Gujarat High Court
United India Insurance Co Ltd vs Shobhanaben Himmatbhai Rathod on 17 February, 2023
C/FA/1240/2013 JUDGMENT DATED: 17/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1240 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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UNITED INDIA INSURANCE CO LTD
Versus
SHOBHANABEN HIMMATBHAI RATHOD & 4 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Defendant(s) No. 5
MR.KARNA H DHOMSE(6684) for the Defendant(s) No. 1,2,3,4
MS JK HINGORANI(2491) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 17/02/2023
ORAL JUDGMENT
1) Being aggrieved and dissatisfied with the judgment and award dated 09.02.2012 passed in Motor Accident Claim Petition No. 295 of 2004 below exh: 9 by the Chairman, Motor Accident Claims Tribunal, Vadodara, the Insurance Company/original opponent No. 2 has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988 (" the Page 1 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023 C/FA/1240/2013 JUDGMENT DATED: 17/02/2023 Act, 1988" for short).
2) The original claimants had approached the Tribunal seeking, inter alia, for the compensation of Rs.3,65,000/- under the various heads. The Tribunal, however, has awarded a sum of Rs. 3,21,500/- with interest at the rate of 7.5% under the various heads.
Sr. No. Particulars Amount
1 Future Loss of Income Rs.3,12,000/-
2 Funeral Expenses Rs.2,000/-
3 Loss of Estate Rs.2,000/-
4 Loss of Consortium Rs.5,000/-
TOTAL Rs.3,21,000/-
3) The case, as per the claimants, is that the deceased was serving as
driver with the respondent No.5 (owner). On 12.12.2003, the deceased had gone to Dhabadungari to Pawagarh with passengers in the vehicle bearing registration No. GJ-17-W-0083, on the instructions and directions given by the respondent No. 5 herein.
3.1 It is further stated that, however, the passengers traveling in the vehicle with a motive of stealing the vehicle, have murdered the driver by sharp cutting instrument. The offence regarding the same incident was registered with the Halol Police Station, Vadodara vide I-C.R.No.328 of 2003 under Sections 302, 394, 120B and 337 of the Indian Penal Code, 1860 read with Sections 177 and 184 of the Motor Vehicles Act, 1988.
4) In view of the aforesaid, the respondents No. 1 to 4 herein-original claimants have approached the Tribunal by way of filing an application Page 2 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023 C/FA/1240/2013 JUDGMENT DATED: 17/02/2023 under Section 163(A) of the Motor Vehicles Act, seeking, inter alia, the compensation for their loss.
5) Upon service of notice, the appellant herein-Insurance Company has filed the written statement at exh: 9 opposing the claims petition on various grounds. One of the main ground that was raised is the said claim petition under Section 163-A of the Motor Vehicle is not tenable because the deceased has not died because of the vehicular accident and that he was died because of the conspiracy and illegal act of the accused/passengers.
6) The Tribunal, after having considered the pleadings and the evidence, came to the conclusion that the deceased said to have died, which can be termed as " accidental murder" because the act of murder was not originally intended but the same was cause in furtherance of other illegal act i.e. stealing of the vehicle. Thus, considering the death of the deceased as "accidental murder" , the Tribunal has held that the claimants are entitled for compensation under the Motor Vehicles Act. Accordingly, the Tribunal has consequentially passed an award of Rs.3,21,000/- under the various heads towards the compensation to the original claimants with interest at the rate of 7.5%.
7) Being aggrieved by the aforesaid, therefore, the original opponent No.2-Insurance Company has filed the present first appeal challenging , inter alia, the judgment and award passed by the Tribunal.
8) I have heard Mr. G.C.Mazmudar, the learned counsel appearing for the appellant-Insurance Company, Mr. Karna H Dhomse, the learned Page 3 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023 C/FA/1240/2013 JUDGMENT DATED: 17/02/2023 counsel appearing for the respondents Nos. 1 to 4 and Ms. Jayshree Hingorani, the learned counsel appearing for the respondent No.5.
9) Mr. Mazmudar, the learned counsel appearing for the appellant- Insurance Company mainly submitted that the Motor Vehicles Act will not be applicable in the present case, more particularly the provision of Section 163A of the Motor Vehicles Act, because admittedly the death of the deceased was not arisen out from the use of vehicle but it is the case of the murder by passengers traveling in the said vehicle. He further submitted that the Motor Vehicles Act would come in to play, if the death is occurred in the course of vehicular accident only. He submitted that the incident of murder cannot be equated with the death arising out of the vehicular accident. He, therefore, submitted that the Tribunal has committed serious error in fastening the liability upon the Insurance Company. Thus, he requested this Court to allow the appeal by quashing and setting aside the judgment and award passed by the Tribunal.
10) Per contra, Mr. Dhomse has vehemently opposed the first appeal filed at the instance of the Insurance Company. Mr. Dhomse, submitted that the judgment and award of the Tribunal fastening the liability upon the Insurance Company is legal and justified and therefore, does not deserve to be interfered with. He further submitted that the Tribunal has rightly held that the death of the deceased due to murder is said to be the accidental death, and thereby, rightly held the Insurance Company liable to pay the compensation. Thus, he has submitted that the appeal preferred by the Insurance Company deserves to be dismissed accordingly.
Page 4 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023C/FA/1240/2013 JUDGMENT DATED: 17/02/2023 11) I have heard the learned advocates appearing for the respective parties. 12) No other submissions have been made by the learned advocates
appearing for the respective parties except stated herein above.
13) Having heard the learned advocates appearing for the respective parties and having gone through the records of the case, a short question that falls for my consideration is whether the death can be said to have been occurred out of the use of motor vehicle?
14) It would be necessary to refer the judgment rendered by the honourable the Apex Court in the case of Rita Devi v New Indian Assurance Co. Ltd., reported in 2000(5) SCC 113 , which the Tribunal is considered and the same has been extracted;
7. " The Motor Vehicles Act does not define the word accident. However, Section 163A 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-clause (I) of the said Section says that 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 authorized insurer shall be liable to pay in the case of death or permanent 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;
9. A conjoint reading of the above two sub-clauses of Section 163A 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 any one. Thus it is clear, if it is established by the claimants that the death or disablement was caused due to an accident Page 5 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023 C/FA/1240/2013 JUDGMENT DATED: 17/02/2023 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 simplicitor, 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 auto rickshaw, 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 and in the course of achieving the said object 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. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. 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 the theft of the auto rickshaw.
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 definition of the word death in Workmen Compensation Act the same will not be Page 6 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023 C/FA/1240/2013 JUDGMENT DATED: 17/02/2023 applicable while interpreting the word death in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. 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 Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen 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 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 judicially accepted interpretation of the word death in Workmen Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also. Finally, it is held that in the instance case, as we have no hesitation in coming to the conclusion that the murder of the deceased was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle."
15) The sum and substance of the law settled by the Apex Court in the case of Rita Devi (supra) is that if the cause of murder or the act of murder was not pre-planned and the same was caused in furtherance of any other illegal act then the said murder can be said as "accidental murder."
16) Keeping in mind the aforesaid legal preposition as well as admitted fact of the present case that the deceased was murdered by the passengers of the vehicle with a view to commit a robbery /loot of a vehicle, Page 7 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023 C/FA/1240/2013 JUDGMENT DATED: 17/02/2023 therefore, in my considered opinion the said death can be said as "accidental murder" and certainly can further be said that same has been occurred out of the use of motor vehicle. In view of the aforesaid, I am in complete agreement with the reasoning assigned by the Tribunal, while passing the impugned judgment and award, thereby, the same does not deserve to be interfered with.
17) Hence, the present appeal is dismissed being devoid of any merits with a direction to the Tribunal to issue account payee cheque in the name of the claimant after due and proper verification. Record and Proceedings be sent back forthwith.
Sd/-
(NIRAL R. MEHTA,J) VISHAL MISHRA Page 8 of 8 Downloaded on : Mon Feb 20 20:49:48 IST 2023