^-^^^^^^^^^^ b ^ \] IN THE HIGH COURT OF CHHATTISGARH AT APPELLANT /y'y BILASPUR M. A. C. No. o 2- z^6 1. Smt. Shushila Mishra aged about 36 years, wife ofLate Shri Harideo Mishra, 2. Manish Kumar Mishra aged about 19 year, son ofLate Shri Harideo Mishra, y. Kumari Preeti Mishra aged about 14 years, D/o Late Shri Harideo Mishra, ,4. Ashis Kumar Mishra aged about 8 years, son of Late Shri Harideo Mishra, All resident of Kailash Nagar Ward No.ll, Kumhari, P.S. Kumhari, District Durg (CG.). ^eliMA ^-S^-q ^w^hJ^¥- ^le/U'T- ey,^llif-fft-/Vt^) A^— VERSUS " . U'l-^ RESPONDENTS: X 1. The Oriental Insurance Company Through Manager (Mandal Prabandhak Mandliya Karyalaya) Raipur (C.G.). \. --^' (INSURER) (Driver) 2. Harishankar Gond aged about 26years occupation Driver, Present Address Central Jail, Bilaspur. APPEAL VALUE Rfc^.60.000/- RpSno aoCTripvprl hv thp aiwarrl rlatprl 'x r ..!PS%'et-a*a!-, /•^^ "^ HIGH COURT OF CHHATTISGARH AT BILASPUR DiVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant M.A. rcl No.302/2008 Smt. Shushila Mishra & others Vs The Oriental Insurance Company and another JUDGMENT FOR CONSIDERATIOM HON'BLE SHRI I.M. QUDDUSI. J J- J Sd/- 2.\-.7-2011 Sd/- I-M.Quddusi Judge ^.2-.7:2011 POST FOR JUDGMENT ON -2-SjULY. 2011 ./" 3udfee -^;5'.7;2011 \: y :y-w. ;; !!GH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. t.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant M.A. M No.302/2008 Smt. Shushila Mishra & others Respondents Vs The Oriental Insurance Company and another Present: Mr. Abhay Tiwari, Advocate for the appellants. Mr. Sudhir Agrawal, Advocate for respondent No.l/lnsurance Company. \: JUDGMENT (Delivered on ^ ^July, 2011) Per G. Minhaiuddin. J; 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the award of the 12* Motor Accident Claims Tribunal (FTC), Durg (in short "the Tribunal"), dated 27.4.2006 passed inClaim Case No. 51/05, dismissing the claim petition ofthe appellants/claimants fiied under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act") as not maintainable in law. 2. Brief facts of the case are that appellant No.1 is the wife of deceased Haridev Mishra and appellants No. 2, 3 & 4 are children of the deceased. Respondent No.2 is the driver of Truck bearing registration No. MP 23D/4362, which was'insured with respondent No.1 on the date of accident. Deceased Haridev Mishra is the registered owner of the said truck, who used to accompany the driver and helper in the truck. On the date of accident i.e. 16.2.2001 deceased Haridev Mishra having loaded the goods in the said truck left his home situated at Kumhari. The truck was being driven by respondent No.2. However, Haridev Mishra died due to accident occurred on pub!ic road at Village : Khurighat, PS : Ratanpur, Distt: 'Bilaspur. When the appellants/claimants could . not trace the i..»y6«esi; /^ ^ Ji..-.,-<i3^ 1 El !8SSBpBis 13 % "<ESB-" "g s w> '-' ^/ ^ 2L ^: deceased and the said truck for a considerabie time, they lodged a missing report at Police Station : Kumhari, Distt. Durg. During investigation, firstly the appellants came to know that on the date and time of accident, Haridev Mishra had died on account of being accidentally run over by the said truck. 3. At the time of accident, the deceased was a healthy man of 49 years and was earning Rs.15,000/- to 20,000/- per month. The appellants were fully dependent upon the deceased and they have no other source of income. On account of unfortunate demise of Haridev Mishra, they are suffering a great financial crisis. Therefore, the appeliants being legal heirs ofthe deceased filed a c!aim petition under Section 166 of the Act claiming a total compensation of Rs.42,60,000/- for the death of Haridev Mishra. 4. However, learned Tribunal after hearing counsel for the parties, on a ciose scrutiny of the evidence led by them, by the impugned award dismissed the claim petition on the ground that the same is not maintainable because the deceased did not die due to motor accident, but, in fact, he was murdered by the driver and the helper ofthetruck. 5. Heard learned counsel for the parties, perused the LCR as also the impugned award. 6. The main thrust of the argument of learned counsel for the appellants/claimants is that even if the death of Haridev Mishra is taken to be a murder, then also as the same has arisen out of use of motor vehicle, therefore, it comes within the ambit and purview of accidentat murder and as such, the claim petition under Section 166 the Act is maintainable. !n support of his contention, leamed counset for the appeilants has submitted a judgment of the Hon'ble Supreme Court in the matter of Smt Rita Devi and others Vs. New Sndia Assurance Co. Ltd., reported in AIR 2000 SC 1930. 7. Qn the contrary, contention of learned counset for respondent No.l/lnsurance Company is that the incident in question is not an accident, but an intentional murder, as is evident from the material available on record as well as from perusal of the impugned award, :especja!ly paras 13, 14 & 27. Learned counsel contends tha^ori 3 ^ account of some aitercation, which had taken place between deceased Haridev Mishra and driver & helper/cleaner of the truck in question, the deceased was struck by an iron rod on the head by the cleaner of the truck namely Lakhkhu @ Lakheshwar and when the deceased had fallen down, the driver of the truck Harishanker, with an intent to cause disappearance of evidence of the offence and for screening themselves, had moved the truck to and fro over the body of the deceased, so that the body could not be identified. Learned counsel further contends that in these circumstances, it is not a case of accident, but of murder simplicitor and hence the claim petition filed by the appellants/ctaimants has rightly been dismissed by the Tribunal as not maintainable. 8. Reliance is pteced on the judgment of the Hon'ble Supreme Court in the case of the Oriental Insurance Co. Ltd. Vs. Meena Vaiijwl, in 9. The core question before this Court for consideration is - whether the death of Haridev Mishra was caused on account of accident arising out of the use of motor vehicle or it was a case of murder simpiicitor? 10. From perusai of the material available in LCR as well as the impugned award, it is clear beyond any doubt that on the fatefui day, deceased Haridev Mishra, who was owner of the truck in question, after loading the goods which were to be transported, had accompanied driver Harishanker and cleaner Lakhkhu -akheshwar in the said truck. On way to the place of destination, ' some aitercation took place between the deceased/owner of the truck on the one hand and driver as well as cleaner on the other, whereupon the cleaner Lakhkhu struck the deceased by an iron road on his head, as a result ofwhich the deceased fell down on the iround and after that, in furtherance of common intention of both the driver and the cieaner, the driver had moved the truck to and fro over the body of Haridev Mishra with the object of causing disappearance of evidence of the offence and for screening themselves. A report of the incident was iodged at Police Station : Ratanpur, on the basis of which an FIR under Section J54-jif-- \ ^a ^ i :^y^ i '%. ~ •wf/ ]/ •^ "S5;'.,(f ^ VlO X Cr.P.C. was regisfered for the offence punishable under Sections 302/201 of the !PC and after investigation, charge sheet was filed 3efore the Court of Judicial Magistrate First Class, Bilaspur, who, in turn, committed the case under Section 209 of Cr.P.C. to the Court of Sessions Judge. The said case was registered as S.T.No.267/2001, which resulted in conviction of driver Harishanker and cleaner Lakheshwar under Sections 302/34 & 201 of the IPC and they were sentenced to undergo imprisonment for life. The convicts are undergoing the sentence of imprisonment. 11. In the case of Smt. Rita Dew (supra), a driver of the autorickshaw employed by owner for driving autorickshaw for carrying passengers on hire 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, the passengers had decided to commit an act of felony of stealing the autorickshaw and in furtherance thereof, they committed murder of driver of the autorickshaw and stole the autorickshaw. In these circumstances, the Hon'bie Supreme Court held that the death of autorickshaw driver was an accident within the meaning of Motor Vehictes Act and as such, the claimants - wife & children of the deceased driver are entitled for compensation under the Act. The Hon'ble Supreme Court has held in para-10 as under: "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 feionious 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 whteh 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 dominant intention of the Act of fetony is to kill any particular person then such , killing is not an accidental murder but is a murder simplicifor, while if the cause of murder or.act-of---—-— \,: IL1 .fS'e'tSah.. ::^sy^v% /• %-^ I !i'@ss;^ T 'l, ^ '~B '%,, 'hs.^ .^—".•^> •^" 5- murder was originally not intended and -the same was caused in furtherance of any other felonious act then such murder is an accidental murder." Whereas in the present case, there was no intention to commit any other felonious act, but the intent of driver Harishanker and cteaner Lakheshwar was to kill owner of the truck Haridev Mishra, and as such, it cannot be said that the death of Haridev Mishra was an accidentai murder. The above judgment relied upon by the appeilant is distinguishabte on facts. 12.By any stretch of imagination, causing of death of Haridev Mishra cannot be termed as accidental murder, but is murder simplicitor. As such, even as held by the Hon'ble Supreme Court in the abovementioned judgment in para-10, causing of death of Haridev Mishra was not an accident arising out of use of motor vehicle, but an infentional murder. Thus, in view of above, the finding of the Claims Tribunal that the claim petition of the appellants/claimants is not maintainable under Section 166 of the Act cannot be faulted with. 13.1n the resuit, theappeal fails and is hereby dismissed. Impugned award dated 27.4.2006 passed by the Claims Tribunal is affirmed. 14. No order as to costs. 15. Certified copy as per rules. ,-- G.MinhajJudi"n Sd/- I.M.Quddusi Judge Judge lsr \