An accident arising out of the use of a vehicle includes situations where extra care is required to be taken before or while using a vehicle at a public place, and the dominant intention for causing injury or death in a vehicle determines whether it is accidental or not.

Iqbal Ahmed Ansari, J.

1. Thus appeal, preferred under Section 173 the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act) has arisen out of the award dated 12.7.1996, passed, in T.S. (MAC) 163 of 1995, by the Member, Motor Accident claims Tribunal, West Tripura, Agartala (hereinafter referred to as the Tribunal) dismissing the application for compensation made under Section 166 of the M.V. Act by the claimant-appellant.

2. The material facts leading to the present appeal may, in brief, be set out as follows:

The claimant-appellant herein, Smti. Bipal Bashi Das, made an application under Section 166 of the M.V. Act seeking compensation for a sum of Rs. 11,00,000 for the death, of her husband, Kartik Das, who allegedly died in a motor vehicular accident, her case being, in brief, thus on 6.4.1994, the claimant's husband, Kartik Das, boarded a Jeep bearing registration No. TRT 1867 for going to Teliamura from Taidubazar. Some other passengers also boarded the said Jeep. As Amarpur-Teliamura road was infested by extremists and possibilities of extremists attack on public vehicles passing over the road in the said area were very high, there was panic in the said area on account of extremist activities and it was, usually, considered unsafe to undertake journey through Amarpur-Teliamura Road, the claimant's husband (since deceased) and other passengers, present in the said vehicle requested the driver of the said vehicle to proceed towards Udaipur from Taidubazar via Amarpur and, thereafter, to Teliamura via Agartala so as to avoid possibilities of attack on the said, vehicle, for, such a route, though a little longer, would have been free from any danger. The driver, however, did not accede to the requests so made by the passengers and started driving the vehicle along Amarpur-Teliamura Road, which was though a shorter route, was full of possibilities of attack by the extremists. As soon as the vehicle reached Pathar Quarry near 7 miles under Taidu Police Station, some extremists started firing aiming at the vehicle. As a result of the said firing, the claimant's husband sustained bullet injuries and when he was brought to Teliamura hospital, he was declared, dead. Terming that the act of driving the said vehicle by its driver through insecured, though shorter route, amounted to careless and negligent driving of the vehicle leading to the death bf the claimant's husband, the claimant sought for compensation of Rs. 11,00,000.

3. The respondent No. 2 herein, namely, owner of the vehicle contested the claim by filing his written statement, wherein, while admitting that the claimant's husband, Kartik Das, was a passenger in the said vehicle and that the vehicle was fired upon by the extremists at the area aforementioned, resulting into Kartik Das death and also sustaining of injuries by other co-passengers, the owner submitted, inter alia, that the said vehicle was driven cleverly by its driver, who managed to reach Teliamura hospital despite attack on the vehicle by the extremists, and, in these premises, this respondent contended that the claim application was not maintainable.

4. The insurer of the Said vehicle, namely, respondent No. 1 herein, also contested the case by filing their written statement, wherein they submitted, inter alia, that the death of the said deceased was not on account of any accident arising out of use of the said vehicle and, hence, the claim application was not maintainable. It was also submitted by the respondent No. 1 that the said vehicle did not, at the, relevant point of time, stand covered by any insurance policy. The fact that the said vehicle did not stand insured, at the relevant point of time, with the respondent No. 1 was, in fact, not disputed. The learned Tribunal, therefore, directed that the name of the respondent No. 1 be struck off the record. This direction has remained unchallenged till date.

5. By the impugned award, dated 12.7.1996, the learned Tribunal, primarily, rel