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2014 DIGILAW 348 (TRI)

Mutai Kwthang Jamatia v. Tapash Debnath

2014-10-30

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, J. 1. This appeal by the claimant is directed against the award of the Motor Accident Claims Tribunal (MACT), West Tripura, Agartala, wherein the petition filed by the claimant-appellant was dismissed on the ground that the death of the deceased did not arise out of the use of a motor vehicle accident. 2. The claimant, who is the son of the deceased, filed the claim petition alleging that his mother had died in an occurrence arising out of a use of motor vehicle and therefore, he is entitled to compensation. The relevant averments made in the claim petition are as follows:- "23. On the date and time of the accident, i.e. on 26-6-2000 at about 10/10.30 A.M. the deceased Shanti Laxmi Jamatia was travelling by the vehicle bearing registration No. TRS-761 (Bus). When the said bus reached between Icharbil Bus Stoppage and Karailong Sishu Bihar School Bus Stoppage on Teliamura-Khowai road under Teliamura Police Station, some Bengali extremists stopped the said bus and pulled out her forcibly from the bus which was coming from Khowai for going to Agartala and killed her mercilessly. Thereafter the deceased Shanti Laxmi Jamatia was shifted to Teliamura Hospital where she was declared dead by the Doctor of Teliamura Hospital. The accident occurred due to the negligent driving by the driver of the said vehicle. At the time of said accident, the situation of Teliamura was very bad due to the communal dispute between the Tribal and Bengali people. The driver of the vehicle drove the vehicle without proper security, care and negligently." 3. The allegations made in the claim petition were that when the deceased was travelling in the bus, some Bengali extremists stopped the bus, pulled out the passengers from the bus and killed them mercilessly. The other part of the allegation is that the driver of the vehicle was negligent in as much as he went into an area without any escort where there was communal strike. The claimants along with the petition filed under Section 166 of the Motor Vehicles Act also filed a petition under Section 140 of the Motor Vehicles Act for grant of interim compensation. The Tribunal allowed the application and awarded compensation under Section 140 of the Act. The insurance company filed an appeal against the said award granting interim compensation under Section 140 of the Motor Vehicles Act. The Tribunal allowed the application and awarded compensation under Section 140 of the Act. The insurance company filed an appeal against the said award granting interim compensation under Section 140 of the Motor Vehicles Act. A learned Single Judge of the Gauhati High Court (Agartala Bench) allowed the appeal of the insurance company on 30th August, 2004 and held that the death did not arise from an accident arising out of the use of the bus in question. The relevant observations are in Para 7 and 8 of the Judgments, which read as follows:- "7. In Muralidhar Sarangi V. The New India Assurance Co. Ltd., AIR 2000 SC 934 , where two trucks of the insured were set to fire in Assam by Bodo terrorists and one of the drivers of the trucks was also killed, the Apex court held that the risk arising out of "mutiny" and "terrorists Acts" was not covered under the insurance policy. The Apex Court further held that the trucks were destroyed by acts of terrorism and a driver of the truck was also shot dead and, as such, the Insurance Company could not be held liable for the loss suffered by the insured at the hands of Bodo activities who completely destroyed his trucks by setting them on fire and by killing one of the drivers. In the light of the aforesaid decision, there can be no doubt that, in the instant case also, the death of the deceased caused by some miscreants outside the bus cannot be and is not one of those risks, which was covered by the insurance policy since their death occurred in an incident and not from an accident arising out of the use of the bus in question. 8. For the reasons stated above, I am inclined to allow these two appeals. In the result, the judgment and awards dated 04.03.2003 passed by the Tribunal in Misc. (MAC) No. 45/2001 and Misc. (MAC) No. 46/2001 are hereby quashed. However, on the facts and circumstances of this case, there shall be no order as to costs." 4. 8. For the reasons stated above, I am inclined to allow these two appeals. In the result, the judgment and awards dated 04.03.2003 passed by the Tribunal in Misc. (MAC) No. 45/2001 and Misc. (MAC) No. 46/2001 are hereby quashed. However, on the facts and circumstances of this case, there shall be no order as to costs." 4. This Judgment of the learned Single Judge was not challenged by the claimant and therefore, this finding of the learned Single Judge with regard to the same accident between the same parties has attained finality and therefore, I am of the considered view that the appellant could not have been permitted to proceed with the petition under Section 166 of the Motor Vehicles Act once the Court had held that there was no motor vehicle accident. 5. Be that as it may, Ms. S. Deb Gupta, learned counsel has argued the matter at length and I have also heard arguments on the merits of the case. As pointed out above, in the claim petition it was clearly alleged that the deceased was pulled out of the bus by persons belonging to some other community and killed. The question that arises is whether such an incident can be said to be an accident or not? This Court has taken the view in a number of cases that if there is firing on a vehicle and the driver and conductor have been negligent in taking the vehicle into an area, which is infested with terrorism then the injury of the death could be said to be arising out of the use of the vehicle. However, in the present case, the allegation was that members of particular community dragged out the members of some other community outside the bus and then killed them. They did not kill members of their own community or other communities who were sitting in the bus. It was only members of one community who were targeted. Therefore, it was not the bus, which was attacked but particular persons, who were attacked. They did not kill members of their own community or other communities who were sitting in the bus. It was only members of one community who were targeted. Therefore, it was not the bus, which was attacked but particular persons, who were attacked. Where there is an attack on a vehicle by terrorists/extremists then that may fall within the purview of the Motor Vehicles Act, but when a particular person or group of persons from inside a vehicle are killed either in the vehicle or outside the vehicle only with the intention of causing harm to those particular person(s) and not to all the persons travelling in the vehicle then the occurrence is a felonious occurrence and not an accident. 6. In this regard, reference may be made to the Judgment of the Apex Court in Rita Devi (Smt.) And Others vs. New India Assurance Co. Ltd. & Another, (2000) 5 SCC 113 , which is a Judgment which actually expanded the scope and meaning of the phrase "arising out of the use of a motor vehicle". However, in this Judgment also certain parameters have been laid down in Para 10, which reads as follows:- "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. 7. In Rita Devi's (supra) case, the Apex Court clearly held that where the intention of the perpetrators of the crime is to kill any particular person or persons then that is not an accident and is a murder simpliciter. 8. 7. In Rita Devi's (supra) case, the Apex Court clearly held that where the intention of the perpetrators of the crime is to kill any particular person or persons then that is not an accident and is a murder simpliciter. 8. To elaborate this position further supposing a person boards a vehicle solely with the intention of killing of some other passenger travelling in the vehicle and either causes injury or kills the passenger in the vehicle can it be said that such an incident arises out of the use of the motor vehicle only because the motor vehicle is moving? In my view, the answer has to be an emphatic 'no' because in view of Rita Devi's (supra) case, if the intention is to cause harm to a particular person or persons then the intention is to commit a criminal felonious act and that cannot be an accident. 9. Ms. S. Deb Gupta, learned counsel has relied upon a Judgment of a learned Single Judge of the Gauhati High Court in Oriental Insurance Co. Ltd. Vs. Dongkholam & Ors., 2006 (2) GLT 1, wherein relying upon Rita Devi's (supra) case and some other cases, the learned Single Judge held that the occurrence which was the subject matter in that case arose out of the use of a motor vehicle. However, that is a case in which the vehicle with 40 to 45 passengers was passing through a jungle. The bus was stopped and the driver was informed that there were armed persons in the area and he should not proceed with the vehicle into that area. However, the driver did not listen and proceeded towards that dangerous area and when the bus had moved ahead and was negotiating a curve some armed persons stopped the bus and fired indiscriminately at the bus resulting the death of 28 passengers of the bus. That case stands on a different footing because there was indiscriminate firing on the bus and this Court in MAC APP No. 122 of 2004 and many other cases decided thereafter has held that where there is indiscriminate firing on the vehicle then it is a case of an accident. That case stands on a different footing because there was indiscriminate firing on the bus and this Court in MAC APP No. 122 of 2004 and many other cases decided thereafter has held that where there is indiscriminate firing on the vehicle then it is a case of an accident. However, at the cost of repetition it may be reiterated that when it is not a case of indiscriminate firing but some particular person or persons being targeted then that is not a case of accident but a case of murder. 10. It may also be pointed out that a Division Bench of the Gauhati High Court in National Insurance Co. Ltd. vs. Smti. Kasheni & Ors., 2005 (3) GLT 465 dealt with a similar issue. In that case, the deceased was travelling in an auto rickshaw and some un-identified persons tried to stop the vehicle. The driver of the auto rickshaw instead of stopping the vehicle sped away. Thereafter, the auto rickshaw was fired on and the bullet hit the deceased and killed him on the spot. The assailants fled away. The Division Bench held on the basis of the evidence that even before the deceased had boarded the auto rickshaw he had been chased by the miscreants and therefore their intention was to kill him and as such, the occurrence did not arise out of the use of the motor vehicle. 11. In the present case, there is no proof of negligence of the driver of the vehicle. Only the petitioner, who is the mother of the deceased appeared in the witness box. She admittedly was not present when the occurrence took place. There is therefore, no proof that the driver was told that there was some extremist activity in the area and that he should not drive into that area. 12. Lastly, even if it is held that the occurrence arises out of the use of the motor vehicle the question would be whether the insurance company can be held liable? In the present case, the policy of insurance excludes riot, strike and terrorism and this act would be an act of terrorism and the insurance company therefore, also cannot be held liable. In this behalf reference may be made to the Judgment of the Apex Court in Muralidhar Sarangi vs. The New India Assurance Co. Ltd., AIR 2000 SC 934 . In this behalf reference may be made to the Judgment of the Apex Court in Muralidhar Sarangi vs. The New India Assurance Co. Ltd., AIR 2000 SC 934 . In that case, the trucks belonged to the insured were destroyed and attacked in Assam by the Bodo terrorists and the Apex Court held that this could not be said to be a malicious act but was an act of terrorism and therefore, the insurance company was not liable. 13. In this view of the matter, there is no merit in the appeal which is accordingly, dismissed.