IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 13 of 2006 National Insurance Co. Ltd. …Appellant Versus Km. Ashma & others ... Respondents Sri Manish Dalakoti, holding brief of Sri D.S. Patni, Advocate for appellant None for respondents Dated: July 28, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by appellant- National Insurance Co. Ltd., against the judgment and award dated 25.11.2005 passed by M.A.C.T./District Judge, Nainital, in M.A.C.P. No. 169 of 2004. Brief facts of the case as narrated in the claim petition are that on 16.4.1999 Vehicle No. U.P. 02- 8119 was booked by four unknown persons for Rudrapur from Taxi Stand, Nainital and since then the deceased was not heard or seen alive. The deceased-Ijlal Ahmad was driver in this taxi. The deceased-driver was murdered with intent to robbery and he died during course of employment. The deceased-driver was earning Rs.3000/- per month from salary. Apart from pecuniary loss the claimants suffered a great mental shock and agony. The deceased was having a good physique and was free from all ailments. The deceased had three unmarried daughters. The claimants claimed a sum 2 of Rs.4,50,000/- as compensation against opposite parties. Opposite party no. 1-Km. Mukta Tiwari filed contested by filing written statement and admitted the factum that she was the registered owner of Maruti Van No. U.P.02/8119 on the date of accident. She also admitted that deceased-Ijlal Ahmad was the driver over the said Maruti Van, but her statement with regard to salary of deceased was that salary of deceased was not Rs.3000/- per month, rather it was Rs.2000/- per month. She also pleaded that deceased was having valid and effective driving licence and on 16.4.1999 he gone from Nainital along with passengers and since then he did not return back. She further stated that on that date said vehicle i.e Maruti Van was insured with opposite party no. 2-National Insurance Co. Ltd. Opposite party no. 2-National Insurance Co. Ltd. filed written statement and pleaded that it was not given any information with regard to said accident under the provisions of Sections 158(6) and 134(A) of Motor Vehicles Act. It has also pleaded that death of deceased-Ijlal Ahmad was not caused due to motor accident, rather deceased was murdered, therefore, claim petition filed by claimants is not maintainable under Section 163-A of Motor Vehicles Act, rather the claimants may file claim petition under Workmen’s Compensation Act. It has further pleaded that at the time of accident deceased was not having valid driving licence and there was breach of conditions of insurance policy on the part of registered owner of vehicle, hence the insurance company is not liable to pay amount of 3 compensation. It has admitted that at the time of alleged accident said vehicle was insured with it. Opposite parties no. 3, 4 and 5 are legal heirs of deceased. They have stated by filing their written statement that they have no objection, in case entire amount of compensation is given to claimants no. 1, 2 and 3. The learned Tribunal, on the basis of pleadings adduced by the parties, framed following issues in the claim petition: 1. Whether on 16.04.1994 Ijlal Ahmad was employed as driver over Vehicle No. U.P.02-8119 and death of Ijlal Ahmad was caused on the said date in continuation of booking of taxi by unknown persons and robbing of vehicle? 2. Whether insurance company is not liable to pay amount of compensation on account of the fact that murder of deceased-driver was caused in continuation of robbing of Vehicle No. U.P.02/8119? If yes, its effect? 3. Relief? Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.2,20,000/-, payable by opposite party no. 2-National Insurance Co. Ltd., along with interest @ 6% per annum from the date 4 of filing the petition till the date of actual payment, vide judgment and award dated 25.11.2005. The Tribunal further directed that this amount of compensation is to be paid by opposite party no. 2 within a period of sixty days. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-National Insurance Co. Ltd. has preferred the appeal before this Court. Heard Sri Manish Dalakoti, holding brief of Sri D.S. Patni, learned counsel for appellant and perused the record. None has appeared on behalf of respondents inspite of sufficient service of notice upon them. Learned counsel for appellant-insurance company has submitted that death of deceased-Ijlal Ahmad could not be proved due to accident. He further submitted that there is intention to murder as such it cannot be said to be an accident involved in the use of motor vehicle. The record reveals that opposite party no. 2- insurance company stated that murder of deceased- Ijlal Ahmad (driver of Vehicle No. U.P.02/8119) took place in continuation of robbing of said vehicle and hence the insurance company is not liable to pay compensation, as it cannot be said to be an accident involved in the use of motor vehicle. From the perusal of evidence available on record it is clearly established that on 16.4.1999 deceased Ijlal Ahmad was employed as driver over the said Maruti Van. It is also proved that on 16.4.1999 said Taxi was booked for Rudrapur from Taxi Stand, Nainital 5 and thereafter taxi driver and taxi were found missing and later on dead body of deceased was recovered and taxi was recovered near Banbasa Bairaj. The learned Tribunal relied upon the judgment passed by the Hon’ble Apex Court rendered in the case reported in 2000 (2) T.A.C. 213, Reeta Devi vs. New India Assurance Co. Ltd., in which the Hon’ble Apex Court has clearly held that where a driver was murdered with an intent to loot the vehicle, then that murder (death) shall be treated as death under the provisions of Motor Vehicles Act and in that situation dependants of deceased may file claim petition to get compensation under Section 163(A) of Motor Vehicles Act. Therefore, the claim petition filed by claimants is maintainable. I do not find any illegality in the finding recorded by Tribunal in this regard. Now, it is to be seen as to whether on 16.4.1994 deceased was employed as driver over the said vehicle or not. This fact is clearly proved from written statement filed by opposite party no. 1, in which she admitted that deceased-Ijlal Ahmad was working as driver over Maruti Van No. U.P.02/8119. She also admitted this fact that on 16.4.1994 said taxi was booked by some unknown persons from Nainital and thereafter taxi driver and taxi were found missing and later on taxi was recovered near Banbasa Bairaj. Claimant-Km. Ashma herself has been produced as PW-1, who stated in her deposition that on 16.04.1994 her father-Sri Ijlal Ahmad was driver over Taxi No. U.P.02/8119 and the said taxi 6 were registered in Nainital Taxi Stand. This witness further deposited that on the very same day the said taxi was got booked by some unknown persons for Rudrapur, where her father was murdered and taxi was looted. This witness further stated that report of the said accident was lodged by his cousin on 26.4.1994 and after 3-4 months dead body of her father was recovered from forest near Baheri and taxi was recovered near Banbasa. PW-2 Nasir Hussain has been produced as a witness and deposed in his statement that on 16.4.1994 the said Maruti Van was booked by some unknown persons and after that driver-Ijlal Ahmad, who was his uncle, and taxi were found missing. The Tribunal after having considered the entire evidence adduced by the parties came to the conclusion that death of deceased-Ijlal Ahmad took place in continuation of robbing of taxi and accordingly claim petition filed by claimants is maintainable under Section 163(A) of Motor Vehicles Act. I do not find any infirmity in the finding recorded by the Tribunal and needs no interference. As far as amount of compensation to be awarded in favour of claimants is concerned, the claimants stated in deposition that deceased used to receive a sum of Rs.3,000/- per month as salary, while opposite party no. 1 stated the monthly income of deceased as Rs.2,000/- per month. The Tribunal keeping in view the monthly income of deceased as Rs.2,000/- per month assessed the annual income of deceased at Rs.24,000/- and after deducting 1/3rd out of it towards personal expenses of deceased, the annual financial dependency of claimants has been worked out at Rs.16,000/-, 7 which appears to be justified. The Tribunal selected the multiplier of ‘13’ as per Second Schedule prescribed in Section 163(A) of M.V. Act for the age group of 45-50 years and after applying the multiplier of ‘13’ the amount of compensation comes to Rs.16,000 x 13=Rs.2,08,000/-. The Tribunal further awarded a sum of Rs.12,000/- towards loss of love and affection. Thus, the Tribunal awarded a total sum of Rs.2,20,000/- as compensation to the claimants, which appears to be a just and reasonable amount of compensation. The interest @ 6% per annum as has been awarded by the Tribunal in the impugned judgment and award also appears to be justified. I do not find any illegality in the method adopted by the Tribunal in calculating the amount of compensation. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and award passed by Tribunal is herby confirmed. The statutory amount deposited with this Court by the appellant be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP 8