Hon’ble Sheo Kumar Singh-I, J.—The present First Appeal From Order under Section 173 of Motor Vehicles Act 1988 has been filed against Judgment and Award dated 1.2.2013 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 1, Faizabad in MACP No. 285 of 2011 Ambalika Singh v. United India Insurance Company Limited and others whereby claim petition of the claimants was rejected.

2. The claim petition reveals that one Narendra Singh was driver of the Truck No. GJ6V.V./7759 and after loading the milk powder, he was going from Ahmdabad (Gujarat) to Guwahati and when he reached on the way of Faizabad-Basti near the village Katra Bogh Chand, P.S. Nawabganj, District Faizabad, he met with an accident, on account of which, he succumbed to serious injuries and died on the spot. The appellant preferred claim petition before Motor Accident Claims Tribunal, Faizabad under Section 163-A of Motor Vehicles Act and while deciding issue No. 1 the Tribunal concluded that the deceased died due to murder on the way of Faizabad-Basti while he was carrying milk powder in the aforesaid truck and rejected the claim petition.

3. The recovery memo prepared during the investigation reveals that cloths and other articles such as ATM Card, driving licence, Photo Folder alongwith photo of deceased Narendra Singh was found in cabin of the truck in question and without considering and appreciating the statement of the investigating officer which discloses the recovery of the asset of the deceased inside the truck and without appreciating the statement of the Director of Arti Roadways Private Limited where the deceased was employed. The Tribunal dismissed the petition in arbitrary manner without applying the mind. That accident occurred during the use of motor vehicle and occurred under Motor Vehicles Act. The learned Tribunal concluded that there was no motor accident and it was a case of murder and thus the petition for claimants under the provisions of Act did not arise.

4. Learned counsel for appellant had relied on Rita Devi (Smt.) and others v. New India Assurance Company Limited and another, AIR 2000 SC 1930, 2000(5) JT 355 and contended that in that controversy where the deceased was employed to drive the auto-riksha for ferrying passengers on hire and the auto riksha was parked at rikshaw stand and some unknown passenger had engaged him for their journey and later on next day, the body of the deceased was recovered and auto-riksha was never traced. The Apex Court awarded the compensation on the ground that the accident took place during the use of motor vehicle.

5. Learned counsel for insurance company has contended that the deceased being an employee was entitled for compensation both under Motor Vehicles Act and also under the Workmen’s Compensation Act 1923. However under Section 163 A(1) of the Motor Vehicles Act the heirs of the deceased had a choice either to claim compensation under that Act or under the Women’s Compensation Act. The appellants having chosen to invoke the provisions of Motor Vehicle Act, the Tribunal would have awarded the compensation but without properly appreciating the reasoning advanced by learned counsel for appellant/petitioner, the Tribunal dismissed the petition.

6. As pointed out by the learned counsel for the appellants, the Motor Vehicles Act does not define the word accident. However, Section 163A of the Motor Vehicles Act provides for payment of compensation for the death or injury suffered in a motor vehicle accident on a structured formula basis in Section 163 A of the Act. Sub-clause (I) of the said Section says that notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule,