Kaushalya Bai and Others vs Ram Kishan Kirar and Others

Arun Mishra, J.

Claimants have filed the present appeal aggrieved by dismissal of their claim petition which was filed u/s 166 of the Motor Vehicles Act, 1988. The Appellants claimed compensation for the death of Shambhu Dayal Sharma, in an accident dt. 11.6.1990, who was serving as a Forest Guard in the Forest Department and was posted at Kolaras district Shivpuri. Claimants averred in the claim petition that at about 6-6:30 p.m. when the deceased was performing his duty at village Ropura, within the periphery of police station Tenduwa, non-applicant No. 2 Bhanu @ Chandrabhan son of Ramkishan Kirar was driving the tractor trolley in question, which was owned by non-applicant No. 1 Ramkishan Kirar, at that time, deceased Shambhu Dayal Sharma intercepted the tractor trolley to check it as it was carrying in it forest produce, wood etc. which were collected by committing theft in forest area. As soon the Forest Guard Shambhu Dayal Sharma came in front to note down the registration number of the tractor trolley, the driver drove it on being instigated by one Kalla sitting in the tractor, as a result of which deceased Shambhu Dayal Sharma was dashed by the tractor and suffered injuries on his legs, back, chest and at several other places. He succumbed to the injuries. The report of the incident was lodged. A case u/s 302/34 IPC was registered against Bhanu @ Chandrabhan and Kalla. The accident was caused by Bhanu @ Chandrabhan. The tractor and trolley were insured with the New India Insurance Co. Ltd. The non-applicants; driver, owner and insurer were responsible jointly and severally to compensate the claimants. The deceased was earning Rs. 1100/- per month and the dependency of family on him was Rs. 700/- per month, Besides, the family also owned agricultural land. The agriculture operation also suffered owing to death of deceased Shambhu Dayal Sharma. A total sum of Rs. 1.17,200/- was claimed as compensation. The non-applicants No. 1 and 2 in their joint written statement denied the accident. They contended that since the allegation of death is by way of murder, not by an act of rash and negligent driving, hence the claim petition is not maintainable and Government has also paid money by way of settling service benefits owing to death during the course of employment. The claim petition could not be tried u/s 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ''the 1988 Act'') by Motor Accidents Claims Tribunal,

The insurer; New India Insurance Co. Ltd. also raised preliminary objection on 25.8.1992 as to the maintainability of the claim petition before the claims Tribunal. The claims Tribunal without recording the evidence of the parties, allowed the preliminary objection and came to the conclusion that as the death was caused intentionally or at least with the knowledge that the act was likely to cause death, hence, for the tortious liability arising from the same, suit for damage could be filed before the Civil Court and the Motor Accidents Claims Tribunal had no jurisdiction to try the case.

An application filed u/s 140 of the 1988 Act for directing payment of interim compensation has also been dismissed by the impugned order. The present appeal has been filed by the Appellant assailing the order passed by the learned find Addl. Motor Accidents Claims Tribunal, Shivpuri on 2.9.1992 in Claim Case No. 26/90. on both counts.

Shri K.N. Gupta, leanred counsel appearing for the Appellants/claimants submits that the Motor Accidents Claims Tribunal was having the jurisdiction to try the case since the death of Shambhu Dayal Sharma arises out of use of the motor vehicle. The intention was to commit theft of wood and to take away the material and also to prevent the seizure of the tractor trolley. Murder, as a matter of fact, was not intended. The same was caused if at all it was a case of murder in furtherance of other felonious act of theft and prevent the tractor trolley being seized. Thus, the murder is an accidental act. He further submits that as far as third party is concerned, it is an accident arising out of use of motor vehicle, irrespective of fact that murder in fact was intended. Hence, the Claims Tribunal has the jurisdiction. Learned Counsel alternatively submits that without recording the evidence the Claims Tribunal has erred in dismissing the Claim Petition.

Shri R.D. Jain, learned senior counsel appeared as Amicus Curiae and has also supported the submissions raised by learned Counsel for the Appellants Shri K.N. Gupta. Both the counsel have pressed into service various decisions. Shri Jain submits that ratio of decision in Rylands v. Fletcher, LR (1868) 3 HL 330 has been further advanced in various decisions and accident includes an act which may be intended or caused by sheer negligence. Thus, the Claims Tribunal had the jurisdiction to try the case. Hence, the impugned order deserves to be set aside.

Shri B.N. Malhotra, learned Counsel appearing for Respondent No. 3 has submitted that the allegation in the claim petition makes out a case of an intentional murder, thus, the insurance company cannot be held liable for such an international murder and it cannot be termed as an accident within the purview of the 1988 Act and liability, if any, is under the law of torts for the act and is triable by a civil court and not by Motor Accidents Claims Tribunal in a claim petition under the 1988 Act.

Law of Torts is a developing law. The concept of ''strict liability'', ''absolute liability'' and ''fault liability'', give rise to action in tort. The difference has been explained by their Lordship of the Supreme Court in case of Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat, between ''strict liability'', and ''fault liability'' arises from presence and absence of mental element. A breach of legal duty wilfully or deliberately or even maliciously is negligence emanating from fault liability but injury or damage resulting without any intention yet due to lack of foresight, etc., is strict liability. Since the duty is the primary yardstick to determine the tortious liability its ambit keeps on widening on the touchstone of fairness, practicality of the situation, etc. Their Lordship further observed that truly speaking, entire law of Torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever-expanding and growing horizon of tortious liability. The liberal approach to tortious liability by courts is more conducive. In Read v. J. Lyons & Co. Ltd., (1946) 2 All ER 471, it was observed that damage caused by escape of cattle to another land was a case of pure trespass constituting a wrong without negligence. Thus negligence is only descriptive of those sum total of activities which may result in injury or damage to the other side for failure of duty, both legal or due to lack of foresight and may comprise of more than one concept known or recognised in law, intended or unintended. Their Lordship held that the rule in Rylands v. Fletcher, LR (1868) 3 HL 330, has not been modified by the Supreme Court in State of Punjab Vs. Modern Cultivators, Ladwa, .

The apex Court in case of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, considered the provisions of Section 92A of the Motor Vehicles Act, 1939 (hereinafter referred to as ''the 1939 Act''), Their Lordships held that in any claim for compensation under Sub-section (1) of S. 92-A of the 1939 Act, the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. An interim relief has been granted u/s 92-A ibid to the legal representatives of the victims who have died on account of motor vehicles accidents. They could claim Rs. 15,000/- without any proof of negligence on the part of the owner of the vehicle or of any other person. This part of the Act is clearly a departure from the usual common principle of law that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident, To that extent the substantive law of the country stands modified.

Section 140 of the 1988 Act is the pari-materia provision to Section 92-A of the 1939 Act providing for liability to pay compensation in certain cases on the principle of no fault. The requirement being "death" or "permanent disablement" of any person has resulted from an accident arising out of the use of a motor vehicle". An amount of interim award u/s 140 of the 1988 Act on account of ''no fault liability'' has been enhanced from Rs. 25,000/-to Rs. 50,000/-w.e.f. 14.11.1994 in cases of death. Sub-section (3) of Section 140 of the 1988 Act provides that in any claim for compensation under Sub-section (1) thereof the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or any other person. No negligence, default or wrongful act of the owner is reqiured to be established to claim the amount on account of ''no fault liability'' and not even a wrongful act. negligence or default of the person who has died is relevant, by virtue of the provision made in Sub-section (4) of Section 140 of the 1988 Act and this liability of no fault is notwithstanding any other law of liability of the owner of the vehicle to compensate for the time being in force. Being beneficient piece of legislation, Section 161 of the 1988 Act makes special provisions for compensation in case of hit and run motor accident. A fixed sum of Rs. 25,000/- has been provided under Sub-section (3) (a) of Section 161 ibid, Section 163 of the 1988 Act empowers the Central Government to make scheme specifying, the manner in which the shceme shall be administered by the General insurance Corporation, in case of hit and run motor accident.

Further statutory change has taken place in the Motor Vehicles Act, 1988 by insertion of Section 163A, which provides that (1) 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 of the authorised insurer shall be liable to pay in the case of death or permanent diablement due to accident arising nut 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, and it is further provided under Sub-section (2) of Section 163A that in any claim for compensation under Sub-section (1) 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 other person. Thus, the Motor Vehicles Act, 1988 as a matter of fact gives a go-by to the general law and that stands superseded by the non-obstante clause provided u/s 163A. Section 163B further provides that a person is entitled to claim compensation u/s 140 and Section 163A of the 1988 Act has given option of filing claim under either of the said sections and not under both. However, the principle of proving wrongful act, neglect or default of the owner stands ousted under both the provisions. No proof of negligence is required. No wrongful act is required to be established. What is required is that accident took place resulting into death or disablement arose, out of use of motor vehicle. The element of intention has no role to play u/s 163A and Section 140 of the 1988 Act. Section 165(1) of the 1988 Act provides for constitution of Motor Accidents Claims Tribunals for adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damage to any property of a third party so arising, or both. Explanation to Section 165 sets at rest all the doubts that claims for compensation u/s 140 and 163A of the 1988 Act are covered under the provision. Section 166 of the 1988 Act provides the method of filing an application for compensation arising out of an accident. Sub-section (4) of Section 166 contains provision that the Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act. Thus, it is not necessary for claimant to file an application formally for compensation if the report of the accident has been forwarded to the Claims Tribunal under Sub-section (6) of Section 158 of the 1988 Act. Sub-section (6) of Section 158 was inserted on 14.11.1994. When a police officer has recorded any information regarding any accident involving death or bodily injury to any person, a duty is enjoined on the officer incharge of the police station to forward a copy of the same within thirty days from the date of recording of the information or, as the case may be, on completion of such report, to the Claims Tribunal having jurisdiction and a copy thereof, to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer. The object of the change is to provide a speedy mode of enforcing liability. The period of limitation has also been omitted. The common law reqirement of the negligence to be established stands superseded to the extent provided u/s 140 and 163A of the 1988 Act. Proof of negligence is irrelevant and negligence, wrongful act is not required to be established in such cases and in a claim petition, person has option of choosing ''no falut liability'' u/s 140 or compensation on structured formula as provided u/s 163A and the Claims Tribunal established u/s 165 has a jurisdiction to deal with such claims by virtue of explanation to Sub-section (1) of Section 165. The application which is required to be moved u/s 166 for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made by the persons mentioned in Sub-section (1) of Section 166. Thus, an application filed u/s 166, the Tribunal is empowered to deal with the claim in the same application, u/s 140 or Section 163A. Proviso to Sub-section (2) of Section 166 further provides that where no claim for compensation u/s 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

In case of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, in para 8 their Lordship have laid down thus ;

Section 92A of the Act provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section. The amount of compensation which is payable thereunder in respect of the death of any person is a fixed sum of fifteen thousand rupees and the amount of compensation payable under it in respect of the permanent disablement of any person is a fixed sum of seven thousand and five hundred rupees. Sub-section (3) of Section 92-A of the Act provides that in any claim for compensation under Sub-section (1) of Section 92-A, the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default or the owner or owners of the vehicle or vehicles concerned or of any other person. It is thus seen that to a limited extent relief has been granted u/s 92-A of the Act to the legal representatives of the victims who have died on account of motor vehicles accidents. Now they can claim Rs. 15,000/- without proof of any negligence on the part of the owner of the vehicle or of any other person. This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law of the country stands modified.

Section 167 of the 1988 Act, enables even a workman or a claimant to claim compensation either under the Workmen''s Compensation Act, 1923 or under the Motor Vehicles Act 1988. The only bar is that the claim cannot be made, under both the Acts.

In the changing context, a new situation requires strategies, the new remedies. Their Lordship of the apex Court in case of Samir Chanda v. Managing Director, Assam State Transport Corporation, (1988) 6 SCC 605 where injuries were suffered by claimant due to bomb blast inside the passenger bus when it reached the last stoppage and passengers were alighting from it, abnormal situation was prevailing during the period requiring owner or driver to take extra care by carrying a police escort, but there was no police help in the city bus on the day of accident, plea of negligence was allowed by the Tribunal. Their Lordship of the apex court relying on Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More, in which there was a collision between a petrol tanker and a truck on a national highway, as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the highway. As a result of the collision, the petrol contained in the tanker leaked out and collected nearby, about four hours later, an explosion took place in the tanker causing burn injuries to those assembled near it. Their Lordship considered the meaning of the petrol tanker in the context of motor vehicle and laid down that it is to be construed in a wider sense to include the period when the vehicle is not moving and is stationary, being either parked on the road and when it is not in a position to move due to some breakdown or mechanical defect. The word ''use'' has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. This view has bene further applied by their Lordship in case of Union of India (UOI) Vs. United India Insurance Co. Ltd. and Others, , wherein their Lordship considered the question of negligence in the common law on an unmanned railway level-crossing. Their Lordship in case of Shivaji Dayanu Patil (supra) have laid down that the expression "arising out of" has a wider connotation as compared to the "accident caused". The expression "arising out of" has been used in Sections 165, 163A and Section 140 of the 1988 Act. There is departure from the previous Act of 1939 in which u/s 95(1)(b) (ii) the expression used was "caused by". The words used in Sections 140, 163A and 165 of 1988 Act are "accident arising out of use of motor vehicle". Their Lordship of the apex Court laid down that use of expression ''arising out of indicates that for the purpose of awarding compensation u/s 92A of 1939 Act the causal 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. The construction of the expression "arising out of the use of motor vehicle" in S. 92A of the 1939 Act enlarge the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.

The apex Court in case of Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and Another, in the backdrop of the fact that an autorikshaw was hired on 22.3.1995, but, hirer subsequently had stolen away the same and killed D. D''s legal representatives filed a claim petition u/s 163-A of the Motor Vehicles Act, 1988. Their Lordship held 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. If the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, 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. Their Lordship applying the principle in the case of Challis v. London and South Western Rly. Co., (1905) 2 KB 154, Nisbet v. Rayne & Burn, (1910) 2 KB 689 and the decision of the House of Lords in case of Board of Management of Trim Joint District School v. Kelly, 1914 AC 667, have laid down in para 14 of Rita Devi''s case (supra) as under -

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 autorickshaw, was dutybound 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 autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. 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 theft of the autorickshaw.

Their Lordship have further held that the meaning of "death" in the Workmen''s Compensation Act, 1923 is applicable to an interpretation given to term "death" in the Motor Vehicles Act, 1988 also and decision in case of Shivaji Dayanu Patil (supra) was also cited with approval and their Lordship came to the conclusion that the murder of the deceased Dashrath Singh was due to an accident arising out of use of motor vehicle, therefore, the claimants were entitled for compensation as claimed by them.

Coming to the facts of the present case it is clear from allegation in claim petition that the murder was not originally intended. Death was caused when the stolen wood was being taken away in the tractor-trolley. Thus theft was felonious act intended and also to prevent tractor trolley from being seized, it was tried to be taken away. In such an event on the facts so pleaded even if it is a case of murder having the intention or knowledge, it was definitely an accidental murder arising out of use of motor vehicle. Thus, the claim petition was clearly maintainable before the Claims Tribunal. The Claims Tribunal has erred in law in holding that it was having no jurisdiction to entertain the claim petition and the remedy lies under common law of Torts in a civil suit.

Lord Denning in the case of Hardy v. Motor Insurer''s Bureau. (1964) 2 All ER 742, held thus:

The policy of insurance, which a motorist is required by statute to take out, must cover any liability which may be incurred by him arising out of the use of the vehicle by him. It must, I think, be wide enough to cover, in general terms, any use by him of the vehicle, be it an innocent use or a criminal use, or be it a murderous use or a playful use. A policy so taken out by him is good altogether according to its terms. Of course, if the motorist intended from the beginning to make a criminal use of the vehicle intended to run down people with it or to drive it recklessly and dangerously and the insurers knew that was his intention, the policy would be bad in its inception. No one can stipulate for inequity. But that is never the intention with which such a policy is taken out, At any rate no insurer is every party to it. So the policy is good in its inception. The question arises only when the motorist afterwards makes a criminal use of the vehicle, the consequences are then these: if the motorist is guilty of a crime involving a wicked and deliberate intent, and he is made to pay damages to an injured person, he is not himself entitled to cover on the policy. But if he does not pay the damages, then the injured third party can recover against the insurers u/s 207 of the Road Traffic Act, 1960; for it is a liability which the motorist, under the statute, was required to cover. The injured third party is not affected by the disability which attached to the motorist himself. So here, the liability of Phillips to the Plaintiff was a liability which Phillips was required to cover by a policy, of insurance, even thought it arose out of his wilful and culpable criminal act. If Phillips had been insured, he himself would be disabled from recovering from the insurers. But the injured third party would not be disabled from recovering from them.

On behalf of the Appellants, decision in case of Mathew Joseph and Others Vs. Johny Sunny and Another, of Kerala High Court has also been pressed into service, wherein homicidal attack on salesman of an arrack shop when he was about to leave the premises of his employer resulted in his death, it was held to be an accident within the meaning of Section 3 of Workmen''s Compensation Act, 1923. In paragraph 7 their Lordship of the Kerala High Court held as under:

In Varkeyachan v. Thoman, 1979 ACJ 319 (Kerala), a Division Bench of this Court took the view that the term ''accident'' for the purpose of law relating to compensation for personal injuries sustained by workmen and the employer''s liability in that behalf includes any injury which is not designed by the workman himself and it is of no consequence that the injury was designed and intended by the person inflicting the same. We adopt the said view of the earlier Division Bench.

In the instant case the death has caused by the act of driver which cannot be said to be designed by the deceased. In view of the facts of the case the intention, which is hidden in the mind is of not much significance, as the murder was not the main act contemplated. It was clearly a case of an accidental death/murder as averred in claim petition. Hence, the claim petition was triable by Claims Tribunal constituted u/s 165 of Motor Vehicles Act, 1988 and could not be dismissed at threshold.

Learned cousnel Shri Malhotra appealing for the Insurer has heavily relied on the decision in case of Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another, . His submission is that the liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort and It is on the basis of vicarious liability that the onwer is made liable and it is necessary to prove that the servant was acting during the course of his employment and he was negligent. As already mentioned above, the provisions of Section 140, 163A and 165 of the 1988 Act have gone sea change with respect to negligence part and proof of wrongful act and, thus, to that extent common law principle of liability on negligence stands superseded as held by their Lordship of the apex Court in case of Shivaji Dayanu Patil (supra) and also in a case of accidental murder as per Ritadevi''s case (supra).

Under the Motor Vehicles Act, 1988 Section 147 prescribes requirements of policies and limits of liability which may be incurred in respect of the death or bodily injury caused by or ''arising out of the use of the vehicle'' in a public place, In case of New India Assurance Company v. Satpal Singh, AIR 1999 SC 235 their Lordship have held that the policy of an insurance must adhere to the Act.

In view of the decision of the apex Court in cast of Rita Devi (supra), we have no hesitation to come to the conclusion that from averment. of claim petition a case of an accidental death/murder is made out. Thus, the Claims Tribunal has jurisdiction to try the case and the preliminary objections as to maintainability is unsustainable. Thus, the dismissal of the claim petition at the out set is bad in law. The impugned order is not sustainable.

We are also of the view that the application u/s 140 of the Motor Vehicles Act ought to have been allowed and the interim compensation ought to have been awarded.

We place on record our appreciation to the Amicus Curiae Senior Counsel Shri R.D. Jain who has ably assisted the Court in the case.

In the result, we allow the appeal and set aside the impugned order. It is held that the Claims Tribunal has the jurisdiction to deal with the matter and it shall proceed with the trial of the case and to decide the same on merit after recording of evidence. The application filed u/s 140 for payment of interim compensation on account of no fault liability is allowed. A sum of Rs. 50,000/-be paid by the Respondents jointly and severally within six weeks from today, Costs on parties.