Kantilal Baluram Shrimali vs Hemraj Bhavarlal Chauhan

This Appeal, under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’), is filed by the original-claimant arising out of the

judgment and award dated 31.01.2019, passed by the Motor Accident Claims Tribunal (Auxi.) & 4th Additional Sessions Judge, Bhuj-Kachchh (for

short ‘the Tribunal’) in Motor Accident Claim Petition No.557 of 2001.

Brief facts of the case are as under:

2.1. On 19.03.1995 at about 11 p.m., the appellant was standing at Chowk of Sector No.5, Gandhidham with his family members and at that time,

opponent No.1 had came from Ganesh Nagar side, driving Tempo No.GJ-12-T-8146, in rash, reckless and negligent manner and at an excessive

speed, without observing the rules of the road and without caring for the safety of the users of the road, lost control over the steering and the Tempo

dashed and collided with the claimant and his family members. The appellant sustained serious injuries including fracture injuries and one person

namely Praful Kantilal Shrimali died in the said accident.

2.2. The summons were duly served upon the opponents. The respondent No.1 and 2 did not appear before the Tribunal and filed written statement.

The respondent No.3 i.e. Insurance Company filed written statement vide Exh.18, denying the averments made in the claim petition in toto. It was

mainly contended that the said offence was registered at Gandhidham Police Station, for offences punishable under Sections 302, 307, 323, 324 and

Atrocity Act Section 3(1)(10) and charge sheet was also submitted against the accused/opponent No.1 before the Judicial Magistrate First Class

Court and the said case was committed to the Sessions Court, Bhuj and it was registered as Sessions Case No.38/1995 which was tried and the

respondent No.1 was convicted by judgment and order pronounced on 27.11.1998 by Additional Sessions Judge, Bhuj and ultimately, Insurance

Company prayed to reject the petition with costs.

The Tribunal considered the copy of the FIR at Exh.27 and the panchnama of the place of occurrence at Exh.28. The FIR at Exh.27 was lodged

against the respondent No.1 for the offences punishable under Sections 302, 307, 323, 324 of the Indian Penal Code and Section 3(1)(10) of the

Atrocity Act. As per the facts stated in the FIR, on 19.03.1995 at night about 10-00 hrs., the respondent No.1 Hemraj Bhanvarlal Chauhan along with

other two persons came with his Tempo bearing registration No.GJ-12-T-8146 to the house of complainant namely Kantilal Babulal Shrimali for

revising quarrel, but he went away when complainant requested him to be calm. Then the son of the complainant nemely Vinod went to the house of

brother of complainant to inform about the respondent No.1 as told by the complainant and the complainant’s brother came with his son Dhirubhai

and they discussed about the said incident and decided to confront to the respondent No.1 next morning and they had postponed lodging the complaint

for said incident and then the complainant and his son Praful, Kirti and Prakash went with the complainant’s brother for dropping them and at that

time the respondent No.1 came with his Tempo and hit the complainant and his three sons and Dhirubhai and all fell down. Thereafter, respondent

No.1 reversed the Tempo and repeatedly ran over the vehicle on all persons in full speed and hit one Manoj Karman and then flee away from the

place and victims received serious injuries. Considering the facts narrated in the complaint, the Tribunal came to the conclusion that the respondent

No.1 had driven his Tempo with an intent to murder all the victims and the claimant had received injuries from the said incident.

The Tribunal therefore, keeping in mind the facts stated in the FIR and the panchnama came to the conclusion that it was the case of intentional

murder and claimants sustained injuries from the said incident by vehicle Tempo bearing registration No.GJ-12-T-8146, used in the incident as a tool

by the respondent No.1.

The Tribunal thereafter considered the provision of Section 163A as well as Section 166 of the Act which provides that the victim can file an

application for compensation “arising out of an accident of the nature specified in Sub-section (1) of Section 165â€. Therefore, the Tribunal relying

upon the interpretation of words “arising out ofâ€, used in various statute in different context, came to the conclusion that the victim is entitled to

the compensation only if the injuries/death arise out of the use of vehicle and there has to be a causal relationship between the use of vehicle in the

accident, resulting into the death or permanent disablement. Such connection need not be direct and immediate as it emerges from the facts on record

that it was the case of intentional murder and the claimants has sustained injuries along with other persons and one person died in this incident and the

vehicle Tempo No.GJ-12-T-8146 was used for offence of murder.

Thereafter considering the oral and documentary evidences on record, it was held that the injuries were caused to the claimant with respect of the

intention to murder arising out of the use of motor vehicle Tempo and therefore, it is not a case of an accident so as to award just and fair

compensation to the claimants.

The Tribunal held that there was no accident as per the provisions of the Act which entitled the claimants to just and fair compensation. The

Tribunal did not decide the amount of quantum, and rejected the claim petition filed by the appellant-claimant.

Learned advocate Mr.K.R.Dave for the claimant submitted that the Tribunal arrived at a conclusion of intentional murder without there being any

cross-examination of the respondent No.1, who did not remain present before the Tribunal. It was further submitted that the Tribunal did not consider

the fact that the Motor Accidents Claim Petition No.528 of 1996 was allowed by the Tribunal by judgment and award dated 16.05.1999 arising out of

the same accident and said award was accepted by the Insurance Company and therefore, different stand could not have been taken by the Tribunal.

It was submitted that the said judgment of the Tribunal, rendered in Motor Accident Claims Petition No.528 of 1996, was challenged in the First

Appeal No.558 of 1999 before this Court and the said appeal was dismissed by order dated 01.11.1999, by the Division Bench of this Court.

It was further submitted that Section 165(1) of the Act provides for the accident arising out of the motor vehicle and therefore, as the involvement

of the vehicle has been established, the Tribunal could not have dismissed the claim petition. It was submitted that the facts stated in the FIR regarding

voluntary act was negated by the Sessions Court and the findings of the Sessions Court have been confirmed by the Division Bench of this Court, in

Criminal Appeal No.103 of 1998, vide judgment dated 10.04.2003.

Learned advocate for the appellant further submitted that the respondent-insurance company did not raise any objection in the cross-examination,

to the effect that the vehicle involved in the accident was used for murder and therefore, no ground could have been taken by the insurance company

in absence of any issue being framed by the Tribunal to that effect.

I have heard the learned advocate for the appellant and also perused the paper book submitted by the appellant and therefore, the Record and

Proceedings are not called for as the appeal is taken up for hearing, considering the documents submitted by the appellant.

In all, there were ten claim petitions, filed by different claimants for compensation before the Tribunal, arising out of the same incident which had

taken place on 19.03.1995. All the claimants of the ten claim petitions were belonging to one family of two brothers and their family members, who

were involved in the incident which took place on 19.03.1995. It is claimed that the claimants were standing near the house of one Karmanbhai

Ramjibhai Charan at Chowk of Sector No.5, Gandhidham and the respondent No.1 by driving tempo in full speed and in rash and negligent manner,

dashed against the applicants and one of them died whereas others sustained injuries.

A criminal case was registered under Section 302, 307, 323, 324 of the Indian Penal Code and under Section 3(1)(10) of the Atrocity Act before

the Gandhidham Police Station and after filing the charge-sheet, the case was committed before the Sessions Court being Sessions Case No.38 of

1995 which was tried by the Sessions Judge, Bhuj and after examining the witnesses and the claimants and by judgment and order dated 27.11.1998,

the respondent No.1 was convicted. Thus, the claimants were aware about the motive for committing offence which was suppressed before the

Tribunal with regard to the use of vehicle for the purpose of committing the aforesaid offences, under the Indian Penal Code.

This Court in the Criminal Appeal No.103 of 1998 confirmed the order of conviction passed by the Sessions Court under Section 304 of the Indian

Penal Code, instead of under Section 302 of the Indian Penal Code.

With regard to the Motor Accident Claims Petition No.528 of 1996 is concerned, the same was filed under Section 163A of the Act and therefore,

the Tribunal relying upon the provisions of Section 163A of the Act, did not decide issue of negligence and awarded the compensation as per the

structured formula. Therefore, reliance placed by the learned advocate on the judgment and award in the Motor Accident Claim Petition No.528 of

1996, is misplaced as the claim filed by the appellant is under Section 166 and not under Section 163A of the Act.

Learned advocate for the appellant also relied upon the decision of this Court in the case of National Insurance Company V/s. Gitaben Saitansinh

Rajput reported in 2009 LawSuit (Guj) 147 to submit that the Tribunal has committed an error in not considering the fact that the claimants sustained

injuries due to use of motor vehicle and therefore, the claimants are entitled to just and fair compensation.

However, in the facts of the case before this Court in the aforesaid decision has come to the conclusion that the incident occurred is covered by

the accident, as it was not a simplicitor murder. It is the intentional murder because driver was driving/working on the vehicle in which he was sent for

duty and meanwhile, reaching from Jaipur, he was found to be murdered by some unknown person.

Therefore, the Court held that the accident occurred with an intention of murder by use of motor vehicle and the jurisdiction of the Motor Accident

Claims Tribunal is not restricted to the Motor Vehicle Act. Moreover, the aforesaid judgment was rendered by this Court was in the claim petition

filed under Section 163A of the Act.

However, in the facts of the present case, the Motor Accident Claims Tribunal has rightly considered the FIR and Panchnama at Exh.27 and

Exh.28 respectively and the scope of provisions of Section 163A read with Section 165 to come to the conclusion that the use of vehicle in question

was with intention to murder and there was no accident which would entitle the appellant-claimant to any compensation.

The Apex Court in the case of Rita Devi V. New India Assurance Company Ltd. reported in 2000(0) GLHEL 78113 (Supreme Court) has held as

under:

“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.â€​

From the above observation of the Apex Court, in the case of Rita Devi V. New India Assurance Company Ltd. reported in 2000(0) GLHEL

78113 (Supreme Court), the Apex Court has placed reliance upon the decision of the Challis V/s. London and South Western Railway Co. (1905)2

KB 154 where an engine driver, while driving a train under a bridge was killed by a stone, willfully dropped on the trail by a boy from the bridge and

the injuries were sustained by the said accident. Rejecting the arguments that the said incident cannot be treated as an accident, the Court of appeal

held that “the accident which befell the deceased 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 mischiefs that the legislature intended, so, it 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 V. Rayne & Burn (1910) 2 KB 689, where a

cashier, while traveling in a railway to a colliery with a large sum of money for the payment of his employer’s 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

Workmen’s Compensation Act, 1906.

However, in the facts of the present case, by use of motor vehicle being Tempo No.GJ-12-T-8146 to commit murder it cannot be said that there

was an accident but it was an intentional felonious act of murder and therefore, the provisions of the Act cannot be attracted for the injury or death

arising out of the use of vehicle to commit murder.

In view of the above undisputed facts and circumstances of the case it cannot be said that the Tribunal has committed any error rejecting the

claim petition of the claimant. There is no infirmity in the impugned judgment and award of the Tribunal which is based on the facts of the case that

the incident was not arising out of use of the Motor Vehicle resulting into an accident but it was a motor vehicle being Tempo No. GJ-12-T-8146

which was deliberately used with an intention to commit murder of the claimants and therefore the claimant is not entitled to any compensation as

there was no accident which has taken place by use of vehicle.

The appeal is therefore, being devoid of any merit and the same is rejected summarily.