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2012 DIGILAW 1508 (PNJ)

PRTC v. Jogindero

2012-10-16

M.JEYAPAUL

body2012
JUDGMENT Mr. M. Jeyapaul, J.: (Oral) - This judgement shall dispose of FAO No.5730 of 2010, FAO No.5731 of 2010, FAO No.5732 of 2010 and FAO No.5733 of 2010, as all these appeals arise out of a common impugned award passed by the Tribunal. 2. These appeals have arisen out of the award passed by the Tribunal for the death of four passengers in the vehicle plied by Pepsu Road Transport Corporation (for short ‘PRTC’), the appellant herein on account of the terrorist attack. 3. The claimants/respondents have contended in the claim petition that on 30.11.1986, when the deceased were going from Bhogpur to Mukerian in the bus bearing registration No.PJG-7284, near the link road turning of village Bagol on National Highway, some militants equipped with arms/guns forced their entry into the ill-fated bus and hijacked the same on gun point and shot at the passengers indiscriminately at about 5.20 p.m. in village Bagol and as a result of which the deceased sustained multiple injuries and died. The militants fled away from the scene of occurrence after killing innocent people. It has been alleged that the incident took place due to the negligence on the part of the appellant who never cared to arrange police escort for the protection of the passengers who travelled from Ludhiana to Pathankot. Contending that death of the deceased had taken place due to the use of the motor vehicle, they have claimed compensation by filing the claim petitions on 14.8.2006. 4. The appellant herein contended that the claim petitions were not maintainable as the claim made by the claimants did not fall within the purview of the Motor Vehicles Act. Further it has been contended that the claim petitions are hopelessly barred by limitation. 5. The Tribunal having referred to the decision of the Hon’ble Supreme Court in Samir Chanda vs. Managing Director, Assam State Transport Corporation, 1999 SCC (Cri) 179 and the decision of the Allahabad High Court in Manjula Devi Mishra and others vs. M/s Commercial Motors, Kanpur and others, 2008 ACJ 1624 held that the appellant PRTC is liable to pay compensation, inasmuch as they have shown negligence in not providing guard for the protection of the passengers during the militancy period. 6. 6. Learned counsel appearing for the appellant would submit that the claim petitions as such do not fall under the purview of the Motor Vehicles Act as there was no negligence or rashness exhibited by the driver of the bus owned by PRTC. It is his further submission that the State Government has also paid compensation of Rs.50,000/- to each of the family of the deceased and offered a job to one of the family members of the deceased. Referring to the evidence on record, he would submit that the State Government provided security to the buses plied during that militancy period only after 7.00 p.m., but the accident had taken place on 5.20 p.m. Referring to those decisions, learned counsel appearing for the appellant would submit that those decisions would not apply to the facts of this case. 7. Coming to the quantum of compensation fixed by the Tribunal, learned counsel appearing for the appellant would submit that the Tribunal having completely ignored the evidence on record has fixed monthly income of the deceased at Rs.300/-. Learned counsel has further submitted that there is a delay of 20 years in filing these petitions. Therefore, it is his submission that all these appeals may be allowed. 8. Learned counsel appearing for the respondents/claimants would submit in the background of those two decisions that the appellant is bound to pay the compensation as the accident had taken place when the deceased travelled in the bus owned by the appellant. Further it is his submission that no security was provided to the buses inspite of the fact that the situation was volatile. He would further submit that the compensation provided by the State Government and the job provided by them to one of the family members of the deceased would not stand in the way of granting compensation under the Motor Vehicles Act. Inasmuch as the bus had been plying without adequate security warranted under the situation, the appellant is bound to answer the claim made by the claimants. It is his further submission that in order to arrive at just compensation, the Tribunal has taken a sum of Rs.300/- as monthly earning capacity of the deceased. 9. Inasmuch as the bus had been plying without adequate security warranted under the situation, the appellant is bound to answer the claim made by the claimants. It is his further submission that in order to arrive at just compensation, the Tribunal has taken a sum of Rs.300/- as monthly earning capacity of the deceased. 9. Of course, under the Motor Vehicles Act no limitation has been prescribed for laying a claim petition, but when there is a whopping delay in filing the claim petition, the claimants should come forward with some explanation for such a delay. It is a case where the claimants have come forward with the claim petitions invoking Section 163A of the Motor Vehicles Act claiming compensation after a period of 20 long years, when the incident itself had been completely forgotten and the evidence with respect to such an incident had been completely obliterated. No reason has been assigned as to why the claimants have come forward with these claim petitions after 20 long years. Inasmuch as, such a whopping delay of 20 years has not been properly explained by the claim petitioners, the Tribunal should have rejected the claim petition on that score itself. In my view, the unexplained whopping delay of 20 years non-suits the petitioners. 10. It is a case where the claimants having completely satisfied with the compensation of Rs.50,000/- offered by the State Government to each of the family of the deceased and a job provided to one of the family members of each of the family, had chosen not to claim any compensation for 20 long years under the Motor Vehicles Act. In my considered view, the State Government has compensated the dependents of the victims as there was lapse on their part in not providing security to the bus. 11. Under Section 163-A of the Motor Vehicles Act, 1988, the owner of the vehicle or the authorized insurer shall be liable to pay compensation in the case of death or permanent disablement due to ‘accident’ arising out of the use of the motor vehicle as indicated in the 2nd Schedule, to the legal heirs or the victim as the case may be. 12. Admittedly, in the instant case there was no accident that took place when the deceased travelled in the bus owned by the appellant. 12. Admittedly, in the instant case there was no accident that took place when the deceased travelled in the bus owned by the appellant. There was an occurrence of hijacking by the militants and the deceased became victims on account of the shooting spree undertaken by the militants. Such an incident may be classified as an occurrence. But definitely, it cannot be classified as an ‘accident’ in the context of Section 163A of the Motor Vehicles Act, 1988. Of course, under Section 163A of the Motor Vehicles Act, 1988 the claimants shall not be required to plead or establish any wrongful or neglect or default of the owner of the vehicle, but when the occurrence had not been established as that of an accident arising out of the use of the motor vehicle by the victims, the claimants cannot make any claim for compensation invoking the provisions under Section 163A of the Motor Vehicles Act, 1988. 13. In Samir Chanda’s case referred to above, it was noticed that the usual police escort was not provided to the bus. Further, a bomb which was kept hidden in the bus exploded all of a sudden and as a result of which there was an accident. 14. In the instant case, the evidence on record would indicate that State provided police escort to the buses only after 7.00 p.m., but the accident had taken place at 5.20 p.m. itself. Further it is found that there was no accident involving the bus owned by the appellant, but there was virtually an annihilation committed by the militants. In view of the above, I find that the above ratio laid down by the Hon’ble Supreme Court in Samir Chanda’s case (supra) is factually distinguishable. 15. In Manjula Devi’s case (supra), the Division Bench of Allahabad High Court on facts found that the ill-fated vehicle went out of control and fell into a ditch and as a result of which death occasioned. In view of the above, I find that the ratio laid down by the Division Bench of Allahabad High Court also is not applicable to the facts and circumstances of this case. 16. In Rita Devi vs. New India Assurance Co. Ltd., 2000(3) RCR (Civil) 200, it has been held as follows:- “9. The question, therefore, is can a murder be an accident in any given case? 16. In Rita Devi vs. New India Assurance Co. Ltd., 2000(3) RCR (Civil) 200, it has been held as follows:- “9. 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 simplicitor, 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.” 17. The Hon’ble Supreme Court has differentiated between a ‘murder’ which is not an accident and a ‘murder’ which could also be an accident depending upon the proximity of the case of such ‘murder’. The Hon’ble Supreme Court has also held that if the dominant intention of the act of felony is to kill a particular person, then such killing cannot be classified as accidental murder, but if the murder was not originally intended, but the same had culminated in furtherance of any other felonious act, then such a murder is accidental murder. 18. In the instant case, it is found that the hijacking of the vehicle owned by the appellant-PRTC by the terrorists was only for murdering the passengers therein and not for any other purpose. In other words, the dominant intention of the terrorists was only to cause the death of the passengers in the vehicle. The dominant intention of the perpetrators of the crime is reflected in hijacking the vehicle and shooting the passengers indiscriminately after hijacking the same. Therefore, even as per the ratio laid down by the Hon’ble Supreme Court, the murder committed by the terrorists in the above facts and circumstances cannot be classified as accidental murder. 19. The dominant intention of the perpetrators of the crime is reflected in hijacking the vehicle and shooting the passengers indiscriminately after hijacking the same. Therefore, even as per the ratio laid down by the Hon’ble Supreme Court, the murder committed by the terrorists in the above facts and circumstances cannot be classified as accidental murder. 19. Coming to the quantum of compensation fixed by the Tribunal, it is found that the Tribunal having completely ignored the evidence on record to show that the deceased earned only a sum of Rs.2-3/- per day, fixed the monthly income of the deceased at Rs.300/-. As rightly pointed out by learned counsel appearing for the appellant, the Tribunal has committed an error in fixing the quantum of compensation also. 20. For all these reasons, I find that the Tribunal has erred in entertaining the claim petitions filed after 20 long years claiming compensation for the murder committed by the terrorists. 21. Therefore, the awards passed by the Tribunal are set aside and the appeals are allowed.