Gautam Kumar Choudhary, J
1. Insurance Company is in appeal against the award of compensation in M.V. Claim Case No. 59 of 2008, whereby and whereunder the learned
Tribunal has awarded Rs. 7,96,500/- with interest @ 6% per annum from the date of institution of the claim application till realization of compensation
amount, failing which penal interest @ 9% per annum.
2. Shorn of detail the deceased Clastus Lakra, who was driving an Ambulance bearing Registration No, JH-01K-6674, met with an accident when he
dashed a motorcycle. After the accident the deceased was chased, assaulted and lynched by mob, regarding which Sadar Town P.S. Case No. 129 of
2008 was registered on 27.03.2008 under Section 304 of Indian Penal code. At the time of accident, he was aged 45 years and was getting salary of
Rs. 6,000/- and a pension of Rs. 3,000/- from his past military service.
3. The award of compensation has been challenged mainly on the ground that a homicidal death has been given a texture of accidental death to claim
compensation for which a claim case under Section 163A of Motor Vehicle Act was not maintainable. Absence of intention is the essence of an
accidental death, whereas intention or knowledge in the commission of homicide has been made culpable under different provisions of the Penal Code.
4. In this case, it is argued that the F.I.R was lodged under Section 304 of the Indian Penal Code and charge-sheet was also submitted under Section
304 of the Indian Penal Code which has been brought into evidence and marked as Exhibit 2. In this view of the matter, the accidental death comes
under cloud and, therefore, the award of compensation is not sustainable. Further, penal interest of 9% per annum has been ordered against the ratio
in the case of New India Assurance Company Ltd. Vs. Keshav Bahadur reported in AIR 2004 SC 1581.
5. Learned counsel appearing on behalf of the claimants submits that significant to look into in this matter is the use of the vehicle and the death had
occurred as a result of the use of vehicle. The Hon’ble Supreme Court in Smt. Rita Devi & Ors. Vs. New India Assurance Co. Lt.d, AIR 2000
SC 1930
had an occasion to examine the meaning of the expression use of vehicle in Section 163A of Motor Vehicle Act. It was held that in the case that the
driver of Auto Rikshaw was highjacked and then the driver was done to death while the vehicle was carrying passengers on hire and the driver was
on the duty.
6. It is further argued that whether compensation can be allowed in such case, the test is, if dominant intention was to kill the deceased or act to place
because of employment or in the use of motor vehicle. Reliance is placed on Star Press Vs. Meena Devi, 2017 (3) T.A.C 580 (Del.). It is argued that
in this case there was no intention to cause death of the deceased and he fell victim to the vengeance of mob after accident took place.
7. In reply, it is argued by learned counsel on behalf of Insurance Company that ratio laid down in Star Press (supra) case is misplaced as it will not
apply for the reason that this was a case under Workmen Compensation Act, whereas the present case is under Motor Vehicle Act. It is
argued that on similar fact situation in Smt. Dhela Rani & Another Vs. Sri Deepak Prasad and others ,AIR 2009 (NOC) 1110 (JHAR), where
murder took place due to quarrel between the drivers of two auto-rickshaw, the claim application under the MV Act was dismissed by the Division
Bench of this Court.
8. Facts of this case are not in dispute that the deceased was driving an ambulance which met with an accident with a motorcycle. Deceased was
thereafter chased and lynched by the mob.
9. It is nobody’s case that lynching of the deceased was on account of private animosity and evidence conclusively establish that the occurrence
took place in the heat of moment, when the ambulance being driven by the deceased met with accident. From these facts it can be safely inferred that
intention to kill was not the dominant motive of the mob. Principle of law as laid down in Rita Devi case (supra) shall squarely apply in the present
case wherein it has been observed : -
“ 10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that “murderâ€, 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 “murderâ€
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 murderâ€.
In this case, argument of the Insurance Company that Workmen Compensation Act will apply and not M.V. Act was also negated in the following
words: -
“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.â€
Under the circumstance, I do not find any infirmity in the impugned order of compensation being allowed under Section 163 A of the Motor Vehicle
Act, as the death can be said to have taken place due to accident arising out of use of motor vehicle.
Miscellaneous Appeal accordingly, stands dismissed. Statutory amount deposited by the appellant at the time of filing of appeal, be remitted to the
Tribunal. Compensation amount be disbursed by the Tribunal to the claimants after proper identification and as per the terms fixed by it. Interlocutory
Application, if any, is disposed of.