Gauhati High Court
MFA/74/2021 on 15 September, 2025
Page 1 of 28
GAHC010288342018
2025:GAU-AS:12589
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MFA. No. 74/2021
National Insurance Company Limited,
(subsidiary of General Insurance
Corporation of India) registered head
Office at 3, Middleton Street, Calcutta-
700071, represented by the Deputy
Manager, Gauhati Regional Office,
Bhangagarh, Guwahati-781005.
.....Appellant
-Versus-
1. Musstt. Jahura Khatun,
W/o Late Giyas Uddin.
2. Md. Rajib Hussain,
S/O Late Giyas Uddin.
3. Musstt. Khushida Begum,
D/o Late Giyas Uddin.
4. Musstt. Jesmine Sultana,
D/o Late Giyas Uddin,
(Respondent Nos. 2, 3, 4 being minor are
MFA. No. 74/2021 Page 1 Page 2 of 28 represented by their mother respondent No. 1.) All are resident of Village-Itachali,Sialmari, P.O.-Madhupur, P.S.-Nagaon, District-Nagaon, Assam.Pin-782003.
5. Md. Akbar Hussain, (Owner), S/o Late Ali Hussain, R/o Azad Nagar, P.O. Choto Haibar, P.S.-Nagaon, District-Nagaon, Assam.
Pin-782001.
......Respondents For Appellant 1. Ms. R.D. Mazumdar, Advocate.
For Respondent : Ms. P. Barman, Advocate.
Date of Judgment : 15.09.2025
BEFORE
HON‟BLE MR. JUSTICE MRIDUL KUMAR KALITA JUDGMENT AND ORDER (CAV)
1. Heard Ms. R.D. Mazumdar, the learned counsel for the petitioner. Also heard Ms. P. Barman, the learned counsel for the respondent Nos. 1, 2 and 3.
2. This appeal under Section 30 of the Workmen's Compensation Act, 1923, has been filed by the appellant, i.e., National Insurance Company Limited against the judgment and award dated 30.12.2017, passed by the learned Commissioner, MFA. No. 74/2021 Page 2 Page 3 of 28 Employee's Compensation, Nagaon, Assam in N.E.C. Case No. 17/2016.
3. By the impugned judgment and award, the learned Commissioner for Employee's Compensation, Nagaon had awarded a compensation amount of Rs. 6,70,160/- (Rupees Six Lakh Seventy Thousand and One Hundred Sixty only)to the respondent Nos. 1, 2, 3, and 4, on account of death of Giyas Uddin, during the course of an arising out of his employment. The appellant was directed to pay the said compensation amount within a period of 30(thirty) days from the date of receipt of the order, failing which it was directed to pay an interest @ 12% per annum on the awarded amount from the date of accident till the realization of the awarded amount.
4. The facts relevant for consideration of the instant appeal, in brief, is that the husband of the respondent No. 1, namely, Giyas Uddin, was the driver of the vehicle bearing Registration No. AS-02C-9455 (Tata Indica). Late Giyas Uddin, was employed by the respondent No.5, herein. On 06.04.2016, at about 7:30 PM, while he was driving the aforesaid vehicle from Sialmari to Nagaon town, he met with an accident with a motorcycle at Madhupur, Kadamtala Bazar. After the said accident, some person physically assaulted him badly, as a result of which, he sustained serious injuries. He was immediately transferred to B. P. Civil Hospital, Nagaon, where MFA. No. 74/2021 Page 3 Page 4 of 28 he succumbed to his injuries.
5. In this connection, a police case, i.e. Nagaon P. S. Case No. 853/2016 was registered under 302 of the Indian Penal Code, 1860. On death of the Giyas Uddin, his widow, i.e. the respondent No. 1 of this appeal and his daughters, respondent Nos. 2, 3 and 4, had filed a claim petition before the Commissioner, Employee's Compensation, Nagaon, Assam-cum- Assistant Labour Commissioner, Nagaon, under Section 22 of the Workmen's Compensation Act, 1923, for grant of compensation on account of death of Giyas Uddin, on 07.04.2016, during the course of his employment.
6. In the said claim petition, the employer of late Giyas Uddin, namely, Md. Akbar Hussain, (respondent No. 5 in this appeal) as well as the National Insurance Company Limited (the appellant and the insurer of the vehicle, bearing Registration No.AS-02C-9455 (Tata Indica) were named as the opposite party. The opposite party contested the claimed case by filing a written statement. Upon pleadings of the parties, the following issues were framed by the Commissioner, Employee's Compensation, Nagaon:-
i. Whether the deceased Giyas Uddin, was the employee in the vehicle bearing Registration No. AS- 02C-9455 (Tata Indica), under the employment of opposite party No. 1.
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ii. Whether Giyas Uddin, died in the course of and
arising out of his employment.
iii. Whether the claimants are entitled to any
compensation, and if so, from whom.
7. In support of their contentions, the claimants examined the claimant No. 1, as PW-1, and exhibited 8(eight) documents, namely, Police Report as Exhibit-1, FIR as Exhibit-2, Postmortem Examination Report as Exhibit-3, Driving License as Exhibit-4, Salary Certificate as Exhibit-5, Insurance Policy as Exhibit-6, MVI Report as Exhibit-7, and notice under Section 10 of the Essential Commodities Act, 1955issued to the owner of the vehicle as Exhibit-8. The opposite party No. 1, i.e., the owner of the offending vehicle, was examined as PW-2. The insurance company was given several opportunities for cross-
examination, but it failed to avail the said opportunity, and it did not adduce any evidence in its defence.
8. Ultimately, all the issues were decided in favour of the claimants against the respondents, and by the impugned judgment and award, a compensation amount of Rs. 6,70,160/- (Rupees Six Lakh Seventy Thousand and One Hundred Sixty only) was directed to be paid to the claimants by the insurance company.
9. Against the judgment and award dated 22.09.2017, passed in N.E.C. Case No. 17/2016, the insurance company filed a review MFA. No. 74/2021 Page 5 Page 6 of 28 application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 on 23.10.2017, however, by the order and judgment dated 30.12.2017 passed in the review application, the learned Commissioner, Employee's Compensation, Nagaon reiterated its earlier judgment dated 22.09.2017 and accordingly, in the judgment passed in the review application dated 30.12.2017, it directed the insurance company to pay a compensation amount of Rs. 6,70,160/- (Rupees Six Lakh Seventy Thousand and One Hundred Sixty only)to the claimants within a period of 30(thirty) days, from the date of the said order, failing which to pay an interest @ 12% per annum on the awarded amount from the date of accident till the realization of the awarded amount.
10. In the instant appeal, the appellant insurance company has impugned the judgment and award dated 30.12.2017 passed in N.E.C. Case No. 17/2016, inter alia, on the following grounds: -
i. The learned Commissioner had failed to consider the fact that the deceased was driving the offending vehicle as a professional driver, but was holding a learner's licence, while he was driving the said vehicle, no person having valid and effective driving license had accompanied him and, therefore, there is a violation of the policy conditions and the learned Commissioner in spite of the said violation erred in MFA. No. 74/2021 Page 6 Page 7 of 28 directing the insurance company to pay the compensation.
ii. The learned Commissioner also failed to consider that the death of Giyas Uddin was due to assault and it was in no way connected to the employment of the deceased. Thus, it has been pleaded that no compensation could have been granted to the claimants in this case.
11. It also appears that by order dated 07.04.2021 following substantial questions of law were formulated by this Court:-
a. Whether there will be violation of policy condition when holder of a learner's licence drives the vehicle without accompanied by a person having valid licence.
b. Whether in view of the fact that the driver died due to assault and his death was not related to his employment, the appellant company will be liable to pay compensation under Section 3 of the Employees Compensation Act, 2023.
12. The learned counsel for the appellant has submitted that the deceased was found to be holding only a learner's licence, when the offending vehicle met with an accident with a motorcycle rider and no other person having a valid and effective driving licence was accompanying him, when he was driving the said MFA. No. 74/2021 Page 7 Page 8 of 28 vehicle. Hence, she submits that the deceased by driving the vehicle, which is required to be drived by a professional driver holding a professional driving licence had violated the terms of policy and, therefore, if any liability accrues, it would be for the owner of the vehicle to compensate the claimants and not the present appellant.
13. The learner counsel for the appellant has further submitted that as the insurance company is not liable to pay the compensation due to violation of the terms of insurance policy, if the insurance company is directed to pay the compensation as directed by the impugned judgment, it may be allowed to recover the same, from the owner of the offending vehicle.
14. She further submits that before directing the release of the insurance amount the owner of the offending vehicle may be asked to furnish a security in respect of the entire compensation amount and the offending vehicle may also be attached. She further submits that to enable the appellant to recover the compensation amount from the owner of the vehicle, no civil suit is required to be filed and the insurance company may be allowed to recover the compensation amount from the owner of the offending vehicle by filing an execution case.
15. In support of the submissions made by the learned counsel for the appellant, she has cited the following rulings:-
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i. "Oriental Insurance Co. Ltd.Vs. Shri Nanjappan
AndOthers‟ reported in "(2004)13 SCC 224; ii. "Oriental Insurance Co. Ltd.Vs.Smti Sonali Kalita& 3Ors." in "MAC Appeal No. 467/2017."
16. The learned counsel for the appellant has also submitted that the death of the deceased Giyas Uddin was not due to the accident involving the vehicle, which was insured by the appellant company. She submits that death was due to the assault by the local public and which has also given rise to a police case i.e., Nagaon P. S. Case No. 853/2016under Section 302 of the Indian Penal Code, 1860.
17. Therefore, she submits that the death was not due to the accident. She submits that death was caused due to murder of the husband of the claimant No. 1 and same cannot be regarded as murder for the purpose of granting of compensation under the Employee's Compensation Act, 1923.
18. She submits that death of Giyas Uddin was not related to his employment and, therefore, appellant Insurance Company is not liable to pay the compensation under Section 3 of the Employee's Compensation Act, 1923.
19. On the other hand, the learned counsel for respondent Nos. 1, 2 and 3 has submitted that the Employee's Compensation Act, 2023 is a beneficial legislation. It was enacted to secure MFA. No. 74/2021 Page 9 Page 10 of 28 compensation to poor workmen, who suffer from injury at their place of work.
20. She submits that in the instant case, the husband of the respondent No. 1 was the driver engaged by the respondent No. 5 and the accident occurred, while he was driving the vehicle bearing Registration No. AS-02C-9455 (Tata Indica), during the course of his employment and it is only because that the accident occurred and the motorcycle driver was injured, he was physically assaulted by the local public which led to his death. The learned counsel for the respondents submits that the deceased Giyas Uddin was assaulted only because while driving the vehicle from the respondent No. 5, he committed an accident with a motorcycle.
21. She submits that the deceased Giyas Uddin was on the duty of the insured vehicle at the time of his accident, which led to his assault by the public. She submits that the murder of the deceased Giyas Uddin was an accident, arising out of and during the course of his employment and the law in this regard has been settled in the case of "Rita Devi Vs. New India Assurance Co. Ltd." reported in "2000 ACJ 801(SC)."
22. The learned counsel for the respondents also submitted that the deceased was found to holding a learner's licence and it has been settled by the Apex Court in the case of "National MFA. No. 74/2021 Page 10 Page 11 of 28 Insurance Co. Ltd.Vs. Swaran Singh And Others" reported in "(2004)3 SCC 297" that in case of holding a learner's licence by the driver of an offending vehicle can be regarded as holding a due license and Insurance Company cannot escape its liability mainly on the plea that the driver of the offending vehicle was holding only learner's licence.
23. She submits that as the vehicle which was driven by the deceased Giyas Uddin, which met with an accident, was insured by the appellant company, the learned Commissioner, Employee's Compensation, Nagaon has rightly directed the insurance company to pay compensation amount to the respondents Nos. 1, 2, 3 and 4.
24. I have considered the submissions made by the learned counsel for both sides and have gone through the records of the case, including the records of the N.E.C. Case No. 17/2016, which was requisitioned from the learned Commissioner, Employee's Compensation, Nagaon in connection with this case.
25. As regards the first substantial question of law formulated by a co-ordinate bench of this Court on 07.04.2023 is concerned, this Court is of the considered opinion that the law in this regard is no longer remains a substantial question of law, as it has been already settled by the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh And Others"(supra), wherein it has observed as follows:-
MFA. No. 74/2021 Page 11 Page 12 of 28 "93. The Motor Vehicles Act, 1988 provides for grant of learner's licence. [See Section 4(3), Section 7(2), Section 10(3) and Section 14.] A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that when a vehicle is being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not "duly licensed"
resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section 149(2) of the said Act.
94. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. Sections 3(2) and 6 of the Act provide for restriction in the matter of grant of driving licence, Section 7 deals with such restrictions on granting of learner's licence. Sections 8 and 9 provide for the manner and conditions for grant of driving licence. Section 15 provides for renewal of driving licence. Learner's licences are granted under the Rules framed by the Central Government or the State Governments in exercise of their rule-making power. Conditions are attached to the learner's MFA. No. 74/2021 Page 12 Page 13 of 28 licences granted in terms of the statute. A person holding learner's licence would, thus, also come within the purview of "duly licensed" as such a licence is also granted in terms of the provisions of the Act and the Rules framed thereunder. It is now a well-settled principle of law that rules validly framed become part of the statute. Such rules are, therefore, required to be read as a part of the main enactment. It is also a well- settled principle of law that for the interpretation of statute an attempt must be made to give effect to all provisions under the rule. No provision should be considered as surplusage."
26. Thus, in view of the aforesaid ruling of the Apex Court, wherein it has held that a learner's license is also a license within the meeting of the provisions of the Motor Vehicle Act, 1988, it cannot be said that when a vehicle is being driven by a learner subject to the conditions of licence, he would not be regarded as a person, who is not having a due license, conferring a right of the insurer to avert the claim of a third party.
27. In this case, no evidence has been led by the insurance company to show that any of the conditions mentioned in the licence was violated. The PW-2 during his cross-examination has stated that "no one was there in the vehicle", which is not a true fact, as admittedly the driver and the daughter of PW-2 were there in the vehicle. Moreover, if the insurance company is harping on the fact that any of the condition of the license was MFA. No. 74/2021 Page 13 Page 14 of 28 violated, it was for the insurance company to prove the said facts either by adducing evidence or by specifically asking this question to any of the witnesses. Moreover, PW-2 is not an eyewitness to the accident. Hence, his testimony as regards who was there in the vehicle at the time of accident may not be regarded as direct evidence. Under such circumstances, failure on the part of insurance company to lead evidence to show that there was a violation of the condition of licence would give benefit to the claimants in this case.
28. Under such circumstances, this Court is of considered opinion that the evidence on record is not sufficient for the insurance company to escape its liability of payment of compensation under beneficial legislation. As already stated herein above, the aforesaid substantial question of law which was formulated by this Court is, accordingly, answered in negative in light of the judgment of the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh And Others" (supra).
29. The second substantial question of law that as the driver Giyas Uddin died due to assault, therefore, whether his death was related to his employment or not and whether the claimants, who are the dependents of the deceased driver, are entitled to get compensation under Section 3 of the Employee's Compensation Act, 2023 or not. This question may also be answered if we answer the question as to whether the murder MFA. No. 74/2021 Page 14 Page 15 of 28 of the driver Giyas Uddin can be regarded as an accident arising out of and during the course of his employment.
30. This question was answered in a case involving almost similar facts before the Apex Court in the case of "Rita Devi Vs. New India Assurance Co. Ltd." (supra), wherein the Apex Court has drawn a distinction between a murder which is not an accident and a murder which is a result of an accident. The Apex Court has laid down the test that if the dominant intention is to kill a particular person then such killing is not an accidental murder but a murder simpliciter. However, if the cause of murder or the act of murder was originally not intended and the same was caused in the furtherance of an felonious act, then such murder is an accidental.
31. In the case of "Rita Devi Vs. New India Assurance Co.
Ltd."(supra), the Apex Court has observed as follows:-
"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, MFA. No. 74/2021 Page 15 Page 16 of 28 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."
32. In the case of "United India Insurance Company Ltd. Vs. Kamlesh and others"(supra), the Delhi High Court has observed as follows:-
"14. In United India Insurance Company Ltd. v. Kanshi Ram, 2006 ACJ 492 (Delhi High Court), a truck going from Delhi to Hyderabad went missing. The police during investigation, located the truck and found that some of the goods being transported in the truck were stolen and the driver was murdered. The legal representatives of the deceased filed an application for compensation before the Commissioner, Workmen's Compensation which was allowed. The insurance company challenged the order in appeal. Following Rita Devi (supra), Madan B. Lokur, J. as he then was, held the murder to be an accident. The Delhi High Court cited with approval the three English cases, namely, Nisbet v. Rayne and Burn (supra), Board MFA. No. 74/2021 Page 16 Page 17 of 28 of Management of Trim Joint District School v. Kelly, 1914 A.C. 667 and Clover, Clayton and Company, Ltd. v. Hughes, 1910 A.C. 242. The Delhi High Court also cited the judgments of other High Courts, Delhi High Court namely, Bhagubai v. Central Railway, A.I.R. 1955 Bom.
105, Satiya v. Sub-Divisional Officer, Public Works Department Narsimhapur (1974) 2 L.L.N. 204, Varkeyachan v. Thomman (1979) 1 L.L.N. 477, United India Insurance Company Ltd. v. Philo (1996) 3 L.L.N. 116 and Parle Products, Ltd. v. Subir Mukherjee 2001 (I) L.L.J.
964. The relevant portion of the said judgment is reproduced hereunder:--
"3. Sohan Lal was working as a driver with M/s. Manoj Roadlines. As a part of his duties, he was taking a truck from Delhi to Hyderabad alongwith a second driver Jeet Singh. It appears that somewhere in Rajasthan, he was murdered. The truck was missing for a few days and when the police located it during investigation, it was revealed that some of the goods that were being transported in the truck were stolen. Investigations also revealed that Jeet Singh had committed the murder.
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7. What is an accident, and when can it be said that a murder is an accident?
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8. Nisbet v. Rayne and Burn [(1910) 2 K.B.D. 689], is a leading case on this subject. A cashier was travelling in a train with a large sum of money intended for payment to his employer's workmen. He was robbed and murdered and the Court of appeal held the murder was an accident from the point of view of the cashier and, therefore, it was an accident within the meaning of that term in the Workmen's Compensation Act, 1923.
9. Similarly, in Board of Management of Trim Joint District School v. Kelly [1914 A.C. 667], an assistant master at an industrial school was assaulted and killed by two pupils while he was performing his duties. The House of Lords held that for the purpose of the same statute, his death was caused by an accident. Viscount Haldane, L.C. pointed out that the meaning of the term "accident" would vary according as the context varies, and as instances mentioned criminal jurisprudence where crime and accident are sharply divided by the presence or absence of mens rea and the law of marine insurance where the maxim: In jure non remota cause sect proximo spectator (in law the proximate, and not the remote, cause is to be regarded) applies.
10. In Clover, Clayton and Company, Ltd. v. Hughes [1910 A.C. 242], Lord Loreburn, L.C. said:
MFA. No. 74/2021 Page 18 Page 19 of 28 "What, then, is an „accident‟? It has been defined in this House as an unlooked for mishap or an untoward event, which is not expected or designed."
11. Our Supreme Court in Rita Devi v. New India Assurance Company, Ltd., [(2000) 5 SCC 113], dealt with a case in which the driver of an auto rickshaw was murdered by his fare paying passengers. The passengers intended to steal the auto rickshaw, for which they had to eliminate the driver. On these facts, the Supreme Court held that the death of the driver was caused accidentally in the process of committing theft of the auto rickshaw.
12. In Bhagubai v. Central Railway [A.I.R. 1955 Bom. 105] (Bombay High Court), the deceased was stabbed to death while he was on his way to join duty. It was not disputed that the death was a result of an accident or that it arose in the course of his employment. The dispute was whether it arose out of the employment of the deceased. The Division Bench held at page 404 as follows:
"Now, it is clear that there must be a causal connection between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased. It is equally clear that the cause contemplated is the proximate cause and not any MFA. No. 74/2021 Page 19 Page 20 of 28 remote cause. The authorities have clearly laid down that if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connection is established between the accident and the employment. It is now well settled that the fact that the employee shares that peril with other members of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him; the peril must be incidental to his employment. It is also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do with his own action or his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public, then if the accident arises out of such peril, a causal connection is established between the employment and the accident. In this particular case what is established is that the employee while in the course of his employment found himself in a spot where he was assaulted and stabbed to death. He was in the place where he was murdered by reason of his employment. He would have been safely in his bed but for the fact that he had to join duty, and he had to pass this MFA. No. 74/2021 Page 20 Page 21 of 28 spot in order to join his duty. Therefore, the connection between the employment and accident is established. There is no evidence in this case that the employee in any way added to the peril. There is no evidence that he was stabbed because the assailant wanted to stab him and not anybody else."
Thereafter, at page 405-406, it was held as under:
"Once the peril is established, it is for the employer then to establish either that the peril was brought about by the employee himself, or that the peril was not a general peril but a peril personal to the employee. It is because of this that the authorities have made it clear that the causal connection between the accident and the employment which the applicant has to establish is not a remote or ultimate connection but a connection which is only proximate. Once that proximate connection is established the applicant has discharged the burden, and in this case the proximate connection between the employment and the injury is the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death."
13. In Smt. Satiya v. Sub-Divisional Officer, Public Works Department 9 Buildings and Road), Narsimhapur [(1974) 2 L.L.N. 204], a chowkidar in the Public Works Department was murdered while MFA. No. 74/2021 Page 21 Page 22 of 28 on duty. One of the questions that arose was whether his murder could be said to be an accident. Relying upon Nisbet, it was held that the murder was an unlooked for mishap or untoward event which was not expected or designed. The learned Judge held that word "accident" excludes the idea of wilful and intentional act but as explained in Nisbet, "the phrase ought to be held to include murder as it was an accidental happening so far as the workman was concerned.
14. In Varkeyachan v. Thomman [(1979) 1 L.L.N. 477], was a case in which an employee engaged to do odd jobs dies as a result of stab injuries received while on duty. The Division Bench held the injury to be an accident sustained by the deceased in the course of his employment.
15. The question that arose for consideration in United India Insurance Company Ltd. v. Philo [(1996) 3 L.L.N. 116], was whether the killing of a workman while he was in the course of his employment, by an unknown person, can be considered as death caused as a result of an accident arising out of his employment? In this case the deceased was the driver of a taxi. He had taken some tourist out of town. He did not return from the tour and it was reported that he was killed and somebody stole the taxi. The Division Bench answered the question in the affirmative and held in Paras. 7 and 8 of the report:
MFA. No. 74/2021 Page 22 Page 23 of 28 "7.... But for the engagement as the driver of the taxi, the deceased would not have been in the place and in the situation where he was at the time when he was killed. The causal connection is complete and we have no doubt, in our mind to hold that the accident which has resulted in the death of the workman has arisen out of the employment.
8. The contention that the claimants have failed to discharge their burden to prove the causal relationship between the accident and the employment is only to be rejected in the light of the observations contained in Bhagubai v. General Manager, Central Railway [A.I.R. 1955 Bom. 105] (vide supra), with which we respectfully agree."
16. Parle Products, Ltd. v. Subir Mukherjee [2001 (I) L.L.J. 964], was a case in which an employee was travelling from Calcutta to Puri by train to attend an official conference. On the way, he was assaulted and thrown out of the Railway compartment. He sustained multiple injuries including a head injury and became permanently physically disabled. The Division Bench held that there had been an accident, and that the accident had a causal connection with the employment inasmuch as the workman was travelling in the train to attend a conference organized by the employer in terms of a direction issued in that regard to him. Thus, it was held that MFA. No. 74/2021 Page 23 Page 24 of 28 the accident occurred in the course of his employment.
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21. No evidence was led by the appellant to suggest that the dominant purpose of Jeet Singh was to kill Sohan Lal and not to commit theft. Under the circumstances, this argument is not at all available to learned counsel for the appellant.
(Emphasis supplied)"
33. The Delhi High Court, further referred to a judgment passed by this Court in this connection wherein, it was observed as follows:-
"26. In Branch Manager, National Insurance Company Ltd. v. Rahmath, (2012) 3 L.W. 371, a taxi hired by the persons were found missing. The dead body of the driver was found later on a barren land. However, the taxi remained untraced. S. Vimala, J. upheld the award of the Commissioner under the Employees Compensation Act holding the murder to be an accidental murder arising out of and during the course of the employment of the driver. Relevant portion of the said judgement is as under:--
"1. Whether death of the deceased
Mohammed Sultan was due to murder
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simpliciter or accidental murder is the intricate question raised in this appeal. xxx xxxxxx 9.2 The basic parameter/principle to be considered in order to decide whether it is a case of murder simpliciter or accidental murder has been given in the following decisions.
i) 2000 SAR Civil 573 SC (Smt. Rita Devi v. New India Assurance Company Limited).
ii) (2009) 2 TN M.A.C. Page 399 (Gujarat High Court at Ahmedabad) (National Insurance Company Ltd. v. GitabenSaitansinh Rajput Page 405).
According to the decisions, if the dominant intention of the crime is to kill the deceased, then the killing is a murder simpliciter, but if the murder was not originally intended but, if the murder had been caused in furtherance of any other crime or if the murder is consequential to some other crime, then it can be considered to be an accidental murder.
9.3 In this case the facts reveal that the vehicle involved in the accident is the taxi and from the taxi stand two of them have taken the taxi and the deceased had gone with the taxi along with those two persons and thereafter, the deceased had been found dead, but the car remain untraceable. No previous enmity has been made out between the deceased and the MFA. No. 74/2021 Page 25 Page 26 of 28 persons, who abducted the deceased. Therefore, the implication is that the main object could have been to commit theft of the vehicle and in that attempt consequentially the deceased had been murdered.
9.4 The probability is more in favour of, the prime intention of the crime, could have been the theft of the vehicle and the consequential incident ought to have been the murder.
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15. Already the claimants are suffering due to the accidental murder of the deceased. Whether their hopes, their expectations and their future should also be murdered is the issue. Law is meant only for the protection of the Public. This special legislation like Social Welfare and Social Security Legislation are meant only to do meaningful effective and quick justice to the suffering mass. Taking invalid, incorrect, insensitive defences irrespective of the nature of the sufferings certainly causes indelible impression in the mind of the victims that those public sector undertakings are not meant for public cause or public good. The insurance company do not stand to gain by taking this incorrect defence. This Court expects that at least in future the insurance company will take a responsible defence."
(Emphasis supplied)"
MFA. No. 74/2021 Page 26 Page 27 of 28
34. In the instant case also, the death of Giyas Uddin was primarily due to the assault on him by the local public after the vehicle which he was driving met with an accident with a motorcycle rider. Had the deceased not met with an accident using the vehicle which was insured by the appellant, he would not have been assaulted by the public. There is no evidence on record led by the appellant to suggest that the dominant purpose of the assailant, or the persons, who assaulted Giyas Uddin was to kill him. The evidence on record shows that he was assaulted only because he met with an accident when driving the insured vehicle.
35. Therefore, this Court is of view that the causation of death of the husband of the respondent No. 1 was because he met with an accident using the insured vehicle. There is a causal connection between his employment by the respondent No.5 and the death which followed the accident of the vehicle. The deceased was on duty at the time of the accident and assault which was made on him by the public. Therefore, in the light of the cases cited in the foregoing paragraphs, this Court is of the considered opinion that late Giyas Uddin died during the course of his employment while working as a driver of the offending vehicle, but for the same, the deceased would not have been at the place where he was murdered.
36. Accordingly, this Court is of the considered opinion that the MFA. No. 74/2021 Page 27 Page 28 of 28 death of the husband of the respondent No. 1, namely, late Giyas Uddin was ultimately as a result of his committing the accident by using the insured vehicle, during the course of his employment. There is a proximate causal connection between the death of Giyas Uddin and the accident which happened out of use of the insured vehicle during the course of his employment, therefore, the insurance company is liable to pay the compensation to the respondents under Section 3 of the Employee's Compensation Act, 1923.
37. This substantial question of law is, accordingly, answered and this appeal is, accordingly, dismissed.
38. Send back the records to the learned Commissioner for Employee's Compensation, Nagaon, along with a copy of this judgment.
JUDGE
Comparing Assistant
MFA. No. 74/2021 Page 28