The court upheld that claimants could be entitled to compensation due to negligent driving despite not being dependents at the time of the accident; the incident was ruled as an accident rather than murder.

JUDGMENT AND ORDER (CAV)

SUSMITA PHUKAN KHAUND, J.

1. Heard learned counsel, Mr. R. Goswami for the appellant/Insurer. Also heard learned counsel Mr. M. Khan for respondent Nos.1 & 2/claimants, and learned counselMr. S. K. Poddar for respondent No. 3 (owner).

2. The MAC appeal No.385/2016 and CO No. 6/2024 are decided through this common judgment as both the analogous cases arise out of the same cause of action. The claimants in this case are M. Anowara Begum and M. Asma Khatun, whereas the respondents in this case are HDFC ERGO General Insurance Company Ltd., insurer of vehicle No. AS19B/0245 of Tata Indica make and the owner of the vehicle is Smt. Anita Sarkar, arrayed as opposite party No. 2 in MAC case No. 48/2009.

3. In this case, the appellants and the respondents will be referred to as the claimants, the insurance company or the insurer and the owner of the vehicle respectively.The claimant’s case in brief is that on 14.09.2008, while Kabed Ali, driver of Smt. Anita Sarkar, parked the vehicle bearing registration No. AS19B/0245 of Tata Indica make in the taxi stand at Bongaigaon and was waiting for passengers to hire the vehicle, at about 6 p.m., two unknown miscreants hired the vehicle from Kabed Ali to proceed towards their destination. The vehicle was proceeding from Bongaigaon towards Abhayapuri, but the vehicle disappeared. However, on 15.09.2008, at about 6 a.m., the body of Kabed Ali was found near a coconut plantation at village, Batabari under Abhayapuri P.S. An FIR was lodged by one, Ishwar Chandra, Assistant Director of the coconut farm on 15.09.2008 with the police at Abhayapuri P.S. and an Abhayapuri P.S. case No. 236/2008 under Section 302 /201/379 of the IPC was registered. Kabed Ali, hereinafter, also referred to as the deceased was 20 years old at the time of the incident. The claimants prayed for a compensation of Rs. 5 lacs on account of the death of the deceased.

4. Notices were issued to OP No. 1, HDFC General Insurance company, who filed a written statement contending interalia that there is no cause of action and the claim petition is not maintainable. It was further contended that in order to claim compensation under section 166 of the MOTOR VEHICLES ACT 1988, the claimants have to establish that the person died as a result of a motor vehicular accident, but in the present case, it appears from the claim petition that the driver was killed by the miscreants, who hired the vehicle, and as such the petition was not maintainable.

5. It was further contended by the insurer that in order to claim compensation under section 166 of the MOTOR VEHICLES ACT , the claimants have to establish that the accident occurred owing to the negligence of the driver of the vehicle, but in the present case, the driver/deceased was killed by miscreants. So stating, the claimants have been put to strictest proof of their case. The insurer has also contended that the claim was excessive and has also prayed to dismiss the claim petition. Owner of the vehicle, however, did not contest the proceeding and the case proceeded ex-parte against the owner.

6. The Trial Court framed the following points for determination:-

“(i) whether claimants’ brother, Kabed Ali died in the motor vehicle accident that occurred on 15.09.2008 at village Batabari due to rash and negligent driving of t