*HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY +C.M.A.No.196 of 2005 % 10-9-2014 Between:
# The New India Assurance Co. Ltd., Represented by its Divisional Manager, Secunderabad ..
Appellant Vs.
$ Smt. M. Parvathamma and others .. Respondents <GIST:
>HEAD NOTE:
! Counsel for appellant : Sri V. Venkata Rami Reddy ^ Counsel for respondents : None appeared ? CASES REFERRED:
1. 2000 ACJ 801
2. 1905(2) KB 154
3. 1910(1) KB 689
4. 1914 AC 667 HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.M.A.No.196 of 2005 Date : 10-9-2014 Between The New India Assurance Co. Ltd., Represented by its Divisional Manager, Secunderabad ..
Appellant And Smt. M. Parvathamma and others .. Respondents Counsel for appellant : Sri V. Venkata Rami Reddy Counsel for respondents : None appeared The Court made the following :
JUDGMENT:
This Civil Miscellaneous Appeal arises out of order dated 31-8-2004 in W.C.No.64 of 2003 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Circle-1, Hyderabad (for short “the Commissioner”).
The Counsel for the respondents is not present.
I have heard Sri V. Venkata Rami Reddy, learned Counsel for the appellant.
Respondent Nos.1 to 5, who are the legal representatives of late Sambasivudu (for short “the deceased”), filed W.C.No.64 of 2003 against respondent No.6-the owner of car bearing registration No.AP-28-AF- 1191, and the appellant-company with which the said car is insured, for compensation for the death of the deceased occurred in the course of his employment. The appellant has resisted the said claim mainly on two pleas, namely, that the deceased was not the employee of respondent No.6 and that the death has admittedly occurred on account of ‘murder’ which does not constitute ‘accident’. The Commissioner, purporting to appreciate the oral and documentary evidence held that the deceased was an employee of respondent No.6 and that he was murdered during the course of his employment and such murder amounted to accident.
As regards the dispute relating to employer-employee relationship, I must say that there is no record to establish such relationship between the deceased and respondent No.6. Respondent No.6, who was examined as OPW-1 came out with different versions at different stages as noticed by the Commissioner, but still, he has trusted her version and held that there is employer-employee relationship between the deceased and respondent No.6. I do not, however, propose to delve much into this aspect because there is much more important aspect on which this appeal can be decided.
The Workmen’s Compensation Act, 1923, which is re- christened as the Employees’ Compensation Act, 1923 (for short “the Act”) provides for payment of compensation by employers, if personal injuries are caused to employees by accident arising out of, and in the course of employment. Section 4 of the Act prescribed quantum of compensation depending upon death or nature of the injury, as the case may be. However, under Section 3 of the Act, such compensation is payable if the injury or death occurred by ‘accident’ arising out of and in the course of employment.
On the admitted facts of this case, the cause for the death of the deceased was murder. The question therefore is whether ‘murder’ amounts to ‘accident’ within the meaning of Section 3(1) of the Act.
In Nisbet Vs. Rayne Burn (3-supra), a cashier while travelling in a railway to a colliery with a large sum of money for payment of his employer’s workmen, was robbed and murdered. The Court of appeal while repelling the argument that the cause of death was murder and not accident held that the murder was an accident from the stand point of the person who suffered from it and that it arose out of the employment which involved more than the ordinary risk and consequently the widow was entitled to compensation.
In Rita Devi and others Vs. New India Assurance
[1]
Co.Ltd. and another this issue was considered by the Supreme Court. The Apex Court has drawn a distinction between a murder which takes place as an accident and a murder which is not an accident. The Supreme Court relied upon the Judgments in Challis Vs. London and South
[2]
Western Railway Company , Nisbet Vs. Rayne and
[3]
Burn , and Board of Management of Trim Joint District School Vs. Kelly[4] and held on the facts of that case since murder of the auto-rickshaw driver has taken place in the course of duty and the passengers who hired the auto- rickshaw committed an act of felony of stealing the auto- rickshaw for which purpose they had to eliminate the driver of the auto-rickshaw, it was an accidental murder as it was only incidental to the act of stealing of the auto-rickshaw.
The ratio that could be culled out from the above discussed Judgments is that if murder has taken place not as the main felonious act but it is only incidental or ancillary to the main act of felony, such as stealing cash or a vehicle or valuable goods, such murder constitutes accident and not otherwise.
In the instant case, it is nobody’s case that the passengers intended to steal the car and that in the process of committing such felonious act and to facilitate such felonious act, the deceased was done to death. Unfortunately, the Commissioner has not adverted to the issue whether the murder on the facts of the case constitutes accident. In the light of the above discussion, the order of the Commissioner cannot be sustained and the same is set-aside.
A perusal of the proceedings sheet shows that this Court has granted interim stay subject to respondent Nos.1 to 5 withdrawing half of the amount awarded by the Commissioner without furnishing any security. Considering the fact that the amount was permitted to be withdrawn as far back as the year 2005 and respondent Nos.1 to 5 being dependents of a poor deceased car driver, I consider it just and proper that the amount already withdrawn by them shall not be recovered by the appellant. The appellant is however entitled to take back the balance amount lying in deposit to the credit of W.C.No.64 of 2003 before the Commissioner.
The Civil Miscellaneous Appeal is accordingly allowed to the extent indicated above.
Justice C.V. Nagarjuna Reddy Date : 10-9-2014 L.R. copies AM
[1] 2000 ACJ 801
[2] 1905(2) KB 154
[3] 1910(1) KB 689
[4] 1914 AC 667