Delhi District Court
Smt. Shiv Kumari Devi vs K.R. Enterprises on 29 January, 2019
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IN THE COURT OF MS. HEMANI MALHOTRA, JUDGE,
MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Petition No: 76519/2016
FIR No. 368/09
PS Nangloi
1. Smt. Shiv Kumari Devi
(Wife of deceased Kalicharan Mandal)
2. Pappu
(Son of the deceased)
3. Shambhu
(Son of the deceased)
4. Rajni Kumari
(Daughter of the deceased)
5. Ravina Kumari
(Daughter of the deceased)
6. Ravinder Kumar
(Son of the deceased)
7. Babita
(Daughter of the deceased)
8. Ram Shreshtha
(Father of the deceased)
S/o Sh. Triyug Mandal
9. Smt. Pavitri Devi
(Mother of the deceased)
S/o Ram Shreshtha
All r/o Village Raghubarpura,
P.S. Sursand, Sitamari,
Bihar
Also at:
A103, near Babloo Dairy,
Madanpur Khadar,
Delhi
...... Petitioners
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Versus
1. K.R. Enterprises
(A Gas Agency)
Shidipura,
Karol Bagh,
New Delhi
(Registered Owner)
2. Reliance General Insurance Company Ltd.
At: 60, Okhla Industrial Area, PhaseI,
near S.B.I.,
New Delhi
(Insurer)
.......Respondents
Date of Institution : 14.02.2014
Date of conclusion of arguments : 21.01.2019
Date of pronouncement of judgment/award : 29.01.2019
AWARD
1. This judgmentcumaward shall decide the claim petition filed by the petitioners
under the provisions of 163A of The Motor Vehicles Act, 1988 (hereinafter
referred to as "M.V. Act") as amended up to date to claim compensation for the
murder of Kali Charan Mandal on 13.09.2009 in truck bearing registration
No.DL1GB4195. An FIR No.368/09 under Sections 394/302 IPC was
registered at Police Station Nangloi and chargesheet was filed accordingly.
2. Brief facts as averred in the claim petition are that on 13.09.2009, the deceased
Kali Charan Mandal was working as a driver on truck bearing registration
No.DL1GB4195 and was driving the said truck loaded with LPG cylinders.
When the deceased reached HNG Godown Road, Opposite Village Tikri Kalan,
Delhi , some unknown persons came to rob the goods loaded in the truck. In
order to rob the cylinders loaded in the said truck, the said unknown persons
committed murder of the deceased and the dead body of the deceased was
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found by the police officials lying in the truck itself.
3. M/s K.R. Enterprises being the registered owner of the truck bearing No.DL
1GB4195 was arrayed as respondent No.1 and Reliance General Insurance
Company Ltd., insurer of the said truck was arrayed as respondent No.2.
4. In the Written Statement filed on behalf of respondent No.1, it was averred that
truck bearing No.DL1GB4195 was duly insured with respondent No.2 and
hence, no liability can be fastened upon respondent No.1.
5. In the Written Statement filed on behalf of respondent No.2/Insurance
Company, it was stated that the present accident as alleged, did not arise out of
use of vehicle and deceased was himself driving the offending vehicle and as
such he was not a third party, hence, petitioners are not liable for any
compensation u/s 163A of M.V. Act. However, it was admitted that the vehicle
bearing registration No.DL1GB4195 was insured with respondent No.2 vide its
Policy bearing No.1304792334003144 which was valid from 18.07.2009 to
17.07.2010 in the name of respondent No.1.
6. From the pleadings of the parties, contentions raised and material on record, the
following issues were framed by Learned Predecessor vide order dated
14.02.2014:
ISSUES
(1) Whether the deceased Kali Charan Mandal suffered fatal injuries
on 13.09.2009 at about 7 am using truck bearing No.DL1GB4195
owned by respondent No.1 and insured with respondent
No.2/Insurance Company? OPP
(2) Whether the petitioners is entitled for compensation? If so, to
what amount and from whom?
(3) Relief.
7. In order to establish their claim, petitioners examined Shiv Kumari Devi, wife of
deceased as PW1 and Inspector Sanjay Kumar, IO of FIR No.368/09 PS Nangloi
as PW2.
8. Respondent No.1 examined Ratan Prakash, Manager/Kay Aar Enterprises as
R2W1.
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9. I have heard the arguments addressed by learned Counsels for the parties and
have meticulously gone through the court record.
10. My issuewise findings are as follows:
ISSUE NO.1
Whether the deceased Kali Charan Mandal suffered fatal injuries on
13.09.2009 at about 7 am using truck bearing No.DL1GB4195
owned by respondent No.1 and insured with respondent
No.2/Insurance Company? OPP
11. To support their claim, petitioners examined Smt.Shiv Kumari Devi, wife of
deceased, as PW1 and Inspector Sanjay Kumar, IO of case FIR No.368/09 PS
Nangloi as PW2.
12. Respondent No.1/driver also examined Ratan Prakash, Manager, M/s Kay Aar
Enterprises as R2W1.
13. PW2/Insp. Sanjay Kumar, No.D3460, TI Ashok Vihar, Delhi proved the copy of
FIR No.368/09 dated 13.09.2009 registered u/ss 394/302 IPC PS Nangloi as
Ex.PW2/1 and the postmortem report of the deceased as Ex.PW2/2. He
testified that the chargesheet could not be filed in this case as accused persons
could not be traced and arrested.
14. In a claim petition filed by LRs of deceased for compensation u/s 163A of M.V.
Act, the petitioners are only required to prove the involvement/use of the
vehicle in the accident to claim compensation against the owner and insurer,
according to the second schedule of the Motor Vehicles Act.
15. It was very vehemently argued by learned counsel for insurance company that
the present claim petition is not maintainable as the deceased did not die in an
accident but was murdered in the alleged truck bearing registration No.DL1GB
4195.
16. To resist the argument of learned counsel for insurance company, learned
counsel for petitioners relied upon judgments titled as Rita Devi and Ors. Vs.
New India Assurance Co.Ltd. & Anr., reported as II (2000) ACC 291 (SC);
United India Insurance Co.Ltd. Vs. Kanshi Ram reported as I (2004) ACC 527;
Kaushalya Bai & Ors. Vs. Ram Kishan Kirar & Ors. reported as I (2001) ACC 742
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(DB); Ranju Devi & Ors. Vs. Pawan Kumar Patwari & Ors. reported as I (2003)
ACC 593; New India Assurance Co.Ltd. Vs. Madhumala Jha and Ors. reported as
III (2013) ACC 822 (Delhi).
17. I have heard the arguments addressed by learned counsels for the petitioners
and the insurance company and I have also gone through the judgments cited by
learned counsel for the petitioners.
18. It is undisputed that for a petition u/s 163A of M.V. Act to succeed, the
claimants only need establish the use of a motor vehicle in the accident and no
negligence on the part of the driver of the said motor vehicle needs to be
established.
19. The expression "caused by" and "arising out of" was considered by the Hon'ble
Supreme Court in SHIVAJI DAYANU PATIL & ANR. VS. VATSCHALA UTTAM MORE
reported as (1991) 3 SC CASES 530. The following conclusion is relevant for
deciding the present case as in the aforecited case supra, the expression "caused
by" and the expression "arising out of" were vividly explained and it was held
that arising out of has a wider connotation. The Hon'ble Supreme Court in the
said case referred to Section 92A of the Motor Vehicles Act, 1939 and observed
as under:
"Section 92A 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 fault 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."
................
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(2) The word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck."
20. It was further held, "The words "arising out of" have been used in various statutes in different contexts and have been construed by courts widely as well as narrowly, keeping in view the context in which they have been used in a particular -6- legislation. In the context of motor accidents the expressions "caused by" and "arising out of" are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. As compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92A, the causal 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 construction of the expression "arising out of the use of a motor vehicle" in Section 92A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."
21. In UNITED INDIA INSURANCE CO.LTD. VS. AMIR BASHA reported as 2004 (2) SCC 23 (DB), the Hon'ble Division Bench of Madras High Court considered various decisions and held as follows: "3. It is clear from the above decisions and in view of the object of the enactments, both under the Motor Vehicles Act, 1939 and 1988 the expression "caused by" and arising out of have a wider connotation. Though the accident should be connected with the use of motor vehicle, but the said connection need not be direct and immediate. The expression "arising out of use of motor vehicle" as mentioned in Section 92A of the 1939 Act and Section 165 of 1988 Act enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. From the expression employed namely "accident arising out of the use of a motor vehicle" in the place of "accident caused by the use of motor vehicle", it is clear that the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases; accordingly we are of the view that the test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not forget that these provisions are made in order to help the victims. We are of the view that restrictive interpretation should not be given for the word "use". We are also of the view that the expression "arising out of the use of motor vehicle" has to be given a wider meaning. We are also of the view that "use of motor vehicle" need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance.
22. In RITA DEVI VS. NEW INDIA ASSURANCE CO.LTD., 2000 ACJ 801 (SC) , (cited by learned counsel for the petitioners), the Hon'ble Supreme Court interpreted the expression "arising out of the use of the motor vehicle" in the context of death or permanent disablement suffered due to the accident arising out of the use of motor vehicle and gave it even a wider interpretation even to include the -7- situation where a murder can be treated as accident in a given case. In the said case, the death of deceased was caused in the process of committing theft of autorickshaw and it was held that owner of motor vehicle or authorised insurer was liable to pay compensation under Section 163A of the Motor Vehicles Act. It was thus, observed as under: "9. The question, therefore, is : can 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."
23. Likewise, in the other cases (supra) cited by learned counsel for the petitioners, the deceased was murdered during an act of felony arising out of use of motor vehicle and it was held that claim petition was maintainable u/s 163 A of the M.V. Act.
24. In view of the wide interpretation given to "arising out of use of motor vehicle"
in the law discussed in the aforesaid judgments, there is not an iota of doubt that murder of deceased arose out of the use of bearing registration No.DL1GB 4195.
25. Hence, this issue is decided in favour of the petitioners and against the respondents.
Findings on issue No.2:
Whether the petitioners is entitled for compensation? If so, to what amount and from whom?
26. Since issue No.1 is decided in favour of the petitioners, they are undoubtedly entitled for compensation.
27. As, in cases under Section 163A of the M.V. Act, vide The Gazette of India Notification No.1829 dated 22.05.2018 the compensation payable in case of death has been assessed as Rs.5,00,000/ (Rupees Five Lakhs), the petitioners -8- are held entitled to a compensation of Rs.5,00,000/.
28. Since, it is an admitted case of Insurance Company that the alleged offending vehicle was insured with it vide its Policy bearing No.1304792334003144 which was valid from 18.07.2009 to 17.07.2010 including the date of murder i.e. 13.09.2009, respondent No.2/Insurance company is under the statutory liability to pay the compensation to the petitioners and is held liable to pay the same. RELIEF
29. In view of above findings on Issue Nos.1 & 2, I award an amount of Rs.5,00,000/ (Rupees Five Lakhs) as compensation to the petitioners. Petitioners are also entitled to interest @ 9% per annum from the date of filing of the Claim Petition i.e. 14.02.2014 till realisation. Amount of Interim Award, if paid any, be deducted from the compensation amount.
30. Consequently, interest amount be paid to the petitioners along with award amount as per the terms and conditions mentioned in succeeding paragraphs. Apportionment
31. Share of petitioners in the award amount shall be as under:
SN Name Relationship with Share in the award
deceased amount (Rs.)
1 Smt.Shiv Kumari Devi Wife 1,00,000/
2 Pappu Kumar Son 50,000/
3 Shambhu Kumar Son 50,000/
4 Ranjni Kumari Daughter 50,000/
5 Ravinder Kumar Son 50,000/
6 Ravina Kumari Daughter 50,000/
7 Babita Daughter 50,000/
8 Ram Shreshtha Mandal Father 50,000/
9 Smt.Pavitri Devi Mother 50,000/
Mode of payment and disbursement
32. Respondent No.2/Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioners under intimation to the petitioners and the -9- Tribunal. In default of payment within the prescribed period, respondent/ Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
33. While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioners in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
34. Award amount along with interest amount be released to the petitioners in proportion to their shares mentioned above, immediately in their savings bank accounts in nationalised bank.
35. Copy of the Award be given to the parties free of costs.
36. Copy of this Award be also sent to concerned learned M.M. and DLSA.
37. Nazir is directed to prepare a separate file for compliance and be put up on 14.03.2019.
File be consigned to Record Room. Digitally signed
by HEMANI
HEMANI MALHOTRA
MALHOTRA Date: 2019.01.29
Announced in the open Court 15:44:31 +0530
on 29th January, 2019
(Hemani Malhotra)
Judge, Motor Accident Claims Tribunal02,
West District, Tis Hazari Courts, Delhi