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2018 DIGILAW 1308 (GAU)

United India Insurance Co. Ltd. v. Sampijan Nessa

2018-09-04

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Ms. I. Das, learned counsel appearing for and on behalf of her senior Mr. S. Dutta. None appears for the respondent Nos.1 & 2, whereas the respondent Nos.3 & 4 are represented by Mr. S. Rahman, learned counsel. 2. The present appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988, challenging the judgment and order dated 8.1.2007, in the MAC Case No.91(B)/1989, whereby the learned Member, Motor Accident Claims Tribunal, Barpeta, has awarded compensation to claimant (respondent No.1 herein) for the death of her husband Ahmed Ali, in a road traffic accident caused by bomb blast. 3. Briefly stated, the case of the claimant is that on 29.8.1989, the respondent's (claimant's) husband Ahmed Ali was travelling by the vehicle No. ASZ 4095 (Bus), from Kayakuchi to Barpeta along with other passengers and while the bus was crossing through village Boirabil at 9:30 A.M., powerful bomb blast took place in the said bus and as a result the husband of the claimant died on the spot. Other passengers also sustained serious injuries on their person and all total five persons died on the spot. Accordingly the claimant filed claim petition claiming compensation. 4. Notices were duly served upon the opposite parties. The opposite parties Nos.1 (the owner), 2 (the driver) and 3 (the insurer) of the vehicle filed their respective written statement and contested the case. The owner and driver of the vehicle stated in their written statement that there is no cause of action, claim is not maintainable for non-joinder and mis-joinder of parties and admitted that the vehicle was duly insured with the United India Insurance Co. Ltd. (Opp. Party No.3) and the driver of the vehicle had valid driving license at the time of accident and therefore prayed for dismissal of the claim petition against them. 5. The United India Insurance Co. Ltd. (Opp. Party No.3) in their written statement pleaded that there is no cause of action of this case, the claim is not maintainable in its present form, barred by law of limitation, etc. The insurance company further pleaded that it is not liable to pay compensation for the death or injury of the passengers caused by bomb blast in the vehicle. Party No.3) in their written statement pleaded that there is no cause of action of this case, the claim is not maintainable in its present form, barred by law of limitation, etc. The insurance company further pleaded that it is not liable to pay compensation for the death or injury of the passengers caused by bomb blast in the vehicle. The insurance company also pleaded that the claim is false, imaginary, baseless and ultra-vires and hence the same is liable to be dismissed. 6. Upon the pleadings of the parties, the learned Tribunal framed following five charges: (i) Whether the claim petition is maintainable in the present form? (ii) Whether the claimant's husband died in the bomb blast in the vehicle No. ASZ 4095 on 29.8.89 at Boirabil? (iii) Whether the owner of the vehicle had valid Ins. Policy at the material time of accident? (iv) Whether the Ins. Company is liable to pay compensation as claimed by the claimant? (v) Whether the claimant is entitled to get compensation as claimed? 7. The claimant examined herself and another witness in support of her case, whereas the other side adduced no evidence. The claimant in support of her claim petition has stated that on the fateful day, her husband died while he was travelling in the vehicle No. ASZ 4095 (Bus) and the said Bus met with an accident due to bomb blast by the suspected militants. Her husband died instantaneously. Her other witness i.e. the Medical Officer duly proved the post mortem report as regards the cause of death that the deceased died of shock and hemorrhage, as a result of bomb blast injury. 8. The learned Tribunal on perusal of the evidence on record and other relevant documents come to the finding that the deceased died of motor vehicle accident occurred on the day of incident due to the bomb blast and as at the time of the incident, the said vehicle was insured with the United India Insurance Co. Ltd. (Opp. Party No.3), so the Insurance Company was directed to pay the compensation. 9. On the basis of certain documents so produced regarding the income of the deceased and as per the post mortem report, considering the age of the deceased as 45 years, the learned Tribunal held that the deceased was earning Rs. Ltd. (Opp. Party No.3), so the Insurance Company was directed to pay the compensation. 9. On the basis of certain documents so produced regarding the income of the deceased and as per the post mortem report, considering the age of the deceased as 45 years, the learned Tribunal held that the deceased was earning Rs. 2000/- per month and taking into account the multiplier 15, having regard to the age and after deducting 1/3rd towards personal consumptions, the Tribunal fixed the dependency as of Rs. 2,40,000/- and by awarding towards funeral expenses and loss of consortium, a total amount of Rs. 2,47,000/- was awarded to the claimant, with 6% interest per annum from the date of filing of the petition, till realization. 10. Being aggrieved with the aforesaid judgment and award, the Insurance Company preferred the present appeal on the ground that they are not liable to indemnify the insurer as the insurance policy did not cover the risk and no premium was paid by the insured in this regard. 11. I have considered the submission of learned counsel for the appellant as well as the learned counsel for the respondent Nos.3 & 4. From a careful examination of the written statement filed by the Insurance Company, it is found that while submitting their written statement, the appellant has not taken such plea, save and except that they are not liable to pay the amount, as the accident occurred due to the bomb blast/terrorist attack. Such a plea at the appellate stage without being raised in the course of proceeding before the Tribunal, cannot be accepted, as they have lost the opportunity to put the same before the Tribunal. The witness of the claimant was also not cross-examined by the appellant nor they have adduced any evidence on such point. In that view of the matter, the appeal is devoid of merit. 12. On the other hand, it is found that the learned Tribunal has appreciated and decided properly that the claimant is entitled to get some compensation even for bomb blast, as it arose out of use of vehicle and in this context, the learned Tribunal has also relied upon the decision reported in 2005 (3) GLT 407 also. 12. On the other hand, it is found that the learned Tribunal has appreciated and decided properly that the claimant is entitled to get some compensation even for bomb blast, as it arose out of use of vehicle and in this context, the learned Tribunal has also relied upon the decision reported in 2005 (3) GLT 407 also. In the said decision, this Court has discussed that while the passenger/driver of a vehicle died in an accident due to extremist attack, where the dominant intention of the extremist is not to kill an individual in particular, it is not a case of murder, then the same will be covered under the Act and the claimants in such cases are entitled to get compensation. 13. Considering all aspects of the matter, it appears that there is no impropriety or illegality in the award so passed by the learned Tribunal, which requires interference. 14. Accordingly, the appeal stands dismissed. 15. Return back the LCR immediately.