Oriental Insurance Company Ltd v. Motor Accident Claims Tribunal, Hojai

The findings as returned by the Tribunal as regards the accident that occurred on 17.10.2005 when a group of extremists intercepted the vehicle and killed the passengers carried in the vehicle No.AS-09-4743, death of one Aph u Patorpi, wife of the claimant and the insurance coverage of the said vehicle b y the appellant are not in dispute by either of the parties or in the appeal. As such those findings stand affirmed without requiring any further appraisal. The questions that has been raised in the appeal may be encapsul Whether the said acceded occurred arising out of the use of the motor ve

3. ated as : i. hicle or ii. Whether the claim is maintainable in view of the fact that the Governmen t has made exgratia payment of Rs.3,00,000/- for death of the wife of the claman t?

4. Mr. S. Dutta, learned counsel appearing for the appellant submit ted that from a cursory glance at the pleadings as incorporated in the claim pet ition, it would be apparent that there is no pleading regarding negligence of th e driver of the vehicle bearing registration No.AS-09/4743 (bus) nor the cause o f the death is proximate to any accident arising out of the use of the motor veh icle. What the claimants stated that when the vehicle reached the village Presal a, the extremists restrained the vehicle and killed most of the passengers by gu n, daggers and with other dangerous weapons. 5. Mr. S. Dutta, learned counsel appearing for the appellant submit ted that the claimant while deposing in the Tribunal also did not lay any furthe r statement to prove that the said death from the accident was proximate to the use of the motor vehicle. 6. Mr. S. Dutta, learned counsel appearing for the appellant furthe r submitted that there is no material to show the dominant intention of the extr emists was not to kill the passengers out of any enmity and as such this acciden t cannot come within the purview of the motor accident as illustrated under Sect ion 165 of the Motor Vehicles Act, 1988. In addition thereto Mr. S. Dutta, learn ed counsel further submitted that the Government has given the claimant a sum of Rs.3,00,000/- for death of her husband and as such the claim cannot be maintain ed for death. The public institutions cannot be made to make payment twice as co mpensation for the same accident or incident. The Tribunal has framed the follow ing issues for purpose of adjudicating the claim and to take the inquiry to its logical end: i. Whether the offending vehicle No.AS-09-4743(Bus) was being driven rashly a nd negligently at the time of the accident and due to that accident the claimnt’ s wife Amphu Patorpi died? ii. iii. Whether the claimant is entitled to get any compensation and from whom? To what relief or reliefs the parties are entitled to?

7. In the backdrop of the case, the inquiry ought to have been dire cted to determine the dominant intention of the extremists in view of the princi ple as laid down in Rita Devi and Another Vs. New India Assurance Co. Ltd. as re ported in (2005) 5 SCC 113 where the apex Court held as under : (cid:28)10. e? 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 tha t 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 diff The question, therefore is, can a murder be an accident in any given cas erence between a ’murder’ which is not an accident and a ’murder’ which is an ac cident, 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 th en such killing is not an accidental murder but it is a murder simpliciter, whil e if the cause of murder or act of murder was originally not intended and the sa me was caused in furtherance of any other felonious act then such murder is an a ccidental murder. (cid:29) Even this Court adopted this principle in National Insurance Com pany Ltd. Vs. Smt. Kasheni and Others, as reported in (2005) 3 GLT 465. But no i ssue was framed in this regard for inquiry. Accordingly the claimant also did no t adduce such evidence to bare the dominant intention. This Court is of the opin ion that since the entire inquiry has been lost in the lurch, the impugned judgm ent is liable to be set aside. Unless the dominant intention as referred is dete rmined, the said accident cannot be treated within the usual parlance of the acc ident for the use of the motor vehicle. In view of this, the impugned judgment and order is set aside an 8. d the claim petition is remitted back to the Tribunal for proceeding afresh on f raming an issue as under: Whether the dominant intention of the extremist was to kill the passengers or wa s if related to the vehicle for purpose of ceasing the movements of the vehicle?

9. The claimant and others shall be allowed to adduce fresh evidenc e after framing of the issue as regards the dominant intention of the killing. T he entire exercise of inquiry and assessing the compensation, if so required, sh all be completed within a period of 6(six) months from the date of the receipt o f the LCRs from this Court. 10. It is pertinent to mention that the Tribunal shall also decide t he issue whether the claimant is entitled to get further compensation in view of his receiving an exgratia compensation to the extent of Rs.3,00,000/- from the Government of Assam as raised by the appellant. 11. he extent as indicated above. However, there shall be no order as to cots. With this observation and direction, this appeal is allowed to t Send down the LCRs forthwith.