Karnataka High Court
M A Kareem Sab vs Palaniyamma on 25 April, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.NO.9291/2010 (MVC)
BETWEEN:
M A KAREEM SAB
AGED ABOUT 59 YEARS
S/O.KAREEM @ LAL SAB
R/AT.NARASANNA AGRAHARA
NANJANGUD TOWN
... APPELLANT
(BY SRI T N RAGHUPATHY, ADV.)
AND:
1. PALANIYAMMA
AGED ABOUT 52 YEARS
W/O.KRISHNAPPA BOVI
R/AT.CHAMALAPURADAHUNDI
NANJUNGUD TOWN
2. KRISHNAPPA BOVI
AGED ABOUT 60 YEARS
S/O.LATE VARADA BOVI
R/AT.CHAMALAPURADAHUNDI
NANJUNGUD TOWN
3. STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001
... RESPONDENTS
(BY SRI O SHIVARAMA BHAT, ADV. FOR R-1 & 2
S.P.P FOR R-3)
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MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.8.2010 PASSED IN
MVC NO.150/2009 ON THE FILE OF PRESIDING OFFICER,
FAST TRACK COURT, KOLLEGA, SITTING AT
CHAMARAJANAGAR, AWARDING A COMPENSATION OF
RS.3,01,500/- WITHI NTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant was the owner of Tata Sumo bearing No.KA-01-P-315. The deceased Vadivel was the driver working under appellant. On the date of accident, some passengers hired the vehicle and the deceased was driving the vehicle, to take passengers who had hired the vehicle. As per the instructions given by persons who had hired the vehicle, deceased drove the vehicle from Nanjangud to Kolipalayam. On the way, the passengers who had hired the vehicle, killed deceased and took away the vehicle.
2. The claimants, who are the parents of deceased filed a claim petition under Section 163-A of the M.V.Act. The vehicle bearing No.KA-01-P-315 was not insured. The respondent (owner of vehicle) resisted the
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claim petition on several grounds. The tribunal, on appreciation of evidence adduced by claimants accepted the claim petition and awarded compensation of Rs.3,01,500/-. The tribunal has followed Schedule II to the M.V.Act.
3. The learned Counsel for appellant relying on a judgment of the Supreme Court reported in AIR 2009 SC 3056 (in the case of Ningamma vs. United India Insurance Co. Ltd.,) would submit that claimant is not entitled to compensation as the vehicle had been taken by deceased without the permission of appellant.
The learned Counsel would also submit that claimants should have invoked the provisions of Workmen's Compensation Act as the death of deceased was not due to user of vehicle.
4. The learned Counsel for claimants relying on the judgment of Supreme Court reported in 2000 ACJ 801 (in the case of Rita Devi vs. New India Assurance Co. Ltd.,) would submit that passengers who had hired the vehicle have committed an act of felony of stealing
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the vehicle. Therefore, the death had occurred due to user of vehicle. In the circumstances, the tribunal was justified in awarding compensation under Section 163-A of the M.V.Act.
5. On hearing the learned Counsel for parties and after going through impugned judgment, I am of the opinion that the question of law raised by the appellant is fully covered by the judgment of the Supreme Court reported in 2000 ACJ 801 wherein the Supreme Court has held:
9. A conjoint reading of the above two sub-sections of section 163-A 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, 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 arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the
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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 dominent 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
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furtherance of any other felonious act then such murder is an accidental murder.
11. In Challis vs. London and South Western Railway Company, (1905) 2 KB 154, the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully 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;
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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 vs. Rayne and Burn, (1910) 1 KB 689, 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 vs. London and South Western Railway Company, (1905) 2 KB 154. In the case of Nisbet, 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
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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's case, (1910) 1 KB 689, was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School vs. Kelly, 1914 AC 667.
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
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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 relief upon by us are with reference to definition of the word 'death' in Workmen's Compensation Act, the same will not be 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 autorickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the objects of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are
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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 Chapters 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 judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also."
Therefore, the contention of appellant that claimants are not entitled to compensation or they
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should have approached the Commissioner for workmen's compensation cannot be accepted.
6. Apart from the aforestated questions, the appellant has not raised any other question to assail the impugned award. Therefore, I pass the following order:
The appeal is dismissed. The amount deposited by the appellant shall be transferred to the tribunal.
Sd/-
JUDGE nas.