National Insurnace Co. Ltd. vs Smt. Fehmida And Others
2017 Latest Caselaw 3890 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								                      A.F.R.
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 287 of 2013
 

 
Appellant :- National Insurnace Co. Ltd.
 
Respondent :- Smt. Fehmida And Others
 
Counsel for Appellant :- K.S. Chaudhary
 
Counsel for Respondent :- Nigmendra Shukla
 

 
Hon'ble Saumitra Dayal Singh,J.

Service on respondent no.5 is complete. Heard learned counsel for the appellant insurer and claimant respondent.

This appeal has been filed by the insurer against the award of the Motor Accident Claims Tribunal, Meerut dated 9.11.2012, in MACP No. 669 of 2011 arising from the death of Mustafa who as claimed, was hit by a Bolero car bearing registration no. HR-16F- 9428 (hereinafter referred to as Bolero car), on 19.03.2011, on the Delhi - Saharanpur Road, near Bharat Dharm Kanta. He was 21 years of age and was a bachelor.

The solitary ground raised by the insurer, in the present appeal is that the death of Mustafa was murder and not an accidental death. Therefore, the insurer has prayed to be absolved of its liability arising from the death of Mustafa.

The Tribunal framed six issues including the first issue whether the death of Mustafa was an accidental death as claimed or it was murder arising from animosity. In this regard, the claimants stated, the Bolero car, being driven in a rash and negligent manner knocked down the bicycle which the deceased was riding. Thereafter, the 'driver ' of the Bolero car, on account of animosity backed out that car and crushed the deceased under it, with intention to kill him.

However, the claimants did not name the driver of the aforesaid Bolero car in the claim petition. They also did not implead the driver of the Bolero car as a party in the claim proceedings.

Then, at the stage of evidence, the mother of the deceased Smt. Fehmida (PW-1) was examined. She was not a witness-of-fact. She stated the fact of her son having died in the accident caused by the driver of the Bolero car, on account of rash and negligent conduct of its driver. She was cross-examined by the insurer. In her cross-examination statement, she denied knowledge of name of the driver of Bolero car and also specifically stated that the deceased did not have animosity with anyone. Lastly, she stated, it was right to say Sandeep killed her son.

An independent witness-of-fact, Mehardeen (PW-2) was also examined. He stated, the accident had been caused due to rash and negligent conduct of the driver of the Bolero car which knocked down the bicycle deceased was riding and that the driver of the Bolero car then backed out such that the deceased got crushed under that car.

The insurer did not lead any evidence to establish that the death of Mustafa was murder simpliciter.

On the other hand, admittedly, arising from the aforesaid event, one Sandeep was charged with offence under Section 304 IPC. However, the said trial failed and Sandeep was acquitted in by the trial court.

It is in the above background that the Tribunal took note of the pleadings made and evidence led by the parties and after considering the First Information Report, it relied, largely on the independent eye witness account Mehardeen (PW-2) to infer that it was a case of accidental death and not one of murder simpliciter.

The Tribunal also reasoned, since the insurer did not examine the driver of the offending vehicle in the proceedings before it to establish case of murder simpliciter, it was not murder but case of accidental death of Mustafa.

Assailing the finding recorded by the Tribunal, learned counsel for the appellant submits, the claimant's own case as stated in the claim petition is consistent with the police case that deceased had been murdered. He also relied on the cross-examination statement of PW-1. Fehmida Begum wherein she stated her son had been killed by Sandeep.

According to learned counsel for the appellant, in view of the fact, claimant had themselves stated deceased had been murdered, both in the claim petition as also in the police case and further in view of the fact that the mother of the deceased made that statement in her testimony before the Tribunal, the Tribunal could not hold otherwise. The claim version of the incident itself disentitles the claimants to compensation. No other evidence was required to be led by the insurer to establish, it was case of the murder simpliciter.

Learned counsel for the respondents on the other hand submits, in this case there is no dispute at all and there is no evidence to doubt, the death of Mustafa had been caused by the use of Bolero car. Therefore a presumption arose as to the cause of death being motor accident. To establish murder simpliciter, by Bolero car would be in the nature of an exception which if established may take the case out of the ambit of proceedings for award of compensation by the Tribunal.

An exception to the presumption may arise if it is established, death had been caused because the driver of the Bolero car had intention to murder Mustafa and he therefore dashed his Bolero car with the bicycle of Mustafa and then crushed him under the wheels of Bolero car with intention to kill Mustafa. Only if it were so established that the Tribunal could have inferred 'murder simpliciter'.

He submits, murder being exception to the liability of the insurer, the burden to establish that the death was murder simpliciter, rested entirely on the insurer and not on the claimant. No evidence was led by the insurer to establish Mustafa had been murdered. The insurer did not even examine the driver of the Bolero car, who, according to the insurer murdered Mustafa. He therefore, submits, there was no evidence to establish the death of Musfata on account of murder simpliciter.

Also, he urged, in the instant case the criminal trial resulted in acquittal. That conclusion drawn by a competent court of criminal jurisdiction constitutes final verdict as to whether Mustafa had been murdered or not. Once the criminal court reached the conclusion Mustafa had not been murdered, it was no longer open either to the insurer appellant or to the Tribunal to reach a different conclusion.

To allow such possibility to even exist may create room for an anomalous situation where the criminal trial may result in acquittal but a Motor Accident Claims Tribunal, a quasi-judicial authority of limited jurisdiction - to award compensation for a tortuous act, may, in a summary proceeding, reach a different conclusion of murder.

Learned counsel for the appellant has fairly pointed out, in this case though the Tribunal has not taken note of the judgment of the criminal court, yet, that judgment is of the date 21.3.2012 whereas the award of the Tribunal is of the date 4.11.2012 which is six months later. A copy of the judgement of the criminal court was also produced during the course of hearing of this appeal.

Learned counsel for the respondent claimant relied on decision of the Supreme Court in the case of Smt. Rita Devi Vs. New India Assurance Co. Ltd and another reported in (2000) 5 SCC 113 had the occasion to examine, in the context of death arising from a use of motor vehicle whether claimant should be entitled to compensation in case where the driver of three wheeler had been murdered by passengers who hired his three wheeler for fare. It was held as below:-

"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)

The Supreme Court had considered the English law in this regard and had thereafter held in paragraph 14 as 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 auto-rickshaw, 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 auto-rickshaw and in the course of achieving the said object of stealing the auto-rickshaw, they had to eliminated the driver of the auto-rickshaw then it cannot but be said that the death so caused to the driver of the auto-rickshaw was an accidental murder. The stealing of the auto-rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto-rickshaw is only incidental to the act of stealing of the auto-rickshaw. 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 the theft of the auto-rickshaw."

(emphasis supplied)

Then as to interpretation of the phrase "caused by" originally used in section 95 (1) (b) (i) and (ii) of the Motor Vehicles Act, 1939 as amended and changed to "arising out of" which expression is also used in sections 163-A (under which the claim involved in this appeal was made) and 166 of the Motor Vehicles Act, 1988, the Supreme Court (relying on its earlier judgement in the case of Shivaji Dayanu Patil Vs Vatschala Uttam More reported in (1991) 3 SCC 530) observed :-

"17. In that case in regard to the contention of proximity between the accident and the explosion that took place this Court held: (SCC pp. 549-50, para 36)

"36. 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 causal 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."

(emphasis supplied)

Then, learned counsel for the claimant respondents has also relied on two other decisions. First, he relied on the division bench judgment of the Uttranchal High Court in the case of Dharamwati Devi and others Vs. Gurucharan Singh and another reported in 2007 (1) ACCD 184 (Utt) and another judgment of the Kerela High Court in the case of United India Insurance Co. Ltd. Vs. Thankamma, W/O Krishnan Kalayatholil and others reported in 2011 (4) TAC 497.

In the case of Smt. Pushpa Agarwal Vs Insurance Ombudsman U.P. And others reported in 2012 (6) ADJ 287, while considering a controversy whether the murder of a person kidnapped for ransom amounted to accidental death for purpose of a claim for accidental death benefits under a contract for life insurance, this Court observed -

"the Apex Court considered and interpreted a phrase providing "death due to accident arising out of the use of motor vehicle". Thereafter, the Court referred to various decisions and arrived at a conclusion that they have no hesitation in coming to a conclusion that the deceased, Dashrath Singh, was employed to drive an auto rickshaw for ferrying passengers on hire. On the fateful day the auto-rickshaw was parked at auto-rickshaw stand and unknown passengers engaged the said auto-rickshaw for their journey and during that journey, it was alleged that the passengers caused murder of Dashrath Singh. The Apex Court held that death in such case was due to accident. The Court further observed that the difference between ''murder which is not an accident' and ''murder which is an accident' depends on the proximity of the cause of such murder. If the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any felonious act then such murder is an accidental murder arising out of the use of motor vehicle and held that the insurance company was liable to reimburse the claimant..........".

As to the meaning and concept of ''murder' as distinct from ''accidental death' the Court observed word "Murder" has also not been defined in under the Act (as also in this case). It noted : "Murder" is defined in the form of noun as THE CRIME OF KILLING SOMEONE DELIBERATELY and in the form of verb as TO COMMIT THE CRIME OF KILLING SOMEONE DELIBERATELY.

It is this word 'deliberate' that rules out the possibility of an incident being called an Accident. This exactly is the reason that Accident has been made an exception and a defence to a charge of Murder and the Indian Penal Code the various kinds of Culpable Homicide amounting to Murder and not amounting to the same as the reading of Sections 299, 300, 301 and 304-A alongwith Accident as a defense or an exception. Sections 299, 300, 301 and 304-A reads as under :

"299. Culpable homicide:- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

300. Murder:- Firstly, Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly:- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly:- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly:- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1:- When culpable homicide is not murder:- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

301. Culpable homicide by causing death of person other than person whose death was intended:- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to case, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.

304-A. Causing death by negligence:- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

The question that under which circumstances the "willful act" of the third party can be held to be 'accidental' ?, is discussed in Halsbury's Laws of England Vol. 25 Pg.311 Para 575, 4th Edition (2003 reissue), as under:

575. Injury caused by a willful act. An injury caused by the willful or even criminal act of a third person, provided the insured is not a party or privy to it, is to be regarded as accidental for the purpose of the policy, since from the insured's point of view it is not expected or designed. Injuries sustained by gamekeeper in a criminal attack upon him by poachers, by a chashier who was murdered by a robber, and by a master at an industrial school who was murdered by the boys, have been held to be accidental. However, if the immediate cause of the injury is the deliberate and willful act of the insured himself, there would seem to be no accident, and no claim will lie under the policy, at any rate if the insured is not mentally disordered at the time of his act.

Mere knowledge of hazard of an occurrence will not take it away from the category of accident in its general sense. Albeit, the law may in a given context define accident to restrict its wider meaning and dilute it to what is called a 'pure accident', but there is no warrant for such restricted meaning in the context of the above clause of the Insurance Policy.

It would not be out of place to mention that Nisbet v. Rayne and Burn, [1910] 2 KBD 689 is a leading case on this subject. A cashier was traveling in a train with a large sum of money intended for payment to his employer's workmen. He was robbed and murdered and the Court of Appeal held the murder was an accident from the point of view of the cashier and, therefore, it was an accident within the meaning of that term in the Workmen's Compensation Act, 1906.

In Smt. Satiya vs. Sub Divisional Officer, 1975 I LLJ 394 (Madhya Pradesh) a chowkidar in the Public Works Department was murdered while on duty. One of the questions that arose was whether his murder could be said to be an accident. Relying upon Nisbet, it was held that the murder was an unlooked for mishap or untoward event which was not expected or designed. The learned Judge held that word "accident" excludes the idea of willful and intentional act but as explained in Nisbet, "the phrase ought to be held to include murder as it was an accidental happening so far as the workman was concerned."

The combined effect of reading the aforesaid sections cannot be better illustrated than mere reproduction of the words of the Supreme Court in the case of Smt. Rita Devi and others Vs New India Assurance Company Limited and Another reported in 2000 (3) Supreme 698, as "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.

Insofar as legal principle is concerned, it is not the insured's point of view that is the criteria but it is The Rule of Contra Proferentem that is actually the legal principle applicable to insurance contracts.

Rule of Contra Proferentem is generally made applicable to standard form of contracts. Later, this rule was extended to Terms and Conditions of insurance policies. It is strictly a rule of interpretation where, in case of an ambiguity, the construction that is favourable to the insured is adopted. This is purely a rule invoked for interpretation of the terms of contracts. This rule has no application to anything when no particular term of contract is under interpretation. Even this interpretation is confined to cases where there is existence of any ambiguity in any particular term. In the absence of any word being in ambiguity, it cannot be invoked.

As seen from the dictionary meaning and as on exception on defense to a charge of murder and further going by the interpretation of the said term by the Supreme Court in Rita Devi (Supra), hardly any ambiguity exits. The Supreme Court of India in Central Bank of India Vs Hartford Fire Insurance Company reported in AIR 1965 SC 1288 clearly held "it is well known however that the rule (of contra proferentum) has no application where there is no ambiguity in the words in the standard form of contract.

In the case of United India Insurance Company Limited Vs Harchandrai Chandanlal reported in JT 2004 (8) SC 8, the Supreme Court reiterated at para 14 that the terms of contract has to be strictly read and NATURAL meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.

From the aforesaid reasonings, it can safely be inferred that ''even the willful murder' of the assured is accidental as far as insured is concerned and such murder is to be described as ''by chance' or ''fortuitous'.

At this juncture, it would be useful to refer following observations made by the Division Bench of Gujarat High Court in the case of Ambalal Lallubhai Panchal (Renerwala) v. LIC of India [AIR 1999 Gujarat 280], wherein the question involved was whether a death caused by dog bite can be said to be death caused by an accident so as to make the Life Insurance Corporation of India liable to pay an additional sum equal to sum assured under the extended benefit clause of the Policy, may be referred:

"7. The word "accident" has a very wide significance in its ordinary sense. In the present case, we are not concerned with the philosophical meaning of the expression "accident". The word, though easy to understand when used in any particular context, is found to be difficult to define in a manner that would encompass all its shades of meanings. The expression 'accident' generally means some unexpected event happening without design, even though there may be negligence and it is used, in a popular and ordinary sense of the word, as denoting an unlocked for mishap or an untoward event which is not brought about by intention or design. It is however, unnecessary to attempt any uniform definition of a term which has the utility of answering varied situations.

This term has to be applied in law to any occurrence or result that could not have been foreseen by the agent (because not necessarily involved in his action) or to a result not designed (and therefore, presumably not foreseen) or lastly to anything unexpected. The question as to what will and will not constitute an accident under a given circumstance would depend upon the facts of each particular case and would be a mixed question of law and facts. Accidents can broadly be divided into two categories, viz. where there is some external act, agency or mishap and those where there is no such external act, agency or mishap. In legal contemplation, accident happens without any designed, intentional or voluntary causation such as an occurrence which happens by reason of some violence, casualty or vis. major without any design or consent or voluntary co-operation. An unexpected personal injury resulting from an unlooked-for mishap or occurrence would be an accident. The word "accident" would get its colour from the context in which it is used. The word has fallen for our interpretation in context of the following accident benefit clause in a Life Insurance Policy and in context of the question whether death due to dog bite is an accident within the meaning of this clause, so as to merit payment of additional sum equal to the sum assured under this clause".

Having considered the argument so advanced by learned counsel for the parties, I find, first, the scope of the proceeding before the Tribunal are not purely adversarial. It is a tribunal of limited jurisdiction. In this regard the Supreme Court in the case The Supreme Court has in the case of United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509, has held as below :

"10. A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependent family members) before the Motor Accidents Claims Tribunal constituted under Section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceedings in terms of and regulated by the provisions of Chapter XII of the Act which is a complete code in itself. We may in this context refer to the following significant aspects in regard to the Tribunals and determination of compensation by the Tribunals:

(i) Proceedings for award of compensation in regard to a motor accident before the Tribunal can be initiated either on an application for compensation made by the persons aggrieved (the claimants) under Section 166(1) or Section 163-A of the Act or suo motu by the Tribunal, by treating any report of accident (forwarded to the Tribunal under Section 158(6) of the Act as an application for compensation under Section 166(4) of the Act).

(ii) The rules of pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

(iii) In a proceedings initiated suo motu by the Tribunal, the owner and driver are the respondents. The insurer is not a respondent, but a notice under Section 149(2) of the Act. Where a claim petition is filed by the injured or by the legal representatives of a person dying in a motor accident, the driver and owner have to be impleaded as respondents. The claimants need not implead the insurer as a party. But they have the choice of impleading the insurer also as a party-respondent. When it is not impleaded as a party, the Tribunal is required to issue a notice under Section 149(2) of the Act. If the insurer is impleaded as a party, it is issued as a regular notice of the proceedings.

(iv) The words "receipt of an application for compensation" in Section 168 refer not only to an application filed by the claimants claiming compensation but also to a suo motu registration of an application for compensation under Section 166(4) of the Act on the basis of a report of an accident under Section 158(6) of the Act.

(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under Section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act.)

(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry. (Vide Section 169 of the Act.)

(vii) The award of the Tribunal should specify the person(s) to whom compensation should be paid. It should also 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. (Vide Section 168 of the Act.)

(viii) The Tribunal should deliver copies of the award to the parties concerned within 15 days from the date of the award. (Vide Section 168(2) of the Act.)

We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute".

(emphasis supplied)

That being the nature, character and scope of proceedings, it is difficult to contemplate a situation when the Tribunal may record its own conclusion as to occurrence of ''murder simpliciter'. One situation when the Tribunal may do so would be where, arising from the death, the criminal court reaches that conclusion and that judgement is placed before the Tribunal.

Other than that, the Tribunal may only record a finding of the death not being an accidental death or not being ''accidental murder' applying the principle laid down by the Supreme Court in the case Rita Devi (supra). For that situation to arise, the owner and or the insurer must raise that plea and lead positive evidence such that the Tribunal may record its finding to that effect.

The object of the proceeding under the Act especially in respect of claims filed under Section 163-A of the Motor Vehicle Act, 1988, as in the present case, is to award compensation for the accidental loss of life etc. The occurrence of accident has to be examined from the stand point of the victim. Also, so far as the claim under Section 163-A is concerned, the claimants are not even required to establish negligence of the driver of the motor vehicle involved in the accident.

Looked at from this perspective, on one hand the claimants led sufficient evidence to establish the deceased was riding a bi-cycle on his left side of the road when the Bolero car, being driven in a rash and negligent manner, at high speed, knocked down the bi-cycle of the deceased who resultantly fell to the ground. The insurer led no evidence to doubt the correctness of this version.

Merely because the driver of the Bolero car backed out the car and the deceased got crushed under it thereafter, cannot lead to a conclusion that he murdered the deceased. It may give rise to a suspicion but it does not establish anything in itself. The insurer has simply relied on this statement made in oral evidence led by the claimant and a stray statement made in the claim petition and as also the police FIR to establish that it was a case of murder.

So far as the police FIR is concerned, the matter has conclusively been decided against the insurer, in view of the judgment of the criminal court wherein the prosecution story of murder was disbelieved. The reason for that conclusion by the criminal court may not be relevant to evaluate its effect on the proceedings before the Motor Accident Claims Tribunal, as would be the ultimate verdict of acquittal. Reliance placed on the police report loses it relevance upon the judgement of acquittal.

So far as the statement made in the claim petition is concerned, again the pleading made contrary to judgment of the criminal court carries no weight. The prosecution failed to establish murder in the criminal trial. Statements made by the claimants, either in the claim petition and/or oral evidence either before the Tribunal or the criminal court lose relevance, in face of verdict of acquittal made by the criminal court. Such statements only represent a belief of the author of those statements. That belief cannot prevail over the findings and conclusions recorded by the criminal court upon consideration of entire material and circumstances of the case.

Also, the insurer could not rely solely on the allegation made by the claimant to reason it was the case of murder simpliciter or that it was not a case of ''accidental murder'. In the context of claim made under section 163 A of the Act, the burden always remained on the insurer to establish the case fell in the exception to the general liability on the insurer. That burden was never discharged.

The insurer did not even examine the driver of the Bolero car. The proceedings before the Tribunal being not purely adversarial, but being proceedings to determine fair and just compensation, it would be harsh to accept the contention made by learned counsel for the appellant that the claimant was dis-entitled to compensation because of stray statement appearing in the claim petition or in the oral testimony that the claim witnesses.

It therefore appears, the deceased died as a result of injuries suffered in the incident in which his bi-cycle was knocked down by the Bolero car. Thus prima-facie the claim petition was maintainable before the Tribunal.

The claim having been filed under section 163-A of the Act, the claimants were not even obliged to establish negligence of the driver of the Bolero car. To resist the claim, the insurer was then burdened to lead evidence that the deceased had been murdered, or that it was not a case of ''accidental murder' as considered by the Supreme Court in the case of Rita Devi (supra).

Alternatively, the insurer may have lead evidence to establish the accidental death was caused due to negligence of the deceased himself. Even then, it would have been necessary, amongst others, for the insurer to examine the driver of the Bolero car. This does not even appear to have been attempted.

The insurer having failed to lead any evidence to establish murder of the deceased, the matter should rest there. Mere statement in the claim petition or during oral testimony of the claimant (non-eye witness) is neither proof of motive or of the killing. It cannot be relied upon by the insurer to establish exception to the rule to its liability for the tortuous liability arising upon death caused due to use of motor vehicle, under section 163-A of the Act.

The gruesome act of the driver of the Bolero car, of having backed out that car such that the deceased got crushed under it, even if assumed to have occurred thereafter, would not establish occurrence of "murder simpliciter", in absence of any evidence being led to establish that act had been committed by the driver of the Bolero car with intention to murder the deceased. Had such evidence been led by the insurer or the owner, it may have been said, the death of the deceased was not an "accidental murder". In that case the Tribunal may have rejected the claim petition. However, presently, there exists more than one possibility, why a driver of a vehicle involved in an accident such as this may have backed out the car. The intent to murder the deceased is just one of those possibilities. It is equally possible, being panic stricken, he backed out without realizing the risk of running over the deceased.

In view of the above, the appeal lacks merits and accordingly dismissed. No order as to costs.

Amount of Rs. 25,000/- is lying deposited with this Court to maintain this present appeal shall now be remitted to the Tribunal to be adjusted against the award. The appellant shall have further period of three months to deposit the entire balance decretal amount which shall then be released in favour of the claimant respondents.

Order Date :- 1.9.2017

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