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PETITIONER: SMT.RITA DEVI & ORS.

       Vs.

RESPONDENT: NEW INDIA ASSURANCE CO.LTD.  & ANR.

DATE OF JUDGMENT:       27/04/2000

BENCH: N.S.Hegde, D.P.Wadhwa

JUDGMENT:

     SANTOSH HEGDE, J.

     One  Dasarath  Singh was a driver of an auto  rickshaw owned  by  Lalit  Singh.   The   vehicle  in  question   was registered  as a public carrier vehicle used for hire by the passengers.    This   vehicle    was    insured   with   the respondent-Insurance Company.  On 22nd of March, 1995, it is stated  that  some unknown passengers hired the  above  auto rickshaw  from rickshaw stand at Dimapur between 5 to 6 p.m. It  is  also not in dispute that the said auto rickshaw  was reported  stolen and the dead body of driver Dasarath  Singh was  recovered  by  the  police on the next  day,  the  auto rickshaw  was never recovered and the claim of the owner for the   loss   of   auto  rickshaw   was   accepted   by   the respondent-Insurance  Company  and a sum of Rs.47,220/-  was settled by the said company towards the loss suffered by the owner.  One Darshan Singh claiming to be a Power of Attorney holder  of  the  present appellants filed a  claim  petition along with the present appellants under Section 163 A of the Motor  Vehicles  Act,  1988 (for short the  Act)  claiming damages  for the death caused to the deceased Dasarath Singh during  the course of his employment under Lalit Singh as  a death  caused  in  an  accident arising out of  the  use  of vehicle.   The Motor Accidents Claims Tribunal, Nagaland  as per  its  judgment  dated  24th of June, 1996  came  to  the conclusion that the death of the driver of the auto rickshaw (Dasarath Singh) was caused by an accident coming within the purview  of the Motor Vehicles Act, therefore, held that the owner  of the vehicle was liable to compensate the death  of the  driver  in money value.  Since there was  an  agreement between  the  vehicle  owner  and  the  respondent-Insurance Company  to  compensate  the employer of the  vehicle,  said legal   and  statutory  liability   stood  fastened  on  the respondent-Insurance  Company.  The tribunal also held  that the  quantum of claim of the claimants stood established and consequently  it awarded a sum of Rs.2,81,500/- against  the Insurance  Company with interest @ 12% on the amount awarded from  the  date of application till payment.  The  Insurance Company  preferred  an appeal by itself before  the  Gauhati High  Court  (Kohima Bench) in M.A.(F) No.8(K)96.  The  High Court  by its judgment dated 9.3.1998 came to the conclusion that  there was no motor accident as contemplated under  the Act.   The High Court further held that the case in hand was a  case  of murder and not of an accident, hence a  petition for  claim  under the provisions of the Act did  not  arise.

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The  High  Court,  accordingly, allowed the appeal  and  set aside  the  judgment  and the award made  by  the  tribunal. Originally, the above mentioned Power of Attorney holder had preferred  the above appeal making the wife and children  of the  deceased  as proforma respondents along with the  other respondent.   By  an  order  of this  Court  dated  18th  of February, 2000, this Court felt that to protect the interest of  the  heirs of the deceased the wife and children of  the deceased  should  be first impleaded as appellants  to  this appeal  and  the cause-title be amended, which  having  been done  and  notice  being issued, the  respondent-  Insurance Company  is  represented  before  us.   We  have  heard  the parties.   Leave granted.  On behalf of the appellants, Shri Anurabh Chowdhury contends that the deceased was employed to drive  the auto rickshaw for ferrying passengers on hire and on  the  fateful  day the auto rickshaw was  parked  at  the rickshaw  stand  at Dimapur and at about 5 to 6  p.m.   some unknown  passengers  had engaged the said auto rickshaw  for their  journey towards Singrijan area and thereafter nothing was known of the driver or rickshaw.  It is only on the next day  that  the authorities were able to recover the body  of the  deceased  and the auto rickshaw in question  was  never traced  till  date.   The owner of the  auto  rickshaw  has, therefore, been compensated by the Insurance Company for the loss of the said auto rickshaw, therefore, the murder of the deceased  Dasarath  Singh  squarely comes  within  the  word death  due  to  accident arising out of the use  of  motor vehicle  found in Section 163A(1) of the Act.   Consequently the  tribunal  was  justified in awarding  the  compensation claimed by the appellants.  He contended the word accident has  not  been defined under the Motor Vehicles Act and  the said   Act  being  a   beneficial  legislation,  a   liberal interpretation  should be given so as to achieve the objects of  the  Act.   He  contended that  the  deceased  being  an employee  was entitled for compensation both under the Motor Vehicles  Act and also under the Workmens Compensation Act, 1923.  However, under Section 167 of the Motor Vehicles Act, the  heirs  of  the deceased had a choice  either  to  claim compensation   under  that  Act  or  under   the   Workmens Compensation  Act.   The appellants having chosen to  invoke the  provisions of the Motor Vehicles Act, the Tribunal  was wholly  justified  in awarding the compensation,  while  the High  Court, according to him, without properly appreciating the  reasonings adopted by the tribunal has interfered  with the  just order of the tribunal.  He also contends that  the appeal  filed by the Insurance Company was not  maintainable for  not  having  obtained  the leave  of  the  tribunal  as required  under  Section  170 of the Act.  He  relies  on  a judgment  of  this Court in the case of Shankarayya  &  Anr. vs.  United India Insurance Co.  Ltd.  & Anr.  (1998 (3) SCC 140).   Ms.Pankaj  BalaVerma, appearing for the  respondent- Insurance   Company   does   not   in   fact   dispute   the maintainability  of  the  petition filed by  the  appellants under  Section  163A of the Motor Vehicles Act but  contends that  the  meaning  ascribed to the word accident  in  the Workmens Compensation Act by judicial pronouncements cannot be  applied to the word accident in the Motor Vehicles Act because  the  object  of the two Acts  are  different.   She supported  the judgment of the High Court by contending that on  the facts of the present appeal, the death of the driver of the auto rickshaw was caused by felonious acts of certain unknown  persons  and the same is not caused by an  accident arising  out  of  the  use of the  vehicle.   Regarding  the maintainability  of the appeal, she submits the judgment  of this  Court  was  reported  subsequent  to  the  High  Court

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Judgment,  hence  no fault could be found with the  impugned judgment  on  that score and no such objection was taken  in regard  to  the maintainability before the High  Court.   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 authorised 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 (emphasis  supplied).   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 (emphasis supplied), 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  which was accepted by the High Court  is that  the  death  of the deceased (Dasarath Singh)  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.

     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:

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     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.

     In  the  case of Nisbet vs.  Rayne & Burn (1910) 1  KB 689,  where  a cashier, while travelling in a railway  to  a colliery  with  a large sum of money for the payment of  his employers  workmen, was robbed and murdered.  The Court  of Appeal  held:   That the murder was an accident from  the standpoint  of  the person who suffered from it and that  it arose  out  of an employment which involved more than  the ordinary  risk, and consequently that the widow was entitled to  compensation under the Workmens Compensation Act  1906. In  this case the Court followed its earlier judgment in the case  of Challis (supra).  In the case of Nisbet, the  Court also  observed  that it is contended by the  employer  that this  was  not an accident within the meaning of the  Act, because it was an intentional felonious act which caused the death,  and  that the word accident negatives the idea  of intention.   In  my  opinion, this contention ought  not  to prevail.   I think it was an accident from the point of view of  Nisbet,  and  that it makes no  difference  whether  the pistol  shot was deliberately fired at Nisbet or whether  it was intended for somebody else and not for Nisbet.

     The  judgment of the Court of Appeal in Nisbets  case was  followed by the majority judgment by the House of Lords in  the  case of Board of Management of Trim Joint  District School  vs.   Kelly (1914 AC 667).  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 eliminate 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.  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

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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 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.

     In  the  case  of  Shivaji Dayanu Patil  &  Anr.   vs. Vatschala  Uttam  More (1991 (3) SCC 530) this  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.

     In  that case in regard to the contention of proximity between  the accident and the explosion that took place this 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.

     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

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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.   This leaves  us to consider the second point raised before us  by the  counsel  for the appellant.  It is argued on behalf  of the  appellants  that the appeal preferred by the  Insurance Company  purported  to  be under Section 173  of  the  Motor Vehicles  Act was not maintainable because prior  permission of the Court as required was not obtained by the appellants. In support of this contention of the appellants, reliance is placed  on  a  judgments  of  this  Court  in  the  case  of Shankarayya  &  Anr.  vs.United India Insurance (Co.Ltd.   & Anr.   1998  3  SCC 140).  In the said judgment  a  Division Bench  of  this  Court held :  The Insurance  Company  when impleaded  as  a  party  by the Court can  be  permitted  to contest  the  proceedings on merits only if  the  conditions precedent mentioned in Section 170 are found to be satisfied and  for that purpose the Insurance Company has to obtain an order  in  writing from the Tribunal and which should  be  a reasoned  order  by the Tribunal.  Unless that procedure  is followed,  the Insurance Company cannot have a wider defence on  merits than what is available to it by way of  statutory defence.   It  is  true that the  claimants  themselves  had joined  Respondent 1 Insurance Company in the claim petition but  that  was  done  with a view to  thrust  the  statutory liability  on  the  Insurance  Company  on  account  of  the contract  of  the insurance.  That was not an order  of  the Court  itself  permitting  the Insurance Company  which  was impleaded  to  avail of a larger defence on merits on  being satisfied  on  the  aforesaid two  conditions  mentioned  in Section  170.   Consequently,  it must be held that  on  the facts  of  the present case, Respondent 1 Insurance  Company was  not  entitled to file an appeal on merits of the  claim which was awarded by the Tribunal.

     We  respectfully agree with the ratio laid down in the above  case and in view of the fact admittedly the Insurance Company  had  not  obtained leave from the  tribunal  before filing  the  above appeal.  We are of the opinion  that  the appeal  filed by the Insurance Company before the High Court was  not  maintainable  in law.  For the  reasons  mentioned above,  this appeal succeeds, the judgment and order of  the High  Court  dated  9.3.1998 is set aside and  that  of  the Tribunal  dated  24.6.1996 is restored.  The appellants  are entitled to costs in all the counts.