Madhya Pradesh High Court
Khairunisha And Ors. vs Subhash @ Punjabi And Ors. on 9 October, 2007
Equivalent citations: 2008(2)MPHT259
Author: Arun Mishra
Bench: Arun Mishra, S.A. Naqvi
ORDER Arun Mishra, J.
1. The appeal has been preferred by the claimants aggrieved by dismissal of their claim petition by the Addl. Motor Accidents Claims Tribunal, Multai, District Betul as per award dated 10-10-2005 passed in M.A.C.C. No. 33/04. The Tribunal has dismissed the claim petition on the basis that it was a murder committed by use of motor vehicles. There was no causal connection of murder committed with the accident, in the opinion of the Tribunal it was not a case of an accidental murder.
2. The claimants preferred claim petition claiming compensation on account of death of Mohd. Arif aged 23 years, driver of Tata Mini Truck (MP 28-B/0144). The Mini Truck met with an accident with another truck (MP-05-A/8131) driven by Subhash @ Punjabi Nagle owned by Dayalu and insured with the New India Assurance Co. Ltd. When accident was caused Mohd. Arif driver of the Mini Truck asked Subhash Nagle to make the payment of compensation, as several persons had assembled Subhash Nagle asked Mohd. Arif to accompany him in his Truck, he went ahead 1/2 k.m. alongwith Mohd. Arif in the Truck and committed MARPEET of Mohd. Arif, ultimately Mohd. Arif was crushed by the Truck driven by Subhash Nagle, he fell down on the road and rear wheel of the truck ran over his head. He died on the spot. Subhash Nagle ran away from the spot alongwith the truck. Subhash Nagle was tried for commission of offence under Sections 302 and 427 of IPC and punished with life imprisonment. Deceased was earning Rs. 4200/- per month. His salary was Rs. 2100/-, allowance was also Rs. 2100/-. Compensation of Rs. 6,99,800/- was claimed alongwith interest.
3. The driver was proceeded ex parte. The owner in his reply contended that it was not a case of motor accident, murder of Mohd. Arif was committed by Subhash Nagle. Thus, the claimants were not entitled to claim compensation.
4. Insurer; the New India Assurance Co. Ltd. in its reply denied the liability to make the compensation on the ground that it was not a case arising out of motor accident, it was a case of murder. As rate of interest was reduced, liability, if any, be saddled with the reduced rate of interest.
5. The Tribunal on assessment of evidence has found that it was a case of murder of Mohd. Arif, it could not be said to be a case of motor-accident. Consequently, the claim petition has been dismissed. Aggrieved by the same the appeal has been preferred by the claimants.
6. Shri Pramod Thakre, learned Counsel appearing on behalf of the claimants has submitted that it was an accidental murder of Mohd. Arif, there was causal connection of murder with use of the motor vehicles, there was collision of two vehicles one driven by the deceased and another by Subhash Nagle respondent No. 1, that has ultimately led to the injuries being caused, altercation between the two drivers took place due to accident of two vehicles as deceased Mohd. Arif demanded compensation, Subhash Nagle ran over the truck over him. Thus, the dismissal of the claim petition by the Tribunal was not proper, he has also relied upon various decisions to be referred later.
7. Shri Rakesh Jain, learned Counsel appearing on behalf of the insurer has submitted that the accident was over, thereafter altercation took place between two drivers and as found by the Tribunal, intentionally truck was taken over the deceased Mohd. Arif by driver Subhash Nagle, thus, the Tribunal has rightly found it to be a case of out and out murder, it cannot be said to be a case of accidental murder or having causal connection with the accident. Shri Danendra Sukhdeo, learned Counsel appearing on behalf of the owner has also supported the submissions made by Shri Rakesh Jain.
8. It is not in dispute that there was accident between Mini Truck driven by the deceased Mohd. Arif and the truck driven by Subhash Nagle a convict in the murder case relating to death of Mohd. Arif. Subhash Nagle had taken Mohd. Arif in his truck in order to satisfy his demand to make payment of compensation due to damage caused to the Mini Truck which Mohd. Arif was driving. It appears that after Mohd. Arif was taken by Subhash Nagle in his truck an altercation took place between them, thereafter Mohd. Arif was dashed with the truck. It appears that the truck dashed the deceased rear wheel came over the head resulting into death of Mohd. Arif on the spot. Before giving finding of the causal connection in the instant case, we deem it appropriate to refer to decisions, the Apex Court in Rita Devi v. New India Assurance Co. Ltd. , wherein the Court has laid down that though Motor Vehicles Act has not defined the word 'death' the legal interpretations with reference to word 'death' in Workmen's Compensation Act will be applicable. The relevant object of both the Acts is to provide compensation to the victims of accidents. Workmen's Compensation Act is confined to workmen whereas the Motor Vehicles Act is available to the victims involving a motor vehicle. While examining the actual legal import of the words 'death due to accident arising out of the use of motor vehicle' the Apex Court considered the question can a murder be an accident in any given case ? The Apex Court has laid down that there is no doubt that the '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 of 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. 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. In the backdrop of the fact that deceased in the said case was driver of auto-rickshaw for carrying passengers on hire 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, 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. Thus, it was held by Their Lordships that the death of auto-rickshaw driver is an accident in the process of theft of auto-rickshaw.
9. A Division Bench of this Court in Kaushalya Bai and Ors. v. Ramkishan Kirar and Ors. , in the backdrop of the fact that death was caused when stolen goods were taken away in the tractor trolley, when effort was made by the deceased to stop the tractor trolley he was hit, it was a case of accidental murder arising out of use of motor vehicle. In Sameer Chanda v. M.D., Assam Stale Trans. Corpn. , where the injuries were suffered by the claimant due to bomb blast inside the passenger bus when it reached the last stoppage and passengers were alighting from it, abnormal situation was prevailing during that period requiring owner or driver to take extra care by carrying a police escort, but there was no police help in the city bus on the day of accident, plea of negligence was allowed by the Tribunal. Their Lordships of the Apex Court considered the decision in Shivaji Dayanu Patil v. Vatschala Uttam More , in which there was a collision between a petrol tanker and a truck on a national highway, as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the highway. As a result of the collision, the petrol contained in the tanker leaked out and collected nearby, about four hours later, an explosion took place in the tanker causing burn injuries to those assembled near it. The Apex Court held that the word 'use' has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. The Apex Court has laid down that the expression 'arising out of' has a wider connotation as compared to the 'accident caused'. The expression 'arising out of has been used in Sections 165, 163-A and 140 of the 1988 Act. There is departure from the previous Act of 1939 in which under Section 95 (1) (b) (ii) the expression used was 'caused by'. Their Lordship laid down that use of expression 'arising out of indicates that for the purpose of awarding compensation under Section 92-A of the 1939 Act was causal 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 under the Act of 1988. This would imply that 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 motor vehicle' enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.
The right of third party to claim compensation in such situation has been considered by Lord Denning in the case of Hardy v. Motor Insurer's Bureau (1964) 2 All ER 742, it was held that:
The policy of insurance, which a motorist is required by statute to take out, must cover any liability which may be incurred by him arising out of the use of the vehicle by him. It must, I think, be wide enough to cover, in general terms, any use by him of the vehicle, be it an innocent use or a criminal use, or be it a murderous use or a playful use. A policy so taken out by him is good altogether according to its terms. Of course, if the motorist intended from the beginning to make a criminal use of the vehicle intended to run down people with it or to drive it recklessly and dangerously and the insurers knew that, that was his intention, the policy would be bad in its inception. No one can stipulate for inequity. But that is never the intention with which such a policy is taken out. At any rate, no insurer is ever party to it. So the policy is good in its inception. The question arises only when the motorist afterwards makes a criminal use of the vehicle, the consequences are then these: if the motorist is guilty of a crime involving a wicked and deliberate intent and he is made to pay damages to an injured person, he is not himself entitled to recover on the policy. But if he does not pay the damages, then the injured third party can recover against the insurers under Section 207 of the Road Traffic Act, 1960 for it is a liability which the motorist, under the statute, was required to cover. The injured third party is not affected by the disability which was attached to the motorist himself. So here, the liability of Phillips to the plaintiff was a liability which Phillips was required to cover by a policy of insurance, even though it arose out of his willful and culpable criminal act. If Phillips had been insured, he himself would be disabled from recovering from the insurers. But the injured third party would not be disabled from recovering from them.
10. In Oriental Insurance Co. Ltd. v. Sheela Bai Jain and Anr. , a Division Bench of this Court has considered the question of murder arising out of and in the course of employment, truck loaded with goods turned turtle and cleaner of truck was guarding the truck and its goods when he was murdered by unknown persons, it was held by this Court that it was a case of 'death' in the course of employment. Decision of Rita Devi (supra), had been relied upon, the Court has found the causal connection as observed in Shivaji Dayanu Patil (supra).
11. Shri Pramod Thakre, learned Counsel appearing on behalf of the claimants has referred the decision in Oriental Insurance Co. Ltd. v. Archana Rajan and Ors. , wherein a Division Bench of Patna High Court in the case of murder with intent of causing violence inside a motor vehicle was held to be an accident and Insurance Company was held liable. In National Insurance Co. Ltd. v. Kasheni and Ors. , the High Court of Gauhati has also awarded compensation to the victim, owing to firing travelling in the auto-rickshaw. Counsel has also referred to Sushila and Anr. v. State of Karnataka and Ors. , where murder of forest watchman was committed by wood smugglers when he tried to catch them while protecting forest produce of the State, it was held to be a fatal accident. It appears to us that facts of each case are required to be considered so as to find out causal connection.
12. Coming to the facts of instant case : it is clear that there was causal connection between the initial accident that took place between of Mini Truck and that of offending vehicle, there was also connection of the subsequent events with the accident and the clearly the motor vehicle driven by Subhash Nagle caused death of Mohd. Arif. Thus, it was a clearly a case of accidental murder. It was having causal connection with the motor accident, altercation also took place due to accident as the compensation was demanded that was also having causal connection, thereafter Mohd. Arif was run over by the offending truck. Thus, case squarely falls within the category of accidental murder as per principles laid down by the Apex Court in Rita Devi (supra). Thus, the claimants would be entitled for compensation, being a case of accidental murder involving use of motor vehicles.
13. Coming to question of quantum of compensation to be awarded : we find that the Tribunal has assessed the income at Rs. 3,000/- per month that is found to be proper assessment of income of Mohd. Arif, annual income, thus, comes to Rs. 36,000/-, making customary l/3rd deduction towards self expenditure of the deceased which amount the deceased would have spent on himself, had he been alive, the annual loss of dependency comes to Rs. 24,000/-. The age of mother was 42 years, consequently instead of multiplier of 17 we apply the multiplier of 15 considering the age of mother, thus, the compensation comes to Rs. 3,60,000/-. Apart from that we award a sum of Rs. 30,000/- to the claimants under the customary heads such as loss of estate, loss of expectancy of life and funeral expenses. Thus, total compensation comes to Rs. 3,90,000/-(Rupees Three Lakh, Ninety Thousand only). The compensation to carry interest @ 6% per annum from the date of claim petition till realization.
14. Resultantly, the appeal is allowed in part to the aforesaid extent. Compensation of Rs. 3,90,000/- (Rupees Three Lakh, Ninety Thousand only) is awarded alongwith interest @ 6% per annum from the date of claim petition till realization.
15. Liability of the respondents is held to be joint and several to make payment of compensation. We award 50% of the amount to the mother and remaining amount to be disbursed equally to the brother and sister. No costs.