Tripura High Court
The Divisional Manager vs ) Smti. Chaya Rani Das on 28 June, 2018
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
MAC APP NO.14 OF 2018
The Divisional Manager, National
Insurance Company Ltd.,
Akhaura Road, Agartala, West Tripura.
(Insurer of vehicle bearing
No.TR 01-X-0795 Maruti Van)
.....Opposite Party (No.2)-Appellant
Versus
1) Smti. Chaya Rani Das,
W/O Late Gopal Chandra Das alias Gopal Das
2) Sri Anupam Das,
S/O Late Gopal Chandra Das alias Gopal Das;
Both are residents of East Badharghat,
Sreepally, P.S.- Amtali,
Agartala, West Tripura
....Claimant-Respondents
3) Smti Sikha Singh, W/O Sri Ashim Singh of North Badharghat, Subhash Pally, P.S.- A.D. Nagar, Agartala, West Tripura.
(Owner of vehicle bearing No.TR01-X-0795 Maruti Van) .................Opposite Party Respondents For Appellant (s) : Ms. R. Purukayastha, Adv For Respondent(s) : Mr. B. Dutta, Adv Date of delivery of Judgment & Order : 28.06.2018.
Whether fit for reporting : YES.
HON'BLE MR. JUSTICE ARINDAM LODH MAC APP NO.14 OF 2018 Page 2 of 9 JUDGEMENT AND ORDER(ORAL) This appeal is directed against the judgment and award dated 16.09.2017 passed by the learned Member, Motor Accident Claims Tribunal, Court No.1, West Tripura, Agartala in T.S. (MAC) 23/2016 whereby the learned Tribunal has most illegally and arbitrarily awarded compensation of Rs.9,00,799/- only along with the interest @ 6 % per annum from the date of presentation of the claim petition i.e. 04.02.2016, to be paid to the claimant-respondents by the appellant-Insurance Company within a period of six weeks from the date of judgment, failing which it shall carry interest @ 8 % per annum after the expiry of six weeks till the payment is made.
2. The fact in short outlined by the appellant is that on 20.01.2016 in the early morning one Gopal Chandra Das was going to Battala riding a bi-cycle and when he reached Milan Chakra, he was knocked down and ran over by a speedy vehicle bearing No. TR01-X-0795, resulting the death of said Gopal Chandra Das on the spot. He was immediately rushed to the hospital where he was declared dead.
3. The wife and son of deceased Gopal Chandra Das filed a claim application before the learned Tribunal, West Tripura, Agartala claiming compensation of Rs. 60,00,000/-. The owner of the vehicle Smt. Sikha Singh, being summoned filed written statement and contested the suit. The Divisional Managar of National Insurance Company also filed a written statement and contested the suit. All the parties where given opportunities to MAC APP NO.14 OF 2018 Page 3 of 9 adduce their respective evidence before the learned Tribunal, and to submit the necessary documents to substantiate their pleadings.
4. The respondent No.1, who is the claimant No.1 in the claim application, being the wife and the legal guardian of the respondent No.2/son was examined by the Tribunal. She was duly cross-examined by the appellant-Insurance Company as well as by the owner of the vehicle, the respondent No.3 in this appeal. During her examination, the claimant-respondent No.1 had filed a copy of F.I.R., charge sheet and post mortem examination report. From the judgment and award dated 16.09.2017 it is revealed that the respondent No.3 being owner of the vehicle No. TR01-X-0795 has admitted the fact of accident in her written statement.
5. Per contra, the Insurance Company despite enough opportunities, did not come forward before the Tribunal to controvert the evidence led by the claimant during the course of proceeding. Learned Tribunal on consideration of all the pleadings, the evidence on records and documents submitted in the proceeding has arrived at a finding that the husband of the claimant-respondent No.1 died due to accident caused by the driver of the vehicle No. TR01-X-0795 and awarded the sum of Rs.9,00,799/- as compensation to the claimants i.e., wife and son of the deceased.
6. By filing the appeal before this Court the Insurance Company, i.e., the appellant herein, has urged before this Court MAC APP NO.14 OF 2018 Page 4 of 9 that the death of the deceased was not caused due to accident but it was the outcome of the murder committed by the driver of the vehicle and it has been revealed from the charge sheet where the appellant- Insurance company has found that the charge sheet was filed under Section 302 of the Indian Penal Code.
7. The question needs for determination in this appeal:-
(i) Whether the death of the deceased was caused due to accident?
(ii) Whether it was murder simplicitor only with the intention to kill the husband of claimant No.1?
(iii) Whether the accident was intended to be caused only to the husband of claimant No.1 or somebody else?
8. Ms. R. Purukayastha, learned counsel appearing for the appellant submits that the learned Tribunal has committed a manifest error in awarding compensation in favour of the claimants fixing liability upon the owner of the vehicle who is indemnified by the appellant-Insurance Company. She further submits that this is not a case of accident which comes within the purview of definition of the "accident" in the Motor Vehicles Act, rather, it was a murder simpliciter. On the basis of this fact Ms. R. Purukayastha, learned counsel appearing for the appellant has tried to persuade this Court that the instant appeal is required to be interfered with as because it was a case of murder and Insurance Company is not liable to pay any amount of compensation in favour of the claimants. The learned counsel, placing reliance on a decision in Rita Devi (Smt) & MAC APP NO.14 OF 2018 Page 5 of 9 Ors. Vs. New India Assurance Co. Ltd. and anr. reported in (2000) 5 SCC 113 has urged that the fact of the instant appeal is squarely covered by this decision.
9. On the basis of the submission of the learned counsel, I have meticulously and scrupulously have perused para-10 as relied upon by the learned counsel, which is reproduced in verbatim:-
"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 off 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"
10. In the instant case, the Insurance Company despite having enough opportunities did not come forward to substantiate the fact they alleged whether it was an intentional murder or a murder not intended to be caused. More so, even there was no pleading in written statement filed by the Insurance Company that it was not an accident rather it was a murder simpliciter. It is not that the Insurance Company has any dearth of its machineries to enquire any of the facts of accident and they are at liberty to enquire about the cause of accident resulting the death MAC APP NO.14 OF 2018 Page 6 of 9 or injury of any person caused out of the use of any vehicle insured with the said Insurance Company. But they have miserably failed to discharge their duty and liability to protect the state ex- exchequer. This is nothing but a sheer negligence committed by the Insurance Company for which a litigant like the claimants in the present case should not be allowed to suffer in any manner whatsoever, particularly, in a case of this nature being social welfare legislation. They failed to discharge their burden to substantiate that the cause of death of the deceased was due to any felonious act on the part of the driver.
11. The learned counsel appearing for the Insurance Company for the first time has taken this new plea that is also on the basis of insertion of Section 302 in the charge sheet. The copy of the said charge-sheet was filed during the course of proceeding before the learned Tribunal. At that time, it was well within their knowledge about the insertion of this provision of Section 302 of IPC. Despite this fact, I reiterate that they did not make any endeavor to come forward with a plea that the cause of death of deceased was a murder simpliciter.
12. I am afraid, if this submission of learned counsel is accepted and that too in absence of any pleading or cogent evidence, then, definitely it will cause serious miscarriage of justice to the claimant-respondents.
MAC APP NO.14 OF 2018 Page 7 of 9
13. In the case of Shivaji Dayanu Patil V. Vatschala Uttam More, reported in (1991) 3 SCC 530, the Apex Court pronouncing on the interpretation of Section 92-A of the Motor Vehicles Act, 1939 held as follows:
"....... Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no-faulty liability. In the matter of interpretation of a beneficial legislation the approach of the Courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose."
14. In that case in regard to the contention of proximity between the accident and the explosion that took place the Apex Court held:
"36. 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 Section 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 for the purpose of awarding compensation under Section 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 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‟ in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the veneficial object underlying the enactment."
MAC APP NO.14 OF 2018 Page 8 of 9
15. Applying the principles laid down in the above cases to the facts of the present case, it would be reasonable to hold that even if, for the sake of argument, it was a case of murder but that murder of the deceased (Gopal Chandra Das) was due to an accident arising out of the use of motor vehicle. Therefore, the learned Tribunal rightly came to the conclusion that the claimants were entitled to compensation in terms of the application filed by them under Section 166 of the Motor Vehicles Act, 1988.
16. Minute evaluation of the evidence on record as well as the submission of learned counsel for the appellant and the findings of the Tribunal lead me to conclude that the Tribunal has decided the case on the basis of the pleadings made by the parties as well as the evidence laid before it. I have noticed that during the entire proceeding it was the plain case of the claimants that death of the deceased was the outcome of the accident due to rash and negligent driving of the driver of the vehicle, and in absence of any cogent evidence on behalf of appellant-insurance company it makes no difference whether the accident was caused deliberately to kill the deceased or whether it was intended for somebody else and not for the husband of claimant No.1.
MAC APP NO.14 OF 2018 Page 9 of 9
17. In view of above observations and discussion, I am of the opinion that the learned Tribunal has not committed any error both on points of facts and law in awarding compensation of Rs. 9,00,799/- and fixing the liability upon the Insurance Company to pay the awarded amount in favour of the claimants. In the result the appeal fails and accordingly, it is dismissed.
18. I direct the appellant-Insurance Company herein to pay the entire awarded amount to the claimants within a period of 60(sixty) days from the date of this judgment. However, I set aside the order of the learned Tribunal awarding penal interest @ 8 % per annum.
19. The appellant-Insurance Company is directed to deposit the entire amount with the up to date interest with the Registry of this Court as indicated above and after receipt of this amount the Registry is directed to release 50 % of the amount to the claimants and the rest amount may be deposited in a fixed deposit at least, for a period of five years.
JUDGE suhanjit MAC APP NO.14 OF 2018