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2014 DIGILAW 76 (CHH)

UNITED INDIA INSURANCE CO. LTD. v. SHANTI BAI

2014-02-20

PRITINKER DIWAKER

body2014
ORDER 1. This appeal arises out of the judgment dated 28.11.2011 passed by the Commissioner for Workmen's Compensation, Raipur (hereinafter referred to as "the Commissioner") in Case No.95/WC Act/2002 (Fatal) whereby in a death case compensation of Rs.3,06, 180/- has been awarded in favour of the claimants. 2. In the present case, name of deceased is Ramraj Singh Thakur, who was in employment of respondent No.7 Swarnkumar Gupta as driver to drive Bolero Jeep bearing registration No. C.G.05/7185 owned by respondent No.7. It is stated that on 18.10.2001 certain persons hired the said Bolero jeep of respondent No.7 to travel from Rajnandgaon to Maharashtra and on the way, Ramraj Singh Thakur was murdered by those persons who had hired the said Jeep. 3. A claim case was filed by the claimants under the provisions of Workmen's Compensation Act, 1923 (in short "the Act") which has been granted by the Commissioner by the impugned judgment. 4. This appeal was admitted on 29.10.2013 on the following substantial question of law: "Whether the Commissioner for Workmen's Compensation was justified in holding that death of deceased - Ramraj Singh Thakur was caused by the accident arising out of and during the course of employment?" 5. Learned counsel for the appellant submits that death of Ramraj Singh was a simplicitor murder for the reasons best known to the deceased and the accused persons and therefore, it cannot be said that his death was the accidental death. He submits that it was just a coincident that Ramraj Singh was murdered when he was driving the vehicle in question and therefore, no liability can be fastened upon the insurance company. He further submits that the vehicle in question was being plied in breach of terms and conditions of the insurance policy and on this ground also, the insurance company can not be saddled with the liability to satisfy the award. 6. Replying to the arguments of the appellant, it has been argued by learned counsel for respondent No. 1 to 6 that the deceased was driver of respondent No.7, who was owner of the vehicle in question. He submits that as the deceased was in employment of respondent No.7 and was murdered during the course of employment, the Commissioner was justified in fastening the liability on the insurance company. He submits that as the deceased was in employment of respondent No.7 and was murdered during the course of employment, the Commissioner was justified in fastening the liability on the insurance company. He further submits that it was not a murder simplicitor but the death of Ramraj Singh was caused by an accident arising out of and during the course of employment. As regards exoneration of the insurance company on the ground of breach of terms and conditions of insurance policy, it has been submitted by the learned counsel that the same has no relevance in the present case because neither any substantial question of law has been framed by this Court on this point nor any cogent evidence has been adduced by the insurance company before the Commissioner in this regard by examination of any person from the concerned RTO nor any such issue was framed by the Commissioner. 7. Heard learned counsel for the parties and perused the material available on record. 8. From the pleadings and facts, it is apparent that on the date of accident, the vehicle in question was hired by certain persons to go from Rajnandgaon to Maharashtra and the deceased was driver of the said vehicle. It is also apparent that the deceased was in employment of respondent No.7 as driver and used to get monthly salary of Rs4,000/- from him. The question of law involved in this case is squarely covered with the decision of Supreme Court in the case of Rita Devi (Smt.) and others Vs. New India Assurance Co. Ltd. and another, (2000) 5 SCC 113 , wherein it has been held that in such cases where driver of the vehicle in question has been murdered, the claimants are entitled for compensation either under the Motor Vehicles Act, 1988 or the Workmen's Compensation Act, 1923. In paras 10 to 14 of the said judgment the Supreme Court 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. 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. 11. In Challis Vs. London and South Western Rly. Co. (1905) 2 KB 154 the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held: "The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously." 12. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously." 12. In case of Nisbet v. Rayne & Burn (1910) 2 KB 689 where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers' workmen, was robbed and murdered. The Court of Appeal held: "That the murder was an 'accident' from the standpoint of the person who suffered from it and that it arose 'out of' an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case the Court followed its earlier judgment in the case of Challis. In the case of Nisbet the Court also observed that 'it is contended by the employer that this was not an "accident" within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word "accident" negatives the idea of intention'. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that it makes to difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet." 13. The judgment of the Court of Appeal in Nisbet case was followed by the majority judgment by the House of Lords in the case of Board of Management or Trim Joint District School v. Kelly 1914 AC 667. 14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was dutybound to have accepted the demand of fare paying passengers to transport them to the place of their destination. 14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was dutybound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of his duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dashrath Singh) was caused accidentally in the process of committing theft of the autorickshaw. 9. Considering the above position of law and the facts of the present case, this Court is of the view that death of Ramraj Singh Thakur was caused due to an accident arising out of use of motor vehicle during the course of his employment with respondent No.7. As such, the Commissioner was fully justified in arriving at the conclusion that the claimants were entitled for compensation as claimed by them. 10. So far as the next point regarding breach of terms and conditions of the insurance policy is concerned, no such evidence has been adduced by the insurance company by examining any responsible person of the concerned RTO, despite having sufficient opportunity to do so. This apart, this appeal was admitted on the sole substantial question of law - whether the Commissioner for Workmen's Compensation was justified in holding that death of deceased Ramraj Singh Thakur was caused by the accident arising out of and during the course of employment? - and that before the Commissioner also no such issue was framed. In these circumstances, I find no force in the argument advanced by learned counsel for the appellant on this point. 11. On the basis of aforesaid discussion, the substantial question of law framed by this Court is answered accordingly. - and that before the Commissioner also no such issue was framed. In these circumstances, I find no force in the argument advanced by learned counsel for the appellant on this point. 11. On the basis of aforesaid discussion, the substantial question of law framed by this Court is answered accordingly. The appeal being without any substance deserves to be and is hereby dismissed. Appeal Dismissed.