1.0 Learned advocate for the appellant placed reliance on para 5 of the judgement of the learned Tribunal which is reproduced as under:
"5.
Heard the ld. Adv. Shri Z.A. Gandhi for the applicant, ld. Adv. Shri N.B. Dave for the opponent No.2, who has vehemently submitted that the deceased was driving rickshaw, he was murdered and hence, offence under Ss. 302 was registered against the accused, and hence, Ins. Co., is not liable to pay the amount of compensation under Sec. 163-A of M.V.Act. As against these, it is argued by ld. Adv. For the applicants, that the son of applicants, named Imranbhai Noormohamad was driving rickshaw no. GJ 7V 5291 at the time of accident, and when he reached at the place of accident, he was murdered. Complaint was lodged before the police, panchnama of scene of accident was prepared by the police in presence of panchas and hence, the opponents are jointly and severally liable to pay the amount of compensation under Section 163-A of M.V. Act. In support of his submission, he has placed reliance on the principle laid down in the case of Smt. Rita Devi and others v/s New Indian Assurance Co. Ltd. and another reported in AIR 2000 S.C. 1930, wherein it has been held that death of rickshaw driver is an accident within meaning of M.V. Act, and, hence, claimants are entitled to get compensation under Act. In the case on hand, the deceased Imranbhai Norrbhai was murdered while he was on duty as driver, and therefore, the death of deceased comes within purview of Sec. 163-A of M.V. Act, and that the applicants are entitled for compensation under the Act, and accordingly, I hold that the applicants are entitled for compensation under the M.V.Act."
2.0 Learned advocate for the appellant has placed reliance on the decision in case of Rita Devi and others versus New India Assurance Co. Ltd and another reported in AIR (2000) S.C. 1930= (2005) 5 SCC 113 wherein in pare 10 it is held 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 give set of facts. The difference between a 'murder' which is an accident, and a 'murder' which is an accident 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 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."
3.0 However, Mr. Pathan, learned advocate for the respondent requests for time to establish that murder is during the course of use of motor and therefore, the view taken by the learned Tribunal is just and proper. The matter is adjourned to 01.03.2012.
(K.S.JHAVERI, J.) niru* Top