IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5440 of 2009 (O&M) Date of decision:01.09.2010 Sh. Sukhraj Singh @ Raju ....Appellant versus Smt. Sukhjinder Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.G.C.Chahal, Advocate, for the appellant. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. 1. The claim for compensation was at the instance of the representatives of the deceased policeman, who was run over by the car that belonged to respondents 2 and 3 and driven by the 1st respondent. The 4th respondent was the Insurance Company and the 5th respondent was one of the representatives of the deceased, who was arrayed on the respondents' side. 2. The contention of the claimants was that when the deceased, who was a constable, was on duty, he attempted to stop the vehicle at the naka placed in the village of Jamarai on suspicion. The driver did not stop the vehicle while going one way and on its return again when the vehicle was stopped at 11 PM on the intervening night of 24/25.09.2002, FAO No.5440 of 2009 (O&M) - 2 - the driver with a criminal intention to kill the deceased drove over him without stopping. He sustained grievous injuries and succumbed to death. All the respondents except the driver remained ex parte. The Tribunal passed the award, referring to the decision of the Hon'ble Supreme Court in Rita Devi Versus New India Assurance Company Limited-2000(2) PLR 768 and held that the driver and the owner were liable to satisfy the claim for compensation which was fixed at Rs.9,83,600/-. The Insurance Company had been for some reason exonerated and the appeal has been filed by the driver, who is now undergoing imprisonment. 3. It is not known whether the trial is completed and whether the conviction has been rendered on the charges levied against the driver for offence under Section 302 IPC. The owners of the car have not preferred the appeal. If the vehicle had been used as a weapon to cause death while deliberately running over a third party such as the pedestrian, it will be difficult to sustain a claim only before the Tribunal. The liability under an insurance cover itself is available only for a death or bodily injury arising out of the use of the vehicle in a manner that would give rise to a civil action for damages. An act complained of must be a tortious act. The law of vicarious liability for the act of a driver on the owner itself arises only in the realm of torts. Or persons, who are not immediately connected with the act, could also be liable only if they share a common intention and the act of one person could be attributed also to other persons by invoking either the principle of common intention referred to under Section 34 IPC or as an action for abetment FAO No.5440 of 2009 (O&M) - 3 - under Section 120 of the Indian Penal Code. In either case, the appropriate remedy could never be under the Motor Vehicles Act. 4. All this is not to state that a murder by an act of driver does not give rise to cause of action for damages. That will become possible in an appropriate civil action filed by the representatives of the deceased under the Fatal Accident Act of 1855. A death caused by an intentional murder was held in Jagan Nath Singh Versus Pragi Kunwar-1949 Allahabad 448; Jai Singh Versus Mansha Ram-AIR 1963 Himachal Pradesh 37 to give rise to an action by the legal representatives of the deceased to seek for compensation against the murderer. Even pendency of an appeal against conviction was held not to be taken as a relevant factor to doubt the tenability of the claim in Gurdev Singh and others Versus Smt. Harbhajan Kaur and others-1991 (1) All Criminal Law Reporter 803. There is, therefore, no doubt in my mind that the driver, if he had committed the death of the person not merely by his negligent act but also with a deliberate intention to cause the death would become liable for a claim for compensation. The Tribunal was referring to the decision in Rita Devi referred to above that dealt with a slightly different situation, who was a person, who was last seen in an auto-rickshaw which had been found abandoned and the person, who was travelling in the vehicle, had been found murdered. The Court held that the death was by the use of a motor vehicle and in a case where it was not possible to trace the person who had committed that act, the Hon'ble Supreme Court found the action against the owner of the auto-rickshaw liable under the MV Act. The Court was not stating that a Tribunal will have jurisdiction FAO No.5440 of 2009 (O&M) - 4 - even if a person committed a deliberate act of murder by using the motor vehicle. 5. Courts have approached the expression of the 'use of a motor vehicle' in an expansive manner, for instance, in a case where due to communal riots, curfew had been imposed, and a driver of a vehicle, which belonged to a State Transport Corporation, was stopped by a mob and the driver was killed. The Court held that the Road Transport Corporation management was liable for negligence in not providing adequate arrangement for safety. The above case dealt with by the Madhya Pradesh High Court in 1971 MPLJ 706 held the Corporation liable and it involved no interest of the insurer nor was any award against the person, who caused the murder. The employer was being made liable for death of the workman due to the former's negligence in not providing adequate safety. 6. In the present case, since no liability has been cast on the insurer nor the owners of the vehicle are in appeal before me, I will see the case merely as a claim for the death of a person caused by the appellant by the use of a motor vehicle. I am not entering into the realm of enquiry whether a claim petition was possible before the Tribunal but I would not disturb the ultimate award, for, if an award were to be passed on the only ground that it was a case of negligence with no murder intended, the driver and the owner as tort feasors would become liable. With a criminal intent, if it was an act of murder by the driver even then he would have been liable under the Fatal Accident Act. The appellant driver would become liable in either way, for the forum of trial FAO No.5440 of 2009 (O&M) - 5 - is irrelevant so long as this Court would be the Court of appeal for the amount claimed even if it had been instituted as civil suit. Substantial justice had been done and I would not therefore interfere with the award. 7. The issue whether such a claim before the Motor Accident Claims Tribunal would arise, is kept open for an adjudication in some other appropriate case. The appeal is dismissed. (K.KANNAN) JUDGE 01.09.2010 sanjeev