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2012 DIGILAW 1152 (GAU)

Oriental Insurance Co. Ltd. v. Pabitra Kr. Saikia

2012-09-28

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. Heard Mr. S. Dutta, learned counsel appearing for the appellant. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 by the Oriental Insurance Co. Ltd. against the judgment and award dated 25.11.2004 passed by the Motor Accident Claims Tribunal, Nagaon in MACT Case No. 269 of 1997. 2. The findings as returned by the Tribunal as regards the injuries sustained by the claimant-respondent on 12.03.1997 at Barhampur when the claimant-respondent and other forest personnel were travelling by a vehicle which was hired by the Forest Department bearing registration No. AS-02/5303 (407 Mini bus), a group of extremist with sophisticated arms when attacked the said vehicle, the driver lost control of the vehicle and as a result of the said firing, the claimant-respondent received bullet injuries on his femur are not in dispute by either of the parties or in the appeal and as such, those finding stands affirmed without requiring further appraisal whatsoever. 3. The question that has been projected in the appeal is related to (1) whether the accident in question is an accident from the use of the motor vehicle as enunciated in Section 165 of the M.V. Act, 1988, (2) whether the Tribunal has made any attempt to find out the dominant intention of such attack in view of the principles as laid down in Rita Devi (Smt.) & Ors. Vs. New India Assurance Co. Ltd. & Anr. as reported in (2000) 5 SCC 113 and (3) whether the injuries received is an act of felony not from the use of the motor accident. 4. Mr. Dutta, learned counsel for the appellant with reference to the pleadings submitted that the offending vehicle was hired for the day of the accident by the Forest Department for the protection duty and the claimant was on duty. On its journey back from the duty, at Barhampur the vehicle was attacked by the extremists with AK 47, AK 56 and other sophisticated arms and as a result the claimant received bullet injury on his femur and has to undergo treatment at Patna. The accident occurred when the driver lost control of the vehicle and the vehicle dashed against a stack of wooden logs. 5. The accident occurred when the driver lost control of the vehicle and the vehicle dashed against a stack of wooden logs. 5. In the written statement the owner did not rebut the said statement made in the claim petition and also did not raise any question of maintainability except saying that the injuries were 'bullet injuries'. 6. The appellant by filing the written statement also did not question the maintainability of the claim except stating that the claimant had filed the case in the wrong forum as the alleged injuries sustained by the claimant was bullet injuries and not injuries caused as a result of the motor accident. Even though initially the appellant raised a question that since the vehicle was being used by the Forest Department the liability of the owner has been shifted to the Forest Department but in this regard no further advancement was made by way of placing relevant evidence. The appellant admittedly did not adduce any evidence and as such the pleaded fact as to the accident has been established by the oral testimony of the PW-1, the claimant-respondent. 7. By applying the principle of res ipsa loquitor it appears to this Court that it would be very difficult to hold that the injuries as received by the claimant-respondent was a simpliciter injury from the use of the motor vehicle. But from the principles as laid down in Rita Devi (supra) this injury cannot be relied to discard the claim that the accident occurred from the use of the motor vehicle. In Rita Devi (supra) the apex Court held as under: 17. In that case in regard to the contention of proximity between the accident and the explosion that took place this Court held: (SCC pp. 549-50, para 36) 36. This would show that as compared to the expression 'caused by', the expression 'arising out of has a wider connotation. The expression 'caused by' was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. In Section 92-A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression 'arising out of the use of a motor vehicle' in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. 18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle. 8. Rita Devi (supra) has definitely expanded the principles as laid down in Shivaji Dayanu Patil Vs. Vatschala Uttam More as reported in (1991) 3 SCC 530 where the apex Court held that: .........Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no-fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose. 9. In Rita Devi (supra) the apex Court enunciated the principles of the dominant intention and distinguished the felonious act and the accidental death. Profitably para-10 of Rita Devi (supra) is reproduced hereunder: 10. The question, therefore is, can a murder be an accident in any given case? 9. In Rita Devi (supra) the apex Court enunciated the principles of the dominant intention and distinguished the felonious act and the accidental death. Profitably para-10 of Rita Devi (supra) is reproduced hereunder: 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 it 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. 10. In the present case at hand, the appellant has neither adduced any evidence to show that the extremist has any personal motive against the injured claimant. They started indiscriminate firing to create panic or to keep their control over the said area. As such, the firing at the vehicle cannot be said to be a felonious act. Had the claimant respondent not been in the vehicle he would not have received the injuries. As such, on considering the broader principles as laid down in Rita Devi (supra) the proximate cause of the injury is related to the use of the motor vehicle. 11. Since the appellant did not adduce any evidence to show that the act of the extremist was felonious in nature with a particular motive to annihilate any individual or to say the injured claimant-respondent, then of course the inference would have been different. Situated thus, this Court finds no merit in the appeal and as such the impugned judgment and award dated 25.11.2004 passed by the Motor Accident Claims Tribunal, Nagaon in MACT Case No. 269 of 1997 stands affirmed and as consequence thereof the appeal stands dismissed. However, there shall not be any order as to costs. Situated thus, this Court finds no merit in the appeal and as such the impugned judgment and award dated 25.11.2004 passed by the Motor Accident Claims Tribunal, Nagaon in MACT Case No. 269 of 1997 stands affirmed and as consequence thereof the appeal stands dismissed. However, there shall not be any order as to costs. The appellant is directed to deposit the entire awarded sum with interest as directed by the Tribunal within a period of two months from today in the Tribunal on deducting the sum if any already is paid. For the purpose of making final payment the appellant be returned with the statutory deposit as made in the Registry without delay. Send down the LCRs forthwith.