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2012 DIGILAW 83 (CHH)

Oriential Insurance Company Ltd. v. Parmanand

2012-03-14

GULAM MINHAJUDDIN, I.M.QUDDUSI

body2012
JUDGMENT : G. MINHAJUDDIN, J. 1. This appeal u/s 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/insurance company against the award of the Additional Motor Accident Claims Tribunal, Khairagarh, Distt. Rajnandgaon (in short "the Tribunal"), dated 19th April, 2010 passed in Claim Case No. 66/07, fastening the liability upon the appellant/insurance company to pay compensation to the claimant. Brief facts of the case, as per averments made in the claim petition, are that respondent No. 2 is the driver of Truck bearing registration No. CG 07 C-5573, which is owned by respondent No. 3 and at the relevant time insured with the appellant. Son of respondent No. 1/claimant named Kamal Narayan was working as a Hamal (Labour) & Conductor in the said vehicle for the last two years and thereby earning Rs. 100/- per day. On 11.9.2007 respondent No. 2 caused death of Kamal Narayan by running the said vehicle over Kamal Narayan and crushing him under the wheel of the truck. 2. Respondent No. 1, father of the deceased, filed a claim petition u/s 163A of the Motor Vehicles Act, 1988 (in short "the Act") claiming a total compensation of Rs. 15,49,000/- for the death of Kamal Narayan under various heads. 3. However, learned Tribunal after hearing counsel for the parties, on a close scrutiny of the evidence adduced before it, by the impugned award granted a total compensation of Rs. 3,44,000/- in favor of the claimant, fastening the liability upon the appellant/insurance company, jointly and severally, along with driver and owner of the vehicle. 4. Heard learned counsel for the parties, perused the LCR as also the impugned award. 5. Contention of learned counsel for the appellant is that the claim petition filed by claimant u/s 163A of the Act is itself not maintainable as death of Kamal Narayan was a result of murder simplicitor and had not arisen out of an accident involving the use of motor vehicle. 6. On the other hand, learned counsel for respondent No. 1/claimant has argued that death of Kamal Narayan was caused on account of an accident involving use of motor vehicle and therefore, the application u/s 163A of the Act is legally maintainable and the learned Tribunal has committed no illegality in entertaining the same and fastening the liability. 7. 6. On the other hand, learned counsel for respondent No. 1/claimant has argued that death of Kamal Narayan was caused on account of an accident involving use of motor vehicle and therefore, the application u/s 163A of the Act is legally maintainable and the learned Tribunal has committed no illegality in entertaining the same and fastening the liability. 7. The core question to be decided in this appeal is - whether death of Kamal Narayan was a result of accidental murder or it was a result of murder simplicitor? 8. On the point in hand, the judgment of the Hon'ble Apex Court in the case of Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and Another, (2000) 5 SCC 113 makes an illuminating reading, in which the Hon'ble Supreme Court, in para.-10, has observed thus: 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 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. 9. In the instant case, the claim petition was filed u/s 163A of the Act, as such, it is also necessary to reproduce the provisions of Section 163A of the Act, which read as under: 163A. Special provisions as to payment of compensation on structured formula basis. 9. In the instant case, the claim petition was filed u/s 163A of the Act, as such, it is also necessary to reproduce the provisions of Section 163A of the Act, which read as under: 163A. Special provisions as to payment of compensation on structured formula basis. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act. 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 10. In the present case, it is not in dispute that deceased Kamal Narayan was employed in the truck in question as a Hamal (Labour) and Conductor and before his death had gone in the said vehicle along with respondent No. 2/driver Suresh Pal. Information regarding death of the deceased was given by respondent No. 3/owner Vivek Sodhi to brother-in-law Sureet of respondent No. 1/claimant Parmanand, on which they had enquired firstly from Police Station-Dhamdha and then had gone to Mangloorpeeth in the State of Maharashtra and after obtaining the relevant documents, they had come to know that the deceased was killed by respondent No. 2/driver by crushing him under the wheel of the truck. It was also learnt that in respect of the said act of respondent No. 2/driver, a criminal case for the offence punishable under Sections 302 and 201 of the IPC is pending before the competent criminal Court against him. Documents Ex. It was also learnt that in respect of the said act of respondent No. 2/driver, a criminal case for the offence punishable under Sections 302 and 201 of the IPC is pending before the competent criminal Court against him. Documents Ex. P/1 to P/11, which are certified photocopies of the written application given in Police Station-Dhamdha, intimation given in Police Station-Khairagarh, school transfer certificate of the deceased, general power of attorney executed by respondent No. 1 in favour of his brother Atmaram, FIR, Form No. 1B, Form No. 1C, Crime Detail Form, Form 2C, inquest report and postmortem report respectively, have been filed by respondent No. 1/claimant in support of his claim petition. Form perusal of these documents, it is found that before killing the deceased, both his legs were tied with a nylon rope and respondent No. 2/driver had crushed the deceased under the wheels and after that, had moved the truck to and from over the body of the deceased with intent to cause disfigurement of the body, thereby causing disappearance of evidence. 11. From perusal of the above facts, there is no room for any doubt that the dominant intention of respondent No. 2/driver Suresh Pal was to cause murder of the deceased and the said murder was not caused in furtherance of any other felonious act, which is also clear from the fact that both the legs of the deceased were tied with a nylon rope and the vehicle was moved to and fro over the body with intent to cause disfigurement and consequent disappearance of evidence of the crime. As such, the present case is a case of murder simplicitor and not a case of accidental murder as is made clear in para-10 of the judgment of the Hon'ble Apex Court in the matter of Smt. Rita Devi (supra) 12. In the case of Smt. Rita Devi (supra), a driver of the auto-rickshaw employed by owner for driving auto-rickshaw for carrying passengers on hire 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 this duty, the passengers had decided to commit an act of felony of stealing the auto-rickshaw and in furtherance thereof, they committed murder of driver of the auto-rickshaw and stole the auto-rickshaw. During the course of this duty, the passengers had decided to commit an act of felony of stealing the auto-rickshaw and in furtherance thereof, they committed murder of driver of the auto-rickshaw and stole the auto-rickshaw. In these circumstances, the Hon'ble Supreme Court held that the death of auto-rickshaw driver was an accident within the meaning of Motor Vehicles Act and as such, the claimants-wife & children of the deceased driver-are entitled for compensation under the Act. 13. However, the facts of the present case are substantially different from the facts of the above cited case because in the instant case, the dominant intention of respondent No. 2/driver was not to commit any other felonious act, but to commit murder of deceased Kamal Narayan, which is evident from the manner in which the legs of the deceased were tied and the body was crushed under the wheels number of times by moving the vehicle to and fro over the body with the sole intention of causing disfigurement and consequent disappearance of evidence. 14. On the basis of aforesaid discussions, we are of the opinion that in the facts and circumstances of the present case, the application u/s 163A of the Act filed by the claimant was not maintainable and the learned Tribunal was not justified in entertaining the same and fastening the liability. 15. In the result, the appeal is allowed. The impugned award dated 19th April, 2010 passed by the Tribunal in Claim Case No. 66/07, is hereby set aside. The appellant/insurance company is exonerated of its liability. The amount which is in deposit shall be refunded to the appellant/insurance company. However, the appellant shall be at liberty to recover from the claimant, the amount which, if any, has been disbursed to him. No order as to costs.