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2011 Supreme(All) 1057
[2011(6) ADJ 198 (DB)(LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : DEVI PRASAD SINGH AND S.C. CHAURASIA, JJ.
NEW INDIA ASSURANCE COMPANY LTD. ....Appellant
Versus
Smt. RANNI AND OTHERS .....Respondents
(First Appeal From Order No. 278 of 1998, decided on 7th April, 2011)
Counsel :
Anand Mohan for the Appellant.
Headnote:(A) Compensation—Claim of—Plea of Insurance Company, that it was not accident but intentional murder by driver of truck for committing robbery—Facts showing that deceased was going by motor cycle—Truck hit him from back side—He succumbed to injuries on spot—F.I.R. was lodged under Sections 302 and 392 of IPC—But police submitted charge-sheet under Section 304-A—Tribunal allowed claim of legal heirs of deceased—High Court too concurred with Tribunal’s view—Burden was on Insurance Company to prove that driver of truck intentionally hit motor cycle, for killing deceased—But Insurance Company failed to prove its stand—Apart from it, mere fact that F.I.R. was lodged under Sections 302 and 392—Was not of any help to Insurance Company, because after submission of charge-sheet by police under Section 304-A before Criminal Court, F.I.R. lost its sanctity—It could be used thereafter, only for contradicting evidence under Section 145—Tribunal committed no error of law in allowing claim and rejecting plea of Insurance Company—High Court clarifying law regarding murder by accident and death in accidents, dismissed appeal of Insurance Company. [Motor Vehicles Act, 1988—Sections 166 and 168—(Indian) Penal Code, 1860—Sections 302, 392 and 304-A—Evidence Act, 1872—Sections 101 and 145—Code of Criminal Procedure, 1973—Sction 154]. [Paras 10 to 12, 14, 16 and 17]
Cases cited :
(2008) 1 SCC 324 (Para 13); (2000) 5 SCC 113 (Para 16); AIR 1986 P&H 239 (FB) (Para 15)-Relied on.
(B) Motor Vehicles Act, 1988—Sections 173, 170 and 168—Award—Appeal by Insurance Company—Challenging award of Tribunal given under Section 168—Without obtaining permission under Section 170—Not maintainable—Deserves dismissal on ground of non-maintainability—In the instant case, although High Court entertained appeal and dismissed it on merits also. [Paras 14 and 17]
By the Court.—Heard learned counsel for the appellant and learned counsel for the claimant respondents. Also perused record.
2. Present appeal under Section 173 of Motor Vehicles Act, 1988, has been preferred against the impugned Award dated 24.7.1998, passed by the Motor Accident Claims Tribunal (IV-Additional District Judge, Sitapur) in Claim Petition No. 142 of 1995. Brief Facts giving rise to the present controversy are discussed hereinafter.
3. On 10.5.1995, at about 2:00 in the afternoon, one Rajendra Prasad on his way at Hargaon, Sitapur Highway, was crushed from backside by a truck bearing Registration No. UP 76/9055. Rajendra Prasad succumbed to injury at spot. A First Information Report was lodged under Section 302 read with Section 392 IPC. However, later on, police submitted charge-sheet under Section 304-A IPC. Rajendra Prasad was aged about 43 years and was agriculturist having also dairy business. According to claimant respondents the income of the deceased was Rs. 4,000/- per month who left behind him, his widow Smt. Ranni Devi, sons Varun Kumar and Dheeraj and daughters Km. Preeti and Km. Ruchi, mother Smt. Kokila as dependents,
4. A claim petition was filed for payment of compensation under Section 166 of Motor Vehicles Act, 1988 to the extent of Rs. 13,75,000/-. The Tribunal framed five issues with regard to accident by the truck in question, driving licence, insurance cover and the relief with regard to payment of compensation.
5. The claimant respondents Smt. Ranni Devi PW-1 and Ganga Sagar PW-2 have been examined. The claimant respondents also filed post-mortem report, copy of charge-sheet and other documents with regard to criminal case. On behalf of the defendants various documents were filed which include insurance certificate, permit, national permit, chik report of case crime No. 361/1995 under Sections 302/392 IPC. However, respondents not led any oral evidence.
6. Smt. Ranni Devi stated that deceased has a flour mill and also was agriculturist having income of Rs. 6000-7000 per month. Ganga Sagar real brother of deceased stated that on 10.5.1995, deceased was going from Hargaon to Sitapur on his motorcycle. Alongwith him, he was also travelling on another motorcycle. Near village Siyanipur, a truck coming from Hargaon, dashed the motorcycle of deceased from backside. In consequence thereof, the accident occurred and Rajendra Prasad succumbed to injuries. It is stated by PW-2 Ganga Sagar that truck driver was driving the truck rashly and negligently.
7. The Tribunal after considering the evidence on record, awarded compensation to the tune of Rs. 2,09,800/- alongwith interest.
8. While assailing the impugned order, it has been submitted by Sri Anand Mohan learned counsel for the appellant that it was not a case of accidental death. Rather, the murder had been committed by the truck driver to commit robbery. Submission of the learned counsel for the appellant is that since it is a murder case, with intention to commit robbery, the claimant respondents are not entitled for any compensation.
9. On the other hand, learned counsel for the claimant respondents submits that though First Information Report was lodged under Section 302 read with Section 392 IPC but later on, it was converted to 304-A IPC. It has also been stated that from the statement of PW-2 Ganga Sagar, it is evident that the truck driver was driving the truck rashly and negligently and hit the deceased from backside to the pillion rider. It is submitted by the learned counsel for the claimant respondents that the statement of PW-2 Ganga Sagar corroborates the fact that the controversy in question is accidental death and not a murder or robbery as alleged by the learned counsel for the appellant.
10. There appears to be no doubt that the originally, the First Information Report was lodged under Section 302 read with Section 392 IPC. However, later on, the police submitted charge-sheet under Section 304-A IPC in the case crime No. 361/1995.
