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8. Whether the murder of the deceased, Manoj Kumar 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:

(Emphasis supplied)

9. 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:-

Karnataka High Court

26. In M A Kareem Sab v. Palaniyamma, 2013 SCC OnLine Kar 4514, a vehicle was stolen and the taxi driver was killed by the passengers. The Karnataka High Court following Rita Devi (supra), upheld the award for compensation under section 163-A of Motor Vehicle Act.

Whether the death of Manoj Kumar arisen out of the use of the motor vehicle?

27. In Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 ACJ 777, the Supreme Court held the word "use" in the context of a motor vehicle, has to be construed in a wider sense to include the period when the vehicle was not moving and was stationary, being either parked on the road and when it is not in a position to move due to some breakdown or mechanical defect. The expression "use of a motor vehicle" in Section 92-A of the Motor Vehicles Act, 1939 covers accidents which occur both when the vehicle is in motion and when it is stationary. The interpretation for the words „arising out of use of motor vehicle‟ by Supreme Court in Shivaji Dayanu Patil (supra) is applicable to cases under Employees' Compensation Act. 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.

(Emphasis supplied)

35. In National Insurance Co. Ltd. v. Munesh Devi, 2013 ACJ 919, the driver of the tanker climbed over the Tanker Lorry to check inside condition of Tanker and came into contact with electric wire which resulted in his death. It was held that the accident arose out of use of motor vehicle.

Findings

36. Applying the principles laid down in the above mentioned judgments, the death of Manoj Kumar is held to be an accidental death. No evidence was led by the appellant to suggest that the dominant purpose of the assailant was to kill the deceased. There is no evidence that the deceased in any way added to the peril. The deceased could not and did not contemplate his death. It was an unforeseen and untoward happening and therefore, an accidental death. This case is squarely covered by the principles laid down by the Supreme Court in Rita Devi (supra) and this Court in Kanshi Ram (supra), Shakeela Parveen (supra) and Shehzadi Yasmeen (supra);