Allahabad High Court
New India Assorance Compny Ltd. vs Smt. Munni Devi And Others on 10 March, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 568 of 1991 Appellant :- New India Assurance Company Ltd. Respondent :- Smt. Munni Devi And Others Counsel for Appellant :- S.P. Lal Counsel for Respondent :- Siddharth,H.K.Gupta,K.K.Srivastava Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri S.P. Lal, learned counsel for the appellant and perused the judgment and order impugned. None appeared on behalf of sole respondent though notices were issued.
2. The appellant has challenged the order dated 28.6.1991 of the Commissioner, Employee‟s Compensation whereby compensation of Rs.80,664/- has been awarded to claimant/respondent for death of her husband who was murdered while in employment.
3. While issuing notice, this Court had called for the record of the Court below.
4. Whether the murder of the deceased, Ved Prakash was an "accident" arising out of and during the course of his employment ? The law on this issue is well settled by the Supreme Court in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC). The Supreme Court drew distinction between a "murder" which is not an accident and a "murder" which is an accident. The Supreme Court laid down the test that if the dominant intention of the felonious act is to kill any particular person, then such killing is not accidental murder but a murder simpliciter. However, 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. Para 10 of the judgment is relevant and is reproduced hereunder:
"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."
(Emphasis supplied)
6. In Rita Devi (supra), the deceased was employed to drive an auto rickshaw for ferrying passengers on hire. On the fateful day, the auto rickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for a journey. As to what happened on that day is not known. It was only on the next day that the police was able to recover the body of the deceased but the auto rickshaw in question was never traced out. The owner of the auto rickshaw claimed compensation from the insurance company for the loss of auto rickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The Apex Court held that the murder to be an accidental murder. Para 14 is quoted below:-
"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 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 autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they 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."
(Emphasis supplied)
7. In Rita Devi (supra), the Supreme Court relied on Challis v. London and South Western Railway Company, (1905) 2 KB 154 and Nisbet v. Rayne & Burn, (1910) 1 KB 689 to draw the distinction between the felonious act which accidentally results in death and a murder simpliciter. Paras 11 to 13 of the judgment are reproduced hereinbelow:
"11. In Challis v. London and South Western Rly. Co. [(1905) 2 KB 154 : 74 LJKB 569 : 93 LT 330 (CA)] the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone wilfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held:
"The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously."
12. In the case of Nisbet v. Rayne & Burn [(1910) 2 KB 689 : 80 LJKB 84 : 103 LT 178 (CA)] where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers' workmen, was robbed and murdered. The Court of Appeal held:
"That the murder was an ,,accident‟ from the standpoint of the person who suffered from it and that it arose ,,out of‟ an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case the Court followed its earlier judgment in the case of Challis [(1905) 2 KB 154 : 74 LJKB 569 : 93 LT 330 (CA)] . In the case of Nisbet [(1910) 2 KB 689 : 80 LJKB 84 : 103 LT 178 (CA)] the Court also observed that ,,it is contended by the employer that this was not an "accident" within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word "accident" negatives the idea of intention‟. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet."
13. The judgment of the Court of Appeal in Nisbet case [(1910) 2 KB 689 : 80 LJKB 84 : 103 LT 178 (CA)] was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School v. Kelly[1914 AC 667 : 83 LJPC 220 : 111 LT 305 (HL)]."
5. In Rita Devi (supra), the Supreme Court compared the provisions of the Motor Vehicles Act and the Workmen Compensation Act and held that the object of both the Acts was to provide compensation to the victims of the accidents and the judicial interpretation of the word "death" in both the Acts is the same. Para 15 of the judgment is reproduced hereunder:-
"15. Learned counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word "death" and the legal interpretations relied upon by us are with reference to the definition of the word "death" in the Workmen's Compensation Act the same will not be applicable while interpreting the word "death" in the Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends that on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the autorickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts is to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence the judicially accepted interpretation of the word "death" in the Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word "death" in the Motor Vehicles Act also."
6. The apex Court recently has held that unless this Court finds perversity in the finding of fact, it should not easily interfere with finding of fact. I am supported in my view Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC). The finding of fact is that the deceased was an employee who had sustained employment injury and died.
7. I am supported in my view by the decision of the Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 wherein it has been held that the Court has held as under:
"15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law.
16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts.
17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings."
8. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows:
"The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis."
9. The learned counsel for the appellant urged at the time of the hearing that the murder cannot be said to be employment injury and under the Employee‟s Compensation Act. It was further submitted that the murder did not arise out of and during the course of employment of the deceased. However, it was not disputed that the deceased was an employee.
10. In Mackinnon Machenzie v. Ibrahim Mahmmed Issak, (1969) 2 SCC 607, Regional Director, E.S.I. Corporation v. Francis De Costa, (1996) 6 SCC 1, Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd., (2009) 13 SCC 405, Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, (2007) 11 SCC 668, Laxmanrao v. Maharashtra State Electricity Board, 2015 ACJ 2509 and Mewar Textile Mills v. Kushali Bai, (1960) II LLJ 369 similar view is taken.
11. The murder of deceased was an accident for the purpose of grant of compensation under the Employee‟s Compensation Act, 1923. The deceased found himself at a spot where he was assaulted and murdered only because of his employment as the deceased was on duty of his employer.
12. While going through the record, it is very clear that this appeal will have to fail and, accordingly, it is held that the deceased died due to employment injuries.
13. Going by the factual scenario, the deceased was in employment when the incident occurred. The award dated 28th July, 1991 goes on the premises. The judgment of this Court in 2012 will also enure for the benefit of the claimants.
14. This court unable to accept the submission of learned counsel for Insurance Company that the policy was for private Car. It has not been proved whether there is any breach of policy decision under the Workmen's Compensation Act, 1923 even if it was proved that the vehicle was being applied for higher area remote. It is annexed that the accident occurring because of employment injury and, therefore, the deceased driver had taken the Car at the instance of the owner, no questions of law was framed while admitting this appeal rather there is no question of law whether the murder was during employment or not is a question of fact which has been answered against the Insurance Company.
15. In view of the above, the appeal fails and is dismissed. The so called questions of law framed by the Insurance Company are answered against it. In fact the substantial questions of law raised are questions of fact.
16. Interim relief, if any, shall stand vacated forthwith.
17. This court records the absence of learned counsel for the respondents.
18. This Court is thankful to learned counsel for the appellant for getting this very old matter disposed off.
19. The record be transmitted to the Workmen Commissioner.
20. The amount lying in the fixed deposits will be disbursed to the claimants immediately as more than 31 years has elapsed since the appal was preferred.
Order Date :- 10.3.2022 A.N. Mishra