# National Insurance Company v. Smt. Pushpa Devi & Ors

- **Citation:** (2019) 2 ILRA 1111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-13
- **Case number:** FAFO No. 3730 of 2008
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-company-v-smt-pushpa-devi-ors-44566
- **Pages:** 11

## Headnote

A. Motor Vehicles Act, 1988 - Section
163-A
-
Murder
-
when
claim
maintainable - 'murder simpliciter', claim
not maintainable - but if the death was a
result of an act to ensure commission of
another act of felony, while the vehicle
was in use, then claim would be
maintainable.
Held:-If the Court comes to a conclusion that
it was a case of 'murder simpliciter' that is,
where the perpetrators of the crime had the
intention of committing murder only, then, the
claim under Section 163-A of the Motor
Vehicles Act would not be maintainable - But,
if the Court comes to a conclusion that it was
a case of an accidental murder that is where
the perpetrators of the act did not have any
motive against victim but the death was a
result of an act to ensure commission of
another act of felony, while the vehicle was in
use, then, the claim under Section 163A of the
Motor Vehicles Act would be maintainable.
(Para 14)
Just because the truck was not looted, it
cannot be said that the claim petition was not
maintainable. It is proved that the vehicle was
involved and just because he was murdered, it
cannot be a ground for rejection of the claim
petition -- incident occurred due to use of
Motor Vehicle -- The deceased was a driver on
the said vehicle and was on duty and during
the course of employment, this incident
occurred. (Para 13 & 15)
First Appeal from Order partly allowed
(E-5)
Cases relied upon: -
1.Rita Devi 7 ors. Vs New India Assurance Co.
Ltd. & anr. (2000) 5 SCC 113,
2.Oriental Insurance Co. Ltd. Vs Smt. Mainaz
& ors. (2014) 3 T.A.C. 408 (All.)
3.Kalim Khan & ors. Vs Fimidabee & ors.
(2018) 3 T.A.C. 337 (SC)
4.National Insurance Company Ltd. Vs Smt.
Kusuma Devi 2007 T.A.C. 729 (All.
5.Oriental Insurance Company Ltd. Vs Poonam
Kesarwani & ors. 2008 LawSuit (All) 1557
6.Ram Chandra Singh Vs Rajaram & ors. AIR
2018 SC 3789
6.Sunita & ors. Vs Raj. St. Road Transport
Corporation & anr. 2019 LawSuit (SC) 190
7.Mangla Ram Vs Oriental Insurance Company
Ltd. & anr. (2018) 5 SCC 656
8.Vimla Devi & ors. Vs National Insurance
Company Ltd. & anr. (2019) 2 SCC 186

## Text

2 All. National Insurance Company Vs Smt. Pushpa Devi & Ors.
1111
within its walls, and usually, but not
necessarily, covered with a roof is a
building. Roof is not necessary and
indispensable adjunct for a building
because there can be roofless buildings.
The "Building" as defined in Section 3
(i) is a residential or non-residential
roofed structure and includes any land
(including any garden), garages and
out-houses,
appurtenant
to
such
building. Therefore, an open land
including any garden, garages and outhouses,
appurtenant
to
a
roofed
structure for its beneficial engagement
shall be a building within the meaning
of Section 3(i) of U.P. Act 13 of 1972.

16. In the present set of facts the
small accommodation let out by the
landlord-respondent to the defendantrevisionist is an integral part of the
building bearing municipal No.76/184,
Sabji
Mandi,
Kanpur
Nagar.
Therefore,
the
disputed
accommodation,
even
though
is
roofless; is part of the house in
question. Consequently, the disputed
accommodation let out by landlordrespondent to the tenant-revisionist is
"building" as defined under Section 3(i)
of the U.P. Act 13 of 1972. Question no.
(a) is answered accordingly.

17. In view of my answer to the
question (a) there is no need to decide
question (b) yet it would be suffice to
observe that admittedly the competence of
the court below to decide the SCC Suit in
question was not raised by the tenantrevisionist
before
the
court
below.
Therefore, in view of the provisions of
Section 21 of the Civil Procedure Code
and the law settled by Hon'ble Supreme
Court in the case of Om Prakash
Agarawal (supra), such an objection can
not be raised at this stage in Revision
under Section 25 of the Act, 1887,
inasmuch as such an objection could have
been taken by the tenant-revisionist in the
Court of first instance at the earliest
possible opportunity.

18. For all the reasons aforestated, it
is held that the disputed accommodation
is a building within the meaning of
Section 3(i) of the U.P. Act 13 of 1972
which was let out by the landlordrespondent to the tenant-revisionist and
the
tenant-revisionist
defaulted
in
payment of rent resulting in determination
of tenancy. Therefore, the SCC Suit for
eviction has been lawfully decreed by the
impugned
judgment.
The
findings
recorded by the court below on the issues
before it are the findings of fact which do
not suffer from any perversity. Therefore,
these findings of fact can not be interfered
with.

19. For all the reasons aforestated, I do
not find any merit in this revision. Therefore,
the revision is dismissed. However, there
shall be no order as to costs.
----------

(2019)10ILR A 1111

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

FAFO No. 3730 of 2008

National Insurance Company ...Appellant
Versus
Smt. Pushpa Devi & Ors.
 ...Claimants/Opposite Parties
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Radhey Shyam

Counsel for the Opposite Parties:
Sri Pradyumn Kumar

A. Motor Vehicles Act, 1988 - Section
163-A
-
Murder
-
when
claim
maintainable - 'murder simpliciter', claim
not maintainable - but if the death was a
result of an act to ensure commission of
another act of felony, while the vehicle
was in use, then claim would be
maintainable.
Held:-If the Court comes to a conclusion that
it was a case of 'murder simpliciter' that is,
where the perpetrators of the crime had the
intention of committing murder only, then, the
claim under Section 163-A of the Motor
Vehicles Act would not be maintainable - But,
if the Court comes to a conclusion that it was
a case of an accidental murder that is where
the perpetrators of the act did not have any
motive against victim but the death was a
result of an act to ensure commission of
another act of felony, while the vehicle was in
use, then, the claim under Section 163A of the
Motor Vehicles Act would be maintainable.
(Para 14)
Just because the truck was not looted, it
cannot be said that the claim petition was not
maintainable. It is proved that the vehicle was
involved and just because he was murdered, it
cannot be a ground for rejection of the claim
petition -- incident occurred due to use of
Motor Vehicle -- The deceased was a driver on
the said vehicle and was on duty and during
the course of employment, this incident
occurred. (Para 13 & 15)
First Appeal from Order partly allowed
(E-5)
Cases relied upon: -
1.Rita Devi 7 ors. Vs New India Assurance Co.
Ltd. & anr. (2000) 5 SCC 113,
2.Oriental Insurance Co. Ltd. Vs Smt. Mainaz
& ors. (2014) 3 T.A.C. 408 (All.)
3.Kalim Khan & ors. Vs Fimidabee & ors.
(2018) 3 T.A.C. 337 (SC)
4.National Insurance Company Ltd. Vs Smt.
Kusuma Devi 2007 T.A.C. 729 (All.
5.Oriental Insurance Company Ltd. Vs Poonam
Kesarwani & ors. 2008 LawSuit (All) 1557
6.Ram Chandra Singh Vs Rajaram & ors. AIR
2018 SC 3789
6.Sunita & ors. Vs Raj. St. Road Transport
Corporation & anr. 2019 LawSuit (SC) 190
7.Mangla Ram Vs Oriental Insurance Company
Ltd. & anr. (2018) 5 SCC 656
8.Vimla Devi & ors. Vs National Insurance
Company Ltd. & anr. (2019) 2 SCC 186
9. National Insurance Co. Ltd. Vs Smt.
Vidyawati Devi & 2 ors. F.A.F.O. No.2389 of
2016
10.National Insurance Company Ltd. Vs Pranay
Sethi & ors. 2017 0 Supreme (SC) 1050
11.Sarla Verma Vs Delhi Transport Corporation
(2009) 6 SCC 121
12.National Insurance Co. Ltd. Vs Mannat
Johal & anr. (2019) 2 T.A.C. 705 (S.C.)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Radhey Shyam, learned
counsel
for
the
appellant
and
Sri
Pradyumn Kumar, learned counsel for the
respondent-claimants. None appeared on
behalf of owner.

2. This appeal, at the behest of the
National Insurance Co. Ltd., challenges
the judgment and award dated 4.9.2008
passed
by
Motor
Accident
Claims
Tribunal/Special
Judge,
Mainpuri
(hereinafter referred to as 'Tribunal') in
2 All. National Insurance Company Vs Smt. Pushpa Devi & Ors.
1113
M.A.C.P. No. 268 of 2002 awarding a
sum of Rs.1,77,000/- with interest at the
rate of 8% as compensation in favour of
the respondent-claimants.

3. Factual scenario as it emerges for
the purpose of this Court is that the
deceased and one another person was
found dead in Truck No. UP-84 2403
when they were going to load iron rods
from Kanpur to Mainpuri. At about 12.45
p.m. on 7.6.2002, the owner was informed
about this fact and he lodged a First
Information
Report.
The
claimants
preferred claim petition claiming that the
deceased was 35 years of age and was
earning Rs. 4500/- per month and they
had become destitute and, therefore,
claimed Rs.17,50,000/- with 18% rate of
interest.

4. The respondent-owner appeared
before the Tribunal, accepted the age of
the deceased, that the deceased was
employed at his place, his vehicle was
insured with Insurance Company and that
his driver had proper driving license. The
Insurance Company appeared before the
Tribunal and filed its reply of negation
contending that no cause of action arose
against them that the deceased was not 35
years of age as his age certificate was not
filed, that there was breach of policy
condition.

5. The Tribunal on 31.1.2006
framed four issues and returned the
findings in favour of the claimants and
against the Insurance Company holding
that the claim petition was maintainable
and allowed the same on the basis of
evidence of P.W.1 and P.W.2 and held
that the deceased was in employment. The
witness withstood the cross-examination
by Insurance Company. The Tribunal
placed reliance on the decision of the
Apex Court in Case of Rita Devi (Infra)
and held in favour of the claimants. As far
issue No. 2 is concerned, there is no
dispute that the vehicle was insured, it had
proper permit and that the documents
were in order and, therefore, the said
contention has not been raised. As for as
issue No. 3 relating to license of the
deceased-driver
is
concerned.
the
Insurance Company has disputed its
liability contending that the driving
license was fake as proved in M.A.C.P.
No. 280 of 2002 and they should be
exonerated. In view of this, the appeal
requires to be decided.

6. The learned counsel for the
appellant has contended that the murder
cannot be said to be giving cause of action
to file a claim under the Motor Vehicles
Act, 1988 (hereinafter referred to as 'Act,
1988'). It is further contended that the
compensation of Rs. 1,77,000/- is on the
higher side. The truck was neither looted
and despite that the Tribunal wrongly
decided in favour of the claimants. It is
further submitted that the license of the
deceased-driver was not produced. It is
further submitted that in Motor Accident
Claims No. 280 of 2002 arising out of the
same accident, the Tribunal held that the
license was fake. This aspect should have
been considered by the Tribunal.

7. Sri Pradyumn Kumar, learned
counsel for the claimants has relied on the
decisions in Rita Devi and others Vs.
New India Assurance Co. Ltd. and
another, (2000) 5 SCC 113, Oriental
Insurance Co. Ltd. Vs. Smt. Mainaz
and Others, 2014 (3) T.A.C. 408 (All.)
and Kalim Khan and others Vs.
Fimidabee and others, 2018 (3) T.A.C.
337 (SC) to contend that as per the
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Section 166 of the Act,
1988, the involvement of the vehicle is
proved. There is no breach of policy
conditions and as contended that the
compensation awarded requires to be reevaluated as no amount under the head of
future loss of income has been granted
and that the amount under the head of non
pecuniary damages is on the lower side.

8.
 So
as
to
appreciate
the
contentions raised by the counsels for the
parties, this Court feels that the provision
of Sections 147 and 166 of the Act, 1988
be reproduced here which are as follows:

"147 Requirements of policies
and limits of liability. --

(1) In order to comply with the
requirements of this Chapter, a policy of
insurance must be a policy which--

(a) is issued by a person who is
an authorised insurer; and

(b) insures the person or classes
of persons specified in the policy to the
extent specified in sub-section (2)--

(i) against any liability which
may be incurred by him in respect of the
death of or bodily injury to any person,
including owner of the goods or his
authorised representative carried in the
vehicle] or damage to any property of a
third party caused by or arising out of the
use of the vehicle in a public place;

(ii) against the death of or
bodily injury to any passenger of a public
service vehicle caused by or arising out of
the use of the vehicle in a public place:
Provided that a policy shall not be
required--

(i) to cover liability in respect of
the death, arising out of and in the course
of his employment, of the employee of a
person insured by the policy or in respect
of bodily injury sustained by such an
employee arising out of and in the course
of his employment other than a liability
arising
under
the
Workmen's
Compensation Act, 1923 (8 of 1923) in
respect of the death of, or bodily injury to,
any such employee--

(a) engaged in driving the
vehicle, or

(b) if it is a public service
vehicle engaged as conductor of the
vehicle or in examining tickets on the
vehicle, or

(c) if it is a goods carriage,
being carried in the vehicle, or

(ii) to cover any contractual
liability.

Explanation. --For the removal
of doubts, it is hereby declared that the
death of or bodily injury to any person or
damage to any property of a third party
shall be deemed to have been caused by
or to have arisen out of, the use of a
vehicle in a public place notwithstanding
that the person who is dead or injured or
the property which is damaged was not in
a public place at the time of the accident,
if the act or omission which led to the
accident occurred in a public place.

(2) Subject to the proviso to
sub-section (1), a policy of insurance
referred to in sub-section (1), shall cover
any liability incurred in respect of any
accident, up to the following limits,
namely:--

(a) save as provided in clause
(b), the amount of liability incurred;

(b) in respect of damage to any
property of a third party, a limit of rupees
six thousand:

Provided that any policy of
insurance issued with any limited liability
and in force, immediately before the
commencement of this Act, shall continue
to be effective for a period of four months
after such commencement or till the date
2 All. National Insurance Company Vs Smt. Pushpa Devi & Ors.
1115
of expiry of such policy whichever is
earlier.

(3) A policy shall be of no effect
for the purposes of this Chapter unless
and until there is issued by the insurer in
favour of the person by whom the policy is
effected a certificate of insurance in the
prescribed form and containing the
prescribed particulars of any condition
subject to which the policy is issued and
of any other prescribed matters; and
different forms, particulars and matters
may be prescribed in different cases.

(4) Where a cover note issued
by the insurer under the provisions of this
Chapter or the rules made thereunder is
not followed by a policy of insurance
within the prescribed time, the insurer
shall, within seven days of the expiry of
the period of the validity of the cover
note, notify the fact to the registering
authority in whose records the vehicle to
which the cover note relates has been
registered or to such other authority as
the State Government may prescribe.

(5) Notwithstanding anything
contained in any law for the time being in
force, an insurer issuing a policy of
insurance under this section shall be
liable to indemnify the person or classes
of persons specified in the policy in
respect of any liability which the policy
purports to cover in the case of that
person or those classes of persons"

166.
Application
for
compensation.--

(1)
An
application
for
compensation arising out of an accident
of the nature specified in sub-section (1)
of section 165 may be made--

(a) by the person who has
sustained the injury; or

(b)
by
the
owner
of
the
property; or

(c) where death has resulted
from the accident, by all or any of the
legal representatives of the deceased; or

(d) by any agent duly authorised
by the person injured or all or any of the
legal representatives of the deceased, as
the case may be: Provided that where all
the legal representatives of the deceased
have not joined in any such application
for compensation, the application shall be
made on behalf of or for the benefit of all
the legal representatives of the deceased
and the legal representatives who have
not so joined, shall be impleaded as
respondents to the application.

(2) Every application under
sub-section (1) shall be made, at the
option of the claimant, either to the
Claims Tribunal having jurisdiction over
the area in which the accident occurred,
or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant
resides or carries on business or within
the local limits of whose jurisdiction the
defendant resides, and shall be in such
form and contain such particulars as may
be prescribed: Provided that where no
claim for compensation under section 140
is
made
in
such
application,
the
application shall contain a separate
statement to that effect immediately
before
the
signature
of
the
applicant.[***] 3(4) The Claims Tribunal
shall treat any report of accidents
forwarded to it under sub-section (6) of
section 158 as an application for
compensation under this Act."

9. The decision in National
Insurance Company Limited Vs. Smt.
Kusuma Devi, 2007 T.A.C. 729 (All.)
relied on by the counsel for the claimant
before the Tribunal and nothing in the
rebuttal has been proved by the Insurance
Company. The owner in his written
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
statement contended that the vehicle was
being driven by a qualified driver and,
therefore, the said ground that the driver
did not have proper driving license cannot
be accepted. The Tribunal has held that it
was the duty of the Insurance Company to
prove the negative. The Tribunal has
rightly relied on the judgment in Smt.
Kusuma Devi (Supra) as the deceased
had died. The widow submitted that she
did not have the duplicate copy of the
driving license.

10. It is further contended that the
owner in his reply has seen the license of
the deceased and the judgment in
M.A.C.P. No. 280 of 2002 was never
placed before the Tribunal nor any
rebuttal evidence was laid before the
Tribunal. The submission here about
M.A.C. P. No. 280 of 2002 cannot be
found from the record of the Tribunal and
just because in that matter some adverse
inference was drawn, in this matter, the
said cannot be made applicable unless it is
proved that the driver did not have proper
driving license or that the findings of
M.A.C.P. No. 280 of 2002 were pressed
into service. I do not think that the finding
of the Tribunal required to be interfered
with. The Insurance Company could have
very well proved the negative. As far as
the policy is concerned, the driver was
covered in the said policy. There was
proper permit. Just because the license
was not produced by the claimants and a
so called verification report of one Vineet
Jain was produced without examining him
on oath, a copy of the verification report
and the appended photocopy of license of
Chhavi Singh goes to show the license
was issued by R.T.O., Mainpuri and the
report of licensing authority of Agra was
produced which shows that licensing
authority from Agra had not issued
license in name of Chhavi Singh. The
Judgment of this Court in the Case of
Smt. Kusma Devi (Supra) has been
rightly relied by the Tribunal.

11. I am supported in my view by
the decision in Oriental Insurance
Company
Limited
Vs.
Poonam
Kesarwani and others, 2008 LawSuit
(All) 1557 wherein the Court has held as
under:

"9. The question is whether the
letter/certificate
issued
by
Regional
Transport Officer, Raipur (Chhatisgarh)
can be considered to be a public
document as defined in section 74 of the
Indian
Evidence
Act,
1872,
which
required no proof or it was required to be
proved by the person producing it before
the tribunal by examining witnesses? A
public document is a document that is
made for the purpose of the public making
use of it. When a public officer is under a
duty to make some entries in the official
book or register, the entries made therein
are admissible in evidence to prove the
truth of the facts entered in the official
book or register. The entries are evidence
of the particular facts which was the duty
of the officer to record. The law reposes
confidence in the public officer entrusted
with public duties and the law presumes
that public officers will discharge their
duties with responsibility. A driving
licence is issued under Chapter II of the
Act. Section 26 of the Act makes it
mandatory for the State Government to
maintain a register known as State
Register of Driving Licence. The entries
with regard to issuance or renewal of
driving
licence
by
the
licensing
authorities which contains particulars of
licence and the licence holder are entered
by the Regional Transport Officer/the
2 All. National Insurance Company Vs Smt. Pushpa Devi & Ors.
1117
licensing authority in discharge of their
official duty enjoined by law. The State
Register of Driving Licence is record of
the acts of public officers. The State
Register of Driving Licence is a public
record. It can be inspected by any person.
We are of the considered opinion that the
State Register of Driving Licence is a
public document as defined by Section 74
of the Evidence Act.

10. Section 76 of the Evidence
Act gives the right to obtain a certified
copy of a public document which any
person has a right to inspect on payment
of fee. A certified copy of the entries made
in the public record is required to be
issued on payment of fee in Form-54 as
laid down by Rule 150(2). Form-54 being
a certified copy of a public document,
namely, the State Register of Driving
Licence, need not be proved by examining
a witness. Once a certified copy of the
entries made in the register maintained
under section 26(1) read with Rule 23 is
issued in Form-54 it is admissible in
evidence under 77 of the Evidence Act,
and no further proof of Form-54 by oral
evidence by examining witnesses is
required.

11. In the case in hand the
information has not been furnished by the
registering authority in Form-54. It had
been provided in the following manner
which is extracted below:-

"(Hindi matter omitted)

Sri M. Ibrahim

12. The aforesaid information is
in the form of a letter written to the
investigator appointed by the insurance
company. It cannot be deemed to be a
certificate or certified copy in Form-54 of
the Rules. Deposit of fee would not
convert the letter into a certificate under
Rule 150. Therefore, the aforesaid letter
issued by Regional Transport Officer,
Raipur (Chhatisgarh) was required to be
proved by the insurance company before
the
tribunal
by
oral
evidence
by
examining
witnesses.
The
insurance
company had failed to lead any evidence
to prove the aforesaid letter by examining
witnesses before the tribunal. The tribunal
rightly refused to place reliance on the
letter dated 20.4.2005.

13. The learned counsel for the
appellant has urged that the application
filed by the insurance company before the
tribunal on 19.7.2008 was illegally
rejected. The application filed by the
appellant under Order 12 Rule 2 of the
Code of Civil Procedure to the effect that
the claimant and the owner of the vehicle
may be directed to either admit or deny
the letter dated 20.4.2005 was rightly
rejected by the tribunal on 19.7.2008 as
the burden of proof was on the insurance
company to prove that the driving licence
of the driver of the offending truck was
fake but the insurance company failed to
discharge its burden. There is yet another
to uphold the order of the tribunal dated
19.7.2008. Under Rule 221 of The Uttar
Pradesh Motor Vehicle Rules, 1998 only
some of the provisions of the Code of
Civil Procedure had been applied to the
summary proceedings before the Motor
Accident Claims Tribunal. The provisions
of Order 12 Rule 2 having not been made
applicable to the proceedings before the
tribunal, the application filed by the
insurance company was not maintainable.

14. The learned counsel for the
appellant has lastly urged that the
application filed by the appellant under
Section 170 of the Act had illegally been
rejected on 2.9.2006 by the tribunal and
the appellant is also challenging this
order in the appeal. We have examined
the relief claimed in this appeal but we do
not find that order dated 2.9.2006 had
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
been challenged by the appellant. After
the application under Section 170 was
rejected it was open to the appellant to
challenge the order under the supervisory
jurisdiction of this Court under Article
227 of the Constitution of India. But the
order
dated
2.9.2006
cannot
be
challenged in an appeal, as an appeal
under Section 173(1) of the Act lies only
against the award of the Motor Accident
Claims Tribunal and the order under
Section 170 not being an award, no
appeal would be maintainable against
such an order.

15. For the aforesaid reasons,
we do not find any merit in this appeal.
The appeal fails and is accordingly
dismissed."

12. I am even supported in my view
by the decision in Ram Chandra Singh
Vs. Rajaram and Others, AIR 2018 SC
3789 wherein it has been held that the
Insurance Company did not examine any
witness and did not come out with a case
that the owner of the vehicle was aware
that the license of the driver was a
doubtful license and, therefore, it cannot
be said that there was any breach of
policy condition as envisaged in Section
147 of the Motor Vehicles Act, 1988.

13. Just because the truck was not
looted, it cannot be said that the claim
petition was not maintainable. It is proved
that the vehicle was involved and just
because he was murdered, it cannot be a
ground for rejection of the claim petition.

14. This Court in Smt. Mainaz and
Others (Supra) has held as under:

9. To answer the aforesaid
question it would be useful to examine the
decision of the apex court in Rita Devi's
case (supra) which has been relied by the
Tribunal. In Rita Devi's case, the facts of
the case were that an auto rickshaw
driver was murdered in the process of
stealing the auto-rickshaw. The question
before the apex court was as to whether
the death of auto rickshaw driver was on
account of an accident arising out of the
use of motor vehicle and, if so, whether a
claim under section 163-A of the Motor
Vehicle Act was maintainable. While
deciding the said case, the apex court
observed that from a reading of the
provisions of section 163-A, a victim or
his heirs are entitled to claim from the
owner
/
Insurance
Company
a
compensation for death or permanent
disablement suffered due to accident
arising out of the use of the motor vehicle,
without having to prove wrongful act or
neglect or default of any one. It was
observed that if it is established by the
claimants that the death or disablement
was caused due to an accident arising out
of the use of motor vehicle then they will
be entitled for payment of compensation.
As to whether murder, in a given
situation, could be said to be caused due
to an accident arising out of the use of
motor vehicle, the apex court observed as
follows:-

"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
2 All. National Insurance Company Vs Smt. Pushpa Devi & Ors.
1119
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 a 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."

Thereafter,
the
apex
court
proceeded to hold as follows:-

"14.
Applying
the
principles laid down in the above cases to
the facts of the case in hand, we find that
the
deceased,
a
driver
of
the
autorickshaw, was dutybound to have
accepted the demand of fare-paying
passengers to transport them to the place
of their destination. During the course of
this duty, if the passengers had decided to
commit an act of felony of stealing the
autorickshaw and in the course of
achieving the said object of stealing the
autorickshaw, they had to eliminate the
driver of the autorickshaw then it cannot
but be said that the death so caused to the
driver of the autorickshaw was an
accidental murder. The stealing of the
autorickshaw was the object of the felony
and the murder that was caused in the
said process of stealing the autorickshaw
is only incidental to the act of stealing of
the autorickshaw. Therefore, it has to be
said that on the facts and circumstances
of this case the death of the deceased
(Dasarath Singh) was caused accidentally
in the process of committing theft of the
autorickshaw.

18. In the instant case, as
we have noticed the facts, we have no
hesitation in coming to the conclusion
that the murder of the deceased (Dasarath
Singh) was due to an accident arising out
of the use of motor vehicle. Therefore, the
trial court rightly came to the conclusion
that the claimants were entitled for
compensation as claimed by them and the
High Court was wrong in coming to the
conclusion that the death of Dasarath
Singh was not caused by an accident
involving the use of motor vehicle."

10. In the light of the law laid
down by the apex court, in the instant
case, what is, therefore, to be seen is
whether from the evidence brought on
record, it is proved that the death of
Naseem Khan was as an incident of loot/
robbery/ dacoity, that is an "accidental
murder", or "murder simpliciter". If this
Court comes to a conclusion that it was a
case of murder simpliciter that is, where
the perpetrators of the crime had the
intention of committing murder only, then,
the claim under Section 163-A of the
Motor Vehicles Act would not be
maintainable. But, if this Court comes to
a conclusion that it was a case of an
accidental murder that is where the
perpetrators of the act did not have any
motive against victim but the death was a
result of an act to ensure commission of
another act of felony, while the vehicle
was in use, then, the claim under Section
163A of the Motor Vehicles Act would be
maintainable.

15. In that view of the aforesaid factual
data, the contention that the petition was not
maintainable cannot be accepted because
there is an involvement of vehicle. The
incident occurred due to use of Motor
Vehicle. The deceased was a driver on the
said vehicle and was on duty and during the
course of employment, this incident occurred.
Hence, the said ground fails and the findings
of the Tribunal are upheld.

16. The Motor Vehicles Act is a
beneficial piece of legislation. It has been
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
time and again held that trappings of civil
and criminal proceedings cannot be
applied in a very strict manner. I am
fortified in my view by the decisions in
Sunita and others Vs. Rajasthan State
Road
Transport
Corporation
and
Another, 2019 LawSuit (SC) 190,
Mangla Ram Vs. Oriental Insurance
Company Limited and Others, 2018 (5)
SCC 656 and Vimla Devi and others
Vs.
National
Insurance
Company
Limited and another, (2019) 2 SCC 186

17. The compensation is ordered to
be reassessed in view of the submission of
Sri Pradyumn Kumar and in view of the
decision in F.A.F.O. No.2389 of 2016
(National Insurance Co. Ltd. Vs. Smt.
Vidyawati Devi And 2 Others) decided
on 27.7.2016.

18. The deceased was 35 years of
age at the time of accident and was
survived by 6 dependants. The Tribunal
has granted a sum of Rs.1,77,000/- with
8% rate of interest. The Tribunal
considered the income of the deceased to
be Rs.15,000/- per year and deducted
1/3rd holding that he would be spending
that much amount on himself and granted
multiplier of 17 and added Rs. 7,000/- for
non-pecuniary damages. This amount
requires to be re-evaluated. A driver in the
year 2002 when the accident occurred can
be safely held to be earning Rs.3,000/- per
month. The owner did not give any
certificate about his income, hence,
Rs.3000/- per month would be proper
amount. The submission counsel for the
appellant
that
his
age
should
be
considered to be 50 years cannot be
accepted as the Tribunal has relied on the
post-mortem report at Exhibit 19/G.
Hence his as considered by the Tribunal
to be 35 years requires to be accepted and
no fault can be found on this finding of
fact by the Tribunal.

19. Hence, the income of the deceased
is held to be Rs.3,000/- per month namely
Rs.36,000/- per year, to which as the deceased
was below 40 years of age, 40 % of the
income i.e. Rs. 14,400/- requires to be added
as future income of the deceased in view of
the
decision
in
National
Insurance
Company Limited Vs. Pranay Sethi and
Others, 2017 0 Supreme (SC) 1050 which
would come to Rs.36,000+ 14,400 = 50,400/-.
Deduction towards his personal expenses
would be 1/3rd as he was survived by six
dependants out of which three were minor.
Hence, after deduction of 1/3rd, the annual
datum figure available to the family would be
Rs.33,600/-. As the deceased was in the age
bracket of 31-35, the applicable multiplier
would be 16 in view of the decision of the
Apex Court in Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC 121.
In addition to that, Rs.70,000/- is granted
under the head of non-pecuniary damages in
view of the decision in Pranay Sethi
(Supra). Hence, the claimants are entitled to a
total compensation of Rs.33,600 x 16 +
70,000 = 6,07,600/-.

20. However, the rate of interest
which is 8% would be 7.5% in view of the
latest decision of the Apex Court in
National
Insurance
Co.
Ltd.
Vs.
Mannat Johal and Others, 2019 (2)
T.A.C. 705 (S.C.) wherein the Apex
Court has held as under :

"13. The aforesaid features
equally apply to the contentions urged on
behalf of the claimants as regards the rate
of interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the same
had been too high a rate in comparison to
what is ordinarily envisaged in these matters.
2 All. New India Assurance Company Ltd. Vs Smt. Murti Devi & Anr.
1121
The
High
Court,
after
making
a
substantial enhancement in the award
amount, modified the interest component
at a reasonable rate of 7.5% p.a. and we
find no reason to allow the interest in this
matter at any rate higher than that
allowed by High Court."

21. In view of the above, the appeal
is partly allowed qua interest. The cross
objection is allowed. The amount be
deposited within 12 weeks from today
with interest at the rate of 7.5% from the
date of filing the of claim petition till the
amount is deposited.

22. Record and proceedings be sent
back to the Tribunal forthwith.
----------

(2019)10ILR A 1121

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2019

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

FAFO No. 851 of 1989

New India Assurance Company Ltd.
 ... Appellant
Versus
Smt. Murti Devi & Anr. ...Respondents

Counsel for the Appellant:
Sri Brijesh Chandra Naik

Counsel for the Respondents:
----

A. Motor Vehicles Act, 1939 - Section 95
read with Section 92 (A) & Motor
Vehicles Act, 1988 - Section 147 of is
pari materia to Section 95.
Held: - Learned Tribunal has threadbare
discussed the difference in a contract of
minimum liability contract as well as of
statutory liability and in this case it is proved
that where liability is not limited by cogent
evidence from the policy itself that for 29
passengers, extra premium of Rs. 348/- was
charged. Third party insurance of Rs. 75/-
was also charged, and therefore, in light of
the decision of those days, the submission
that policy was for limited purpose and
liability was only Rs.15,000/- cannot be
accepted. (Para 5)
Appeal Fails (E-5)
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri B. C. Naik, learned
counsel for the appellant.

2. By way of this appeal the
Insurance Company has felt aggrieved by
the judgment and decree dated 10th May,
1989 in Motor Accident Claim Petition
No. 92 of 1984 passed by Motor Accident
Claims
Tribunal/Additional
District
Judge, Allahabad granting a sum of
Rs.33,000/-.

3. Brief facts available from the record
are that on 02.07.1984 accident occurred
when the deceased was going on his bicycle at
that point of time a Truck came rashly and
negligently and dashed him and caused his
death. Accident is not in dispute, and
therefore, the claim petition was filed by the
claimant against the driver and owner as well
as Insurance Company of offending vehicle.
Tribunal after hearing the parties and after
taking into account the evidence on record
allowed the claim petition and awarded a sum
of Rs. 33,000/- in favor of the claimant.

4. The main plank of submission is
that under Section 95 (2) Motor Vehicles
Act, 1939, the liability of the Insurance