# The Oriental Insurance Co. Ltd v. Smt. Mainaz & Ors

- **Citation:** (2014) 2 ILRA 549
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-02
- **Case number:** First Appeal From Order No. 2541 of 2006
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-v-smt-mainaz-ors-42799
- **Pages:** 5

## Headnote

Motor Vehicle Act 1988-Section 163-AClaim petition-for murder caused during
traveling in bus-whether can be termed
accidental murder or murder simplicitor?
held-if finding regarding accidental murder
found correct death shall be presumed as
accidental-petition
held-maintainable-not
incumbent
upon
claimants
to
prove
negligence.

Held: Para-13
In view of the above, the finding returned
by the Tribunal that death occurred in an
accident arising out of the use of the motor
vehicle, cannot be faulted in the light of the
decision of the Apex Court in the case of
Rita Devi's case (supra). This court is,
therefore, of the view that the claim was
maintainable under Section 163-A of the
Motor Vehicles Act.

Case Law discussed:
(2000) 5 SCC 113; 1993 Supp. (1) SCC 208;
(1996) 9 SCC 46; (1997) 11 SCC 215.

## Text

2 All] The Oriental Insurance Co. Ltd. Vs. Smt. Mainaz & Ors.
549
'substantial' a question of law must be
debatable, not previously settled by law of
the land or a binding precedent, and must
have a material bearing on the decision of
the case, if answered either way, in so far
as the rights of the parties before it are
concerned. If will, therefore, depend on
the facts and circumstances of the each
case whether a question of law is
substantial one and involved in the case or
not. The same view has been expressed
again by the Apex Court in the case of
Govinda Raju Vs. Marriamman 2005 (98)
RD 731.

19. For the fore-going reasons, no
substantial question of law involved in
this appeal. The judgment and decree
under challenged in the present case is
perfectly valid and needs no interference.

20. In the result, the second appeal
lacks merit and is dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2014

BEFORE
THE HON'BLE MANOJ MISRA, J.

First Appeal From Order No. 2541 of 2006

The Oriental Insurance Co. Ltd. Petitioner
Versus
Smt. Mainaz & Ors. ... Respondents

Counsel for the Petitioner:
Sri Arun Kumar Shukla

Counsel for the Respondents:
Sri S.K. Gupta, Sri Sanjeev Kr. Tripathi

Motor Vehicle Act 1988-Section 163-AClaim petition-for murder caused during
traveling in bus-whether can be termed
accidental murder or murder simplicitor?
held-if finding regarding accidental murder
found correct death shall be presumed as
accidental-petition
held-maintainable-not
incumbent
upon
claimants
to
prove
negligence.

Held: Para-13
In view of the above, the finding returned
by the Tribunal that death occurred in an
accident arising out of the use of the motor
vehicle, cannot be faulted in the light of the
decision of the Apex Court in the case of
Rita Devi's case (supra). This court is,
therefore, of the view that the claim was
maintainable under Section 163-A of the
Motor Vehicles Act.

Case Law discussed:
(2000) 5 SCC 113; 1993 Supp. (1) SCC 208;
(1996) 9 SCC 46; (1997) 11 SCC 215.

(Delivered by Hon'ble Manoj Misra, J.)

1. The instant appeal has been filed
against the judgment and award dated
22.07.2006 passed by the Motor Accident
Claims Tribunal/Additional District Judge,
Court No.9, Budaun in M.A.C.P. No. 21 of
2004 by which the claim petition, under
Section 163-A of the Motor Vehicles Act, of
the
claimant-respondents,
who
are
dependents of late Naseem Khan (the
deceased), have been partly allowed thereby
awarding compensation of Rs. 1,79,500/-
plus interest from the date of filing of the
claim petition.

2. The claim case, in short, was that
on 09.04.2003, the husband of the
claimant No.1, namely, Naseem Khan
was traveling in Bus No. UGL 8580 from
Aonla to Budaun when, at about 7:30
P.M., two unknown persons, with intent
to rob the passengers, boarded the bus
near village Parolia and, in the scuffle that
ensued, shot at Naseem Khan thereby
injuring him which resulted in his death,
while taking him to the Hospital. It was
claimed that Naseem Khan had a monthly
550 INDIAN LAW REPORTS ALLAHABAD SERIES
income of Rs. 5,000/- per month from an
electric shop, which he was running, and
as the death was caused in an accident
arising out of the use of a motor vehicle,
the claimants, who were dependents of
the
deceased,
were
entitled
to
compensation under the provisions of
section 163-A of the Motor Vehicles Act.

3. The owner of the bus as well as
the Insurance Company (the appellant
herein) contested the claim on ground that
the death was not caused in an accident
arising out of the use of the motor vehicle.
Instead, it was a case of murder
simpliciter, therefore, the claim under
Section 163-A of the Motor Vehicles Act
was not maintainable. It was pleaded that
in respect of the incident the father of the
deceased lodged a first information report,
upon which, the police after investigation
laid
a
charge-sheet
under
Sections
302/307 I.P.C., which confirms that it was
a case of murder, on account of enmity,
and not a case of robbery. The owner as
well as the Insurance Company further
raised objection with regards to the
income of the deceased.

4. From the claimants' side, two
witnesses were examined in support of the
claim, namely, Mainaz (the widow of the
deceased) and Rakesh Chauhan, who was
a fellow passenger and an eye-witness to
the incident. Neither the owner of the bus
nor the Insurance Company examined any
witness.

5. The Tribunal recorded a finding
that the incident took place while the bus
was moving and that the deceased
(Naseem Khan) was shot because he
resisted the robbers. While holding as
above, the Tribunal observed that the first
information report did not disclose that
the deceased was murdered on account of
any enmity. The Tribunal found that from
the evidence on record including the
statement of the eye-witness, it appeared
to be a case of accidental death, on
account of resistance offered to the
robbers, while traveling in the bus. In
support of its conclusion reliance was
placed on a decision of the Apex Court in
the case of Smt. Rita Devi and others v.
New India Assurance Company Ltd. and
another : (2000) 5 SCC 113. The
Tribunal, thereafter, found that as the
income of the deceased, as claimed, was
not
substantiated,
therefore,
annual
income would be taken at Rs. 15,000/-.
After deducting one third from the annual
income, a multiplicand of Rs. 10,000/-
was determined to which a multiplier of
17 was applied on finding that the age of
the deceased at the time of his death was
32 yrs so as to arrive at Rs.1,70,000/- as
an amount payable towards loss of
dependency. To the aforesaid amount, Rs.
2,000/-
was
added towards funeral
expenses; Rs. 2,500/- towards loss of
estate; and Rs. 5,000/- towards loss of
consortium so as to arrive at a total of Rs.
1,79,500/- as the compensation payable.
As the vehicle was found to be insured
with
the
Insurance
Company
(the
appellant herein) and the driver of the
vehicle was having a valid licence, and
there was no breach of any condition of
the contract of insurance, the Tribunal
awarded the compensation against the
Insurance Company.

6. Assailing the award passed by the
Tribunal, Sri Arun Kumar Shukla, who
appeared on behalf of the appellant,
submitted that from the charge-sheet,
which was filed pursuant to the first
information report lodged in respect of the
incident, it appeared to be a case of
2 All] The Oriental Insurance Co. Ltd. Vs. Smt. Mainaz & Ors.
551
murder simpliciter and not an accidental
murder, therefore, the claim under the
provisions of the Motor Vehicles Act was
not maintainable. Attention of the Court was
invited to the first information report lodged
by Jameel Khan (the father of the deceased)
as also to the charge-sheet. Relying on the
said documents, the learned counsel for the
appellant submitted that from the first
information report, it appears that while the
bus was moving two persons boarded the bus
near Parolia village and they shot at the son
of the informant which caused panic
amongst the bus passengers. The driver of
the bus thereafter stopped the bus and the
assailants alighted from the bus and escaped.
It was submitted that in the first information
report there is no statement that there was
any act of robbery/looting to which
resistance was offered by the deceased
(Naseem Khan), which made the robbers fire
at Naseem Khan. Relying on the chargesheet, the learned counsel for the appellant
submitted that one Nirbhai son of Ram
Prakash was charge sheeted by the police for
an offence punishable under Sections
302/307 I.P.C. and that no case of any
robbery/looting was registered by the police.
It was thus submitted that since the intention
of the assailants was only to commit murder,
therefore, it was not a case of accidental
murder or an accidental death arising out of
the use of motor vehicle so as to confer
jurisdiction on the Tribunal to award
compensation on a claim under section 163A of the Motor Vehicles Act.

7. The learned counsel for the
appellant did not assail the basis of
calculation of the compensation awarded
by the Tribunal and no other point was
pressed.

8.

On
consideration
of
the
submissions of the learned counsel for the
appellant, the question that arise for
adjudication in this appeal is as to
whether the death of Naseem Khan, who
was traveling in the bus, was due to an
accident arising out of the use of the
motor vehicle, or it was a murder
simpliciter. Before answering the question
it would be useful to note that the claim
petition was filed under Section 163-A of
the Motor Vehicles Act, therefore, it was
not incumbent upon the claimant to prove
any negligence on the part of the driver of
the motor vehicle so as to maintain the
claim.

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 163A, 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
552 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
2 All] Smt. Sushila Devi Vs. Union of India
553
another act of felony, while the vehicle was
in use, then, the claim under Section 163-A
of the Motor Vehicles Act would be
maintainable.

11. In the instant case, only two
witnesses were examined. P.W.1 is the
claimant, who is the widow of the deceased,
whereas P.W.2 (Rakesh Chauhan) was a
passenger traveling in the Bus when the
husband of the claimant was shot at. From
the statement of the claimant, it is not clear
whether she was traveling in the bus at the
time when the incident took place. But from
the statement of Rakesh Chauhan, it is clear
that he was traveling as a passenger in the
bus and seated just behind the deceased
(Naseem Khan). The statement of Rakesh
Chauhan goes to show that two persons, with
their face covered by a cloth, boarded the bus
and when the deceased resisted their act of
looting, they shot at the deceased. In the
cross-examination, which was at the instance
of the Insurance Company, the said witness
stated that those persons had not only
snatched money from Naseem Khan (the
deceased) but they also took money from
other two or three passengers. It was stated
that the assailants had covered their face by a
cloth and therefore they could not be
identified.

12. The submission of the learned
counsel for the appellant is that the story
of robbery was not taken in the first
information report; and the police, on
investigation, found a case of murder and
laid charge-sheet accordingly, therefore,
the Tribunal fell in error by placing
reliance on the testimony of Rakesh
Chauhan, which had no value.

13. The above submission of the
learned counsel for the appellant cannot
be accepted, as it is well settled in law that a
first information report is not a substantive
piece of evidence, it could be used to
contradict or corroborate its maker. It cannot
be used as a substantive piece of evidence
(vide Surjit Singh versus State of Punjab :
1993 Supp (1) SCC 208; State of M.P.
Versus Surbhan: (1996) 9 SCC 46; Harkirat
Singh versus State of Punjab: (1997) 11 SCC
215). In the instant case, the informant was
not examined as a witness. Rakesh Chauhan,
who was examined as an eye-witness, is not
the author of the first information report. As
no other person was examined either by the
owner of the bus or by the Insurance
Company to rebut the testimony of Rakesh
Chauhan, there was no other admissible
evidence to show that it was a case of murder
simpliciter and not of accidental murder as
an incident of loot/ robbery/ dacoity. In view
of the above, the finding returned by the
Tribunal that death occurred in an accident
arising out of the use of the motor vehicle,
cannot be faulted in the light of the decision
of the Apex Court in the case of Rita Devi's
case (supra). This court is, therefore, of the
view that the claim was maintainable under
Section 163-A of the Motor Vehicles Act. As
there is no challenge by the learned counsel
for the appellant to the quantum of the
compensation awarded, the appeal fails and
is dismissed. The interim order stands
discharged.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2014

BEFORE
THE HON'BLE ANIL KUMAR, J.

Misc. Single No. 2611 of 2012

Smt. Shushila Devi ...Petitioner
Versus
Union of India ...Respondent

Counsel for the Petitioner: