# Smt. Renu Devi & Ors v. Gufran Ahmad & Ors. 578 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 7 ILRA 577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-08
- **Case number:** First Appeal From Order No. 966 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-renu-devi-ors-v-gufran-ahmad-ors-578-indian-law-reports-allahabad-series-48806
- **Pages:** 14

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 165, 166, 168 & 173: - Appeal -
against rejection of claim petition -
whether incident is an accident or murder
- incident took place while chasing a truck
by a police Jeep - Truck driver deliberately
hit the Jeep and broken the barrier of a
toll plaza - deceased constable sustained
serious injuries and died during treatment
- Tribunal has not taken a holistic view of
the matter - gave finding that, truck driver
used his truck as a weapon for causing
death therefore it was a murder and not a
case of an accident due to rash &
negligent driving as such no compensation
can be granted - Court - upturn the finding
of tribunal - since, the incident occurs due
to (a) use of motor vehicle, (b) due to
negligence of the driver - therefore, the
claim petition is maintainable. (Para - 5, 27)

(B) Civil Law - Motor Vehicles Act, 1988 -
Sections 165, 166, 168 & 173 - Appeal -
against rejection of claim petition -
quantum of compensation - accident took
place before 9 years and record of case is
available before appellate Court - no issue
of any complicated questions - in the light
of various Judgments of Hon'ble Apex
Court - court can decide the compensation
instead of relegating the parities to the
tribunal - as per the law lay down by the
Hon'ble Apex Court in case of AV Pdama
Case, General Manager, Kerala State Road
Transport Co. case, Oriental Insurance Co. Ltd.
& Bajaj Allianz General Insurance Co. Pvt. Ltd
the
calculation
of
compensation
are
allowed accordingly. (Para 30, 31, 32)

Appeal - partly allowed Judgement of
tribunal shall stand modified to the
aforesaid extent. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,948 of 45,208. This is a partial read: ask again with offset=39948 for what follows._

7 All. Smt. Renu Devi & Ors. Vs. Gufran Ahmad & Ors.
577
conventional heads. The determination of
compensation in Pranay Sethi would,
therefore, be applicable. Now, by the
decision in Pranay Sethi, for the loss of
estate and funeral expenses, a sum of
Rs.15,000/- each would be payable.

23. So far as compensation for the
loss of filial consortium is concerned, the
claimants, who are the mother and the
father of the deceased, would be entitled to
Rs.40,000/- each.

24. In the circumstances, the
compensation payable stands to be revised
as follows:

(i)Monthly Income (of the deceased)

=

 3000/-

 (ii)Monthly
Income
+
Future
Prospects
 (monthly income x 50%) = 3000+1500=

4500/-

(iii)Annual Income (of the deceased) =
4500 x 12= 54,000/-

(iv)Annual Dependency = Annual
Income -

50% deduction towards personal
expenses of the deceased = 54,000 -
27,000 = 27,000/-

(iv)Total Dependency = Annual
Dependency

 x Applied Multiplier =
27,000 x 18=4,86,000/-

(v)
Claimants'
entitlement
towards

conventional heads = Loss of
Estate +

Funeral Expenses + dependents'

Consortium = 15,000 + 15,000 +
40,000+40,000 = 1,10,000/-

The total compensation would
therefore,

work out to a figure of Rs.4,86,000 +
Rs.1,10,000=
5,96,000/-

33. The aforesaid sum of money would
carry simple interest @ 7% per annum in
accordance with Rule 220-A of the Rules of 1998
from the date of institution of claim petition until
realization. However, the sum of money already
deposited (paid or invested in terms of the
impugned award or interim order of this Court)
shall be adjusted.

34. In the result, this appeal succeeds and is
allowed with costs throughout. The impugned
award is modified and the compensation enhanced
to a sum of Rs.5,96,000/- (Rupees Five Lac Ninety
Six Thousand only). The said sum of money shall
be payable by the Insurance Company. The
claimants shall be entitled to simple interest @ 7%
on the sum of compensation awarded from the date
of institution of the claim petition until realization.
The inter se apportionment of compensation and
the other directions made by the Tribunal shall
remain intact.
----------
(2022)07ILR A577
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

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

First Appeal From Order No. 966 of 2016

Smt. Renu Devi & Ors. ...Appellants
Versus
Gufran Ahmad & Ors. ...Respondents
578 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Pranab Kumar Ganguli

Counsel for the Respondents:
Sri Pradeep Kumar Tiwari, Sri Pranjal
Mehrotra, Sri Pawan Kumar Mishra

(A) Civil Law - Motor Vehicles Act, 1988 -
Sections 165, 166, 168 & 173: - Appeal -
against rejection of claim petition -
whether incident is an accident or murder
- incident took place while chasing a truck
by a police Jeep - Truck driver deliberately
hit the Jeep and broken the barrier of a
toll plaza - deceased constable sustained
serious injuries and died during treatment
- Tribunal has not taken a holistic view of
the matter - gave finding that, truck driver
used his truck as a weapon for causing
death therefore it was a murder and not a
case of an accident due to rash &
negligent driving as such no compensation
can be granted - Court - upturn the finding
of tribunal - since, the incident occurs due
to (a) use of motor vehicle, (b) due to
negligence of the driver - therefore, the
claim petition is maintainable. (Para - 5, 27)

(B) Civil Law - Motor Vehicles Act, 1988 -
Sections 165, 166, 168 & 173 - Appeal -
against rejection of claim petition -
quantum of compensation - accident took
place before 9 years and record of case is
available before appellate Court - no issue
of any complicated questions - in the light
of various Judgments of Hon'ble Apex
Court - court can decide the compensation
instead of relegating the parities to the
tribunal - as per the law lay down by the
Hon'ble Apex Court in case of AV Pdama
Case, General Manager, Kerala State Road
Transport Co. case, Oriental Insurance Co. Ltd.
& Bajaj Allianz General Insurance Co. Pvt. Ltd
the
calculation
of
compensation
are
allowed accordingly. (Para 30, 31, 32)

Appeal - partly allowed Judgement of
tribunal shall stand modified to the
aforesaid extent. (E-11)

List of Cases cited: -

1. Rita Devi Vs New India Assurance Co. Ltd.
(2000 ACJ 801 (SC),

2. Ambalika Singh & ors. Vs United India
Insurance Co. Ltd. & ors. (2008 (1) TAC 207,

3. Challis VS London & South Western Railway
Co. (1905 (2) KB 154),

4. Nisbet Vs Rayne & Burn (1910 (1) KB 689,

5. Kalim Khan Vs Fimidabee (2018 (J) SCC 687),

6. UPSTC Vs Vidya Devi (2011 ACJ 2659),

7. Bithika Mazumdar & anr. Vs Sagar Pal Y ors.
(2017 Vol. 2 SCC 748),

8. FAFO No. 1999 of 2007 (Oriental Insurance
Co. Ltd. Vs Smt. Ummida Begum & ors.),

9. FAFO No. 1404 of 1999 (Smt. Raginin Devi &
ors. Vs United India Insruance Co. Ltd. & anr.)
Decided on 17.04.2019,

10. National Insurance co. Ltd Vs Pranay Sethi &
ors. (2017 (0) Supreme (SC) 1050),

11. Sarla Verma Vs Delhi Transport Cor.(2009
vol. 6 SCC 121),

12. National Insurance Co. Ltd. Vs Mannat Johal
& ors. (2019 (2) TAC 705 (SC),

13. A V Padma Vs Venugopal (2012 (12) GLH
(SC) 442,

14. The Oriental Insurance Co. Ltd. Vs Chief
Commissioner of Income Tax (TDS), (R/Special
Civil Application No.4800 of 2021, Decided on
05.04.2022

15. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors. (FAFO No. 1818/2012
order Dt. 19.07.2016),

16.
General Manager, Kerala State Road
Transport
Corp.
Trivandrum
Vs
Susamma
Thomas & ors. (AIR 1994 SC 1631).

(Delivered by Hon'ble Ajai Tyagi, J.)
7 All. Smt. Renu Devi & Ors. Vs. Gufran Ahmad & Ors.
579

1. Heard learned counsel for the
appellants and learned counsel for the
respondents. Perused the record.

2. This appeal has been preferred by
appellants/claimants against the judgment
and order dated 03.02.2016 passed by
Motor
Accident
Claims
Tribunal
Chandauli/Additional District Judge, Court
No.1, Chandauli (hereinafter referred to as
'Tribunal') in Motor Accident Claim
Petition No.107 of 2013, Smt. Renu Devi
and others v. Gufran Ahmad and others by
which the claim petition of appellants was
rejected by learned tribunal.

3. The incident having taken place is
not in dispute. The dispute is whether said
incident is covered under Sections, 165,
166 and 168 of the Motor Vehicles Act,
1988 (in short M.V. Act) or is a murder, the
legal representatives of deceased whether
are entitled to any compensation under
M.V. Act is the crux of the litigation.

4. The brief facts as culled out from
the record are that on 31.5.2013 at about
01.45 a.m. (night), deceased Ashok
Kumar Yadav, who was constable in U.P
Police Department, was on duty with
S.H.O. and other police personnels and
were in Government Jeep No.UP 66 G
0072, near Madho Singh Toll Plaza
within the jurisdiction of Police Station
Orai, District Sant Ravidas Nagar, a truck
bearing No.UP 70 CT 7486 came on the
spot and the Police enquired from the
truck driver regarding the goods loaded in
the truck. On making this enquiry, the
truck driver started the truck and ran
away from there. The Police jeep chased
the aforesaid truck and after overtaking
the truck, the jeep crossed the toll plaza
and stopped the truck and when police
personnel signalled, the truck driver to
stop
the
truck,
the
truck
driver
deliberately broke the barrier of toll plaza
by driving rashly and negligently and
damaged the barrier and hit the jeep from
behind. Consequently, the jeep was
fleeing in air and it overturned. In this
accident, Constable Ashok Singh Yadav
sustained serious injuries due to which he
died during treatment.

5. The Motor accident claims
tribunal held that it was a case of murder
and not a case of rash and negligent
driving by the truck driver. The tribunal
also held that the murder of deceased was
caused using the truck as a weapon and if
any vehicle is used as a weapon then no
compensation can be granted to the
claimants under M.V. Act and the claim
petition preferred by appellants who were
legal representatives of deceased was
rejected.

6. Learned counsel for the appellants
submitted that death of the deceased had
taken place while he was in police jeep,
hence it was death while using motor
vehicle. It is also submitted that at the time
of accident, the truck driver was driving the
truck rashly and negligently. The truck hit
the jeep at a very high speed from behind
causing accident.

7. It is further submitted by learned
counsel for appellants that learned Tribunal
erred in holding that the death of the
deceased was murder simplicitor and not
accidental
death.
Learned
counsel
submitted that under the M.V. Act if an
accident arises due to use of motor vehicle
then
claimants
are
entitled
to
compensation.
Learned
counsel
for
appellants has relied on the judgments
titled Rita Devi v. New India Assurance
Co. Ltd., 2000 ACJ 801 (SC), and
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Ambalika Singh and others v. United
India Insurance Co. Ltd. and others, 2018
(1) TAC 207.

8. Learned counsel for Insurance
company vehemently submitted that the
death of deceased was consequence of
planned murder by the truck driver. It was
not an accident, but the truck driver
intentionally hit the jeep, there was mens
rea on the part of the truck driver. Learned
counsel also submitted that the first
information report of the occurrence was
lodged under Sections 307 and 302 of
Indian Penal Code (I.P.C) along with other
Sections and as per contents of F.I.R., the
truck driver intentionally hit the police
jeep. It is also submitted that the charge
sheet is also filed under Section 302 of
I.P.C. It is further submitted that it is
proved that the act of truck driver can be
termed as murder and not accident, and
hence, the claimants are not entitled to
compensation under M.V. Act and learned
tribunal has rightly rejected the claim
petition. It is argued that there is no
illegality or infirmity in the impugned
judgment/award
which
calls
for
any
interference by this Court under Section
173 of M.V. Act.

UNDISPUTED FACTS:

9. The death of deceased police
Constable Ashok Singh Yadav had taken
place when he was on duty and he was in
the police Jeep when it hit the truck. As per
the records, the truck involved in the
accident was illegally transporting cattle,
when the police enquired from the truck
driver, he started the truck and ran away.
The police jeep while chasing the truck
overtook the said vehicle and crossed the
toll plaza and stopped the jeep, after
stopping the jeep, the police personnel
signalled the truck driver and tried to stop it
but the truck driver deliberately broke the
barrier and hit the jeep from behind causing
the incident to occur.

FINDINGS:

10. In Rita Devi (supra), the Apex
Court held that murder can be of two types
" murder simplicitor" and "accidental
murder". In the case filed Rita Devi (supra)
the question before the Apex Court was
whether a murder can be an accident in any
given case. The Apex Court held that 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 in a given set of facts,
which depends on the proximity of the
cause of such murder.

11. It was held that 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
simplicitor, 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.

12. The claim petition in aforesaid
case namely Rita Devi (supra) was filed
under Section 163A of M.V. Act, 1988 in
which the claimants were not required to
prove the act of negligence on the part of
driver and the element of negligence rather
they were required to prove that the death
of the deceased had taken place out of use
of the motor vehicle, but in the case on
hand, the claim petition was filed under
Section 166 of Motor Vehicles Act, 1988.
Hence,
the
appellants/claimants
are
7 All. Smt. Renu Devi & Ors. Vs. Gufran Ahmad & Ors.
581
required to prove the negligence also on the
part of the truck driver.

13. The Apex Court in Rita Devi
(supra) has held that if any 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.

14. The law on this issue about
murder in case of use of motor vehicle and
compensatory jurisprudence is clarified by
the Supreme Court in Rita Devi (supra).
The Supreme Court drew distinction
between the term "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)

15. 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
accidental murder most satisfy certain tests,
the Court in Para 14 is held:-

"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
582 INDIAN LAW REPORTS ALLAHABAD SERIES
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)

16. 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 would throw light
so as 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 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
7 All. Smt. Renu Devi & Ors. Vs. Gufran Ahmad & Ors.
583
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)]."

17. The term accident has not been
defined under the M.V. Act. Sections 165,
166, and 168 of the M.V. Act, 1988 read as
follows:

Section 165 of M.V. Act , Claims
Tribunals-

(1) A State Government may, by
notification
in
the
Official
Gazette,
constitute one or more Motor Accidents
Claims Tribunals (hereafter in this Chapter
referred to as Claims Tribunal) for such
area as may be specified in the notification
for the purpose of adjudicating upon claims
for compensation in respect of accidents
involving the death of, or bodily injury to,
persons arising out of the use of motor
vehicles, or damages to any property of a
third
party
so
arising,
or
both.
Explanation.--For the removal of doubts, it
is hereby declared that the expression
"claims for compensation in respect of
accidents involving the death of or bodily
injury to persons arising out of the use of
motor
vehicles"
includes
claims
for
compensation under section 140 1[and
section 163A].

(2) A Claims Tribunal shall
consist of such number of members as the
State Government may think fit to appoint
and where it consists of two or more
members, one of them shall be appointed as
the Chairman thereof.

(3) A person shall not be
qualified for appointment as a member of a
Claims Tribunal unless he--

(a) is, or has been, a Judge of a
High Court, or

(b) is, or has been a District
Judge, or

(c) is qualified for appointment as
a High Court Judge 1[or as a District
Judge]. 1[or as a District Judge]."

(4) Where two or more Claims
Tribunals are constituted for any area, the
State Government, may by general or
special order, regulate the distribution of
business among them.

Section 166 of M.V. Act ,
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
584 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 1[(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.] 2[***] 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.]

Section 168 of M.V. Act . Award
of the Claims Tribunal.--On receipt of an
application for compensation made under
section 166, the Claims Tribunal shall,
after giving notice of the application to the
insurer and after giving the parties
(including the insurer) an opportunity of
being heard, hold an inquiry into the claim
or, as the case may be, each of the claims
and, subject to the provisions of section
162 may make an award determining the
amount of compensation which appears to
it to be just and specifying the person or
persons to whom compensation shall be
paid and in making the award the Claims
Tribunal shall specify the amount which
shall be paid by the insurer or owner or
driver of the vehicle involved in the
accident or by all or any of them, as the
case may be: Provided that where such
application
makes
a
claim
for
compensation under section 140 in respect
of the death or permanent disablement of
any person, such claim and any other claim
(whether made in such application or
otherwise) for compensation in respect of
such death or permanent disablement shall
be disposed of in accordance with the
provisions of Chapter X.

(2) The Claims Tribunal shall
arrange to deliver copies of the award to
the parties concerned expeditiously and in
any case within a period of fifteen days
from the date of the award.

(3) When an award is made under
this section, the person who is required to
pay any amount in terms of such award
shall, within thirty days of the date of
announcing the award by the Claims
Tribunal,
deposit
the
entire
amount
awarded in such manner as the Claims
Tribunal may direct."

18.

In
light
of
the
judicial
pronouncement let us consider the facts, in
case on hand the original act of truck driver
was to flee with the truck in order to escape
from being arrested by the police because
cattle were being illegally transported by
him, hence, this was the felonious act of
truck driver. In furtherance of this original
felonious act, the truck driver hit the police
vehicle from behind in which the deceased
was also there at that time he was on duty.
The truck driver hit the police jeep with
great speed so that the jeep overturned
several times and lastly, fell into the ditch.
This fact itself shows that the truck driver
was driving the vehicle
rashly and
negligently and at a very high speed that
firstly it broke the toll barrier and then hit
the police vehicle. It is pertinent to mention
7 All. Smt. Renu Devi & Ors. Vs. Gufran Ahmad & Ors.
585
that truck driver has not stepped into the
witness box. Learned tribunal has fallen
into error in holding that this matter does
not fall within the purview of rash and
negligent driving by the truck driver. The
learned Tribunal has also fallen into error
in holding that if any vehicle is used as a
weapon for murder then no compensation
can be awarded under M.V. Act because
learned tribunal has lost sight of the fact
that the death of the deceased had taken
place due to the accident arising out of use
of motor vehicle. The term murder has to
be looked into from two angles one murder
due to accident and murder where it is
felonious act (a) Murder due to accident:
the murder of the deceased was due to an
accident arising out of the use of motor
vehicle. Therefore, the Trial Court wrongly
came to the conclusion that the claimants
were not entitled for compensation as
claimed by them. (b) Murder is felonious
act: in common parlance, murder is a
felonious act, where death is caused with
intent and the perpetrators of the act
normally had the motive against the victim
for such killing; however, on the other
hand, there could also be other instances
where murder was not originally intended
and the same was caused in furtherance of
other felonious act. In our case the
judgment of Ambalika Singh (supra) will
have to be also discussed.

19. The aforesaid provisions of the
M.V. Act would demonstrate that the term
accident has not been defined in the M.V.
Act and, therefore, importance of the term
"accident" and importance of the term out
of use of motor vehicle and negligence
would be important.

20. The term use of motor vehicle has
been explained by the Apex Court in the
case of Shivaji Dayanu Patil v. Vatschala
Uttam More, 1991 3 SCC 530, the term use
of motor vehicle means where the term use
of motor vehicle has been explained even
leakage of petrol and, thereafter, where the
explosion in the place and fire occurred
resulting in death of certain villagers. This
involved the petrol tanker and one another
truck was held to be accident arising out of
use of motor vehicle and, therefore, there is
a casual relationship between earlier event
of accident which was due to collision and
later incident of explosion and fired such
connection need not be direct or immediate
once. If it is demonstrated that the death
occurred due to use of motor vehicle, then
prima facie claim petition would be
maintainable. It goes without saying that it
is because of use of motor vehicle that
accident occured. Later on while deciding
the matter finally, also the Apex Court in
Judgment titled New India Assurance
Company
Limited
Versus
Yadu
Sambhaji More reported in, (2011) AIR
SC 666 has taken similar view which goes
to show that the tribunal had jurisdiction to
entertain such petitions, that to in use or
arising out of use of the motor vehicle has
been consistently followed in the later
judgment. The Apex Court has criticised
the finding by the tribunal of rejecting the
claim petitions.

21. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
586 INDIAN LAW REPORTS ALLAHABAD SERIES
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no legal
consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

22. It would be seen that burden of
proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection where
two roads cross each other, it is the duty of
a fast moving vehicle to slow down and if
driver did not slow down at intersection,
but continued to proceed at a high speed
without caring to notice that another
vehicle was crossing, then the conduct of
driver necessarily leads to conclusion that
vehicle was being driven by him rashly as
well as negligently.

23. We will have also to consider the
definition of the word ''Accident' : (i) The
word "accident" is derived from the Latin
verb "accidere" signifying "fall upon,
befall, happen, chance." In an etymological
sense anything that happens may be said to
be an accident and in this sense, the word
has been defined as befalling a change; a
happening; an incident; an occurrence or
event. In its most commonly accepted
meaning, or in its ordinary or popular
sense, the word may be defined as
meaning: a fortuitous circumstance, event,
or happening; an event happening without
any human agency, or if happening wholly
or partly through human agency, an event
which under the circumstances is unusual
and unexpected by the person to whom it
happens;
an
unusual,
fortuitous,
unexpected, unforeseen or unlooked for
event, happening or occurrence; an unusual
or unexpected result attending the operation
or performance of a usual or necessary act
or event; chance or contingency; fortune;
mishap; some sudden and unexpected event
taking place without expectation, upon the
instant, rather than something which
continues,
progresses
or
develops;
something happening by chance; something
unforeseen,
unexpected,
unusual,
extraordinary or phenomenal, taking place
not according to the usual course of things
or events, out of the range of ordinary
calculations; that which exists or occurs
abnormally, or an uncommon occurrence;
and (ii) Unavoidable accident: One which
is not occasioned in any degree, either
directly or remotely, by the want of such
care and prudence as the law holds every
man bound to exercise and the term
unavoidable accident does not find any
mention in the Act.

24. The facts in this case are that the
precedents are in favour of the appellants,
the incident occurred due to use of motor
vehicle. The facts cumulative prove show
that incident occurred due to (A) use of
motor vehicle (B) due to negligence of the
driver. The death occurred due to use of
motor vehicle being driven rashly and
negligently. There is casual connection
between the first and the second incident
and therefore the claim petition under the
M.V. Act was maintainable. The tribunal
has not taken a holistic view of the matter.

25. Reference to the recent decisions
in case of Kalim Khan v. Fimidabee,
2018 (J) SCC 687 and the recent decision
7 All. Smt. Renu Devi & Ors. Vs. Gufran Ahmad & Ors.
587
of this Court in Ambalika Singh v. United
India Insurance Co. Ltd., 2017 (0) AIJUP 381149, deciding similar dispute and
the petition could not have been dismissed.

26. In our case, the facts reveal that it
was an avoidable accident and the driver
has driven the vehicle rashly and dashed
the vehicle of the police department from
behind. It was his duty to take proper care,
but as he was committing an illegal act and
was
scared
of
getting
arrested,
he
committed this act maximum. The res ipsa
loquior would also play of major role, the
reason being that the accident speaks for
itself the reason being the incident would
not have occurred namely checking of the
truck and, thereafter, chasing the truck.
This act of the driver would not have been
possible and, therefore, it cannot be said
that there is no casual connection between
the first incident and the second incident.
The learned tribunal with utmost respect
has not taken holistic view in the matter
while holding that the truck was used as a
weapon, the accident is by the use of
vehicle and it has to be turmed to be an
accident. The term ''negligence' would
assume significance the term negligence in
common parlance would go to show that
the driver drove the vehicle negligently as
narrated herein-below.

27. Just because the charge sheet is
laid under Section 302 will not take the
case from the purview of using the vehicle
negligently. The evidence of all the
witnesses go to show that the driver of the
vehicle drove the vehicle rashly and
negligently and came from behind and
dashed with the jeep deliberately may be he
had not caused murder that is not the
subject matter of our concerned but the
death occurred due to the ante mortem
injuries caused due to use of truck in which
the truck which dashed with the police
vehicle in which the deceased was seated.

28. The judgment of this High Court
in UPSRTC v. Vidya Devi, 2011 ACJ
2659 will also enure for the benefit of the
claimants-appellants, the dismissal of the
claim petition is bad in eye of law.

29. On the basis of above discussions,
we come to the conclusion that the death of
the deceased was result of the rash and
negligent driving by truck driver and the
accident had taken place while using the
motor vehicle by the deceased. Hence, we
upturn the finding of learned tribunal given
on issue nos. 1 and 4 and set aside the
order, rejecting the claim petition. The
findings given on issue Nos. 2 and 3
because at the time of accident, the truck in
question was duly insured by Insurance
Company/respondent no.3 and the truck
driver was having valid and effecting
driving licence and we confirm the said
findings as nothing is demonstrated by the
insurance company to take a different view
in the matter.

30. Now we come to the part of the
compensation. The accident in question had
taken place before 9 years and the record is
before us. There are no complicated questions
as the deceased was a salaried person the
documents are there and, therefore, the next
issue which arises is that the matter has
remained pending for long, the record and
proceedings are before this Court should the
matter be remanded to the Tribunal so that
compensation is decided or decide this court
can the same? The answer is in the affirmative
as per the judgments of the Apex Court in
Bithika Mazumdar and another Vs. Sagar
Pal and others, (2017) 2 SCC 748 and of
this Court in F.A.F.O. No. 1999 of 2007
(Oriental Insurance Company Limited vs.
588 INDIAN LAW REPORTS ALLAHABAD SERIES
Smt. Ummida Begum and others) and in
F.A.F.O. No. 1404 of 1999 (Smt. Ragini
Devi and others Vs. United India Insurance
Company Limited and another) decided on
17.4.2019 where in it has been held that if the
record is with the appellate Court, it can decide
compensation instead of relegating the parties
to the Tribunal. The provisions of section 173
read with section 168 will permit this Court to
decide the matter.

31. Here the calculation is to on settled
principles for grant of compensation where
deceased was a salaried person. Hence, we
take up the issue with regard to the quantum of
compensation
payable
to
the
appellants/claimants.

32. Admittedly, the deceased was a
police Constable and he was 28 years of age at
the time of accident. The pay slip of the
deceased, pertaining to the relevant month of
April, 2013, is on record which is exhibited as
paper No.39C. According to the pay slip, the
basic pay of deceased was Rs.10,130/- per
month
and
Dearness
Allowance
was
Rs.7,294/- per month. The net income of the
deceased is shown Rs.18,263/- per month. The
deceased was paid Rs.150/- per month as
allowance and Rs.750/- per month as diet
allowance, these two amounts are being
deducted from the total salary. Hence the
computable salary comes to Rs.17,363/- per
month. The deceased was Government servant
and below 40 years of age. Hence, as per
National Insurance Company Limited Vs.
Pranay Sethi and Others, 2017 0 Supreme
(SC) 1050, 50% will have to be added towards
future loss of income. The deceased was
survived by his widow and three minor
children along with his parents, the age of
father of the deceased was 55 years, it is not
shown that the father was dependent or not on
the deceased and for two minor children shall
be taken as one unit, hence 1/3 will be
deducted towards personal expenses of the
deceased. As per decision titled Sarla Verma
Vs. Delhi Transport Corporation, (2009) 6
SCC 121 multiplier of 17 would be applied.
As per decision of Pranay Sethi (supra), the
claimants/appellants would be entitled to
Rs.15,000/- for lost of assets and Rs.15,000/-
for funeral expenses. The wife of the deceased
would be entitled to get Rs.40,000/- for loss of
consortium with addition of 10% every three
years. Hence, we fix total compensation
Rs.1,00,000/- under the head of non pecuniary
damages plus Rs.50,000/- each to three minor
children who have lost their father at a tender
age.

33. In this backdrop we evaluate the
income in view of the judgment of National
Insurance Company Limited Vs. Pranay
Sethi and Others, 2017 0 Supreme (SC)
1050
and
Sarla
Verma
Vs.
Delhi
Transport Corporation, (2009) 6 SCC 121
and, the calculation of compensation would
be as follows:

i. Income Rs.17,363/- p.m.

ii. Percentage towards future
prospects : 50% namely Rs.8681/-

iii. Total income : Rs. 17,363 +
Rs. 8,681= Rs.26044/-

iv. Income after deduction of 1/3:
Rs.17,363/-

v. Annual income : Rs.17,363 x
12 = 2,08,356

v. Multiplier applicable : 17 (as
the deceased was in the age bracket of 2630 years)

vi.
Loss
of
dependency:
Rs.2,08,356 x 17 = Rs.35,42,052/-
7 All. Smt. Renu Devi & Ors. Vs. Gufran Ahmad & Ors.
589

viii. Under the head of non
pecuniary
damages
=
Rs.1,00,000
+
Rs.50,000/-

ix.
Total
compensation
:
Rs.36,92,000/- (round figure).

34. As far as issue of rate of interest is
concerned, it should be 7.5% in view of the
latest decision of the Apex Court in
National 7 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.