JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. S. Dutta, the learned senior counsel being assisted by the learned counsel Ms. M. Choudhury, for the appellant (the Oriental Insurance Co. Ltd.) (hereinafter referred to as 'the Insurance Company'). Also heard Mr. A.J. Das, learned counsel appearing for the respondent Nos. 1 & 2 and Mr. R. Dev, the learned counsel appearing for the respondent No. 3. 2. This Appeal is preferred by the Insurance Company against the judgment and award dated 27.2.2007, passed by the learned Member, Motor Accident Claims Tribunal, Hojai at Sankardev Nagar, in the MAC Case No. 140/2006. 3. So far as the facts of the case is concerned, the aforesaid claim petition was preferred by the claimant under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'the M.V. Act'), with a prayer for compensation for the death of the father/son of the claimants. On 17.10.2005, while the deceased was travelling in the vehicle No. AS-09/4743, towards Kheroni, a group of extremist stopped the vehicle, killed most of the passengers and as a result of which the deceased Kongbura Rongfer died. On the basis of the said petition, the notice was issued to the respective parties i.e. the driver, the owner and the insurer of the vehicle. All of them contested the case. 4. The driver and the owner denied their liabilities and the Insurance Company also pleaded that as the deceased lost their lives due to the extremist attack and not to the vehicular accident, so the claimants are not entitled any compensation and the appellant is not to indemnify such loss. 5. The learned Tribunal after examining the pleadings between the parties and considering the evidence adduced has finally held that the deceased died due to vehicular accident and the Insurance Company is liable to pay a sum of Rs. 1,70,000/-, with interest @8.5% per annum. 6. Now the present appeal has been preferred against the said award of the Tribunal on two counts. Firstly, it is stated that the said claimants have already been awarded some sort of ex-gratia from the Government to the tune of Rs. 3 lakhs and therefore, he is not entitle to further compensation. On the next, it is contended that the death of the deceased occurred not due to the vehicular accident but due to extremist attack. Firstly, it is stated that the said claimants have already been awarded some sort of ex-gratia from the Government to the tune of Rs. 3 lakhs and therefore, he is not entitle to further compensation. On the next, it is contended that the death of the deceased occurred not due to the vehicular accident but due to extremist attack. As such, the impugned award is not maintainable. 7. I have heard the submission of learned senior counsel for the appellant who has submitted that the impugned order is not maintainable in view of the decision of the Hon'ble Apex Court in Rita Devi & Ors. Vs. New India Assurance Co. Ltd., reported in (2000) 5 SCC 113 . As in the present case, the dominant intention of the extremist was to kill the persons boarding in the bus, was itself a case of murder simpliciter and not a case of accidental death. 8. Reliance has also been placed in the decision of this High Court in Oriental Insurance Co. Ltd. Vs. Bharat Kr. Bey & Anr. reported in 2013 (3) TAC 632 (Gau), in which case following the ratio of Rita Devi (Supra), has remanded the matter to the Tribunal to decide as to whether the death occurred due to the dominant intention of murder of the passengers or otherwise. 9. On the other hand, the learned counsel for the respondents/claimants Mr. A.J. Das has made a submission that as per the evidence itself on record, it reflects that the dominant intention of the extremist was not to kill the individual passenger so that it can be termed as a case of murder, rather it reflected that the extremist attacked the vehicle as well as the passengers and thereafter killed the passengers and burnt down the vehicle. 10. Referring to the submissions made by the learned counsel for the appellant, it has been further submitted by the learned counsel for the respondents that the learned Tribunal, by appreciating all the materials on record as well as the legal proposition has rightly awarded the compensation. It is also contended that only for the fact that the Government has given a lump sum amount of ex-gratia to the deceased family, that cannot taken away the right of the claimants to prefer their claim under the Special Act. 11. It is also contended that only for the fact that the Government has given a lump sum amount of ex-gratia to the deceased family, that cannot taken away the right of the claimants to prefer their claim under the Special Act. 11. I have duly considered the submission of learned counsel for both the parties and also gone through the decisions referred. Also perused the evidence on record to appreciate as to whether death was caused due to the dominant intention of the extremist to kill the individual or to cause damage to the vehicle as well. 12. On perusal of the evidence on record, it emerges that the extremist attacked the vehicles on its way to Kheroni and it was an extremist prone area and the driver of the vehicle did not made any attempt to save the life of the passengers and instead he has given the key of the vehicle to the extremist and thereafter the extremists have burn down the vehicle and also killed the passengers. So it reflects about the attack on the vehicle as well as the passengers inside it, as a result of which the deceased/victim died. 13. The negligence on the part of the driver is apparently made out because due to such extremist prone area, the driver could have made an attempt to protect the life of the passengers or even he could have earlier took the police protection for crossing such sensitive areas but it was not done. 14. The Division Bench in Biped Bashi Das Vs. Oriental Insurance Co. Ltd., reported in 2005 (3) GLT 407, has dealt elaborately with similar incident and also discussed the case of Rita Devi (Supra) in detail and has made certain observations which are relevant for the purpose of this case. Omission to take requisite care in the use of the vehicle by its driver amounted to rush and negligent driving of the said vehicle and the death of claimant's husband must be held to have been caused in the accident arising out of rush and negligent driving of the said vehicle, by its driver. 15. In paragraphs 16, 18 and 19 of the aforesaid judgment, being relevant, are reproduced herein- below for ready reference: "16. 15. In paragraphs 16, 18 and 19 of the aforesaid judgment, being relevant, are reproduced herein- below for ready reference: "16. From a careful reading of the above observations made in the case of Samir Chanda (supra), it is abundantly clear that when on account of a particular prevailing situation, an extra care is required to be taken before or while using a vehicle at a public place and when, in such a grave situation if the owner or the driver as the case may be, does not take the required care and on account of the omission or failure of the owner or driver to take such care an injury is caused to, or death takes place of, a passenger, such injury or death must be held to have been caused on account of accident arising out of the use of the vehicle and such an accident would justify claim for compensation under the M.V. Act. 18. It is also extremely important to note that in the case at hand, the dominant intention, in the light of the pleadings on record, was not to kill any of the passengers, in particular, but to attack the vehicle. When the dominant intention was not to cause death of any particular individual, but was art attack on the use of the vehicle, the death arising of such an occurrence would be treated as an accidental, death. In this regard, a reference may be made to the case of Rita Devi and Ors. v. New India Assurance Co. Ltd. and Anr. wherein an auto-rickshaw, which was a public carrier, was hired by some unknown passengers from the auto rickshaw stand at Dimapur, the said auto rickshaw was subsequently reported by the owner to the police as having been stolen away and on the next day, the dead body of the said auto rickshaw's driver, Darshan Singh, was recovered by the police and since the whereabouts of the auto rickshaw could not be traced out, the insurance company compensated, the owner for the loss of the auto rickshaw suffered by him. When Darshan Singh's widow, Rita Devi, made a claim application for compensation under Section 63A of the M.V. Act claiming damages for the death caused to her husband Darshan Singh, during the course of his employment in the accident arising out of use of the vehicle, the Tribunal held the owner of the vehicle liable to pay compensation to the widow. The insurance company preferred an appeal against the award in this High Court and the High Court, having come to the conclusion that there was no motor accident as contemplated under the M.V. Act allowed the appeal and set aside the award holding that the case was a murder and not an accident. Considering the decision in Nisbet v. Rayne and Burn reported in (1910) 1 K.B. 689, which has been followed by the House of Lords in the Board of Management of Trim Joint District School v. Kelly 1914 AC 667, the Apex Court in Rita Devi (supra) observed as follows: 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 auto-rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this 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 auto-rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an. accidental murder. The stealing of the auto-rickshaw as the abject of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw. 19. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw. 19. From the case of Rita Devi (supra), what one gathers is that a Tribunal may, in an appropriate case, be required to determine as to what the dominant intention for causing injury to, or death of, a passenger in a vehicle was If the dominant intention was to cause the 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, the death would be described to have been caused as a result of accident." 16. In the light of the aforesaid decision of the Division Bench, while examining the case in hand, it goes to show that the dominant intention of the extremist was to attack the vehicle but not the particular individual to term the same as a case of murder. On the other hand, the driver himself was found to be negligent while discharging his duty to the extent required, to save the life of the passengers, as has been discussed above. 17. The same principle is being followed in subsequent cases by this Court, in the MAC Appeal No.169/2013 (The United Insurance Co. Ltd. vs. Smti. Dipali Roy and others), which was disposed of by this Court on 19.7.2017. It has elaborately discussed about the decision of Rita Devi (Supra) and the Oriental Insurance Co. Ltd. Vs. Dongkholam & Ors. reported in 2006 (2) GLT 1, wherein it has been held that the death was caused to the passengers travelling in the vehicle due to indiscriminating firing by the extremist and this Court on the facts of the case held that the death of the victims was not murder, rather because of fault of the driver, for not taking care of life and safety of the passengers. 18. On appreciation of the evidence of the present case, it is found that the facts off " case is similar to that of Dongkholam (Supra; case and accordingly after careful expatiation of materials on record, it is found that there is no infirmity in the award, so passed by the Tribunal, while awarding the compensation. This is very reasonable and proper. 19. This is very reasonable and proper. 19. One time amount of compensation in the form of ex-gratia granted by the Government will not take away the right of the claimant to prefer the claim petition. Both the ground of the appeal is answered accordingly. 20. In the result, I prefer to upheld the award so granted by the Tribunal and the Appeal is accordingly dismissed and the award is maintained. 21. As it has been submitted that 50% of the awarded amount has already been deposited by the appellant, so the appellant will now deposit the balance portion of the award before the Registry, adjusting the statutory deposit, already deposited before the Registry, within a period of six weeks from today. 22. The appeal is disposed of accordingly. Return the LCR forthwith.