1. Heard Ms. Arushi Khare, learned counsel for the appellant and Sri Ved Kant Mishra, learned counsel for the respondents.
2. This appeal has been filed by the insurance company being aggrieved of award dated 29.10.2005 passed by learned Commissioner under the Workmen's Compensation Act in Case No. W.C.A. 113 of 2004, on the ground that driver and cleaner of the vehicle in question jointly owned by Mohd. Afzal and Mohd. Imran, was shot dead, when they had taken TATA 407 truck bearing registration no. UP 15 Q 9744 on 21.08.2004 at about 8 pm.
3. It is submitted that murder of driver and cleaner will not come under the definition of 'accident' in terms of the judgment of Supreme Court in case of Rita Devi and Others vs. New India Assurance Co. Ltd. and Another, (2005) 5 SCC 113, where this question, whether a murder be an accident in any given case has been discussed from para-10 to para-13 which reads as under:-
"...........10. The question, therefore, is can a murder be an accident in any given case ? 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 our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, 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.
11. In Challis vs. London and South Western Railway Company (1905 2 Kings Bench 154), the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held:
"The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver; in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the Legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously."
12. In the case of Nisbet vs. Rayne & Burn (1910) 1 KB 689, where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers workmen, was robbed and murdered. The Court of Appeal held:
"That the murder was an accident from the standpoint of the person who suffered from it and that it arose out of an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmens Compensation Act 1906. In this case the Court followed its earlier judgment in the case of Challis (supra). In the case of Nisbet, the Court also observed that it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word accident negatives the idea of intention. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet."
13. The judgment of the Court of Appeal in Nisbets case was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School vs. Kelly (1914 AC 667)."
4. Para-14 of the judgment reads as under:-
"............14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw."
5. In the present case, it is not the case of the insurance company or the owners that the deceased had taken the truck unauthorizedly and was not travelling during the course of and in regard to his employment from place 'A' to 'B', when such murder took place. Therefore, in absence of any material on record to show that truck was being driven in violation of the authority of the owner and further that insurance company has failed to adduced any evidence in this regard, it is not open to the insurance company to now say that murder of the driver and the cleaner will not be construed as an accident. There is no evidence on record as to whether goods which were being transported, were found intact or were stolen in the process, when this incident took place, when the driver and the cleaner were respectively murdered by the unknown miscreants. Therefore, appeal deserves to be dismissed and is dismissed. Lower Court Record be sent back to the tribunal.
Order Date :- 2.2.2021 Vikram/-