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2009 (2) GCD 1162 (Guj)
Hon’ble Mr. Justice H.K. Rathod
National Insurance Company
Versus
Gitaben Saitansinh Rajput & Ors.
First Appeal No. 676 of 20091—Decided on 19/02/2009
Motor Vehicles Act, 1988 (Central Act 59 of 1988) — Sections 163(A) and 167 — Claim — Award of compensation — Death because of use of vehicle — No nexus established — Finding as to — Sustainability — The only contention raised on behalf of appellant Insurance is that there was no vehicular accident on the date of incident — Deceased was murdered by somebody else and his body was found on driver seat of Truck — Therefore, death of deceased has not occurred due to involment or use of any vehicle — The learned Counsel for appellant submitted that in absence any evidence to that nature claim application is not maintainable — Court while scrutinising the evidence — In the case found that it is not a simplicitor murder as alleged by learned Counsel for appellant but it is an accidental murder because driver who was murdered was working on the same vehicle — He was sent on duty and meanwhile while returning from Jaipur he was found murdered by some unknown person on seat of driver in Truck with bleeding condition Court observed that use of vehicle means it covers driven, repaired, parked, kept stationary or left unattended condition of vehicle in question or involved in accident — The accident is incidental to use of vehicle then jurisdiction of Claims Tribunal is not restricted under the Act — In the facts when deceased died in accidental murder by use of motor vehicle during course of employment of opponent No. 1 claimants are entitled for compensation from owner of vehicle and insurance — It is not a case of negligence of deceased in driving vehicle or rash and negligent driving on his part — Therefore, this accidental murder rightly decided by Claims Tribunal to award compensation — Court refused any interference.
Held :
In facts of this case, occurred incident is covered by accident means it is not simplicitor murder but it is an accidental murder because driver who was murdered was working on the same vehicle he was sent for duty and meanwhile while returning from Jaipur he was found to be murdered by some unknown person on seat of driver in Truck with bleeding condition. The use of vehicle means it covers driven, repaired, parked, kept stationary or left unattended condition of vehicle in question or involved in accident. The accident is incidental to use of motor vehicle. Then jurisdiction of claims Tribunal is not restricted under provision of M.V. Act. [Para 22]
Therefore, claims Tribunal has rightly considered FIR, Panchnama and certified copies of primary treatment certificate, PM report and Exhibits 40 to 43 and rightly also considered scope of Section 163(A) and rightly calculated amount of compensation and incident occurred by use of vehicle under Motor Vehicle Act during course of employment and claims Tribunal has jurisdiction to decide claim petition filed by claimants. [Para 23]
Considering that deceased was died in accidental murdered by use of motor vehicle during course of employment of opponent No. 1, claimants are entitled for compensation from owner and insurance company. There was no negligence of deceased in driving vehicle or there was no rash and negligent driving of deceased was found to be responsible. Therefore, this accidental murder rightly decided by claims Tribunal. The claims Tribunal has not committed any error and reasoning given by claims Tribunal is not vitiated as baseless and perverse. The finding based on legal evidence. Therefore, there is no substance in present appeal. [Para 24]
Law Laid Down :
The use of vehicle covers driven repaired, parked kept stationary or left unattended condition of vehicle involved in accident.
Case Law Analysis :
Oriental Insurance Co. Ltd. vs. heirs and legal representative of Kishorbhai Popatlal Parsana, 2001 ACJ 1268 [Paras 5 & 10];; Rita Devi vs. New India Insurance Company Ltd., 2000 (5) SCC 113 = 2000 ACJ 801 [Paras 5 & 20];; Divisional Manager, New India Assurance Co. Ltd vs. Ratan Thakur & Ors., 2005 ACJ 1876 [Para 12];; Ramdev Singh Chudasama vs. Hansrajbhai Kodala, 1999 ACJ 1129 [Para 14];; Manjula Devi Mishra and Others, 2008 ACJ 1624 [Pata 20].—Relied on
Appeal Dismissed
H.K. Rathod, J.—Heard learned Advocate Mr. DB Mehta on behalf of appellant Insurance Company.
2. The appellant insurance company has challenged award passed by Motor Accident Claims Tribunal main at Gandhinagar in MACP No. 1876/2004 vide Exhibit 52 dated 20.06.2008. The claims Tribunal has awarded compensation of Rs. 2,04,500/- with 9% interest in favour of respondent claimants.
3. Learned Advocate Mr. Mehta raised contention before this Court that claims Tribunal has committed gross error in awarding compensation in favour of respondent claimants because there was no vehicular accident occurred on the date of incident. He submitted that claims Tribunal has not appreciated contention of appellant that death of husband of Respondent No. 1 had taken place not due to vehicular accident, but he was murdered by somebody else and his dead body was found on driver seat of Truck. Therefore, death of deceased has not occurred due to involvement or use of any vehicle.
4. He also submitted that claimants has failed to establish that husband of applicant No. 1 sustained grievous fatal injuries which resulted into death because of use of vehicle or out of use of vehicle or in vehicular accident. He submitted that it is a clear case of murder and claim petition is not maintainable for getting compensation under provision of Motor Vehicle Act.
5. He submitted that driver, who has been murdered by somebody else is not covered under policy issued by insurance company and claimants have failed to prove incident of accident or incident occurred during course of employment. He also relied upon decision in case of Oriental Insurance Co. Ltd. vs. heirs and legal representative of Kishorbhai Popatlal Parsana reported in 2001 ACJ 1268. He also relied upon decision of Apex Court in case of Rita Devi vs. New India Insurance Company Ltd. reported in 2000 (5) SCC 113 and submitted that admission made by widow that somebody has committed murder of her husband and she has no personal knowledge who had committed murder, has not been properly appreciated by claims Tribunal.
6. He also submitted that death of Saitansinh has registered by police because of murder not registered as accident occurred by use of vehicle. He also submitted that this death of driver not resulted for involvement of truck and there was no iota evidence of produced by claimants shown that driver was died because of involvement or use of truck.
7. According to him, there was no nexus between murder and use of vehicle established by claimants. The murder is understood in common parlance is a fallacious act where death is caused with intent and perpetrators of act normally have a motive against victim for such killing. The claims Tribunal has committed error in relying upon decision of Rita Devi. He submitted that claims Tribunal has no jurisdiction under Section 163(A) of Motor Vehicle Act. Except that no other contention is raised by learned Advocate Mr. Mehta before this Court.
8. I have considered submissions made by learned Advocate Mr. Mehta and also perused award passed by claims Tribunal. The claimants are widow, three minor and father of deceased. The accident occurred on 20.02.2004 and Driver died during treatment hours in Rajasthan Hospital. On 17.02.2004, in early morning at Badarda National Highway No. 8, opposite Tea Lorry, within jurisdiction of Rajnagar Police Station, deceased was lying on driver seat of Truck bearing No. GJ-18-T-9084 with bleeding condition. Thereafter, deceased was shifted to Civil Hospital, Udaipur by police and was admitted in Rajasthan Hospital where he died. The claimant has made claim of Rs. 8 Lacs before claims Tribunal.
9. The opponent No. 1 owner has filed written statement vide Exhibit 13 and he denied averment made in claim petition. According to opponent No. 1 he was owner of truck bearing No. GJ-18-T-9084 and opponent No. 2 was insurance company of said vehicle. The opponent No. 1 owner and opponent No. 2 insurance company both have denie
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