1. The instant appeal has been filed against the judgment and award dated 22.07.2006 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.9, Budaun in M.A.C.P. No. 21 of 2004 by which the claim petition, under Section 163-A of the Motor Vehicles Act, of the claimant-respondents, who are dependents of late Naseem Khan (the deceased), have been partly allowed thereby awarding compensation of Rs. 1,79,500/- plus interest from the date of filing of the claim petition.
2. The claim case, in short, was that on 09.04.2003, the husband of the claimant No.1, namely, Naseem Khan was traveling in Bus No. UGL 8580 from Aonla to Budaun when, at about 7:30 P.M., two unknown persons, with intent to rob the passengers, boarded the bus near village Parolia and, in the scuffle that ensued, shot at Naseem Khan thereby injuring him which resulted in his death, while taking him to the Hospital. It was claimed that Naseem Khan had a monthly income of Rs. 5,000/- per month from an electric shop, which he was running, and as the death was caused in an accident arising out of the use of a motor vehicle, the claimants, who were dependents of the deceased, were entitled to compensation under the provisions of section 163-A of the Motor Vehicles Act.
3. The owner of the bus as well as the Insurance Company (the appellant herein) contested the claim on ground that the death was not caused in an accident arising out of the use of the motor vehicle. Instead, it was a case of murder simpliciter, therefore, the claim under Section 163-A of the Motor Vehicles Act was not maintainable. It was pleaded that in respect of the incident the father of the deceased lodged a first information report, upon which, the police after investigation laid a charge-sheet under Sections 302/307 I.P.C., which confirms that it was a case of murder, on account of enmity, and not a case of robbery. The owner as well as the Insurance Company further raised objection with regards to the income of the deceased.
4. From the claimants' side, two witnesses were examined in support of the claim, namely, Mainaz (the widow of the deceased) and Rakesh Chauhan, who was a fellow passenger and an eye-witness to the incident. Neither the owner of the bus nor the Insurance Company examined any witness.
5. The Tribunal recorded a finding that the incident took place while the bus was moving and that the deceased (Naseem Khan) was shot because he resisted the robbers. While holding as above, the Tribunal observed that the first information report did not disclose that the deceased was murdered on account of any enmity. The Tribunal found that from the evidence on record including the statement of the eye-witness, it appeared to be a case of accidental death, on account of resistance offered to the robbers, while traveling in the bus. In support of its conclusion reliance was placed on a decision of the Apex Court in the case of Smt. Rita Devi and others v. New India Assurance Company Ltd. and another : (2000) 5 SCC 113. The Tribunal, thereafter, found that as the income of the deceased, as claimed, was not substantiated, therefore, annual income would be taken at Rs. 15,000/-. After deducting one third from the annual income, a multiplicand of Rs. 10,000/- was determined to which a multiplier of 17 was applied on finding that the age of the deceased at the time of his death was 32 yrs so as to arrive at Rs.1,70,000/- as an amount payable towards loss of dependency. To the aforesaid amount, Rs. 2,000/- was added towards funeral expenses; Rs. 2,500/- towards loss of estate; and Rs. 5,000/- towards loss of consortium so as to arrive at a total of Rs. 1,79,500/- as the compensation payable. As the vehicle was found to be insured with the Insurance Company (the appellant herein) and the driver of the vehicle was having a valid licence, and there was no breach of any condition of the contract of insurance, the Tribunal awarded the compensation against the Insurance Company.
6. Assailing the award passed by the Tribunal, Sri Arun Kumar Shukla, who appeared on behalf of the appellant, submitted that from the charge-sheet, which was filed pursuant to the first information report lodged in respect of the incident, it appeared to be a case of murder simpliciter and not an accidental murder, therefore, the claim under the provisions of the Motor Vehicles Act was not maintainable. Attention of the Court was invited to the first information report lodged by Jameel Khan (the father of the deceased) as also to the charge-sheet. Relying on the said documents, the learned counsel for the appellant submitted that from the first information report, it appears that while the bus was moving two persons boarded the bus near Parolia village and they shot at the son of the informant which caused panic amongst the bus passengers. The driver of the bus thereafter stopped the bus and the assailants alighted from the bus and escaped. It was submitted that in the first information report there is no statement that there was any act of robbery/looting to which resistance was offered by the deceased (Naseem Khan), which made the robbers fire at Naseem Khan. Relying on the charge-sheet, the learned counsel for the appellant submitted that one Nirbhai son of Ram Prakash was charge sheeted by the police for an offence punishable under Sections 302/307 I.P.C. and that no case of any robbery/looting was registered by the police. It was thus submitted that since the intention of the assailants was only to commit murder, therefore, it was not a case of accidental murder or an accidental death arising out of the use of motor vehicle so as to confer jurisdiction on the Tribunal to award compensation on a claim under section 163-A of the Motor Vehicles Act.
7. The learned counsel for the appellant did not assail the basis of calculation of the compensation awarded by the Tribunal and no other point was pressed.
8. On consideration of the submissions of the learned counsel for the appellant, the question that arise for adjudication in this appeal is as to whether the death of Naseem Khan, who was traveling in the bus, was due to an accident arising out of the use of the motor vehicle, or it was a murder simpliciter. Before answering the question it would be useful to note that the claim petition was filed under Section 163-A of the Motor Vehicles Act, therefore, it was not incumbent upon the claimant to prove any negligence on the part of the driver of the motor vehicle so as to maintain the claim.
9. To answer the aforesaid question it would be useful to examine the decision of the apex court in Rita Devi's case (supra) which has been relied by the Tribunal. In Rita Devi's case, the facts of the case were that an auto rickshaw driver was murdered in the process of stealing the auto-rickshaw. The question before the apex court was as to whether the death of auto rickshaw driver was on account of an accident arising out of the use of motor vehicle and, if so, whether a claim under section 163-A of the Motor Vehicle Act was maintainable. While deciding the said case, the apex court observed that from a reading of the provisions of section 163-A, a victim or his heirs are entitled to claim from the owner / Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle, without having to prove wrongful act or neglect or default of any one. It was observed that if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. As to whether murder, in a given situation, could be said to be caused due to an accident arising out of the use of motor vehicle, the apex court observed as follows:-
"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 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."
Thereafter, the apex court proceeded to hold as follows:-
"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 autorickshaw, was dutybound 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 autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. 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 is only incidental to the act of stealing of the autorickshaw. 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 theft of the autorickshaw.
18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle."
10. In the light of the law laid down by the apex court, in the instant case, what is, therefore, to be seen is whether from the evidence brought on record, it is proved that the death of Naseem Khan was as an incident of loot/ robbery/ dacoity, that is an "accidental murder", or "murder simpliciter". If this Court comes to a conclusion that it was a case of murder simpliciter that is, where the perpetrators of the crime had the intention of committing murder only, then, the claim under Section 163-A of the Motor Vehicles Act would not be maintainable. But, if this Court comes to a conclusion that it was a case of an accidental murder that is where the perpetrators of the act did not have any motive against victim but the death was a result of an act to ensure commission of another act of felony, while the vehicle was in use, then, the claim under Section 163-A of the Motor Vehicles Act would be maintainable.
11. In the instant case, only two witnesses were examined. P.W.1 is the claimant, who is the widow of the deceased, whereas P.W.2 (Rakesh Chauhan) was a passenger traveling in the Bus when the husband of the claimant was shot at. From the statement of the claimant, it is not clear whether she was traveling in the bus at the time when the incident took place. But from the statement of Rakesh Chauhan, it is clear that he was traveling as a passenger in the bus and seated just behind the deceased (Naseem Khan). The statement of Rakesh Chauhan goes to show that two persons, with their face covered by a cloth, boarded the bus and when the deceased resisted their act of looting, they shot at the deceased. In the cross-examination, which was at the instance of the Insurance Company, the said witness stated that those persons had not only snatched money from Naseem Khan (the deceased) but they also took money from other two or three passengers. It was stated that the assailants had covered their face by a cloth and therefore they could not be identified.
12. The submission of the learned counsel for the appellant is that the story of robbery was not taken in the first information report; and the police, on investigation, found a case of murder and laid charge-sheet accordingly, therefore, the Tribunal fell in error by placing reliance on the testimony of Rakesh Chauhan, which had no value.
13. The above submission of the learned counsel for the appellant cannot be accepted, as it is well settled in law that a first information report is not a substantive piece of evidence, it could be used to contradict or corroborate its maker. It cannot be used as a substantive piece of evidence (vide Surjit Singh versus State of Punjab : 1993 Supp (1) SCC 208; State of M.P. Versus Surbhan: (1996) 9 SCC 46; Harkirat Singh versus State of Punjab: (1997) 11 SCC 215). In the instant case, the informant was not examined as a witness. Rakesh Chauhan, who was examined as an eye-witness, is not the author of the first information report. As no other person was examined either by the owner of the bus or by the Insurance Company to rebut the testimony of Rakesh Chauhan, there was no other admissible evidence to show that it was a case of murder simpliciter and not of accidental murder as an incident of loot/ robbery/ dacoity. In view of the above, the finding returned by the Tribunal that death occurred in an accident arising out of the use of the motor vehicle, cannot be faulted in the light of the decision of the Apex Court in the case of Rita Devi's case (supra). This court is, therefore, of the view that the claim was maintainable under Section 163-A of the Motor Vehicles Act. As there is no challenge by the learned counsel for the appellant to the quantum of the compensation awarded, the appeal fails and is dismissed. The interim order stands discharged.
Order date: 02.05.2014 Sunil Kr. Tiwari