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2013 DIGILAW 880 (PNJ)

HASSAN MOHD. ALIAS CHOTE LAL v. RAHISAN

2013-07-17

VIJENDER SINGH MALIK

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JUDGMENT : Vijender Singh Malik, J. This is an appeal brought by the driver-cum-owner of the offending truck bearing registration No. HRU-4389 against the award dated 03.09.2011 passed by learned Motor Accidents Claims Tribunal, Nuh, (for short the Tribunal) vide which a sum of Rs.4,09,500 with interest has been awarded to the claimants-respondents No. 1 to 6 on the death of Sallu. The claim petition had been brought u/s 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') seeking compensation in a sum of Rs.10,00,000/-. Regarding the mode of accident, it has been averred by the claimants that on 08.07.2008 at about 8.30 AM Hassan Mohd. @ Chote, respondent no. 1 loaded dry fodder (wheat husk) in the tractor-trolley bearing registration No. HRU-4389 and started from his village for Sidhana (Rajasthan). Sallu was sitting near Hassan Mohd. at the mudguard of the tractor. At about 1.30 AM when they were 8 Kms ahead of Rewari at Narnaul road near bus stand, Dhamlawas, a truck came from their back side and had hit the trolley, as a result of which Sallu fell down on the road and was crushed under the tractor and died at the spot. On 09.07.2008 FIR No. 120 was recorded at Police Station Rampura. Sallu was aged 35 years and was earning Rs. 3300/- per month. The claimants are claimed to be his dependents. 2. The sole respondent by filing his written statement took some preliminary objections. He has denied the factum of accident and involvement of the offending vehicle in the accident. According to him, no accident as alleged by the claimants occurred on account of the driving of the tractor by him. 3. On the pleadings of the parties, the following issues were framed by the Tribunal :- 1. Whether the accident in question resulting in death of Sallu son of Sadra arisen on 08.07.2008 at about 8.30 PM in the area of Dhamalawas, Narnaul road, P.S. Rampura, District Rewari out of the use of tractor No. HRU-4389? OPP 2. If issue No. 1 is proved, whether the petitioners are entitled to get compensation. If so, to what amount and from whom? OPP 3. Whether petition is not maintainable in the present form? OPR-1 4. Relief. 4. The parties led their respective evidence. OPP 2. If issue No. 1 is proved, whether the petitioners are entitled to get compensation. If so, to what amount and from whom? OPP 3. Whether petition is not maintainable in the present form? OPR-1 4. Relief. 4. The parties led their respective evidence. Hearing learned counsel for the parties, learned Tribunal has held that Sallu died as a result of use of tractor bearing registration No. HRU-4389 driven by the respondent Hassan Mohd. @ Chote Lal. He assessed a sum of Rs. 4,09,500/- as compensation to the claimants. 5. Learned counsel for the appellant has contended that Sallu died during the night intervening 8th and 9th July, 2008. According to him, Rahisan, claimant no. 1 is his widow and the remaining claimants are his children. He has further submitted that the claim petition was filed u/s 163-A of the Act. He has further submitted that after sometime Rahisan, claimant No. 1 filed a Crl. Misc. No. 24018 of 2008 in this court alleging that her husband had been murdered by Hassan Mohd, the appellant and four others namely Aamin, Idrish, Sahid and Tahir in this Court. According to him, that petition was disposed of vide order dated 16.09.2008 directing Senior Superintendent of Police to listen to the petitioner and to dispose of her application accordingly. According to him, as the Senior Superintendent of Police, Rewari, did not consider her case, she filed a contempt petition against the Senior Superintendent of Police, Rewari. He has further submitted that it is, therefore, a case of murder and not a case of accident. He has further submitted that in this situation, it cannot be taken that Sallu died on account of the injuries suffered in a road side accident and therefore, there was no application of section 163-A of the Act and the claim petition has been wrongly allowed. 6. Learned counsel for the respondents has submitted that even if the death of Sallu was caused by way of murder still the death occurred on account of use of the motor vehicle and a claim petition u/s 163-A of the Act is still maintainable. In this regard, he has cited a decision of Hon'ble Supreme Court of Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and Another, (2000) 5 SCC 113 , where it is held as under :- 9. In this regard, he has cited a decision of Hon'ble Supreme Court of Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and Another, (2000) 5 SCC 113 , where it is 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 of anyone. 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 (Dasarath 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, which 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. 7. Rahisan admittedly was not there at the spot. She was not travelling with the tractor and nothing happened in her presence. 7. Rahisan admittedly was not there at the spot. She was not travelling with the tractor and nothing happened in her presence. She might have suspected a foul play in the death of her husband and on that account she made a petition to this court, on account of which, Senior Superintendent of Police, Rewari was directed to look into the matter and dispose of her application accordingly. Since the Senior Superintendent of Police, Rewari had examined the matter and finally ordered cancellation of the case, it showed that it was not a case of murder. At least, the police did not take it to be a case of murder. Sallu had been crushed under the tractor of the appellant and it can safely be presumed that he died in an accident that occurred during the use of tractor-trolley in question. 8. Even if it is taken that Sallu was murdered still the murder is by use of the vehicle and section 163-A of the Act does not make a distinction between a simple accident arising out of use of vehicle or a felonious act in which the motor vehicle is used to cause murder. The ratio of Rita Devi's case supra also comes to the rescue of the respondents here. In these circumstances, the finding of learned Tribunal that Sallu died in an accident arising out of use of a motor vehicle, deserves to be affirmed. Affirming the same, I find no merit in the appeal and dismiss the same.