* 1 * F.A.229.2000 24June2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 229 OF 2000 United India Insurance Company Ltd ....Appellant/ Orig.Opponent no.3 V/S. Shri. Shamrao Mulik and 3 Ors. ....Respondents/ Orig. Applicant no.1 * * * * Mr. M.G. Barve, Advocate for the appellant Mr. Harshad Palwe , Advocate for respondents no.1 and 2. CORAM :- Smt. R.P. SondurBaldota, J. 24th June, 2011. P.C. :- 1. This Appeal by the Insurance Company is preferred against the judgment and order dated 22nd February, 1999 awarding compensation to respondents no.1 and 2 on account of death of their son in an accident arising out of use of motor vehicle under Section 166 Motor Vehicles Act. Respondent no.3 is the owner of the offending vehicle, the appeal against whom has been dismissed for want of service of notice of the appeal upon him. * 2 * F.A.229.2000 24June2011 2. The brief facts required to be stated for decision of the appeal are that on 11th January, 1995 at about 4.00 p.m. deceased Popat was proceedings on his bicycle by Bhatavade-Kalamwadi road. When he was near a water tank, the offending vehicle, a tractor bearing registration number MH-10-8509 driven by respondent no.3 came from the opposite direction and knocked him down. Popat sustained injuries. He was initially taken to a private hospital. Two days later he was shifted to Krishna Charitable Hospital, where, while undergoing treatment he succumbed to his injuries. At the time of his death, Popat was 22 years old, working as a helper, earning monthly salary of Rs.985/-. On account of his death, respondents no.1 and 2 claimed compensation of Rs1,50,000/-. The petition was resisted, by the appellant-insurer and respondent no.3-the insured on different grounds. Respondent no.3 denied that the accident had occurred on account of any rashness or negligence on his part. According to him, Popat was solely responsible for the accident. He claimed that the portion of the road, over which Popat was proceeding on his bicycle had heaps of rubble. Popat was riding his bicycle at a fast speed. While wading through the rubble, he could not control his bicycle and dashed against the rear wheel of the tractor. On realising that Popat had lost * 3 * F.A.229.2000 24June2011 his balance, respondent no.3 had applied his brakes immediately in order to avert the accident. In the alternative, respondent no.3 contended that if at all, it was to be held that there was any liability on his part to pay compensation to respondents no.1 and 2, in view of the insurance of the offending vehicle, with the appellant, the compensation was liable to be paid by the appellant. The appellant on the other hand denied it’s liability to indemnify respondent no.3 alleging that the death of Popat was not accidental death but was a murder with the offending vehicle as the instrument of murder. Therefore, any compensation payable by respondent no.3 to respondents no.1 and 2 was beyond the coverage of the insurance policy. The impugned judgment and order awards compensation of Rs. 72,700/- to respondents no.1 and 2. 3. The evidence led in the claim petition consists of deposition of Shamrao-the father of Popat, Sampat Gund and Ganesh Jadhav, on behalf of respondents no.1 and 2 and deposition of respondent no.3 in support of his defence, the documents relating to the complaint of the accident and employment of Popat. The learned Tribunal, on appreciation of the evidence before it, had rejected the defences of the appellant and respondent no.3 to hold that death of Popat was caused * 4 * F.A.229.2000 24June2011 in the accident arising out of the use of the offending vehicle and that respondent no.3 and the appellant were jointly and severally liable to pay compensation to respondents no.1 and 2. 4. Respondent no.3 has accepted the impugned judgment and award by not preferring any appeal therefrom. 5. The first question that arises for consideration of the court is whether the appeal as its stands today with its dismissal against respondent no.3 is maintainable. Perusal of the records shows that after admission of the appeal on 1st October 2001, it remained unserved upon respondent no.3 till 20th December 2010. Therefore, specific directions had been given to the appellant relating to service of notice upon respondent no.3 on that date. It was further directed that if the compliance was not made within the stipulated time of four weeks, the appeal would stand dismissed for non prosecution against the 3rd respondent without further reference to the Court. Since, despite warning, the appellant failed to complete the service of notice, the appeal came to be dismissed and the endorsement to that effect made in the appeal proceedings. Thus the appeal as its stands today is only against respondent nos. 1 and 2, the claimants. The primary liability to pay compensation to respondent nos. 1 and 2 on account of * 5 * F.A.229.2000 24June2011 death of Popat is of respondent no. 3. With the insurance of the vehicle with the appellant, it became statutorily liable to pay the compensation in order to indemnify respondent no.3. Therefore the appeal cannot be maintained in the absence of respondent no.3. Besides, the defence of the appellant being directed only against respondent no.3, the appeal cannot proceed without respondent no.3. It is also to be noted that after dismissal of the appeal against respondent no.3, pursuant to the order dated 20th October 2010, the appellant had not taken steps whatsoever for its restoration and for extension of time to serve the notice. In the circumstances, the appeal as its stands today is not maintainable and is liable to be dismissed on this ground alone. 6. As regards the merits of the case, the only evidence heavily relied upon by Mr. Barve, the learned counsel for the appellant is Exhibit 37, the F.I.R. registered vide C.R. No.4 of 1994 for the offence punishable under Sections 307 and 427 Indian Penal Code against respondent no.3. The F.I.R. was lodged by Chandrakant, the brother of Popat on 15th January 1995, i.e. four days after the incident of accident. In the F.I.R., Chandrakant stated that he was working in a Mill at Sangavade. On 12th January 1995, he started for Bhatavade by an ST bus. On one of the halts of ST bus at Nerle, a person by name * 6 * F.A.229.2000 24June2011 Sambhaji Dangar boarded the bus. He informed Chandrakant that respondent no.3 had made an attempt on the life of Popat by driving his tractor over him, resulting into his fracture of hand and thigh and that he had been admitted to hospital at Karad. He also informed that there was a talk amongst the villagers that respondent no.3 intended to kill Popat because of the old love affair between Popat and Usha, the sister of respondent no.3. After Chandrakant reached the residence, he accompanied his mother to the dispensary of Dr. Gurusale at Karad. On meeting Popat, Chandrakant made an enquiry with him about the accident. Popat told him that on 11th January 1995 at about 4 pm. when he was returning home on a bicycle, respondent no. 3 deliberately turned the tractor towards him. Though Popat shouted twice, respondent no.3 drove the tractor over him and attempted to murder him. Popat was removed to dispensary in the jeep of one Arjun Deokar for medical treatment. In the jeep, Popat was accompanied by his parents as well as respondent no.3. While on the way of the dispensary, mother of Popat expressed desire that a complaint be lodged with Kasegaon Police Station before Popat was taken to the dispensary for treatment. However, Arjun Deokar and respondent no.3 dissuaded her by saying that the matter could be * 7 * F.A.229.2000 24June2011 sorted out privately. Respondent no.3 also promised to bear the medical expenses of Popat. The complaint further states that thereafter again Arjun Deokar, Shamrao Deokar and respondent no.3 promised the parents of Popat that they will bear the entire medical expenses of Popat. The parents of Popat being illiterate persons fell for the promise and did not lodge complaint with Police. However, later Chandrakant and the parents became convinced that respondent no.3 had attempted to murder Popat, because of the earlier love affair with Usha in the past. 7. The Tribunal, however, found several circumstances to reject the story of murder. The circumstances noted by the Tribunal are enumerated below : 1. There was delay of 4 days in lodging F.I.R., which delay has not been explained. 2. After the accident, Popat was taken to a private nursing home, instead of Civil Hospital. 3. The history of injuries stated by the father of Popat at the time of admission to Krishna Charitable Hospital was road “ traffic accident”. 4. Immediately after the incident, respondent no.3 had * 8 * F.A.229.2000 24June2011 accompanied the parents of Popat while taking Popat for medical treatment. 5. It was nobody’s case that body of Popat had come under the wheel of tractor. 6. No crush wound was found on the body of Popat. The injuries sustained by him were of abrasions on right maxilla, abrasion on lateral aspect of right thigh with fract of shaft femur lower 1/3rd, multiple abrasions on right lower leg, abrasions on left lower leg, right forearm deformed due to fracture lower 1/3rd and abrasion on right scapular and sub-scapular region. 7. There was no crushing of bicycle. 8. The accident occurred on the curve portion of the road. 9. After the accident, the tractor hit the temporary compound wall by the side of the road. 10.The place of the accident was not isolated. There were several persons naturally present near the site of the accident. 11.The alleged incident of love affairs put forth as motive was a past incident, too remote in point of time. * 9 * F.A.229.2000 24June2011 12.There is no allegation and evidence of pre-planned murder. 13.There is nothing to show that respondent no.3 had knowledge that Popat would be travelling by the road on his bicycle. 14.Since the alleged love-affair had come to an end long back, it was inconceivable that respondent no.3 would go to the extent of taking away life of Popat. 15.Respondent no.3 is acquitted of the charge under Section 302 Indian Penal Code. 8. Mr. Barve, submits that it is obvious from the facts of the case that a deliberate act of respondent no.3 running the tractor over Popat with intention of causing his death, is being passed off as an accident, only for the purpose of claiming compensation under the Motor Vehicles Act. He argues that the respondents have colluded with each other to abuse the process of law. They even secured acquittal of respondent no.3 so as to facilitate smooth passage of the claim petition. According to him, there is no explanation for the contents of the FIR at Exhibit-37. Mr. Barve, argues that it would be against the public policy to indemnify the criminal acts of respondent no.3 involving mens-rea. * 10 * F.A.229.2000 24June2011 9. It is difficult to agree with Mr. Barve in view of the fifteen circumstances enumerated above which strongly support the story of accident rather than the story of murder. The inferences drawn by the Tribunal from the circumstances, are obvious and do not require much discussion. Firstly, it is nobody’s case that it was a case of premeditated murder. There is no material whatsoever on record to indicate that respondent no.3 had knowledge that Popat would be proceeding on his bicycle by that road on the particular date and time. Therefore, it was a chance meeting. There is no dispute that there was a curve to the road of the accident. It is the evidence of respondent no.3 that when he was negotiating the curved portion of the road near the village, he saw Popat coming on his bicycle from the opposite direction. The place of the accident was also not an isolated spot. Had respondent no.3 planned to murder Popat, he would have selected some isolated spot for attacking Popat instead of a public road with the natural presence of several persons around. The averments in the claim petition which are uncontroverted show that Bhatavade Kalambwadi road on which the accident took place, connects to Pune- Bangalore Highway. Therefore, there is continuous traffic running on that road. Immediately, after the accident the crowd gathered at the * 11 * F.A.229.2000 24June2011 spot included Satish Pawar, Rajendra Kisan Mohite, Bapu Hari Uthale, Tanaji Bapu Uthale and Arjun Deokar from Bhatavade village. The parents of Popat were also called. Popat was taken to the nursing home of Dr. Gurusale in the jeep belonging to Arjun Deokar. He was accompanied by his parents and respondent no.3. As has been rightly observed by the Tribunal, had respondent no.3 made an deliberate attempt on the life of Popat, he would not have stayed back to help Popat. He would have immediately absconded from the place of the accident. As regards the delay in filing the FIR, the learned Tribunal opines in the impugned Judgment that most probably the relative of the victim hit upon the idea of turning the case of an accident into a case of murder, thinking that respondent no.3 had backed out of his promise to incur expenses. Respondent no.3 stated in his evidence, that he had assured the parents of Popat that he would bear the expenses of the treatment. For that purpose, he had gone to his brother at Thane to borrow money. He could collect some amount and return after four days. However, by his arrival a complaint had already been lodged and he came to be arrested. In all probability, the absence of respondent no.3 induced the complaint to the police. Apparently, it was filed by way of pressure tactic. Had there been any * 12 * F.A.229.2000 24June2011 substance in the story of murder, the parents of Popat at the time of his admission to the second hospital would not have given the history of the injuries as the injuries sustained in an accident. As regards the alleged motive of the love affair between Popat and Usha-sister of respondent no.3, the same was about an year prior to the accident. It was also over a long back. Therefore, the incident of love affair is too remote in point of time to be a motive for respondent no.3 to kill Popat. In these circumstances, in my opinion, the conclusion arrived at by the Tribunal, as regards the accidental death of Popat is correct and supported by the material on record. 10. Though the facts and circumstances of the present case, establish that Popat had met with an accidental death, it may not be out of place to make a reference here to the decision of the Apex Court in the case of Rita Devi V/s. New India Assurance Co. Ltd reported in 2000 (5) SCC page 113. By this decision, the Apex Court has treated murder of driver of an autorickshaw committed in the act of felony of stealing an autorickshaw as an accident arising out of use of motor vehicle for the purpose of awarding compensation under the Motor Vehicles Act. The facts of the case before the Apex Court show that some unknown persons hired from the rickshawstand the autorickshaw * 13 * F.A.229.2000 24June2011 which was being driven by the deceased. Thereafter, nothing was known of the driver or the autorickshaw. On the next day, the authorities were able to recover the body of the driver but the autorickshaw in question was never traced. The heirs of the driver filed a petition under Section 163A of the Motor Vehicles Act claiming damages for the death caused to the driver during the course of his employment submitting that the death had been caused in an accident arising out of the use of the motor vehicle. The Motor Accidents Claim Tribunal allowed the claim petition and awarded compensation. The Insurance Company challenged the Award by preferring an appeal in the High Court. The High Court held that it was a case of murder and not an accident, hence, a petition for claim under the provisions of the Motor Vehicles Act did not arise. The Apex Court reversed the decision of the High Court with following observations : 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 victime 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 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 simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any * 14 * F.A.229.2000 24June2011 other felonious act then such murder is an accidental murder.” . In other words, it has been held that even death by murder, in a given set of facts can be treated as an accidental death for the purposes of the Motor Vehicles Act. 11. Mr. Palwe, the learned counsel for respondents no.1 and 2 relying upon the decision of the Madhya Pradesh High Court in the case of Kacharmal Kishanlal Mahajan and another V/s. Chainram Kishanlal Mahajan and another reported in 1992 ACJ 986, submits that as far as a third party is concerned, even though the driver or owner of the offending vehicle may be entertaining the intention to cause damage to the person or property of the third party, the incident resulting into the damage caused by use of the vehicle, cannot be said to be expected or intended by the third party and as such looked at from the view point of the injured third party-claimant, the incident resulting into damage is an accident. The test is whether the injured third party shared the intention of bringing about the damage deliberately. The contention raised before Madhya Pradesh High Court was that the damage caused to the vehicle having arisen out of an accident which was intended and not unexpected and as such it could not be called an accident. Madhya Pradesh High Court rejected the argument with following observations : * 15 * F.A.229.2000 24June2011 14. The contention, in my opinion, has no merit. Any damage “ caused to the person or property of a third party, as a result of use of a vehicle in a public place, is an accident from the viewpoint of the third party. Even though the driver or owner of the offending vehicle may be entertaining the intention to cause damage to the third party, the incident resulting in damage caused by use of the vehicle cannot be said to be expected or intended by the third party and as such, looked at from the viewpoint of the injured third party claimant, the incident resulting in damage is an accident. So long as the injured third party does not share the intention of bringing about the damage deliberately, the occurrence of the incident resulting in damage to the person or property of the third party must be construed as an accident in respect of which the Tribunal shall have the jurisdiction to adjudicate upon the claim of compensation in respect of the damage arising out of the use of the motor vehicle.” As regards the liability of the Insurance company to indemnify the insured under such circumstances, the Madhya Pradesh High Court relied upon the observations of Lord Denning in the case of Hardy Vs. Motor Insurer’s Bureau, (1964) 2 All Eng. Reports page 742 to hold that under such circumstances, the insurance company cannot be exonerated of its liability. The observations of Lord Denning as follows : 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 that was his intention, the policy would be bad in its inception. No one can stipulate for * 16 * F.A.229.2000 24June2011 inequity. But that is never the intention with which such a policy is taken out. At any rate no insurer is ever 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 recover on the policy. But if he does not pay the damages, then the injured third party can recover against the insurers under Section 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 though 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.” 12. In all the above circumstances, there is no merit in the First Appeal. Hence, the same is dismissed. [SMT. R.P. SONDURBALDOTA, J]