Delhi High Court
Bajaj Allianz General Insurance ... vs Shakina & Ors. on 29 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: March 29, 2017
+ MAC.APP. 312/2009 & C.M.9112/2009
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD...Appellant
Through: Mr. Rajat Brar, Advocate
versus
SHAKINA & ORS. .....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
Vide impugned Award of 20th April, 2009, Motor Accident Claims
Tribunal (hereinafter referred to as „Tribunal) grants compensation of
`3,61,000/- with interest @7.5% per annum on account of death of Sadre
Alam in a road accident on 10th February, 2007. Recovery rights are also
granted by learned Tribunal to appellant-Insurer against respondent No.4-
owner of the vehicle in question.
In this appeal, challenge is to impugned Award on the ground that
instant case is not of typical road accident but is of murder and so,
appellant-Insurer is not liable to pay the awarded amount. To appreciate
the stand taken by appellant-Insurer, the brief facts need to be considered,
which are reproduced from impugned Award hereunder: -
"The brief facts as stated in the petition are that on 10-
02-2007 at about 6/6:30 a.m., Sadre Alam (since deceased) was
driving the TSR/autorickshaw bearing registration no.DL-1RF-
7907. On the date of incident, the TSR was hired by a passenger
namely Shahnawaz, s/o Nafees Khan from Zafarabad Madarasa
Auto Stand. Soon thereafter, in order to steal the TSR,
Shahnawaz shot dead the TSR driver Sadre Alam near Monestry
Fly-over. A case bearing FIR no.38/07 was registered u/s
279/304-A IPC at P.S. Civil Lines. The deceased was removed to
Aruna Asaf Ali Hospital where his post mortem was got
conducted. During the course of investigation, section
302/397/201 IPC were added to the FIR already registered. It
was stated that the death of the TSR driver Sadre Alam arose out
of the use of the TSR bearing no.DL-1RF-7907. He was earning
Rs.3,300/- per month. Hence, the present petition u/s 163-A of
M.V. Act against the respondent no.1, the owner of the TSR and
respondent no.2, the insurer of the TSR who were jointly and
severally liable to pay the compensation to the petitioner. It was
also stated that extra premium was also paid to cover the risk of
driver. Hence, R-2 was liable to pay the compensation to the
petitioners. It was clarified that the respondent no.3 Firoz was
the adopted son of the deceased and hence, had been made a
proforma respondent by the petitioners, who were the other LRs
of the deceased."
While relying upon evidence of wife of deceased and that of
Alalluddin, owner of TSR/autorickshaw in question and the evidence of
other formal witnesses, impugned Award has been rendered.
While entertaining this appeal, appellant was directed to deposit the
awarded amount and out of it, `50,000/- was to be released to
respondents-Claimants. Learned counsel for appellant submits that
interim order of 8th July, 2009 has been complied with. Vide order of 16 th
November, 2016, respondents have been set ex parte. In pursuance to the
last order, learned counsel for appellant has placed on record copy of trial
court's judgment of 5th July, 2010 in respect of FIR No.38/07.
The precise submission of learned counsel for appellant is that
Sadre Alam was murdered and in the criminal case, accused-Shahnawaz
has been convicted and so, owner of the vehicle in question is not liable
to pay and thus, vicariously appellant has no liability to pay compensation
amount. It is pointed out by appellant's counsel that as per evidence of
Alalluddin, owner of vehicle in question, deceased was not employee of
Allalluddin and so, appellant has no liability to pay the awarded
compensation. Thus, it is submitted by appellant's counsel that learned
Tribunal has erred in relying upon Supreme Court's decision in Rita Devi
(Smt) and Others v. New India Assurance Co. Ltd. and Another, (2000) 5
SCC 113 as instant case was of murder. So, it is submitted that this appeal
deserves to be allowed. Nothing else is urged on behalf of appellant.
Upon hearing and on perusal of impugned Award, the evidence on
record and Supreme Court's decision in Rita Devi (supra) as well as trial
court's judgment in the criminal case pertaining to FIR No.38/2007
registered regarding the accident in question, I find that deceased was a
driver of autorickshaw in question and in the process of robbing him of
the above-said autorickshaw, its driver was killed. It is so evident not
only from the version of Claimant but also from the trial court's judgment
in criminal case. No doubt, Alalluddin, owner of autorickshaw in
question, had deposed before learned Tribunal that deceased was not his
employee and that he had given this autorickshaw to the deceased for
plying it on hire basis. This by itself would not absolve owner of
autorickshaw in question from liability to pay the compensation as
deceased was driving the said autorickshaw after it was given to him on
hire basis by its owner.
In Tirlok Singh v. Kailash Bharti and Others, (1985) 2 ILR 263
(Punjab and Haryana High Court), the legal position on this aspect has
been clarified and it holds the field till date. The ratio of decision in
Tirlok Singh (supra) is that the owner would be liable if driver had
owner's authority either express or implied, to drive the vehicle. So,
appellant cannot be absolved of the liability to pay compensation.
Recovery rights have been rightly granted to appellant against owner of
vehicle in question by learned Tribunal.
In the instant case, the dominant intention was not to murder the
driver of autorickshaw in question, but was to steal the said autorickshaw
and in this process, the driver of said autorickshaw was accidently killed
and so, it cannot be said to be murder simplicitor. It is relevant to note
that learned Tribunal has rightly relied upon dictum of Supreme Court's
decision in Rita Devi (supra) to grant compensation awarded, which
appears to be reasonable.
In view of aforesaid, finding no substance in this appeal, it is
dismissed alongwith pending application.
(SUNIL GAUR)
JUDGE
MARCH 29, 2017
s
