The Oriental Insurance Company ... vs Rukhmani Bai And Ors
2022 Latest Caselaw 5507 Chatt

                                   1


                                                                   NAFR

           HIGH COURT OF CHHATTISGARH AT BILASPUR

                        MAC No. 191 of 2015
   • The Oriental Insurance Company Ltd. Company Ltd. Branch
     Ambikapur, Bramh Road, Ambikapur, District-Surguja, Chhattisgarh
                                                          ---- Appellant
                               Versus
  1. Basanti Bai Wd/o Late Thibhu Korwa Aged About 43 Years R/o
     Village Pandrapath, P.S. And Tahsil Bagicha Distt. Jashpur
     Chhattisgarh
  2. Sukhdev S/o Thibhu Korwa Aged About 25 Years R/o Village
     Pandrapath. P.S. And Tahsil Bagicha Distt. Jushpur, District :
     Jashpur, Chhattisgarh
  3. Basant Gupta S/o Khaknu Sao Aged About 35 Years R/o Village
     Chalgali, P.S. And Tahsil Lundra Distt. Surguja, District : Surguja
     (Ambikapur), Chhattisgarh
                                                       ---- Respondent

AND MAC No. 192 of 2015 • The Oriental Insurance Company Ltd. Company Ltd. Branch Ambikapur, Bramh Road, Ambikapur, District-Surguja, Chhattisgarh

---- Appellant Versus

1. Rukhmani Bai Wd/o Late Vrindkumar Jaiswal Aged About 50 Years R/o Village Chalgali P.S. And Tahsil-Lundra Distt. Surguja Chhattisgarh

2. Shailesh Kumar Jaiswal S/o Late Vrindkumar Jaiswal Aged About 28 Years R/o Village Chalgali P.S. And Tahsil-Lundra Distt. Surguja, District : Surguja (Ambikapur), Chhattisgarh

3. Basant Gupta S/o Khaknu Sao Aged About 35 Years R/o Village Chalgali, P.S. And Tahsil Lundra Distt. Surguja, District : Surguja (Ambikapur), Chhattisgarh

---- Respondent

For Appellant : Mr. Raj Awasthi, Advocate For Respondents No.1 & 2 : Mr. Rahul Mishra, Advocate For Respondent No.3 : Mr. S.P. Sahu, Advocate

Hon'ble Shri Justice P. Sam Koshy Order on Board 05/09/2022

1. Since the two appeals arise out of a common accident and the

ground of challenge being common, this Court proceeds to decide

the two appeals by this common judgment.

2. The brief facts of the case is that an accident took place on

28.09.2011 when the motorcycle bearing registration No. CG-

15/8332 was driven by one Vrind Kumar Jaiswal with a pillion rider

Thibhu Korva was hit by a tractor and trolley owned by the

respondent No.3 bearing registration No. CG-15/AE-0873 resulting

in the death of the two persons riding on the motorcycle. The legal

heirs i.e. the widow and son of the two deceased persons filed two

Motor Accident Claim Case. The legal heirs of deceased Thibhu

Korva filed Motor Accident Claim Case No. 77/2013 and the legal

heirs of deceased Vrind Kumar Jaiswal filed Motor Accident Claim

Case No. 81/2013.

3. Considering the entire facts and circumstances of the case and the

evidence adduced before the Tribunal, the Tribunal in Motor Accident

Claim Case No. 77/2013 in the case of "Basanti Bai and another v.

Basant Gupta and another" passed an award quantifying the

compensation payable at Rs.3,62,000 with interest @ 9% p.a.

Likewise, in Motor Accident Claim Case No. 81/2013 in the case of

"Rukhmani Bai and another v. Basant Gupta and another" the

Tribunal awarded an amount of Rs.3,14,000 with interest @ 9% p.a.

It is these two awards which is under challenge in the instant two

appeals.

4. The solitary ground of challenge is that from the plain reading of the

contents of the FIR lodged for the accident that took place on

28.09.2011 in which the two deceased persons had died would show

that it was not an accident that had arisen, but it was a deliberate act

on the part of the respondent No.3-the owner and driver of the

offending tractor. It is contended that the respondent No.3 had a

clear intention of eliminating the two deceased, with whom he had

some property dispute, dashed his tractor against the motorcycle in

which the two deceased persons were traveling.

5. Under the said circumstances, the contention of the learned counsel

for the appellant-insurance company is that for the deliberate act on

the part of the respondent No.3, the insurance company could not be

held liable for indemnifying the owner-insured. It was also the

contention of the learned counsel for the appellant-insurance

company that the respondent No.3-Basant Gupta, the owner and

driver of the offending tractor also stood convicted for the offence

punishable under Section 302 read with Section 3(2)(V) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 and he stood convicted with life imprisonment

and with fine sentence of Rs.3000.

6. At this juncture, learned counsel appearing for the parties submit that

the said judgment of conviction was put to challenge before the High

Court vide CRA No. 945/2015 and which vide judgment dated

26.02.2019 was partly allowed to the extent that the conviction of the

appellant under Section 302 of IPC stood altered and he stood

convicted and sentenced for the offence punishable under Section

304-A of the IPC.

7. Given the fact that the judgment of conviction under Section 302 of

the respondent No.3 has been set-aside/quashed by the High Court,

the grounds raised by the insurance company now on the ground of

he being prosecuted under Section 302 of IPC and getting convicted

by the trial court for the said offence does not survive any further.

8. It would also be relevant at this juncture to take note of the judgment

of the Hon'ble Supreme Court in the case of "Rita Devi (Smt) and

others v. New India Assurance Co. Ltd. and another" reported in

(2000) 5 SCC 113, wherein under similar circumstances the Hon'ble

Supreme Court dealing with the issue in paragraphs No. 10 & 18 has

held as under:

"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 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.

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."

9. Moreover, now that the respondent No.3-the owner and driver of the

offending vehicle who stands convicted for the offence under Section

304-A, the only act for which he stands convicted is the act of rash

and negligent driving. Thus on this which ground the appellant-

insurance company cannot be absolved of its liability, since they

have otherwise duly insured the offending vehicle owned by the

respondent No.3 and the grounds raised by the appellant for

assailing the two awards, therefore would not be sustainable. The

two appeals therefore being devoid of merits deserve to be and are

accordingly rejected. The award of the Tribunal stands affirmed.

Sd/-

(P. Sam Koshy) Judge Ved