Ambalika Singh & Others vs United India Insurance Co. Ltd., ...
2017 Latest Caselaw 6097 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

 									     A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 487 of 2013
 

 
Appellant :- Ambalika Singh & Others
 
Respondent :- United India Insurance Co. Ltd., Thru.Branch Manager & Anr.
 
Counsel for Appellant :- Mukesh Singh,Shashank Singh
 
Counsel for Respondent :- Hari Prakash Srivastava,Rajesh Pandey
 

 
Hon'ble Shabihul Hasnain,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1. The present First Appeal From Order under Section 173 of Motor Vehicles Act 1988 has been filed against Judgment and Award dated 1.2.2013 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Faizabad in MACP No. 285 of 2011 Ambalika Singh versus United India Insurance Company Limited and others whereby claim petition of the claimants was rejected.

2. The claim petition reveals that one Narendra Singh was driver of the Truck No. GJ6V.V./7759 and after loading the milk powder, he was going from Ahmdabad ( Gujarat ) to Guwahati and when he reached on the way of Faizabad-Basti near the village Katra Bogh Chand, P.S. Nawabganj, District Faizabad, he met with an accident, on account of which, he succumbed to serious injuries and died on the spot. The appellant preferred claim petition before Motor Accident Claims Tribunal, Faizabad under Section 163-A of Motor Vehicles Act and while deciding issue No.1 the Tribunal concluded that the deceased died due to murder on the way of Faizabad-Basti while he was carrying milk powder in the aforesaid truck and rejected the claim petition.

3. The recovery memo prepared during the investigation reveals that cloths and other articles such as ATM Card, driving licence, Photo Folder along with photo of deceased Narendra Singh was found in cabin of the truck in question and without considering and appreciating the statement of the investigating officer which discloses the recovery of the asset of the deceased inside the truck and without appreciating the statement of the Director of Arti Roadways Private Limited where the deceased was employed. The Tribunal dismissed the petition in arbitrary manner without applying the mind. That accident occurred during the use of motor vehicle and occurred under Motor Vehicles Act. The learned Tribunal concluded that there was no motor accident and it was a case of murder and thus the petition for claimants under the provisions of Act did not arise.

4. Learned counsel for appellant had relied on Rita Devi (Smt.) and others versus New India Assurance Company Limited and another AIR 2000 SC 1930, 2000(5) JT 355 and contended that in that controversy where the deceased was employed to drive the auto-riksha for ferrying passengers on hire and the auto riksha was parked at rikshaw stand and some unknown passenger had engaged him for their journey and later on next day, the body of the deceased was recovered and auto-riksha was never traced. The Apex Court awarded the compensation on the ground that the accident took place during the use of motor vehicle.

5. Learned counsel for insurance company has contended that the deceased being an employee was entitled for compensation both under Motor Vehicles Act and also under the Workmen's Compensation Act 1923. However under Section 163 A(1) of the Motor Vehicles Act the heirs of the deceased had a choice either to claim compensation under that Act or under the Women's Compensation Act. The appellants having chosen to invoke the provisions of Motor Vehicle Act, the Tribunal would have awarded the compensation but without properly appreciating the reasoning advanced by learned counsel for appellant/petitioner, the Tribunal dismissed the petition.

6. As pointed out by the learned counsel for the appellants, the Motor Vehicles Act does not define the word accident. However, Section 163A of the Motor Vehicles Act provides for payment of compensation for the death or injury suffered in a motor vehicle accident on a structured formula basis in Section 163 A of the Act. Sub-clause (I) of the said Section says that notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be; Sub-section (2) of the said Section also provides, in any claim for compensation under that sub-section, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. A conjoint reading of the above two sub-clauses of Section 163A shows that 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. Thus it is clear, 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. In the present case, the contention of the Insurance Company is that the death of the deceased was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words death due to accident arising out of the use of motor vehicle. 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 dominent 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.

7. In Challis vs. London and South Western Railway Company (1905 2 Kings Bench 154), the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully 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."

8. 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 definition of the word death in Workmens Compensation Act the same will not be applicable while interpreting the word death in Motor Vehicles Act because according to him, the objects of the two Acts are entirely different. He also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. 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 are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmens 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 Workmens 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 judicially accepted interpretation of the word death in Workmens Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also.

9. In the case of Shivaji Dayanu Patil & Anr. vs. Vatschala Uttam More (1991 (3) SCC 530) the Court while pronouncing on the interpretation of Section 92 A of the Motor Vehicles Act, 1939 held as follows :

"Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose."

10. In that case in regard to the contention of proximity between the accident and the explosion that took place the Court held : This would show that as compared to the expression caused by, the expression arising out of has a wider connotation. The expression caused by was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression arising out of which indicates that for the purpose of awarding compensation under Section 92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression arising out of the use of a motor vehicle in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.

11. 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 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.

12. In light of above interpretation of legality, now it is settled that the accident occurred during use of motor vehicle and section 92-A enlarges the field of compensation made available to the victims of the accident and is in consonance with the beneficial object underlying the enactment.

13. The second question as raised by the learned counsel for appellants is that the future prospects should also be considered for calculating the award.

14. Learned counsel for the appellant Insurance Company submits that since there was no evidence on record in respect of regular salary being drawn by the deceased the benefit of future prospect is not permissible. He has further pointed out that on account of conflicting opinions in respect of future prospect to the self-employed person or those on fixed wages, the issue has been referred for adjudication to a larger Bench in the case of National Insurance Company v. Pushpa & others, 2015(9) SCC 166.

15. It is no doubt correct that noticing conflicting views expressed in the case of Sarla Varma & others vs. Delhi Transport Corporation & Anr., 2009(6) SCC 121, Rajesh & others v. Rajbir Singh & others, 2013(9) SCC 54 and Reshma Kumari & others vs. Madan Mohan & another, 2013(9) SCC 65, the issue has been referred for adjudication by a larger Bench of the Hon'ble Supreme Court in the case of Pushpa (supra). However, in the present case, the reference pending adjudication has not much bearing inasmuch as Rule 220-A under U.P. Motor Vehicle Rules, 1998 incorporated vide notification dated 26.9.2011 provides a distinction for awarding future prospects between salaried class person and those on fixed wages or unorganized sector. Relevant Rules 220-A(3) reads as under :

"220-A. Determination of compensation. - (1) ........

(2)........

(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under -

(i) Below 40 years of age : 50% of the salary,

(ii) Between 40-50 years of age : 30% of the salary.

(iii) More than 50 years of age : 20% of the salary.

(iv) When wages not sufficiently proved : 50% towards inflation and price index."

16. In the conflicting opinion expressed by the Hon'ble Supreme Court in the case of Sarla Varma & others vs. Delhi Transport Corporation & Anr., 2009(6) SCC 121, Rajesh & others v. Rajbir Singh & others, 2013(9) SCC 54 and Reshma Kumari & others vs. Madan Mohan & another, 2013(9) SCC 65 as well as in the case Pushpa (Supra), Rule 220-A was not under consideration. Therefore, pendency of a reference does not stand to any benefit of the appellant.

17. It is a matter of common knowledge that there is incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with the rise of cost of living and to meet the challenges, the persons periodically increase the cost of their labour.

18. In light of above proposition claimants are entitled for compensation. Thus we are of the view while deciding issue No.1 the learned Tribunal has wrongly concluded that the claimants are not entitled for compensation due to the reason that it was a case of murder while in light of above proposition of law, it was a death during the course of use of motor vehicle. While deciding Issue No.2, it has been held by learned Tribunal that vehicle was duly ensured at the time of accident and drvier was having valid licenced. Coming to the question of claim of award as date of birth as shown in driving licence is 8.7.1975 and accident occurred on 11.1.2010, thus the age of the deceased at the time of accident was below 35 years age.

19. It is admitted that he was paid Rs. 3000/- per month as salary in addition to additional allowance for daily expenditure. Learned counsel for appellants has submitted that additional allowance for daily expenditure may be either added to the income or the deduction as required under law which is 1/3 should not be deducted from monthly pay of the deceased. Since deceased was being paid Rs. 3000/- per month in addition to the affording other expenditure, thus it will be appropriate that Rs. 3000/- per month should be calculated as monthly income.

20. In light of above calculation, the amount of award for which the claimants are entitled is as follows:-

(i) Monthly income of the deceased Rs. 3000/- per month

(ii) Future prospects in light of Rajesh & others versus Rajbir Singh and others reported in 2013 (9) SCC 54 = 50% of the salary = Rs. 1500/-

(iii) Monthly income= 3000 + 1500 = Rs. 4500/-

(iv) Annual income = 4500 x 12 = Rs. 54,000/-

Since the age of the deceased was below 35 years. Thus the multiplier M-16 will be applicable and total amount of award = 54000x 16 = 8,64,000/-.

In light of averments of Rule 220-A (4) non pecuniary damages:-

(i) Compensation for loss of spouse = Rs. 7000/-

(ii) Compensation for loss of consortium = Rs. 7000/-

(iii) Compensation for loss of love and affection= Rs. 10,000/-

(iv) Funeral expenses etc.= Rs. 5000/-

Total entitlement for payment is of Rs. 8,93,000/-

21. The claimants are entitled for payment of award of compensation with interest of 6% per annum from the date of application to the date of payment. The amount of claim shall equally divided between three claimants. The amount payable to the minor shall be deposited for a period till they attain the majority and 50% of the amount payable to the appellant No.1 Ambalika Singh should be deposited in F.D.R in nationalized bank for a period of three years. The respondent insurance company is directed to pay the amount within two months from today, failing which, the claimants are entitled to recover the amount as per law.

22. The judgment and order impugned is set aside and the appeal is allowed and disposed of accordingly.

Order Date :- 1.11.2017

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