Insurance Company is hereby allowed. Consequently, the appeal filed by the Insurance Company is hereby allowed. It is held that the Insurance Company is not liable for payment of compensation. The impugned award fixing the liability of the Insurance Company is hereby set aside. It is hereby made clear that the liability of other non-applicants will be same as per the award. If any amount paid by the Insurance Company to the claimants, it can recover the same from the owner of the vehicle. No order as to cost. Appeal allowed.