Gujarat High Court
Icici Lombard General Insurance Co. Ltd vs Markas Firoz Masiha & on 28 October, 2015
Author: S.H.Vora
Bench: S.H.Vora
C/FA/1024/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1024 of 2015
With
CIVIL APPLICATION NO. 6041 of 2015
In
FIRST APPEAL NO. 1024 of 2015
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ICICI LOMBARD GENERAL INSURANCE CO. LTD....Appellant(s)
Versus
MARKAS FIROZ MASIHA & 1....Defendant(s)
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Appearance:
MR NIKUNT K RAVAL, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 28/10/2015
ORAL ORDER
1. Challenge in this present appeal under section 173 of the Motor Vehicles Act is judgment and award dated 18.2.2015 passed by the learned MACT (Aux.), Rajkot in MACP No.1115 of 2010, whereby the learned Tribunal has directed the original opponents to pay a sum of Rs.3,69,500/- with 9% interest as compensation to the original claimants.
2. While assailing the judgment and award, learned advocate Mr. Raval for the appellant would contend that death of the deceased Marx Feroz was not as a result of driving the vehicle bearing registration No.GJ 12 Z 0885, but due to deliberate bodily harm caused by the accused persons shown in the charge sheet filed in pursuance of offence being Page 1 of 3 HC-NIC Page 1 of 3 Created On Thu Oct 29 02:12:51 IST 2015 C/FA/1024/2015 ORDER C.R.No. 159 of 2009.
3. Having heard the submissions made at bar and upon perusal of impugned judgment and award, it appears that deceased Marx Feroz was in the employment of opponent No.1 and on 7.8.2009, he was driving truck bearing registration No.GJ 12 Z 0885 on Anjar Mundra Highway Road and in the night hours, the accused persons in order to commit robbery of the goods and the truck committed murder of deceased Marx Feroz. This fact remains uncontroverted. In case of Ritadevi Vs. New India Assurance Company Limited reported in (2000) 5 SCC 113, the Hon'ble Apex Court in the said case found that stealing of the rickshaw was the object of the felony and murder that was caused in the said process of stealing of the auto-rickshaw was only incidental to the act of stealing of the auto-rickshaw. Accordingly, it was held that death was caused accidentally in the process of committing theft of the auto-rickshaw. Accordingly, the Hon'ble Apex Court while confirming the conclusion of the learned Tribunal held that the claimants were entitled to compensation as claimed by them and found that the High Court was wrong in coming to the conclusion that death was not caused by an accident involving the use of the motor vehicle. In this connection, it is relevant to reproduce the observations recorded by the Hon'ble Apex Court in para 14 and 18 as under:
"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 Page 2 of 3 HC-NIC Page 2 of 3 Created On Thu Oct 29 02:12:51 IST 2015 C/FA/1024/2015 ORDER 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.
18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) 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."
4. Identical fact situation exists in the present case and therefore, the Court has no hesitation in coming to the conclusion that the murder of the deceased Marx Feroz was due to accident arising out of the use of motor vehicle and therefore, the learned Tribunal rightly came to the conclusion that the claimants were entitled for compensation as claimed by them. No other contention has been raised at bar. Accordingly, no case is made out to interfere with the impugned judgment and award as no error either on law or fact is committed by the learned Tribunal. Therefore, present first appeal stands dismissed at admission stage. Consequently, civil application also stands disposed of.
(S.H.VORA, J.) shekhar Page 3 of 3 HC-NIC Page 3 of 3 Created On Thu Oct 29 02:12:51 IST 2015