The MAC App No.168/2013 and MAC App No.169/2013 have been filed by the United India Insurance Co. Ltd against the common judgment and award passed by the Motor Accident Claims Tribunal, Goalpara in MAC Case No.94/2006 and 95/2006. In both the appeals, the appellant, as well as, the ground of challenge are common and therefore, both the appeals are taken to be decided by this common judgment.

2. Brief facts necessary for disposal of these appeals are that on 28-09-1998 late Uddhab Ch. Das aged about 40 years and late Amal Ch. Das aged about 25 years were travelling in a car bearing registration No.AS-01/9219 along with other co-passengers from Dhupdhara to Goalpara. On the way, at a place called Tiplai Tiniali the extremists ambushed the vehicle killing the passengers of the car including the victims, Uddhab Ch. Das and Amal Ch. Das. The legal heirs of both the victims have filed the claim petition before the MACT Goalpara and the Tribunal on appreciation of evidence passed the impugned award in favour of the claimants in both the cases, which are under challenge in these appeals.

3. I have heard Mr. S. Dutta, learned senior counsel for the appellant and Mr. H. Das, learned counsel for the respondent.

4. By placing reliance on the decisions on Rita Devi and Ors vs. New India Assurance Co. Ltd and Anr reported in 2000 (5) SCC 113 and Biplab Basi Vs. Oriental Insurance Co. Ltd and Anr reported in 2005(3) GLT 407, Mr. Dutta submits that the death of the victim in both the cases were pure and simple homicidal death and cannot be considered as accidental death as a result of use of motor vehicle and therefore, the award passed by the learned Tribunal are required to be set-aside.

5. The learned counsel for the respondent also placing reliance on the same decisions as well as the decision of this High Court in Rita Das and Ors Vs. Oriental Insurance Company Ltd and Ors reported in 2013 (1) GLT 346 submits, that it was a case of accidental death for negligence on the part of the driver and therefore, learned Tribunal has rightly passed the award.

6. From the rival submission of both the sides, the point for consideration is whether the death of the victims, in both the cases, were accidental death arising out of use of motor vehicle as a result of rash and negligence of the driver of the vehicle.

7. The facts in Rita Devi (supra) were that a vehicle, which was a public carrier, was hired by some unknown person, who had killed the driver and stolen away the vehicle. The issue before the Apex Court was whether the death of the driver of the vehicle, who was killed by the miscreants, and the vehicle was stolen, would be an accident for the purpose of Motor Vehicle Act. On the above facts, the Apex Court answering the questions, whether a murder can be an accident in any given case, held in para 10 as under:-

“10. 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 dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is murder simpliciter, 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.”

8. A Division Bench of this Court in Biplab Basi Das Vs. Oriental Insurance Co. Ltd and Anr reported in 2005 (3) GLT 407 relying on Rita Devi’s case observed that when the dominant intention was not to cause death of any particular individual, but an attack