Jharkhand High Court
Bajaj Allianz General Insurance ... vs Rinku Devi on 9 February, 2023
-1- M.A. No. 100 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 100 of 2016
Bajaj Allianz General Insurance Co. Ltd., having its office at
1st Floor, 8th Avenue, Southern Town, P.O. and P.S.-Bistupur,
Jamshedpur.
..... ... Appellant
Versus
1. Rinku Devi, wife of Late Sanjeev Kumar Singh.
2. Suman Kumar, son of Late Sanjeev Kumar Singh
3. Muskan Kumari, daughter of Late Sanjeev Kumar Singh
[Respondent Nos. 2 and 3 are minors and are being
represented through their mother as natural guardian, Rinku Devi,
respondent No. 1, as their next friend]
All residents of Padma Road No. 10, Basti, P.O.-Golmuri,
P.S.-Sidhgora, Town Jamshedpur, District- East
Singhbhum.
4. Rajey Kumar, son of D.L. Singh, resident of Padma Road No. 10,
Basti, P.O.-Golmuri, P.S.-Sidhgora, Town Jamshedpur, District-
East Singhbhum.
..... ... Respondents.
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Appellant : Mr. Alok Lal, Advocate
For the Resp. Nos. 1 to 3 : Mr. J.N. Upadhyay, Advocate.
For the Resp. No. 4 : Mr. Gautam Kumar Pandey, Advocate.
------
C.A.V. on 30.01.2023 Pronounced on 09th.02.2023.
1. Heard Mr. Alok Lal, learned counsel for the appellant, Mr.
J.N. Upadhyay, learned counsel for the claimants [respondent Nos. 1 to
3] and Mr. Gautam Kumar Pandey, learned counsel for the owner
[respondent No. 4].
2. The present appeal has been filed being aggrieved and
dissatisfied with the judgment/award dated 22.09.2015, passed by the
learned District Judge-III-cum-Motor Vehicles Accident Claims
Tribunal, Jamshedpur, in Compensation Case No. 99 of 2010.
3. The compensation case was filed by widow and children of
the deceased, who died in the road accident. It has been alleged that
vehicle was owned by brother of the deceased, however, it was
managed by deceased and deceased was earning Rs. 13,000/- per
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month. It has further been alleged that deceased went to Ranchi with
friends, however, later on the pretext of illness of grandmother of
Harish, he was taken to Bihar and was murdered. It has been further
alleged that at the time of accident, vehicle was insured with the
insurance company and insurance policy was comprehensive policy and
regarding income of the deceased, PAN Card and IT Return have been
filed.
4. Mr. Alok Lal, learned counsel appearing for the appellant
insurance company has submitted that the learned tribunal has erred in
awarding the claim to the extent of Rs. 6,24,000/-, as the same has been
awarded without appreciating the legal proposition as well as the facts
of the case. He has submitted that the learned tribunal has ignored the
fact that the deceased did not have any driving license, nor the name of
any driver has been mentioned or driving license of such driver has
been produced. He further submitted that a petition under Section 140
of the Motor Vehicles Act was filed, in which, the insurance company
was exonerated to pay the amout, however, owner was directed to
comply the said statutory provision. He further submitted that the
learned tribunal failed to consider that under Section 140 of the Motor
Vehicles Act, the tribunal in deciding the Claim Case No. 77 of 2008
has exonerated the appellant-insurance company from payment of any
compensation under Section 140 of the Motor Vehicles Act and the
liability of compensation has been fixed upon the owner insured alone
and as such, it is not open for the tribunal to pass different order in
separate, when the issue and facts are same depending on similar facts
and circumstances of the case. He further submitted that the nature of
death of the deceased will not come under the category of accident
arising out of Motor Vehicles Act, nor any alleged accident or death has
taken place due to looting and snatching of the vehicle, as such the
claims tribunal has wrongly assumed jurisdiction to adjudicate the
claim under the provisions of Motor Vehicles Act. He has further
submitted that at best insurance company can comply the order and the
recovery may kindly be allowed to be recovered from the owner.
5. To buttress his argument, he relied in the case of Dhela Rani
& Ors. Versus Deepak Prasad & Ors., reported in
-3- M.A. No. 100 of 2016
MANU/JH/0984/2008 and submits that the Division Bench of this
Court in a case of murder has not allowed the claim application and
award was held to be a good one, considering that learned tribunal has
not awarded the compensation considering that it was a simplicitor
murder.
6. On the violation of the policy, he relied in the case of New
Indian Assurance Company Versus Sadanand Mukhi & Ors., reported
in 2008 0 Supreme (SC) 1910 and submitted that in this judgment, the
Hon'ble Supreme Court has considered that there is clear distinction
between statutory policy and contractual policy and the insurance
company would have no liability towards the injured suffered by the
deceased, who was a pillion rider.
7. On the aforesaid grounds, learned counsel appearing for the
appellant-insurance company has submitted that the award passed by
the learned tribunal may kindly be set aside.
8. On the other hand, learned counsel appearing for the
claimants as well as owner jointly submitted that Issue Nos. 1 and 3
were framed by the learned tribunal on the point of deceased died in
course of employment and the owner of the vehicle has not violated any
terms and conditions of the insurance policy including the requirement
of valid driving license and in that view of the matter, there is no
illegality in the award, as the learned tribunal has decided both the
issues with a cogent reason, as such, no interference of the High Court
is required. They further jointly submitted that this appeal may kindly
be dismissed.
9. While deciding Issue No. 1, which was with regard to
whether the deceased died in course of employment or not, the
learned tribunal has taken into consideration the evidence of Rinku
Devi, who is the widow of deceased Sanjeev Kumar Singh and had
come to the conclusion that there is no dispute with regard to
relationship with the appellant and the deceased. A.W.-1 and A.W.-2
have stated that the deceased was looking into the Scorpio and other
trucks of his brother Rajeev Kumar. They have further stated that in
consideration of managing transport business of his brother, her
deceased husband was getting Rs. 13,000/- per month. A.W.-1 further
-4- M.A. No. 100 of 2016
stated that on 26.05.2008, her husband went to Ranchi on Scorpio No.
JH-05-E-2523 and later on, on the pretext of ailment of his grandfather
her husband was taken to Bihar and he was killed. In her cross-
examination, she has reiterated that her husband used to look after the
vehicles. She has further disclosed that the vehicle was not given on
hire. A.W.-2 Deo Lagan Singh has also stated that the deceased used to
look after the trucks and scorpio of Rajeev Kumar Singh, who is elder
brother of the deceased. He has also certified the income of the
deceased. The learned tribunal has further considered that the FIR has
been lodged by the father of the deceased and due to dispute with
regard to finance of vehicle with Ravi and other persons, there was
apprehension about some untoward incident with his son. Chargesheet
was submitted. Post-mortem examination was also conducted, so death
was admitted.
10. While deciding this issue, the learned court has taken into
consideration the judgment of Hon'ble Apex Court in the case of Rita
Devi (Smt.) & Ors. Versus New India Assurance Co. Ltd. & Anr.,
reported in (2000) 5 SCC 113 and considering that judgment, learned
tribunal has come to the conclusion that someone has been killed in
course of employment, such accidental murder would be an accident.
The learned tribunal has also taken into consideration the relevant
provision under the Workmen Compensation Act with regard to come to
the conclusion that whether the deceased was employed or not and the
learned tribunal has further come to the conclusion that only because
the deceased was the brother of the owner of the vehicle, cannot deny
the status of the employee and employer and considering all these
aspects, the said issue was decided in favour of the applicants.
11. Reference may be made to the relevant provisions of the
case of Rita Devi (Smt.) & Ors. (Supra), which are quoted
hereinbelow:-
"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
-5- M.A. No. 100 of 2016
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.
15. 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 her, the objects
of the two Acts are entirely different. She 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 Workmens 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
-6- M.A. No. 100 of 2016
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."
12. The "accident" and "murder" was also considered in the
case of United India Insurance Co. Ltd. Versus Kamlesh & Ors.,
reported in (2017) SCC Online Del 9853, wherein the Delhi High
Court at paras-14 and 15 thereof has held as follows:-
14. In United India Insurance Company Ltd. v.
Kanshi Ram, 2006 ACJ 492 (Delhi High Court), a
truck going from Delhi to Hyderabad went missing.
The police during investigation, located the truck
and found that some of the goods being transported
in the truck were stolen and the driver was
murdered. The legal representatives of the deceased
filed an application for compensation before the
Commissioner, Workmen's Compensation which
was allowed. The insurance company challenged
the order in appeal. Following Rita Devi (supra),
Madan B. Lokur, J. as he then was, held the murder
to be an accident. The Delhi High Court cited with
approval the three English cases, namely, Nisbet v.
Rayne and Burn (supra), Board of Management of
Trim Joint District School v. Kelly, 1914 A.C. 667
and Clover, Clayton and Company, Ltd. v. Hughes,
1910 A.C. 242. The Delhi High Court also cited the
judgments of other High Courts, namely, Bhagubai
v. Central Railway, A.I.R. 1955 Bom. 105, Satiya v.
Sub-Divisional Officer, Public Works Department
Narsimhapur 1974 (2) L.L.N. 204, Varkeyachan v.
Thomman 1979 (1) L.L.N. 477, United India
Insurance Company Ltd. v. Philo 1996 (3) L.L.N.
116 and Parle Products, Ltd. v. Subir
Mukherjee 2001 (I) L.L.J. 964. The relevant portion
of the said judgment is reproduced hereunder:-
"3. Sohan Lal was working as a driver with
M/s. Manoj Roadlines. As a part of his duties, he
was taking a truck from Delhi to Hyderabad
alongwith a second driver Jeet Singh. It appears
that somewhere in Rajasthan, he was murdered.
The truck was missing for a few days and when
the police located it during investigation, it was
-7- M.A. No. 100 of 2016
revealed that some of the goods that were being
transported in the truck were stolen.
Investigations also revealed that Jeet Singh had
committed the murder.
xxx xxx xxx
7. What is an accident, and when can it be said
that a murder is an accident?
8. Nisbet v. Rayne and Burn [1910 (2) K.B.D.
689], is a leading case on this subject. A
cashier was travelling 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, 1923.
9. Similarly, in Board of Management of Trim
Joint District School v. Kelly [1914 A.C. 667],
an assistant master at an industrial school was
assaulted and killed by two pupils while he was
performing his duties. The House of Lords held
that for the purpose of the same statute, his
death was caused by an accident. Viscount
Haldane, L.C. pointed out that the meaning of
the term "accident" would vary according as
the context varies, and as instances mentioned
criminal jurisprudence where crime and
accident are sharply divided by the presence or
absence of mens rea and the law of marine
insurance where the maxim: In jure non remota
cause sect proximo spectator (in law the
proximate, and not the remote, cause is to be
regarded) applies.
10. In Clover, Clayton and Company, Ltd. v.
Hughes [1910 A.C. 242], Lord Loreburn, L.C.
said:
"What, then, is an „accident‟? It has been
defined in this House as an unlooked for
mishap or an untoward event, which is not
expected or designed."
11. Our Supreme Court in Rita Devi v. New
India Assurance Company, Ltd., [(2000) 5 SCC
113], dealt with a case in which the driver of
an auto rickshaw was murdered by his fare
paying passengers. The passengers intended to
-8- M.A. No. 100 of 2016
steal the auto rickshaw, for which they had to
eliminate the driver. On these facts, the
Supreme Court held that the death of the driver
was caused accidentally in the process of
committing theft of the auto rickshaw.
12. In Bhagubai v. Central Railway [A.I.R.
1955 Bom. 105] (Bombay High Court), the
deceased was stabbed to death while he was on
his way to join duty. It was not disputed that the
death was a result of an accident or that it
arose in the course of his employment. The
dispute was whether it arose out of the
employment of the deceased. The Division
Bench held at page 404 as follows:
"Now, it is clear that there must be a causal
connection between the accident and the
employment in order that the Court can say
that the accident arose out of the employment
of the deceased. It is equally clear that the
cause contemplated is the proximate cause and
not any remote cause. The authorities have
clearly laid down that if the employee in the
course of his employment has to be in a
particular place and by reason of his being in
that particular place he has to face a peril and
the accident is caused by reason of that peril
which he has to face, then a causal connection
is established between the accident and the
employment. It is now well settled that the fact
that the employee shares that peril with other
members of the public is an irrelevant
consideration. It is true that the peril which he
faces must not be something personal to him;
the peril must be incidental to his employment.
It is also clear that he must not by his own act
add to the peril or extend the peril. But if the
peril which he faces has nothing to do with his
own action or his own conduct, but it is a peril
which would have been faced by any other
employee or any other member of the public,
then if the accident arises out of such peril, a
causal connection is established between the
employment and the accident. In this particular
case what is established is that the employee
while in the course of his employment found
himself in a spot where he was assaulted and
-9- M.A. No. 100 of 2016
stabbed to death. He was in the place where he
was murdered by reason of his employment. He
would have been safely in his bed but for the
fact that he had to join duty, and he had to pass
this spot in order to join his duty. Therefore,
the connection between the employment and
accident is established. There is no evidence in
this case that the employee in any way added to
the peril. There is no evidence that he was
stabbed because the assailant wanted to stab
him and not anybody else."
Thereafter, at page 405-406, it was held as
under:
"Once the peril is established, it is for the
employer then to establish either that the peril
was brought about by the employee himself, or
that the peril was not a general peril but a peril
personal to the employee. It is because of this
that the authorities have made it clear that the
causal connection between the accident and the
employment which the applicant has to
establish is not a remote or ultimate connection
but a connection which is only proximate. Once
that proximate connection is established the
applicant has discharged the burden, and in
this case the proximate connection between the
employment and the injury is the fact that the
deceased was at a particular spot in the course
of his employment and it was at that spot that
he was assaulted and done to death."
13. In Smt.Satiya v. Sub-Divisional Officer,
Public Works Department 9 Buildings and
Road), Narsimhapur [1974 (2) L.L.N. 204], 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 wilful
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.
-10- M.A. No. 100 of 2016
14. In Varkeyachan v. Thomman [1979 (1)
L.L.N. 477], was a case in which an employee
engaged to do odd jobs dies as a result of stab
injuries received while on duty. The Division
Bench held the injury to be an accident
sustained by the deceased in the course of his
employment.
15. The question that arose for consideration
in United India Insurance Company Ltd. v.
Philo [1996 (3) L.L.N. 116], was whether the
killing of a workman while he was in the course
of his employment, by an unknown person, can
be considered as death caused as a result of an
accident arising out of his employment? In this
case the deceased was the driver of a taxi. He
had taken some tourist out of town. He did not
return from the tour and it was reported that he
was killed and somebody stole the taxi. The
Division Bench answered the question in the
affirmative and held in Paras. 7 and 8 of the
report:
"7.... But for the engagement as the driver of
the taxi, the deceased would not have been in
the place and in the situation where he was at
the time when he was killed. The casual
connection is complete and we have no doubt,
in our mind to hold that the accident which has
resulted in the death of the workman has arisen
out of the employment.
8. The contention that the claimants have failed
to discharge their burden to prove the causal
relationship between the accident and the
employment is only to be rejected in the light of
the observations contained in Bhagubai v.
General Manager, Central Railway [A.I.R.
1955 Bom. 105] (vide supra), with which we
respectfully agree."
16. Parle Products, Ltd. v. Subir
Mukherjee [2001 (I) L.L.J. 964], was a case in
which an employee was travelling from
Calcutta to Puri by train to attend an official
conference. On the way, he was assaulted and
thrown out of the Railway compartment. He
sustained multiple injuries including a head
injury and became permanently physically
disabled. The Division Bench held that there
-11- M.A. No. 100 of 2016
had been an accident, and that the accident had
a causal connection with the employment
inasmuch as the workman was travelling in the
train to attend a conference organized by the
employer in terms of a direction issued in that
regard to him. Thus, it was held that the
accident occurred in the course of his
employment.
xxx xxx xxx
21. No evidence was led by the appellant to
suggest that the dominant purpose of Jeet Singh
was to kill Sohan Lal and not to commit theft.
Under the circumstances, this argument is not
at all available to learned counsel for the
appellant.
(Emphasis supplied)"
15. In DTC v. Shakeela Parveen, 2014 ACJ 688
(Delhi High Court), the driver of a DTC bus was
murdered on duty. The application for
compensation was allowed by the Claims Tribunal
which was challenged by DTC. G.P. Mittal, J.,
following Rita Devi (supra) and Kanshi Ram
(supra), held the murder to be an accident and
dismissed the appeal. Relevant portion of the said
judgment is as under:-
"11. The present case is squarely covered by the
report of the Supreme Court in Rita Devi and a
judgment of this Court in Kanshi Ram.
12. Turning to the facts of this case, admittedly
the robbers wanted to rob the passengers. There
was an alarm that pocket of a passenger has
been picked. Possibly either there was some
resistance or an objection to the act of robbery
by the deceased which led to his stabbing by the
robbers. Thus, the act of committing robbery
was the felonious act intended by the robbers
and the act of stabbing or causing death was
originally not intended and the same was caused
only in furtherance of the act of robbery. Thus,
there is no escape from the conclusion that the
death of Zamil in the instant case was accidental
arising out of the use of bus No. DL-1P-9753."
13. In view of the above, there is not illegality in coming to the
finding that the deceased was an employee of his brother, Rajeev
-12- M.A. No. 100 of 2016
Kumar Singh and that's why, that point is not accepted by this court.
14. The judgment relied by Mr. Alok Lal, learned counsel
appearing for the appellant-insurance company in the case of Dhela
Rani (Supra) was not in dispute, the fact of the case is different from
the case in hand, as in that case, the deceased had quarreled with the
driver of the offending vehicle on the issue of taking the passengers and
the co-ordinate Bench of this Court held that there was criminal
intention to kill the deceased and that's why not awarded the
compensation. Thus, this case is not helping the appellant. Further in
the case of Sadanand Mukhi's Case (Supra), relied by the appellant is
on the point of statutory policy and contractual policy and the Hon'ble
Apex Court held that the injuries suffered by the deceased, who was the
pillion rider, as the insurance policy was the statutory policy, which did
not cover the gratuitous passenger holding that the insurance company
was not liable to pay any compensation. The issue of the case in hand is
different, thus this case is also not helping the appellant.
15. So far as argument of Mr. Alok Lal, learned counsel with
regard to driving license is concerned, the learned tribunal has decided
the issue No.2 and issue No. 3, which were with regard to violation of
the terms and policy of the insurance policy and considering that the
witness of the insurance company Abhishek Shahi produced the
insurance policy, which was Exhibit-C and on perusal of Exhibit-C,
learned tribunal found that the insurance policy filed by the insurance
company, the premium of Rs. 25 has been paid by the owner of the
vehicle, which is in connection with IMT 29, which is for employee
insured notwithstanding anything contrary to the contents of the policy.
The learned tribunal has found that Insurance Company has not been
able to prove that driving license was not valid. It is well settled that the
onus lies on the party to prove the particular point, on which, the
argument is being advanced.
16. Considering the aforesaid provision of the policy, the
learned tribunal found that there is no cogent evidence to give a finding
that the deceased was behind the wheel at the time of accident and it
was not the case of the appellant-insurance company that the deceased
was paid driver and in view of that the learned tribunal has held that the
-13- M.A. No. 100 of 2016
endorsement of IMT-29 has covered the deceased and it was incumbent
upon the insurance company to establish the absence of valid driving
license and violation of other terms and conditions of the policy, which
has not been done by the insurance company. As such, learned tribunal
has held that the insurance company has failed to establish the violation
of terms and conditions of the policy and accordingly, that issue was
decided against the insurance company.
17. In view of the above reasons and analysis, the court finds
that there is no illegality in the award and accordingly, this appeal is
dismissed.
18. Let the Lower Court Records be sent back to the concerned
court forthwith.
(Sanjay Kumar Dwivedi, J.)
Jharkhand High Court, Ranchi.
Dated the 9th of February, 2023.
NAFR/ Amitesh/-
