Madhya Pradesh High Court
Smt.Uma Devi vs Ramesh Singh Tomar on 28 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:15769
1 MA-1276-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 28th OF JULY, 2025
MISC. APPEAL No. 1276 of 2008
SMT.UMA DEVI AND OTHERS
Versus
RAMESH SINGH TOMAR AND OTHERS
Appearance:
Smt.Meena Singhal - Advocate for the appellants.
Shri Rahul Jha - Advocate appears on behalf of Shri Arvind Dudawat-
Advocate for the respondent No.1.
Ms. Vandna Kekre - Advocate for the respondent No.2.
ORDER
This Misecellanous Appeal has been preferred by the appellants/claimants for enhancement of the amlount of award by Rs.4,59,500/- against the award passed by Fifth Additional Motor Accident Claims Tribunal(Fast Track Court) Morena to the Court of First Additional Motor Accident Claims Tribunal, Ambah, District Morena (M.P.), whereby the claim petition filed by the appellants/claimants in M.A.No.96/2007 dated 26.07.2008 has been dismissed.
2. The necessary facts for disposal of this appeal are that deceased Girraj Sharma was the driver of the jeep, which was owned by respondent No.1 Ramesh Singh. On the date of incident, deceased had taken permission to use vehicle bearing registration No.MP06-B-1293 jeep to go home, but he Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 2 MA-1276-2008 did not return. The respondent No.1 lodged a report at Police Station Ambah about missing person(Girraj Sharma). After searching, the concerned police found that the deceased Girraj Sharma was murdered and the jeep was looted by some miscreants.
3 . It is submitted by the learned counsel for the appellants that the claimants were filed an application under Section 163-A of Motor Vehicle Act. As per the prosecution case the deceased was the driver of the vehicle owned by Ramesh Singh and before the date of accident, he went with the offending vehicle to Fatehghabad, where some miscreants looted the jeep and committed murder of the deceased. Therefore, it is a death case arising out of the use of vehicle. They have submitted the police documents including F.R. and final report, but since the offenders committing dacoity and murder have not been found out by the Police, therefore, F.R. has been filed in the concerned criminal Court. It is however, clear from the final report as well as on F.I.R. that an offence under Sections 302 and 397 of IPC has been registered against unknown persons. It is categorically stated that the jeep has also been looted from the driver/deceased. In this respect, Uma Devi (AW-1) and Kailash Sharma (AW-2) have supported the version as stated in claim petition and they remained intact in the cross-examination. It is also established from the evidence of these witnesses that the deceased as a driver was in receipt of salary of Rs.3000/- from the owner of the offending vehicle. She relied upon the judgment of Hon'ble Apex Court in the case of Rita Devi and others Vs. New India Assurance Co.Ltd and another, 2000 ACJ, 801 and in a case of Jharkhand High Court in Sugandha Devi and Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 3 MA-1276-2008 Others Vs. Munshi Saw and another, 2022 ACJ 1988 , National Insurance Co. Ltd Vs. Rakesh Kumar Sharma and others, 2024 ACJ, 1250 , and Smt. Rajni Gupta and others Vs. Dhirendra Singh and Others decided on 27.01.2025 passed in M.A.No.57/2022.The learned tribunal has erroneously dismissed the application under Section 163 of MACT Act, finding that the incident did not arise out of the use of motor vehicle. She prays for allowing the application.
4. Per contra, learned counsel appearing on behalf of the owner of the offending vehicle has submitted that though he has admitted in his reply about the factum that the deceased was the driver on his offending vehicle, but he went missing without information to him and, thereafter, the information regarding his death has been received to him. Since the vehicle was insured and, no breach of policy conditions found, therefore, the Insurance Company is liable for payment of compensation on the death of the driver of offending vehicle/deceased. It is also submitted that until today the offending vehicle is missing and not searched.
5 . Learned counsel appearing on behalf of the Insurance Company has submitted that the petition under Section 163-A of the Motor Vehicle Act is not maintainable at all. It is not a case in which the accident arose out of the use of motor vehicle. Moreover, it is revealed from the documents that the offending vehicle was employed for transporting the passengers and just before the accident, the deceased/driver of the offending vehicle was carrying passengers. Therefore, there is a breach of policy condition; hence, Insurance Company is not liable to pay compensation. Learned Tribunal has Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 4 MA-1276-2008 rightly dismissed the application. One witness has also been examined on behalf of the Insurance Company. She relied upon a judgment of the Apex Court in the case of Smt. Rita Devi and Others Vs. New India Assurance Co.Ltd and another, (2000) 2 ACC 291. She prays for rejection of the appeal.
6. Heard the learned counsel for the parties and perused the record.
7. In case of Smt. Rita Devi (supra) , Hon'ble Apex Court has held that some passengers hired auto rickshaw which was never recovered and body of its driver was recovered by police on the next day. Legal representatives of the deceased claimed compensation under Section 163 -A of the Motor Vehicle Act for the death during the course of his employment as a death caused in accident arising out of the vehicle. It is held by Hon'ble Apex Court that driver was duty-bound to have accepted the demand of fare- paying passengers to transport them to the place of their destination. If a passenger committed an act of felony of stealing the auto-rickshaw and they eliminated the driver, then such murder was due to the accident arising out of use of motor vehicle and claimants are entitled to compensation as the death was caused accidentally in the process of committing theft. Paragraphs No.7, 8, 9,10 and 14 are important, which reads as under:-
"7. As pointed out by the learned counsel for the appellants, the Motor Vehicles Act does not define the word "accident". However, Section 163-A of the Motor Vehicles Act provides for payment of compensation for the death or injury suffered in a motor vehicle accident on a structured formula basis in Section 163-A of the Act. Sub-section (1) of the said section says that:
"163-A. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 5 MA-1276-2008 disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be."
8. Sub-section (2) of the said section also provides:
"163-A. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person."
(emphasis supplied)
9. A conjoint reading of the above two sub-sections of Section 163-A shows that a victim or his heirs are entitled to claim from the owner/insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle (emphasis supplied), without having to prove wrongful act or neglect or default of anyone. Thus it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the Insurance Company which was accepted by the High Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words "death due to accident arising out of the use of motor vehicle".
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.
14. 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 autorickshaw, was dutybound 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 autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 6 MA-1276-2008 had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. 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 theft of the autorickshaw."
8. In case of Sugandha Devi and others (supra), High Court of Jharkhand has found that driver of jeep while transporting goods, was intercepted by some miscreants to rob the vehicle and when he tried to reverse the vehicle, one miscreant opened fire, resulting in death of driver. It is observed that the murder was not the sole motive nor there was enmity between the deceased and unknown miscreants who wanted to rob the vehicle. It is held that the death of deceased is not a murder simpliciter and it is an accidental murder which arose out of use of vehicle and claim petition found to be maintainable.
9. Though, in case of National Insurance Co.Ltd Vs. Rakesh Sharma and Others, the High Court of Jammu and Kashmir, while referring Rita Devi (supra) has observed that the truck driver while on a trip was found dead in the cabin of truck, then the cause of death is not forthcoming and only presumption that can be drawn is that driver was murdered. No evidence is on record that the death of the driver was an accidental murder arising out of and in the course of employment and not an intended murder. Hence award was set aside.
10. But, here in this case, the factual aspects are just similar to the case of Rita Devi (supra) and Suganda Devi (supra).
11. It is averred by the claimants in claim petition that the deceased Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 7 MA-1276-2008 Girraj Sharma was a driver deputed on the offending vehicle jeep bearing registration No.MP06-B- 1293. The employer of which is Ramesh Singh Tomar, who is also the owner of jeep. On 12.03.2003, deceased Girraj Sharma went for his work of driving, but he had not returned till 14.03.2003, then the claimants/the family members of deceased have enquired from Ramesh Singh, who has informed them that Girraj took the offending vehicle on 12.03.2003 by saying that he is going to his house. Therefore, the family members of the deceased have lodged a missing person report in Police Station Ambah on the same day. Thereupon, an offence FIR No. 154/2003 under Section 406 of IPC has been registered. Later on it is came into the knowledge that deceased Girraj was murdered by unknown persons who looted the offending vehicle and during the course of such loot deceased was being murdered by those unknown persons. The dead body of the deceased was found by Police Fatehabad (U.P.). Police got the postmortem conducted and registered an offence under Sections 302, 397 of IPC. Deceased Girraj was being murdered during the course of such loot and the offending vehicle has not been found till date. Therefore, the death of deceased Girraj was accidental in nature in the course of using the motor vehicle. These all averments on behalf of the claimants have been admitted by the owner of the offending vehicle, non-applicant No.1, who also admitted the fact that deceased was deputed as driver on his offending vehicle and he used to give Rs.3000/- per month pay to the deceased.
12. To prove the factum as stated in the claim petition, the claimants have examined the widow of the deceased Uma Devi (AW-1) and Kailash Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 8 MA-1276-2008 (AW-2) both the witnesses have reiterated and substantiated the facts mentioned in the claim petition. They remained intact in the cross- examination on the factum of the incident/accident. Though, there is no eyewitness to the incident/accident but since Police has also not found the real culprits and therefore, Police has filed the Final Report (Ex.P./1) before the Court concerned on the ground that it could not find out the accused persons. Ex.P/2 is an F.I.R. which has been lodged by Police Ambah on 25.09.2003. Ex.P/ 3 and Ex.P/4 are the spot map and Nakshapanchayatnama. Ex.P/5 is the postmortem report.
13. Sharad Kumar (NAW-1) has did not oppose the factum of accident as uttered by applicants' witnesses. He highlighted the facts that the offending vehicle was using for transporting the passengers on a higher and reward. Therefore, there was breach of policy conditions and Insurance Company is not liable to pay the compensation amount.
14. The facts of this case is more or less similar to the case of Rita Devi (supra) a n d Suganda Devi (supra). The deceased in this case was murdered during the use of motor vehicle when the unknown offender, while looting the offending vehicle has committed murder of the deceased/driver of the offending vehicle. Therefore, the factum of accident has been proved, keeping in view the law laid down aforesaid Rita Devi (supra) and Sugandha Devi (supra) the learned tribunal on issues No.1 and 2 has given erroneous findings, which are perverse and illegal. Therefore, findings on issues Nos 1 and 2 given by the learned tribunal are hereby set aside.
15. As far as the issue No.5 is concerned, though learned tribunal had Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 9 MA-1276-2008 given no specific findings over the issues in light of the negative finding on issues Nos 1 and 2. In this respect, however, it is found that Sharad Kumar (NAW-1) on the basis of statement of Uma Devi and averment in the claim petition has stated that the offending vehicle was at the time of incident being operated on higher and reward for transporting the passengers. He relied upon the sentence stated in the F.I.R. that when the claimants have contacted to the owner of the offending vehicle Ramesh then he has informed them that "Gadi party lekar Fatehabad gayi hai ". Uma Devi (AW-1) has also stated in her cross-examination that Ramesh has intimated them that the deceased was going along with the party by jeep. When she has categorically cross- examined on the point, she expressed that she had no knowledge as to whether the deceased had operated the jeep for higher and reward during the period of incident/accident. Sharad Kumar (NAW-1) has also admitted that he had taken the meaning of aforesaid sentence that the offending vehicle was driving on higher and reward. In the considered opinion of this Court the aforesaid sentence used in the F.I.R. as well as in the statement of Uma Devi (AW-1) does not denote that the offending vehicle was being operated on higher and reward by transporting the passengers at the time of accident. It is pertinent to mention here that there is no eyewitness of the accident/incident, therefore, at the time of acciden/incident whether the jeep was being driven in violation of the policy condition cannot be presumed. In this regard, the cogent evidence was to be adduced on behalf of the Insurance Company, which is missing on the record, while the onus to prove that issue was on the Insurance Company. Therefore, issue No.5 is not found to be Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 10 MA-1276-2008 proved by the Insurance Company.
16. Ex.D/1 is the schedule of Insurance policy which reveals that inter alia premium for driver has also been paid in the Policy. It is held in case of Smt. Rajani Gupta(supra) by Co-ordinate Bench of this Court that if the premium paid for the driver of the vehicle then the liability is not limited upto the extent of Rs.1,00,000/-, the Insurance Company along with the driver and owner of the vehicle is jointly and severally liable to pay the compensation amount being it as a comprehensive policy. Paragraphs 10 to 13 of the judgments reads as under:-
"(10) In the case of Balkrishnan (supra), the Hon'ble Apex Court in Para 26 has observed as under:-
''26. In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive/package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive/Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also 5 reproduced the same.'' (11) Further, the Coordinate Bench of this Court in the case of Ravindra Singh Sisodiya (supra) has held as under:-
''After hearing the arguments and going through record, it is apparent that the policy of the vehicle involved in the accident is a comprehensive policy. As per the law laid down in case of Surendra Nath Loomba (Supra) so also in the case of Sudha Jain (Supra), it is apparent that in a comprehensive policy, Insurance Company has to accept the liability of the pillion rider on Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 11 MA-1276-2008 a scooter as a third party. Therefore, award passed by the Claims Tribunal is modified to the extent that liability of the Insurance Company cannot be restricted to a sum of Rs.1,00,000/- i.e. the extent of personal accident cover and Insurance Company is held jointly and severally liable alongwith the owner and driver of the motorcycle to satisfy the award in is totality. Appeal is disposed of accordingly.
(12) The Division Bench of this Court in the case of National Insurance Company Ltd. vs. Tanuja decided on 23-05-2005 in MA No.725 of 2000 has held that except insurer and the insurance company all persons are third party. The pillion rider who is injured is also a third party to the insurance policy and, therefore, his risk is covered. The Insurance Company is liable to pay the amount of compensation for the injuries sustained by the claimant. (13) On going through the record of Claims Tribunal, it was found that the Ex.D2 according to which, the insurance was package policy and in the light of judgment of Apex Court as well as this Court in the above-cited cases, the Insurance Company is liable to make payment of total compensation amount. Therefore, the finding arrived at by the Claims Tribunal holding that the Insurance Company is liable only for compensation to the extent of Rs.1 lac and remaining amount to the claimants as jointly and severally entitled to get from Vivek Gupta and Dhirendra Singh Tomar (owner) is hereby set aside. The sole Insurance Company is liable to make payment of total compensation amount."
17. Though, the learned tribunal has not assessed the amount of compensation but since the matter is related to year 2003, therefore it would not be in fitness of things to remand the matter to the learned tribunal for assessment of compensation. On the strength of material and evidence available on record, this exercise can be undertaken by this Court. The postmortem report reveals that the age of deceased was 30 years and it is admitted by the owner of the offending vehicle that the deceased was driver on his vehicle and was in receipt of salary of Rs.3000/- per month. Therefore, the income of the deceased just before the incident/accident was Rs.3000/- per month. As far the amount of compensation is concerned, it is pertinent to mention here that the claim petition has been filed under the provisions of Section 163-A of Motor Vehicle Act. Therefore, the claimants are entitled to get the compensation amount strictly as per the structural formula. As the deceased was 30 years of age as per the postmortem report Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15769 12 MA-1276-2008 and claimants are widow, daughter and mother of the deceased. Therefore, dependency of 2/3rd and the multiplier of 18 will be applicable. As per the schedule of Section 163-A of Motor Vehicle Act, the amount of compensation is calculated as under:
Head Compensation award
Income 3,000x12= 36,000
Dependency 2/3rd
Multiplier 18
Loss of dependency 2/3 36000x2/3=24000x18 =4,32,000/-
Loss of consortium only to spouse 5,000/-
Loss of Estate 2,500/-
Funeral expenses 2,000/-
Total 4,41,500/-
18. The said amount of compensation shall carry 6% annual interest from the date of application.
19. In view of the aforesaid terms, the appeal stands allowed and disposed of.
(RAJENDRA KUMAR VANI) JUDGE mani Signature Not Verified Signed by: SUBASRI MANI Signing time: 8/1/2025 10:29:03 AM