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2018 DIGILAW 1266 (GAU)

ORIENTAL INSURANCE CO LTD v. MALATI GHOSH

2018-08-28

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard learned counsel for the appellant Mr. S Dutta. Also heard learned counsel for the respondents Mr. B. Kalita. 2. The appeal has been directed against the award passed in MAC Case No. 3194/2006, passed by the learned Member MACT, Kamrup, Guwahati. 3. The necessary facts that can be re-capitulated that one Smti. Malati Ghosh and her two sons preferred the application under section 163-A of MV Act, praying for compensation for the death of Jagat Jyoti Ghosh, who was the son and brother of the said claimants. So far as the facts are concerned on 06.10.2006 while said Jagat Jyoti Ghosh was driving the vehicle No. AS-01/AA-2126, carrying the security personnels in a convoy, who were the escorting the Railway Construction Officials and the said convoy was ambushed by the extremists on the way and killed 10 (ten) persons including the driver of the said vehicle Jagat Jyoti Ghosh. After the said incident, legal heirs of the deceased preferred the claim petition before the tribunal, praying for compensation for the death of the victim in the said incident for the use of the aforesaid vehicle. The learned tribunal issued usual notice to the respective respondents that is the driver, owner and insurer of the vehicle. The driver and owner however did not contest the case so the case proceeded ex-parte against the Insurance Company. The Insurance Company filed their written statement, denied their liability to pay any compensation as the accident occurred due to attack by the extremists and hence they are not liable to pay any compensation. 4. Upon the pleadings the following issues were framed by the learned tribunal. (i) Whether the victim Jagat Jyoti Ghosh died in the alleged accident dated 06-10-2006, arising out of the use of motor vehicle No. As-01/AA-2126? (ii) Whether the claimant is entitled for compensation as claimed for? If so, from whom it may be recoverable and to what extent ? 5. After examining the witness and considering the entire matter on record, the learned tribunal found that deceased died due to the accident arising out of the use of the said vehicle and insurance company was directed to pay the amount of Rs. 2,13,000/- considering his monthly income as Rs. 5. After examining the witness and considering the entire matter on record, the learned tribunal found that deceased died due to the accident arising out of the use of the said vehicle and insurance company was directed to pay the amount of Rs. 2,13,000/- considering his monthly income as Rs. 3,000/-, after deducting half of the income being the deceased unmarried along with interest @ 6 per cent from the date of filing of the claim petition vide order dated 21.9.2010. 6. Challenging the aforesaid award, present appeal has been preferred on the same ground that the death occurred to the victim is not arose out of the use of the vehicle but it is murder simplicity. Referring to the evidence on record, it has been submitted that the extremists fired at the vehicle run by the deceased and he died out of such injuries sustained in the said accident and as such it was a murder in all the sense. 7. I have considered rival submission of learned counsel for both the parties. 8. According to the learned counsel for the appellant, the reliance placed by the learned tribunal upon the decision of Rita Devi and others Vs- New India Assurance and Anr., (2000) ACJ 801 (SC) as well as the decision of Bipal Bashi Das Vs- Oriental Insurance Company Ltd., (2006) 3 GauLT 407 is not proper inasmuch as the said decision is applicable if the dominant intention was to cause death of a particular individual, but in the present case the facts is different in the sense that the extremists directly fired the vehicle with gun, as a result of which the deceased died due to bullet injury which amounts to murder only. 9. Per contra of learned counsel for the respondent has submitted that the learned tribunal has rightly relied upon the aforesaid decisions as because there is nothing to show that the dominant intention in the instant case was to cause death of a individual but it was a attack in general upon the vehicle which carried 10 army personnels and their intention was to deter security personnels from entering the area. It has also been submitted that the aforesaid area was a extremist prone area and vehicle was carrying several security persons and suddenly the vehicle was ambushed by the extremists and killed 10 persons including the victim/driver of the vehicle. 10. It has also been submitted that the aforesaid area was a extremist prone area and vehicle was carrying several security persons and suddenly the vehicle was ambushed by the extremists and killed 10 persons including the victim/driver of the vehicle. 10. I have carefully gone through the impugned judgment of the learned tribunal the same issue was raised before the tribunal also and it was discussed elaborately by the learned tribunal. 11. In the case of Rita Devi and Ors. Vs. new India Assurance and Anr. examining the actual legal impact of the words "death due to accident arising out of for the use of motor vehicle" and it has been categorically held that "what one can gather is that, a tribunal may, in an appropriate case be required to determine as to what a 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 the death would be described to have been caused as a result of accident." 12. The said decision of Rita Devi still prevails and followed by all the subsequent decision as well. 13. The learned counsel for the respondent has relied upon the decision of 2015 5 GLT 121 is in the same tone. 14. Turning to the discussion rendered by the tribunal it can be found that the tribunal has dealt on the issue in the following manner in para 10 & 11 of the judgment. 10. Hon'ble Supreme Court in the case of Shivaji Dayanu Patil Vs Uttam More, (1991) AIR SC 1769 observed that the word "use" in the context of motor vehicle has been construed in wider connotation and as such it is not necessary that there should always be a direct nexus between the death or injury caused to any person and the use of motor vehicle in common parlance. While discussing the expression "arising out of" use of and "caused by" motor vehicle, the Apex Court held thus:- "This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. While discussing the expression "arising out of" use of and "caused by" motor vehicle, the Apex Court held thus:- "This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In section 92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding u/s 92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that the accident should be connected with the use of the motor vehicle, but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in sec 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment." 11. In the instant case the deceased was a driver, who was driving the vehicle in the course of his employment as driver. Since the deceased was employed by the owner for driving the vehicle, and while he was driving the vehicle in course of his duty, the vehicle was ambushed by the extremist, leaving the deceased as well some others travelling in the vehicle, dead. Had the victim driver not used the vehicle as driver in course of his duty, he would not have been killed in the extremist firing and as such the death of the victim was very much related to his employment as well as to the use of vehicle, ambushed by the extremists. Although there might not be direct or cause and effect relation between the death of the victim and the use of vehicle, keeping in view the beneficial object of the statute and the wider connotation of the expression "arising out of use of motor vehicle" rendered by the Apex Court, this tribunal has no hesitation to hold that the death of the deceased was caused in the accident arising out of the vehicle No. As-01/AA-2126. Issue No. 1 is accordingly answered in affirmative. 15. Issue No. 1 is accordingly answered in affirmative. 15. On careful examination of entire matters on record, it is discernable that the attack upon the said vehicle by the extremists was not on any particular person, to term it is a murder simpliciter whereas attacked was upon the vehicle comprising 10 persons in order to deter the movement of the army personnels. 16. Taking into account all above, I found no any illegality in the decision so rendered by the tribunal and also there is no wrong assessment in calculating the dependency as well. 17. In view of findings and discussions above, the appeal stands dismissed. Return the LCR. 18. The appellant/insurance company will now deposit the awarded amount before the Registry within 6 (six) weeks in terms of the award by adjusting the statutory deposit, and other deposit if any, paid.