IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 MACA.No. 572 of 2005 ------------------------------------ OPMV.1485/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANTS/PETITIONERS: 1. EALIYAMMA, W/O. LATE JOSEPH, KARAKUNNEL HOUSE, CHEMBAMKANDAM, PONNUKKAR P.O., THRISSUR DISTRICT-680 014. 2. JAMES K.J., AGED 34, S/O. LATE JOSEPH, DO. DO. 3. PRASAD K.J., AGED 28, DO. DO. 4. ELSAMMA K.J., D/O. LATE JOSEPH, DO. DO. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS/RESPONDENTS: 1. THOMAS, S/O. KUNJUVAREED, KAPPANI HOUSE, AALANGAD, KALLUR P.O., THRISSUR DISTRICT. 2. C.R.ANTO, S/O. C.O. RAPPAI, CHUNDAYIL HOUSE, P.O. AVANISSERY, THRISSUR-4. 3. UNITED INDIA INSURANCE CO. LTD., THRISSUR.(R1 BEFORE THE TRIBUNAL IS NOT MADE A PARTY IN THIS APPEAL SINCE NO RELIEF IS CLAIMED AGAINST HIM). ADV. SRI.N.S.MOHAMMED USMAN FOR R3 SRI.T.P.SAJAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.572 of 2005 --------------------------------- JUDGMENT Koshy, J. One Lawrence, while travelling in a bus on 22.10.1997, was murdered by a group of people. When the bus reached at Ayyankod Road Junction, a group of people blocked the bus with dangerous weapons like swords, etc. They entered into the bus and asked the driver to move the bus. When the driver moved the bus, they attacked Lawrence by chopping with swords and when the bus reached Alangad Bus stop, they asked the driver to stop the bus. When the bus stopped there, they got out of the bus and threw a country bomb and ran away. Due to the attack Lawrence sustained fatal injuries and succumbed to the injuries on the same day. 2. The dependents filed a claim petition under Section 163-A of the Motor Vehicles Act. Therefore, the question of negligence need not be considered. MACA 572/05 2 The accident is an untoward incident and if murder has taken place without any intention, it can be stated as an accident. Even in the Workmen's Compensation Act accident is not defined. Here, even though a group of mob assembled and stopped the bus and entered into the bus, they inflicted injuries only on the deceased Lawrence. Exhibit A1 FIR was registered (on the basis of F.I. Statement) and Exhibit A2 is the scene mahazar. Exhibit B2 final report was laid for offences under Sections 143, 147, 148, 302 read with Section 149 IPC and under Sections 3 and 5 of the Explosive Substances Act. The accused attacked the deceased for previous enmity. It was a felonious act and the Tribunal came to the conclusion that the accident occurred not because he was a passenger and not arising out of the use of the motor vehicle and hence dismissed the application filed by the dependents for compensation. MACA 572/05 3 3. Learned counsel for the appellants relied on the decision of the Apex Court in Rita Devi v. New India Assurance Co. Ltd. (2000 (2) KLT 526). It is true, as decided in the above judgment, Section 163-A is a beneficial legislation enacted with a view to expedite the payment of a limited amount by way of compensation to the victim of an accident, arising out of the use of the motor vehicle. In such matters approach of the courts is to adopt a construction, which advances the benefit in preference to a construction, to defeat the purpose. However, it is for the claimant to prove that the accident is arising out of the use of the motor vehicle. Then only Section 163-A will apply. Negligence of the driver or owner need not be proved. In Rita Devi's case (cited supra), driver of the autorickshaw was killed while the vehicle was being stolen. He became the victim only because he was driving the vehicle. As far as he is concerned, it is an untoward incident and not MACA 572/05 4 planned. It was arising out of the use of the motor vehicle only. If he was not a driver, then the incident ought not have occurred. In this case, the accident occurred not because he was travelling as a passenger, but, he was killed by a group of people for some other matter and it was an intentional act on the part of the accused targetting the deceased. At paragraph 10 in Rita Devi's case (cited supra), the Honourable Supreme Court held as follows: “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 MACA 572/05 5 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 other felonious act then such murder is an accidental murder.” On the given set of facts, we are of the opinion that this is only a felonious act, which has no connection with the use of the motor vehicle. We fully agree with the views of the Tribunal. Hence, the appeal is dismissed. (J.B.Koshy, Judge) 4th November, 2008 (K.P.Balachandran, Judge) tkv