The dominant intention of the act of felony determines whether a murder is accidental or murder simpliciter, and this distinction is crucial in determining eligibility for compensation under sec. 163-A of the Motor Vehicles Act.

Nagendra Rai, J.

1. This Civil Revision is directed against the order dated 1-5-2002, passed by the Motor Vehicles Accident Claims Tribunal (for short the Tribunal) rejecting the claim made by the petitioners as not maintainable u/s. 163-A of the Motor Vehicles Act, 1988 (for short the Act)

2. The Office has reported that the Civil Revision is not maintainable. The office note is not correct. A Full Bench of this Court in the case of Anirudh Prasad Ambasta V/s. State of Bihar, reported in AIR 1990 Patna 49, in paragraph 23, has held that the District Judge, who is functioning as a Claims Tribunal, is not only within the administrative control of the High Court but also subordinate to it u/s. 115 of the Code of Civil Procedure. Thus, it is held that the Civil Revision is maintainable.

3. The question, which falls for consideration in this case, is as to whether the accident, for which the compensation has been claimed under the provisions of the Act, arose out of the use of motor vehicle. The Tribunal, by the impugned order, has held that the death of the deceased was a murder simpliciter and as such it cannot be termed as a death or permanent disablement due to accident arising out of the use of motor vehicle entitling payment of compensation in terms of sec. 163-A of the Act.

4. The petitioners, who are relations of deceased Suman Yadav, filed Claim Case No. 17 of 2002 against the Branch Manager of the New India Assurance Co. Ltd.. Bhagalpur Branch, Bhagalpur. Their case is that on 2-7-2001 at about 10.15 a.m. deceased Suman yadav along with Manoj Yadav going to Bhagalpurfrom Kahalgaon on a motorcycle bearing registration No. BR-10B-4332. When they reached near Khankitta culvert, one Ramashish Singh fired upon Suman Yadav, which resulted into his instantaneous death. As the said accident arose out of the use of a motor vehicle, the claimant-petitioners are entitled to compensation in terms of the aforesaid provision.

5. It is an admitted position that a fardbeyan was lodged by the other occupant of the motor-cycle Manoj Yadav. In the fardbeyan, it has been clearly stated that the motive for the occurrence is that prior to the alleged date of occurrence, an altercation had taken place between the deceased and accused Ramashish Singh on the point of filing tender and the accused had threatened to kill the deceased. The Tribunal, after having taken note of the aforesaid fact, held that the death of the deceased was not caused due to an accident arising out of the use of a motor vehicle.

6. Learned Counsel appearing for the petitioners submitted that the Tribunal at the very threshold was not justified in dismissing the claim application as the death of the deceased occurred due to use of a motor vehicle and as such it was an accident arising out of the use of the motor vehicle. The deceased was murdered because he was travelling on a motorcycle, which, admittedly, was insured and the Insurance Company is liable to pay compensation in terms of the provisions of the Act.

7. Admitted fact is that the vehicle was ensured with the opposite party. If Prima facie, it is found that the death was an accident and the same arose out of use of a motor vehicle then the Tribunal cannot dismiss the claim at the threshold and has to decide the matter in accordance with law.

8. sec. 163-A of the Act contains special provisions as to payment of compensation in case of death or permanent disablement due to accident arising out of the use of motor vehicle. The amount of compensation is indicated in the schedule. The claim of the petitioner is maintainable once it is proved that the accident arose out of the use of motor vehicle.

9. The word accident has not been defined under the Act, but the same has been the subject matter of interpretation and decision by the Apex Court in several cases. The direct case, which has bearing on the question involved in this case, is the case of Rita Devi V/s. New India Assurance Co. Ltd., reported in AIR 20