# New India Assurance Co. Ltd v. Smt. Munni Devi & Ors. Opp. Parties

- **Citation:** (2022) 4 ILRA 1071
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-10
- **Case number:** First Appeal From Order No. 568 of 1991
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-v-smt-munni-devi-ors-opp-parties-48372
- **Pages:** 6

## Headnote

Civil Law - Workmen's Compensation Act,
1923 - Section 4A--Accident-Murder during
course
of
employment--Where
dominant
intention of the felonious act is to kill any
person--Such killing is not accidental murder--If
cause of murder or act of murder was not
originally intended and same is caused in
furtherance of any other felonious act, then
such murder is accidental murder--In the
present case, deceased was in employment
when the incident occurred--Deceased died due
to employment injuries.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

4 All. New India Assurance Co. Ltd. Vs. Smt. Munni Devi & Ors.
1071
that the Tribunal has taken a very pedantic
and hidebound view of the application for
condonation of delay. It is no doubt true
that the claim was filed with considerable
delay but the Tribunal was required to have
taken a pragmatic approach to advance the
cause of merit and justice instead of
rejecting the application for condonation of
delay merely on the ground of delay of
three years and six months.

(15) Considering the fact that claim
application was filed in terms of a
beneficial enactment, it was incumbent
upon the Tribunal to have taken a
pragmatic and justice oriented approach in
condoning delay in filing claim application
which related to death of the claimant's son.
The tribunal has not recorded any finding
that delay occasioned in filing the claim
was deliberate, willful or intentional on the
part of claimant. Without recording any
such finding, the Tribunal was not required
to have rejected the claim application. As a
result the point of determination is
answered in the affirmative in favour of
appellant.

(16)

In
view
of
aforesaid
observations, it is apparent that impugned
order dated 30.09.2021 is not in accordance
with law and is therefore set aside. The
appeal succeeds and is allowed. The
application for condonation of delay in
filing claim petition consequently stands
allowed. The matter is remitted to the
Tribunal concerned for consideration afresh
of the claim application on merits.

(17) Office is directed to remit the
lower court record expeditiously for the
said purpose.
----------
(2022)04ILR A1071
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

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

First Appeal From Order No. 568 of 1991

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Munni Devi & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri S.P. Lal, Sri Rajesh Ji Verma

Counsel for the Opp. Parties:
Sri Siddharth, Sri H.K. Gupta, Sri K.K. Srivastava

Civil Law - Workmen's Compensation Act,
1923 - Section 4A--Accident-Murder during
course
of
employment--Where
dominant
intention of the felonious act is to kill any
person--Such killing is not accidental murder--If
cause of murder or act of murder was not
originally intended and same is caused in
furtherance of any other felonious act, then
such murder is accidental murder--In the
present case, deceased was in employment
when the incident occurred--Deceased died due
to employment injuries.

Appeal dismissed. (E-9)

List of Cases cited:

1. Rita Devi & ors. Vs New India Assurance Co.
Ltd. & ors. MANU/SC/0312/2000

2. Golla Rajanna & ors. Vs The Divisional
Manager & ors. MANU/SC/1515/2016

3. Mackinnon Mackenzie and Co. (P) Ltd. Vs
Ibrahim Mahmmed Issak MANU/SC/0310/1969

4. Regional Director, E.S.I. Corporation & ors. Vs
Francis De Costa & ors. MANU/SC/0117/1997

5. Malikarjuna G. Hiremath Vs The Branch
Manager, The Oriental Insurance Co. Ltd. & ors.
MANU/SC/0202/2009
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
6.
Shakuntala
Chandrakant
Shreshti
Vs
Prabhakar
Maruti
Garvali
&
ors.
MANU/SC/8649/2006

7. Mewar Textile Mills & ors. Vs Kushali Bai &
ors. MANU/RH/0105/1959
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri S.P. Lal, learned counsel
for the appellant and perused the judgment
and order impugned. None appeared on
behalf of sole respondent though notices
were issued.

2. The appellant has challenged the
order
dated
28.6.1991
of
the
Commissioner, Employee‟s Compensation
whereby compensation of Rs.80,664/- has
been awarded to claimant/respondent for
death of her husband who was murdered
while in employment.

3. While issuing notice, this Court
had called for the record of the Court
below.

4. Whether the murder of the
deceased, Ved Prakash was an "accident"
arising out of and during the course of his
employment ? The law on this issue is well
settled by the Supreme Court in Rita Devi
v. New India Assurance Co. Ltd., 2000
ACJ 801 (SC). The Supreme Court drew
distinction between a "murder" which is not
an accident and a "murder" which is an
accident. The Supreme Court laid down the
test that if the dominant intention of the
felonious act is to kill any particular
person, then such killing is not accidental
murder but a murder simpliciter. However,
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. Para 10 of the judgment
is relevant and is reproduced hereunder:

"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 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."
(Emphasis supplied)

6. In Rita Devi (supra), the deceased
was employed to drive an auto rickshaw for
ferrying passengers on hire. On the fateful
day, the auto rickshaw was parked in the
rickshaw stand at Dimapur when some
unknown passengers engaged the deceased
for a journey. As to what happened on that
day is not known. It was only on the next
day that the police was able to recover the
body of the deceased but the auto rickshaw
in question was never traced out. The
owner of the auto rickshaw claimed
compensation from the insurance company
for the loss of auto rickshaw. The heirs of
the deceased claimed compensation for the
death of the driver on the ground that the
death occurred on account of accident
arising out of use of the motor vehicle. The
Apex Court held that the murder to be an
4 All. New India Assurance Co. Ltd. Vs. Smt. Munni Devi & Ors.
1073
accidental murder. Para 14 is quoted
below:-

"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 duty bound 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."
(Emphasis supplied)

7. In Rita Devi (supra), the Supreme
Court relied on Challis v. London and
South Western Railway Company, (1905) 2
KB 154 and Nisbet v. Rayne & Burn,
(1910) 1 KB 689 to draw the distinction
between
the
felonious
act
which
accidentally results in death and a murder
simpliciter. Paras 11 to 13 of the judgment
are reproduced hereinbelow:

"11. In Challis v. London and South
Western Rly. Co. [(1905) 2 KB 154 : 74
LJKB 569 : 93 LT 330 (CA)] the Court of
Appeal held where an engine driver while
driving a train under a bridge was killed by
a stone wilfully dropped on the train by a
boy from the bridge, that his injuries were
caused by an accident. In the said case, the
Court rejecting an argument that the said
incident cannot be treated as an accident
held:

"The
accident
which
befell
the
deceased was, as it appears to me, one
which was incidental to his employment as
an engine driver, in other words it arose
out of his employment. The argument for
the respondents really involves the reading
into the Act of a proviso to the effect that
an accident shall not be deemed to be
within the Act, if it arose from the
mischievous act of a person not in the
service of the employer. I see no reason to
suppose that the legislature intended so to
limit the operation of the Act. The result is
the same to the engine driver, from
whatever cause the accident happened; and
it does not appear to me to be any answer
to the claim for indemnification under the
Act to say that the accident was caused by
some person who acted mischievously."

12. In the case of Nisbet v. Rayne &
Burn [(1910) 2 KB 689 : 80 LJKB 84 : 103
LT 178 (CA)] where a cashier, while
travelling in a railway to a colliery with a
large sum of money for the payment of his
employers' workmen, was robbed and
murdered. The Court of Appeal held:

"That the murder was an ,,accident‟
from the standpoint of the person who
suffered from it and that it arose ,,out of‟
an employment which involved more than
the ordinary risk, and consequently that the
widow was entitled to compensation under
the Workmen's Compensation Act, 1906. In
this case the Court followed its earlier
judgment in the case of Challis [(1905) 2
KB 154 : 74 LJKB 569 : 93 LT 330 (CA)] .
In the case of Nisbet [(1910) 2 KB 689 : 80
LJKB 84 : 103 LT 178 (CA)] the Court also
observed that ,,it is contended by the
employer that this was not an "accident"
within the meaning of the Act, because it
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
was an intentional felonious act which
caused the death, and that the word
"accident" negatives the idea of intention‟.
In my opinion, this contention ought not to
prevail. I think it was an accident from the
point of view of Nisbet, and that it makes
no difference whether the pistol shot was
deliberately fired at Nisbet or whether it
was intended for somebody else and not for
Nisbet."

13. The judgment of the Court of
Appeal in Nisbet case [(1910) 2 KB 689 :
80 LJKB 84 : 103 LT 178 (CA)] was
followed by the majority judgment by the
House of Lords in the case of Board of
Management of Trim Joint District School
v. Kelly[1914 AC 667 : 83 LJPC 220 : 111
LT 305 (HL)]."

5. In Rita Devi (supra), the Supreme
Court compared the provisions of the
Motor Vehicles Act and the Workmen
Compensation Act and held that the object
of
both
the
Acts
was
to
provide
compensation to the victims of the
accidents and the judicial interpretation of
the word "death" in both the Acts is the
same. Para 15 of the judgment is
reproduced hereunder:-

"15.
Learned
counsel
for
the
respondents contended before us that since
the Motor Vehicles Act has not defined the
word "death" and the legal interpretations
relied upon by us are with reference to the
definition of the word "death" in the
Workmen's Compensation Act the same will
not be applicable while interpreting the
word "death" in the Motor Vehicles Act
because according to her, the objects of the
two Acts are entirely different. She also
contends that on the facts of this case no
proximity could be presumed between the
murder of the driver and the stealing of the
autorickshaw. We are unable to accept this
contention advanced on behalf of the
respondents. We do not see how the object
of the two Acts, namely, the Motor Vehicles
Act and the Workmen's Compensation Act
are in any way different. In our opinion, the
relevant object of both the Acts is to
provide compensation to the victims of
accidents. The only difference between the
two enactments is that so far as the
Workmen's
Compensation
Act
is
concerned, it is confined to workmen as
defined under that Act while the relief
provided under Chapter X to XII of the
Motor Vehicles Act is available to all the
victims of accidents involving a motor
vehicle. In this conclusion of ours we are
supported by Section 167 of the Motor
Vehicles Act as per which provision, it is
open to the claimants either to proceed to
claim compensation under the Workmen's
Compensation Act or under the Motor
Vehicles Act. A perusal of the objects of the
two enactments clearly establishes that
both
the
enactments
are
beneficial
enactments operating in the same field,
hence the judicially accepted interpretation
of the word "death" in the Workmen's
Compensation Act is, in our opinion,
applicable to the interpretation of the word
"death" in the Motor Vehicles Act also."

6. The apex Court recently has held
that unless this Court finds perversity in the
finding of fact, it should not easily interfere
with finding of fact. I am supported in my
view Golla Rajanna Etc. Etc. Vs.
Divisional Manager and Another, 2017
(1) TAC 259 (SC). The finding of fact is
that the deceased was an employee who
had sustained employment injury and died.

7. I am supported in my view by the
decision of the Apex Court in Civil Appeal
No.7470 of 2009 North East Karnataka
Road Transport Corporation Vs. Smt.
4 All. New India Assurance Co. Ltd. Vs. Smt. Munni Devi & Ors.
1075
Sujatha decided on 2.11.2018 wherein it
has been held that the Court has held as
under:

"15. Such appeal is then heard on the
question of admission with a view to find
out as to whether it involves any substantial
question of law or not. Whether the appeal
involves a substantial question of law or
not depends upon the facts of each case
and needs an examination by the High
Court. If the substantial question of law
arises, the High Court would admit the
appeal for final hearing on merit else
would dismiss in limini with reasons that it
does not involve any substantial question/s
of law.

16. Now coming to the facts of this
case, we find that the appeal before the
High Court did not involve any substantial
question of law on the material questions
set out above. In other words, in our view,
the Commissioner decided all the material
questions arising in the case properly on
the basis of evidence adduced by the
parties
and
rightly
determined
the
compensation payable to the respondent. It
was, therefore, rightly affirmed by the High
Court on facts.

17. In this view of the matter, the
findings being concurrent findings of fact
of the two courts below are binding on this
Court. Even otherwise, we find no good
ground to call for any interference on any
of the factual findings. None of the factual
findings are found to be either perverse or
arbitrary or based on no evidence or
against
any
provision
of
law.
We
accordingly uphold these findings."

8. This Court, recently in F.A.F.O.
1070 of 1993 (E.S.I.C. Vs. S. Prasad)
decided on 26.10.2017 has followed the
decision in Golla Rajana (Supra) and has
held as follows:

"The grounds urged before this Court
are in the realm of finding of facts and not
a question of law. As far as question of law
is concerned, the aforesaid judgment in
Golla Rajanna Etc. Etc. Versus Divisional
Manager
and
another
(supra)
in
paragraph 8 holds as
follows
"the
Workman Compensation Commissioner is
the last authority on facts. The Parliament
has thought it fit to restrict the scope of the
appeal only to substantial questions of law,
being a welfare legislation. Unfortunately,
the High Court has missed this crucial
question of limited jurisdiction and has
ventured to re-appreciate the evidence and
recorded its own findings on percentage of
disability for which also there is no basis."

9. The learned counsel for the
appellant urged at the time of the hearing
that the murder cannot be said to be
employment
injury
and
under
the
Employee‟s Compensation Act. It was
further submitted that the murder did not
arise out of and during the course of
employment of the deceased. However, it
was not disputed that the deceased was an
employee.

10. In Mackinnon Machenzie v.
Ibrahim Mahmmed Issak, (1969) 2 SCC
607, Regional Director, E.S.I. Corporation
v. Francis De Costa, (1996) 6 SCC 1,
Malikarjuna
G.
Hiremath
v.
Branch
Manager, Oriental Insurance Co. Ltd.,
(2009)
13
SCC
405,
Shakuntala
Chandrakant Shreshti v. Prabhakar Maruti
Garvali, (2007) 11 SCC 668, Laxmanrao v.
Maharashtra State Electricity Board, 2015
ACJ 2509 and Mewar Textile Mills v.
Kushali Bai, (1960) II LLJ 369 similar
view is taken.

11. The murder of deceased was an
accident for the purpose of grant of
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation
under
the
Employee‟s
Compensation Act, 1923. The deceased
found himself at a spot where he was
assaulted and murdered only because of his
employment as the deceased was on duty of
his employer.

12. While going through the record, it
is very clear that this appeal will have to
fail and, accordingly, it is held that the
deceased died due to employment injuries.

13. Going by the factual scenario, the
deceased was in employment when the
incident occurred. The award dated 28th
July, 1991 goes on the premises. The
judgment of this Court in 2012 will also
enure for the benefit of the claimants.

14. This court unable to accept the
submission
of
learned
counsel
for
Insurance Company that the policy was
for private Car. It has not been proved
whether there is any breach of policy
decision
under
the
Workmen's
Compensation Act, 1923 even if it was
proved that the vehicle was being applied
for higher area remote. It is annexed that
the
accident
occurring
because
of
employment injury and, therefore, the
deceased driver had taken the Car at the
instance of the owner, no questions of
law was framed while admitting this
appeal rather there is no question of law
whether
the
murder
was
during
employment or not is a question of fact
which has been answered against the
Insurance Company.

15. In view of the above, the appeal
fails and is dismissed. The so called
questions of law framed by the Insurance
Company are answered against it. In fact
the substantial questions of law raised are
questions of fact.

16. Interim relief, if any, shall stand
vacated forthwith.

17. This court records the absence of
learned counsel for the respondents.

18. This Court is thankful to learned
counsel for the appellant for getting this
very old matter disposed off.

19. The record be transmitted to the
Workmen Commissioner.

20. The amount lying in the fixed
deposits will be disbursed to the claimants
immediately as more than 31 years has
elapsed since the appal was preferred.
----------
(2022)04ILR A1076
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

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

First Appeal From Order No. 2271 of 1991
With
First Appeal From Order No. 2288 of 2007

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Laxmi Devi & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri Rakesh Bahadur

Counsel for the Opp. Parties:
Sri Nigmendra Shukla

Civil Law - Motor Vehicles Act, 1988 -
Sections 166, 168 & 173--CompensationDeceased
suffered
multiple
injuries
and
succumbed to them-Nothing in post mortem to
show that the deceased was under influence of
alcohol--There was collusion on right side of the
truck--Deceased contributed to the accident to