New India Assurance Co. Ltd. vs Alexander M.P. And Ors. on 6 November 2003

Delhi High Court
New India Assurance Co. Ltd. vs Alexander M.P. And Ors. on 6 November, 2003
Equivalent citations: II(2004)ACC718, 2005ACJ1938
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT

S.K. Mahajan, J.

1. Since common questions of law and fact are involved in all these three appeals as well as in the cross-objections, they have been heard together and are being disposed of by this common order. A few facts relevant for deciding these appeals are:

Constable M.C. Alexander, Lance Nayak Hari Singh and Sub-Inspector M. Ramachandran Pillai were employed with the Central Reserve Police Force (CRPF). On 5.12.1986, all these three officials serving with the 42nd Battalion of the CRPF were deployed at New Delhi, Gole Dak Khana area for controlling the law and order situation. The situation in the area was stated to be tense because the authorities of the nearby Gurudwara wanted to take out procession in connection with the Martyrdom Day of Guru Teg Bahadur and the local authorities were resisting the same. Prohibitory orders under Section 144, Criminal Procedure Code were also imposed in the area. After some negotiations, it appears that Gurudwara authorities were permitted to take out the procession. Because of some incidents in other parts of the city, the processionists were stated to have withdrawn inside the Gurudwara Bangla Sahib. The two companies of the CRPF who were deployed there to control the law and order situation were asked to remain there. The higher authorities of the CRPF belonging to the 42nd Battalion were also present at the spot to avoid any untoward incident. The aforesaid three officials were standing on the pavement with other jawans of the 42nd Battalion. Suddenly a truck bearing No. DHL 4815 belonging to one Ranjit Singh and being driven by one Paramjit Singh (now deceased) and insured with the appellant came at a very high speed from the direction of the main entrance of the Gurudwara Bangla Sahib, took a round of Gole Dak Khana and rammed against the three aforesaid officials and some other CRPF jawans standing on the pavement. It happened so suddenly that no one could move to safety or take any preventive measure to avoid the accident. The vehicle after crushing the jawans rammed against the wall of the Church and came to a halt. As a result of this accident, several CRPF personnel died and received injuries. Though some of the officials had managed to escape by jumping left or right and thus sustained injuries, but the three above named officials having received severe injuries were taken to the hospital and were declared brought dead. After the matter was investigated an F.I.R. under Sections 302, 307 and 324 of the Indian Penal Code was registered by the police. Alleging that accident was caused entirely due to rash and negligent driving of the aforesaid vehicle by its driver, the legal heirs of the deceased officials filed separate applications claiming compensation for their death caused in the road accident stated to have been caused due to rash and negligent driving of the offending vehicle by its driver.
2. The written statements were filed by both the owner and the insurance company of the offending vehicle. In the written statement they took the plea that the owner had no concern or connection with Param-jit Singh who was driving the vehicle at the time of the accident nor he was in his employment. It was stated that the vehicle was in the custody of one Sukeshwar, the driver of the owner from whom the said Paramjit Singh had forcibly and illegally snatched the vehicle by showing a sword and said Paramjit Singh then unauthorised-ly drove the vehicle and hit the deceased thereby killing them on the spot. It was stated that it was a case of murder and not a case of accident and as such neither the owner nor the insurance company was liable to pay any compensation to the legal heirs of the deceased. The Tribunal did not frame any issue but directed the parties to lead evidence on the pleas taken by them in their respective pleadings.

3. Claimants besides producing themselves as witnesses also produced one Ram Lal Joshi, who had retired from CRPF, as a witness in the case. The said Ram Lal Joshi, in his statement before the court stated that he joined CRPF on 1.4.1968 as Head Constable and retired on 30.10.1994 as a Deputy Commandant. He stated that accident took place on 5.12.1986 and he was the seniormost officer of 42nd Battalion at the spot and the same was under his control. He stated that his company was deployed to control law and order situation along with Delhi Police at Gole Dak Khana near the Church and Section 144 of Criminal Procedure Code had also been imposed. He further deposed that suddenly a truck came at a high speed from the side of Gole Dak Khana towards Guru-dwara and rammed against the deceased officials and other jawans standing on the pavement. He stated that the speed of the truck was so high that nobody could move to safety or take any preventive measure, but some of the jawans managed to escape by jumping left or right. He further deposed that three officials who sustained injuries were so badly injured that they died on the spot. They were taken to Ram Manohar Lohia Hospital where they were declared brought dead. According to this witness, the accident took place entirely due to negligence of the driver of the offending vehicle. Despite opportunity, the witness was not cross-examined either by the insurance company or the owner of the offending vehicle. One assistant from the office of insurance company also appeared in court as a witness but except proving the policy of insurance nothing more was said by the said witness. No other evidence was produced either by the owner of the truck or by the insurance company.

4. On the basis of the aforesaid evidence produced before the Tribunal, it came to a finding that even if it was a case of murder, since the driver had no ill-will or any motive against the CRPF personnel and his motive was to act against the authority of the State and not against the deceased officials, it was an accident arising out of use of motor vehicle vis-avis three victims and legal representatives of the deceased would, therefore, be entitled to compensation. After holding that the legal representatives would be entitled to compensation, the Tribunal awarded compensation in their favor. Award of the Tribunal directing the insurance company to pay compensation has now been challenged by filing the present appeal. The respondents-claimants have also filed the cross-objections and have prayed for enhancement of compensation.

5. The contention of Mr. Seth appearing on behalf of the insurance company is that it was a clear case of murder and consequently the petition under Section 110-A of Motor Vehicles Act, 1939 claiming compensation for the death alleged to have been caused in the accident was not maintainable. For this, he has placed reliance upon the judgment of the Supreme Court in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC).

6. It is next contended by Mr. Seth that even assuming the claimants were entitled to compensation as they had died because of use of the motor vehicle, the owner can still not be made liable to pay compensation as, firstly, it was not proved that the accident was caused due to rash and negligent driving of the offending vehicle and, secondly, because the vehicle was not driven by a person authorised by the owner during the course of the employment at the time of the accident. He contends that it is a case akin to a case where the vehicle is snatched by force in a robbery and the accident is caused by that robber and in such a case the owner cannot be held liable and if the owner cannot be held liable, the insurance company cannot be directed to pay compensation as it is only required to indemnify the insured. In support of his contention, he has relied upon the judgment of the Supreme Court in Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977 ACJ 118 (SC).

7. Judgment in Rita Devi v. New India Assurance Co. Ltd., , has also been relied by the Tribunal to hold that if the intention of the driver was not to kill the deceased but in the process of harming someone else if the deceased was killed with the use of the motor vehicle, it would still be a case of accident and insurance company could not be absolved of its liability to pay compensation under the policy. Mr. Seth has, however, relied upon certain observations of the Supreme Court in this judgment where the Supreme Court has analysed as to what is ‘murder’ and what is an ‘accident’. Supreme Court while examining the question as to whether ‘murder’ can be an ‘accident’ in any given case, observed that 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 cause of such murder. In the opinion of the Apex Court, 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 simpliciter, 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.

8. Contention of Mr. Seth, therefore, is that as the intention of the driver of the offending vehicle was to kill it is a clear case of ‘murder’ and not ‘accident’. I have carefully considered this argument of Mr. Seth but I have not been able to make myself agreeable with him. I have also carefully gone through the trial court file to examine whether there was any material to hold that the unfortunate incident was ‘murder’ and not ‘accident’ but I find that there is no evidence whatsoever on record to prove that it was a case of murder. The only witness who has appeared before the court states that the Vehicle was being driven rashly and negligently by its driver and it came at a high speed and hit the deceased. No suggestion was given in cross-examination to this witness that the driver had intentionally hit the deceased or had any intention to kill those persons nor any evidence is produced by appellant to prove that it was a case of ‘murder’ and not ‘accident’. No doubt the police had registered an F.I.R. under Sections 302/307, Indian Penal Code, however, merely because of registration of F.I.R. under Sections 302/307, Indian Penal Code will not mean that the person against whom the F.I.R. was registered had murdered the deceased or had any intention to kill such person. F.I.R. is only an information given to the police about the incident that had happened and the offence has to be proved in a court of law beyond reasonable doubt to convict the person against whom the F.I.R. has been registered. In the absence of evidence on record, merely recording of an F.I.R. will not make it a case of murder.

9. In Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC), the facts were that D was the driver of an autorick-shaw owned by another person. The auto-rickshaw was registered as a public carrier vehicle for hire by passengers. It was insured with respondent. On 22.3.1995 some unknown persons hired the autorickshaw but subsequently stole away the same and killed D. D’s legal representatives filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming damages for the death of D caused during the course of his employment under the owner of the autorickshaw and also fastened legal and statutory liability on the insurer. The insurer, respondent herein, preferred an appeal before the High Court which allowed the same on the ground that the case was one of murder and not that of an accident. In appeal before the Supreme Court, D’s legal representatives contended that the murder of D squarely fell within the words ‘death due to accident arising out of the use of motor vehicle’ found in Section 163-A(1) of the Act. That in the absence of a definition of the word accident in Motor Vehicles Act, which was a beneficial legislation, a liberal interpretation should be given so as to achieve the objects of the Act. They further contended that the appeal filed by the insurer was not maintainable for not having obtained the leave of the Tribunal as required under Section 170 of the Act. On the other hand, the respondent insurer contended that the meaning ascribed to the word ‘accident’ in Workmen’s Compensation Act by judicial pronouncements could not be applied to the word ‘accident’ in Motor Vehicles Act because the objects of the two Acts were different. That the death of the driver of the autorickshaw was caused by felonious acts of certain unknown persons and not by an accident out of the use of the vehicle. That the insurer’s appeal to the High Court was maintainable. On these facts the Apex Court rejecting the contention of the insurance company held that no doubt ‘murder’, as it is understood in the common parlance is a felonious act where death is caused with intent and the perpetrators of the act normally have a motive against the victim for such killing. But there are also instances where the 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. 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 simpliciter, while if the cause of murder or the 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.

10. Apex Court further observed that in that case, the stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw was only incidental to the act of stealing the autorickshaw. Therefore, it has to be held that D’s death was caused accidentally in the process of committing theft of autorickshaw. Therefore, the trial court rightly came to the conclusion that the claimants were entitled to compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of D was not caused by an accident involving the use of motor vehicle.

11. In view of the aforesaid observations of the Supreme Court and there being no evidence to support the plea of Mr. Seth, I am unable to agree with him that it was a case of murder or that the claimants were not entitled to any compensation. This judgment does not in any manner support the case of the appellant.

12. The second contention of Mr. Seth is that it was for the respondents to prove rash and negligent driving of the offending vehicle to entitle them to claim compensation and also to prove that the vehicle at the relevant time was being driven by the driver during the course of his employment. The contention of Mr. Seth is also that there is no finding by the Tribunal that the vehicle at the relevant time was being driven by the driver authorised by owner during the course of his employment. He also contends that no finding is given by the Claims Tribunal that the vehicle was being driven negligently at the time of the alleged accident.

13. In Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977 ACJ 118 (SC), it was held by the Supreme Court that the liability of the owner of the car to compensate the victim in road accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master should be made liable, it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. It was held that under Section 95 (1) (b) (i) of the 1939 Act, it was required that the policy of insurance must be a policy which insured the person against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury. The accident to which the owner or person insuring the vehicle is liable to the extent of liability in respect of death or bodily injury and that liability is covered by the insurance. Therefore, if the owner has not incurred any liability in respect of death or bodily injury to any person, there is no liability and it is not intended to be covered by the insurance. It was held that the expression ‘liability which may be incurred by him’ is meant as covering any liability arising out of the use of vehicle. A person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case of a motor accident, the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. Proof of negligence is, therefore, necessary before the owner or the insurance company could be held liable to pay compensation to the claimants in a motor accident claim case.

14. In view of the aforesaid findings of the Supreme Court, it is true that to claim maintenance, the claimants are required to prove not only the negligence of the offending vehicle but also that it was being driven by a person authorised by the owner unless of course compensation is being claimed under Section 163-A of the 1988 Act on no fault liability basis. While the proof of negligence may be upon claimants, however, the fact as to whether or not the driver was driving the vehicle during the course of his employment cannot be proved in the negative by the claimants. It is only for the owner to prove as to whether or not the person who was driving the vehicle at the relevant time was employed by him and if he proves that the driver was not authorised by him, may be the owner is able to avoid his liability to pay compensation and the insurer may also refuse to indemnify the insured in such a case. However, where the owner has not placed any evidence on record to show that the driver of the offending vehicle at the relevant time was not employed by him, in my opinion, it cannot be argued on his behalf that it was for the claimants to prove that driver was driving the vehicle during the course of his employment. In the absence of any evidence placed on record by the owner and in the absence of any cross-examination of the witnesses of the respondents/claimants, in my opinion, it has to be presumed that the person who was driving the vehicle and has caused the accident, was driving the same during the course of his employment.

15. Coming to the last argument of Mr. Seth that the negligence of the offending vehicle had not been proved by the claimants nor any finding to that effect has been given by the Tribunal and if this court decides other issues against the appellant, matter may be remanded to the Tribunal to give a finding on that issue. While it is true that the Tribunal has not given any finding about negligence of the offending vehicle, however, from the evidence of PW 1, Ram Lal Joshi, it is clear that the vehicle at the time of the accident was being driven in a rash and negligent manner by its driver. The fact that the accident had resulted in killing and injuring many persons who were standing on the pavement clearly prove the negligence of the driver of the offending vehicle and the doctrine of res ipsa loquitur clearly applies in this case and nothing more was required to be proved by the claimants. I am, therefore, of the clear opinion that the accident was caused entirely due to rash and negligent driving of the offending vehicle and even if no finding to this effect has been given by the Tribunal, this court on the basis of the material on record can form its own opinion about the accident and it is not necessary for this court to remand the case to the Tribunal for that purpose.

16. For the foregoing reason, I do not find any merits in the appeals of insurance company and the same are accordingly dismissed, however, in the facts of the case, I leave the parties to bear their own costs.

17. Now coming to cross-objections filed by the respondent-claimants, I will deal with each of these cross-objections separately.

Compensation for the death of M.C. Alexander, Head Constable:

18. The only point argued by the learn- ed counsel for the claimants is that the deceased was of the age of 22 years and seven months and in terms of the Second Schedule, therefore, the correct multiplier to be applied was 17 whereas the Tribunal has applied the multiplier of 16 to the loss of dependency. While it is true that as per the Second Schedule, the correct multiplier to be applied in the case of persons between the age of 20-25 was 17, however, in the present case, deceased was unmarried and the multiplier, therefore, to be applied is according to the age of his parents. Though the age of the parents has not come in evidence, however, looking to the age of deceased, the Tribunal has concluded that the parents may be around the age of 45 years. Taking the age of the parents as 45, in my opinion, the Tribunal has correctly applied the multiplier in this case and the compensation awarded by the Tribunal cannot be enhanced. The cross-objections filed in this case are, therefore, dismissed.

Compensation for the death of Hari Singh, Lance Nayak:

19. The deceased in this case was of the age of 48 years and 8 months and his loss of dependency in this case has been taken as Rs. 1,520 per month or say Rs. 18,240 per year. The Claims Tribunal has applied the multiplier of 11 for arriving at loss of dependency to the family of the deceased. In terms of the Second Schedule to the Motor Vehicles Act for persons between the ages of 45 and 50, the correct multiplier to be applied is 13. The Tribunal in my view, therefore, has erred in not applying the correct multiplier to arrive at loss of dependency to the family of the deceased. Applying the multiplier of 13 to the loss of dependency of Rs. 18,240 per annum, the total loss of dependency to the family would come to Rs. 2,37,120. Adding to this the conventional figure of Rs. 25,000 as non-pecuniary damages towards loss of consortium and funeral expenses, etc. the total compensation to which the legal heirs of Lance Nayak Hari Singh would be entitled comes to Rs. 2,62,120.I, accordingly, allow this cross-objection and enhance the compensation to Rs. 2,62,120. The legal heirs of the deceased would also be entitled to interest on the enhanced compensation at the rate of 9 per cent per annum from the date of filing the application till payment.

Compensation for the death of M. Rama-chandran Pillai, Sub-Inspector:

20. The deceased in this case was of the age of 42 years and eleven months and his loss of dependency has been taken as Rs. 2,775 per month or Rs. 33,300 per annum. To arrive at the total loss of dependency to the family, the Tribunal has applied the multiplier of 12. In terms of the Second Schedule to the Motor Vehicles Act, however, the correct multiplier to be applied in this case for persons between the ages of 40 and 45 is 15. The Tribunal, in my view, therefore, has erred in not applying the correct multiplier to arrive at loss of dependency to the family of the deceased. Applying the multiplier of 15 total loss of dependency comes to Rs. 4,99,500. Adding to this the conventional figure of Rs. 25,000 as the non-pecuniary damages towards loss of consortium and funeral expenses, etc. the total compensation to which the legal heirs of M. Ramachandran Pillai, Sub-Inspector would be entitled comes to Rs. 5,24,500. I, accordingly, allow this cross-objection and enhance the compensation to Rs. 5,24,500. The legal heirs of the deceased would also be entitled to interest on the enhanced compensation at the rate of 9 per cent per annum from the date of filing the application till payment.

21. It is submitted by the learned counsel for the respondents-claimants that the deceased had died in the year 1986. Seven- teen years have passed since the death of the deceased and the family of deceased is in need of money. It is submitted that the Claims Tribunal has directed 80 per cent of the compensation to be deposited with a nationalised bank for a period of,10 years. It is submitted that great hardship has been caused to the families of the deceased as they are not able to utilise the compensation awarded in their favor. In view of the difficulties explained, I permit claimants to encash the fixed deposit receipts, which were prepared earlier and handed over to them pursuant to the orders of the Tribunal and the concerned banks are directed to pay the amount of such fixed deposit along with interest to the claimants.

22. Appellants are directed to deposit the balance 50 per cent compensation along with enhanced compensation with interest within six weeks from today. On deposit of this compensation with the Tribunal, the respondent/claimants will be entitled to withdraw 20 per cent of such amount and the balance 80 per cent would be deposited in fixed deposit in the names of the claimants in terms of the award for a period of five years. With these observations, these appeals and cross-objections stand disposed of. Copy of the order be given dusty to counsel for the parties.