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2015 DIGILAW 457 (TRI)

Ranjan Saha v. Tapan Kumar Saha

2015-07-02

DEEPAK GUPTA

body2015
JUDGMENT : This appeal by the claimant-appellant is directed against the award, dated 8th July, 2008 delivered by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in Case No.TS(MAC)495 of 1999 whereby the claim petition filed by the claimant was dismissed on the ground that the petitioner had not received injuries on his person in a Road Traffic Accident (RTA). 2. The petitioner filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. In the claim petition it was alleged that on 07.02.1999 at about 3.00 p.m. the petitioner was travelling in vehicle No.TR-01-3576(Jeep). According to the petitioner, before the Jeep started he and other passengers of the Jeep requested the driver not to ply the vehicle without escort because the road was passing through areas which were infested with the extremists. The driver did not heed the request of the victim and other passengers and drove the vehicle without escort. At Veluarchar some extremists stopped the vehicle and tried to kidnap some passengers including the victim and the driver of the Jeep. During the kidnapping there was scuffle between the extremists and the victim and the extremists fired from their weapons and the claimant received serious bullet injury in his arm. Thereafter the claimant was brought to the G.B.P. Hospital, Agartala where he remained admitted from 07.02.1999 to 20.02.1999. He was then referred to S.S.K.M Hospital, Kolkata but was treated as an outdoor patient. It is alleged that the accident occurred due to the rash and negligent driving of the driver. 3. The owner of the vehicle did not specifically deny the occurrence but stated that there was no rash and negligent driving on the part of the driver. In the later part of the written statement it was mentioned that on that day no firing took place. The insurance company took up many pleas including the plea that the insurance company was not liable to pay the compensation in terms of the contract entered into between the parties. It specifically took the plea that the insurance company is not liable for any damage caused due to terrorist activities. The claimant appeared as his own witness and repeated what was stated in the main petition. A suggestion was put to him that the extremists did not open firing inside the vehicle. It specifically took the plea that the insurance company is not liable for any damage caused due to terrorist activities. The claimant appeared as his own witness and repeated what was stated in the main petition. A suggestion was put to him that the extremists did not open firing inside the vehicle. It was also suggested to the petitioner that he had not even been kidnapped by the terrorists and after he had been kidnapped when he was fleeing from the captivity of the extremists, the extremists fired upon him and then he sustained bullet injury. 4. The learned Tribunal placed reliance on the FIR lodged by one Md. Farid Miah who was also one of the passengers in the said Jeep and which had been filed by the claimant himself. Therefore, this is a document filed by the claimant and can be looked into. In this FIR it is not mentioned that any of the passengers asked the driver not to ply the vehicle without escort. Furthermore, in the FIR it is stated that at about 3.00 p.m. two tribal youths stopped the vehicle at Veluarchar and then 6 other armed tribal youths came to the spot. These tribal took away the driver Krishna Saha, the petitioner Ranjan Saha and two other persons from the vehicle at the point of the gun. The intention of the tribals was to abduct these persons. In the FIR not a word has been mentioned that any firing was indulged in by the extremists at the time of the abduction of the petitioner and three other persons. A certificate has also been issued by the Officer-in-Charge of Kalamcherrea Police Station which has also been exhibited by the petitioner himself and in the said certificate it is mentioned that the petitioner Ranjan Saha sustained grievous bullet injuries when he was in captivity of NLFT extremists. It is thus obvious that the claimant did not receive injuries when he was in the Jeep but received those injuries after he had been abducted by the extremists and was in their captivity. 5. No other passengers or the driver of the Jeep have been examined. It is difficult to believe that an adult person can travels in a vehicle against his consent. In case the petitioner was aware that this was a terrorist infested area nobody forced him to travel in the Jeep. 5. No other passengers or the driver of the Jeep have been examined. It is difficult to believe that an adult person can travels in a vehicle against his consent. In case the petitioner was aware that this was a terrorist infested area nobody forced him to travel in the Jeep. The petitioners had voluntarily gone in the Jeep and in my opinion it cannot be said that the driver was negligent. An act of terrorism and extremism is not in the hands of the driver. Other than making a bald statement that the driver went without an escort there is no other allegation of negligence. If the driver was negligent then the petitioner was equally negligent in travelling in a vehicle which did not have a proper escort. 6. The most important issue to be decided is whether the injury can be said to have arisen out of the use of a motor vehicle. 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. 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. 7. In this regard, reference may be made to the judgment of the Apex Court passed in Rita Devi and others v. New India Assurance Co. Ltd. and another, 2000 ACJ 801 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? Ltd. and another, 2000 ACJ 801 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.” 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. Mr. S. K Dutta learned counsel has relied upon a Judgment of a learned Single Judge of the Gauhati High Court in Oriental Insurance Co. Ltd. Vs. 9. Mr. S. K Dutta 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 40-45 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. 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. 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. I have carefully perused the original record. The insurance company has denied that the vehicle was insured with them. It would be pertinent to mention that though the insured gave details of the insurance policies covering the vehicle from the period 23.8.1997 22.8.1998 and also for the period 23.8.1999 to 22.8.2000 but he failed to produce or gave the details of any policy which was valid on the date of the accident i.e. 02.7.1999. Therefore, there is nothing to prove that the vehicle was insured on the date of accident 12. Therefore, I find no merit in the appeal which is, accordingly, dismissed. Send down the LCRs forthwith.