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PETITIONER:

SMT.RITA DEVI & ORS.

Vs.

RESPONDENT:

NEW INDIA ASSURANCE CO.LTD. & ANR.

DATE OF JUDGMENT: 27/04/2000

BENCH:

N.S.Hegde, D.P.Wadhwa

JUDGMENT:

SANTOSH HEGDE, J.

One Dasarath Singh was a driver of an auto rickshaw

owned by Lalit Singh. The vehicle in question was

registered as a public carrier vehicle used for hire by the

passengers. This vehicle was insured with the

respondent-Insurance Company. On 22nd of March, 1995, it is

stated that some unknown passengers hired the above auto

rickshaw from rickshaw stand at Dimapur between 5 to 6 p.m.

It is also not in dispute that the said auto rickshaw was

reported stolen and the dead body of driver Dasarath Singh

was recovered by the police on the next day, the auto

rickshaw was never recovered and the claim of the owner for

the loss of auto rickshaw was accepted by the

respondent-Insurance Company and a sum of Rs.47,220/- was

settled by the said company towards the loss suffered by the

owner. One Darshan Singh claiming to be a Power of Attorney

holder of the present appellants filed a claim petition

along with the present appellants under Section 163 A of the

Motor Vehicles Act, 1988 (for short the Act) claiming

damages for the death caused to the deceased Dasarath Singh

during the course of his employment under Lalit Singh as a

death caused in an accident arising out of the use of

vehicle. The Motor Accidents Claims Tribunal, Nagaland as

per its judgment dated 24th of June, 1996 came to the

conclusion that the death of the driver of the auto rickshaw

(Dasarath Singh) was caused by an accident coming within the

purview of the Motor Vehicles Act, therefore, held that the

owner of the vehicle was liable to compensate the death of

the driver in money value. Since there was an agreement

between the vehicle owner and the respondent-Insurance

Company to compensate the employer of the vehicle, said

legal and statutory liability stood fastened on the

respondent-Insurance Company. The tribunal also held that

the quantum of claim of the claimants stood established and

consequently it awarded a sum of Rs.2,81,500/- against the

Insurance Company with interest @ 12% on the amount awarded

from the date of application till payment. The Insurance

Company preferred an appeal by itself before the Gauhati

High Court (Kohima Bench) in M.A.(F) No.8(K)96. The High

Court by its judgment dated 9.3.1998 came to the conclusion

that there was no motor accident as contemplated under the

Act. The High Court further held that the case in hand was

a case of murder and not of an accident, hence a petition

for claim under the provisions of the Act did not arise.

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The High Court, accordingly, allowed the appeal and set

aside the judgment and the award made by the tribunal.

Originally, the above mentioned Power of Attorney holder had

preferred the above appeal making the wife and children of

the deceased as proforma respondents along with the other

respondent. By an order of this Court dated 18th of

February, 2000, this Court felt that to protect the interest

of the heirs of the deceased the wife and children of the

deceased should be first impleaded as appellants to this

appeal and the cause-title be amended, which having been

done and notice being issued, the respondent- Insurance

Company is represented before us. We have heard the

parties. Leave granted. On behalf of the appellants, Shri

Anurabh Chowdhury contends that the deceased was employed to

drive the auto rickshaw for ferrying passengers on hire and

on the fateful day the auto rickshaw was parked at the

rickshaw stand at Dimapur and at about 5 to 6 p.m. some

unknown passengers had engaged the said auto rickshaw for

their journey towards Singrijan area and thereafter nothing

was known of the driver or rickshaw. It is only on the next

day that the authorities were able to recover the body of

the deceased and the auto rickshaw in question was never

traced till date. The owner of the auto rickshaw has,

therefore, been compensated by the Insurance Company for the

loss of the said auto rickshaw, therefore, the murder of the

deceased Dasarath Singh squarely comes within the word

death due to accident arising out of the use of motor

vehicle found in Section 163A(1) of the Act. Consequently

the tribunal was justified in awarding the compensation

claimed by the appellants. He contended the word accident

has not been defined under the Motor Vehicles Act and the

said Act being a beneficial legislation, a liberal

interpretation should be given so as to achieve the objects

of the Act. He contended that the deceased being an

employee was entitled for compensation both under the Motor

Vehicles Act and also under the Workmens Compensation Act,

1923. However, under Section 167 of the Motor Vehicles Act,

the heirs of the deceased had a choice either to claim

compensation under that Act or under the Workmens

Compensation Act. The appellants having chosen to invoke

the provisions of the Motor Vehicles Act, the Tribunal was

wholly justified in awarding the compensation, while the

High Court, according to him, without properly appreciating

the reasonings adopted by the tribunal has interfered with

the just order of the tribunal. He also contends that the

appeal filed by the Insurance Company was not maintainable

for not having obtained the leave of the tribunal as

required under Section 170 of the Act. He relies on a

judgment of this Court in the case of Shankarayya & Anr.

vs. United India Insurance Co. Ltd. & Anr. (1998 (3) SCC

140). Ms.Pankaj BalaVerma, appearing for the respondent-

Insurance Company does not in fact dispute the

maintainability of the petition filed by the appellants

under Section 163A of the Motor Vehicles Act but contends

that the meaning ascribed to the word accident in the

Workmens Compensation Act by judicial pronouncements cannot

be applied to the word accident in the Motor Vehicles Act

because the object of the two Acts are different. She

supported the judgment of the High Court by contending that

on the facts of the present appeal, the death of the driver

of the auto rickshaw was caused by felonious acts of certain

unknown persons and the same is not caused by an accident

arising out of the use of the vehicle. Regarding the

maintainability of the appeal, she submits the judgment of

this Court was reported subsequent to the High Court

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Judgment, hence no fault could be found with the impugned

judgment on that score and no such objection was taken in

regard to the maintainability before the High Court. As

pointed out by the learned counsel for the appellants, 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 authorised 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; Sub-section (2) of the said

Section also provides, in any claim for compensation under

that sub-section, the claimant shall not be required to

plead or establish that the death or permanent disablement

in respect of which the claim has been made was due to any

wrongful act or neglect or default of the owner of the

vehicle or vehicles concerned or of any other person

(emphasis supplied). 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 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. 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 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.

In Challis vs. London and South Western Railway

Company (1905 2 Kings Bench 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:

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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; 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.

In the case of Nisbet vs. Rayne & 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 Workmens Compensation Act 1906.

In this case the Court followed its earlier judgment in the

case of Challis (supra). 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 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.

The judgment of the Court of Appeal in Nisbets case

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). 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. 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 Workmens 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

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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 Workmens 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 Workmens 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 Workmens

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 Workmens Compensation Act is, in our

opinion, applicable to the interpretation of the word death

in the Motor Vehicles Act also.

In the case of Shivaji Dayanu Patil & Anr. vs.

Vatschala Uttam More (1991 (3) SCC 530) this Court while

pronouncing on the interpretation of Section 92 A of the

Motor Vehicles Act, 1939 held as follows : Section 92-A

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.

In that case in regard to the contention of proximity

between the accident and the explosion that took place this

Court held : This would show that 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 92-A, Parliament, however, chose to use the

expression arising out of which indicates that for the

purpose of awarding compensation under Section 92-A, the

casual 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 would imply that accident should be

connected with the use of the motor vehicle but the said

connection need not be direct and immediate. This

construction of the expression arising out of the use of a

motor vehicle in Section 92-A enlarges the field of

protection made available to the victims of an accident and

is in consonance with the beneficial object underlying the

enactment.

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

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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. This

leaves us to consider the second point raised before us by

the counsel for the appellant. It is argued on behalf of

the appellants that the appeal preferred by the Insurance

Company purported to be under Section 173 of the Motor

Vehicles Act was not maintainable because prior permission

of the Court as required was not obtained by the appellants.

In support of this contention of the appellants, reliance is

placed on a judgments of this Court in the case of

Shankarayya & Anr. vs.United India Insurance (Co.Ltd. &

Anr. 1998 3 SCC 140). In the said judgment a Division

Bench of this Court held : The Insurance Company when

impleaded as a party by the Court can be permitted to

contest the proceedings on merits only if the conditions

precedent mentioned in Section 170 are found to be satisfied

and for that purpose the Insurance Company has to obtain an

order in writing from the Tribunal and which should be a

reasoned order by the Tribunal. Unless that procedure is

followed, the Insurance Company cannot have a wider defence

on merits than what is available to it by way of statutory

defence. It is true that the claimants themselves had

joined Respondent 1 Insurance Company in the claim petition

but that was done with a view to thrust the statutory

liability on the Insurance Company on account of the

contract of the insurance. That was not an order of the

Court itself permitting the Insurance Company which was

impleaded to avail of a larger defence on merits on being

satisfied on the aforesaid two conditions mentioned in

Section 170. Consequently, it must be held that on the

facts of the present case, Respondent 1 Insurance Company

was not entitled to file an appeal on merits of the claim

which was awarded by the Tribunal.

We respectfully agree with the ratio laid down in the

above case and in view of the fact admittedly the Insurance

Company had not obtained leave from the tribunal before

filing the above appeal. We are of the opinion that the

appeal filed by the Insurance Company before the High Court

was not maintainable in law. For the reasons mentioned

above, this appeal succeeds, the judgment and order of the

High Court dated 9.3.1998 is set aside and that of the

Tribunal dated 24.6.1996 is restored. The appellants are

entitled to costs in all the counts.