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2017 DIGILAW 946 (GAU)

United India Insurance Co. Ltd. v. Likhit Ch. Das

2017-07-19

MIR ALFAZ ALI

body2017
JUDGMENT : The MAC App No.168/2013 and MAC App No.169/2013 have been filed by the United India Insurance Co. Ltd against the common judgment and award passed by the Motor Accident Claims Tribunal, Goalpara in MAC Case No.94/2006 and 95/2006. In both the appeals, the appellant, as well as, the ground of challenge are common and therefore, both the appeals are taken to be decided by this common judgment. 2. Brief facts necessary for disposal of these appeals are that on 28-09-1998 late Uddhab Ch. Das aged about 40 years and late Amal Ch. Das aged about 25 years were travelling in a car bearing registration No.AS-01/9219 along with other co-passengers from Dhupdhara to Goalpara. On the way, at a place called Tiplai Tiniali the extremists ambushed the vehicle killing the passengers of the car including the victims, Uddhab Ch. Das and Amal Ch. Das. The legal heirs of both the victims have filed the claim petition before the MACT Goalpara and the Tribunal on appreciation of evidence passed the impugned award in favour of the claimants in both the cases, which are under challenge in these appeals. 3. I have heard Mr. S. Dutta, learned senior counsel for the appellant and Mr. H. Das, learned counsel for the respondent. 4. By placing reliance on the decisions on Rita Devi and Ors vs. New India Assurance Co. Ltd and Anr reported in 2000 (5) SCC 113 and Biplab Basi Vs. Oriental Insurance Co. Ltd and Anr reported in 2005(3) GLT 407, Mr. Dutta submits that the death of the victim in both the cases were pure and simple homicidal death and cannot be considered as accidental death as a result of use of motor vehicle and therefore, the award passed by the learned Tribunal are required to be set-aside. 5. The learned counsel for the respondent also placing reliance on the same decisions as well as the decision of this High Court in Rita Das and Ors Vs. Oriental Insurance Company Ltd and Ors reported in 2013 (1) GLT 346 submits, that it was a case of accidental death for negligence on the part of the driver and therefore, learned Tribunal has rightly passed the award. 6. Oriental Insurance Company Ltd and Ors reported in 2013 (1) GLT 346 submits, that it was a case of accidental death for negligence on the part of the driver and therefore, learned Tribunal has rightly passed the award. 6. From the rival submission of both the sides, the point for consideration is whether the death of the victims, in both the cases, were accidental death arising out of use of motor vehicle as a result of rash and negligence of the driver of the vehicle. 7. The facts in Rita Devi (supra) were that a vehicle, which was a public carrier, was hired by some unknown person, who had killed the driver and stolen away the vehicle. The issue before the Apex Court was whether the death of the driver of the vehicle, who was killed by the miscreants, and the vehicle was stolen, would be an accident for the purpose of Motor Vehicle Act. On the above facts, the Apex Court answering the questions, whether a murder can be an accident in any given case, held in para 10 as under:- “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 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.” 8. A Division Bench of this Court in Biplab Basi Das Vs. Oriental Insurance Co. A Division Bench of this Court in Biplab Basi Das Vs. Oriental Insurance Co. Ltd and Anr reported in 2005 (3) GLT 407 relying on Rita Devi’s case observed that when the dominant intention was not to cause death of any particular individual, but an attack on the use of vehicle, the death arising out of such occurrence, would be treated as an accidental death. The Tribunal may in any appropriate case, be required to determine as to what was the dominant intention for causing injury to or death of a passenger in a vehicle. If the dominant intention was to cause death of a particular individual, then it will amount to murder, but if the dominant object was connected with the use of the vehicle at a public place, then death would be described to have been caused as a result of accident. 9. In Oriental Insurance Co. Ltd Vs. Dongkholam and Ors reported in 2006 (2) GLT 1, the death was caused to the passengers travelling in the vehicle due to indiscriminate firing by the extremist and this Court held on the facts of the case, that death of the victims was not murder, rather because of the fault of the driver, in not having taken care of the life and safety of the passengers. 10. Facts of the present case are similar to that of Dong Kholam and Ors (supra). Here also death of the victims was caused due to extremist firing, while they were travelling in a motor vehicle. Whether the death of the victims was murder or accidental death, would obviously depend on the facts and circumstances of the case. On appreciation of evidence, learned Tribunal came to the conclusion that death of the victims was accidental and awarded compensation accordingly. 11. I have gone through the evidence brought on record. Pw-2 Sri Hitesh Rai (in both the cases), who was a passenger in the same vehicle and an eye witness of the occurrence, categorically stated, that he was travelling in the same vehicle with the victims and on their way to Goalpara, they heard a big sound of firing and as soon as they reached Rongjuli reserved forest area, they have noticed from a long distance that an army truck was stranded at the place of occurrence. Seeing the army truck and hearing the sound of firing, they asked the driver to stop the vehicle, but the driver did not stop the vehicle and moved forward. While the vehicle was crossing Tiplai Tiniali, the extremist started firing on the CRPF truck and also on the vehicle in which the deceased were travelling, and as a result of which, Amal Ch. Das and Uddhab Ch. Das died on the spot. Pw-2 also received bullet injuries. This part of evidence of Pw-2, who was an eye witness of the occurrence, remained uncontroverted. Pw-3 has deposed in his evidence that five CRPF personnel were also killed in the said indiscriminate firing by the extremist and therefore, it is evident from the oral testimony of Pw-2 and Pw-3, that the extremist indiscriminately fired on the vehicle carrying security persons and also on the vehicle wherein the victims were travelling at the same place, leading to death of several persons including the security personnel. The above conduct of the extremist, firing indiscriminately on the vehicles at a public place leading to death of various persons, speaks loud and clear that the dominant intention of the extremist was not to kill any particular person, at best the intention of the extremist who fired at the vehicles indiscriminately can be attributed to creation of terror by attacking vehicles at public places. 12. The unshaken testimony of Pw-2, who was an eye witness of the accident, that noticing the CRPF vehicle standing at a distance and also hearing the sound of firing, they asked the driver to stop and not to move forward, but the driver ignoring such request of the passengers moved the vehicle, as a result of which the passengers travelling in the vehicle became the victim of the extremist attack, clearly demonstrates want of proper care and caution on the part of the driver. 13. The term negligence in its normal connotation implies absence of taking proper care and attention, which is expected of a prudent man in a particular situation. In the instant case, despite the request of the passengers not to move and stop the vehicle after hearing sound of firing, the driver without taking proper care, moved the vehicle forward, and as a result of which, the passengers in the vehicle became the victim of firing by the extremists. In the instant case, despite the request of the passengers not to move and stop the vehicle after hearing sound of firing, the driver without taking proper care, moved the vehicle forward, and as a result of which, the passengers in the vehicle became the victim of firing by the extremists. Therefore, the conduct of the driver in the instant case i.e. not taking proper care and caution, for safety of the passengers resulting in death of the passengers, is sufficient to attribute negligence on the part of the driver of the offending vehicle. When the driver was evidently at fault because of not paying heed to the request of the passengers and moving forward endangering the life of the passengers, and the dominant intention of the extremist also having not found to be the killing of any particular person, there cannot be any escape from the conclusion that death of victim, was accidental death, while they were travelling in the vehicle because of the fault of the driver of the vehicle. Since there was fault of the driver and the death was accidental and the vehicle was insured, the appellant Insurance Company being the insurer of the offending vehicle cannot avoid the liability to pay compensation. 14. In view of what has been discussed herein above, the appeal is found to be without merit and accordingly dismissed. 15. Send back the LCR.