Hon'ble Amar Singh Chauhan,J.
Heard learned counsel for the parties.
This First Appeal from Order has been filed against the award of the Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Bulandshahr in Motor Accident Claim Petition No. 323 of 2010.
From the facts on record, we find that a claim petition under Section 163-A of the Motor Vehicles Act, 1988 was filed by the claimant namely the widow, children and brother of the deceased Km. Sama Khanam. In the claim petition, it was stated that on 26.10.2009, Km. Sama Khanam aged about 20 years, was sitting in a bus of U.P. State Road Transport Corporation bearing Registration No. U.P-15-AT-1593 at Sohrab Gate, Meerut depot. While she was sitting in a bus she was fired upon resulting in her death. In respect of the said incident, the First Information Report was registered at Police Station Nauchandi, District Meerut on 26.10.2009 being Case Crime No. 680 of 2009 under Section 302 IPC.
The claim was contested by U.P. Road Transport Corporation as well as by the other respondents to the proceedings and amongst others it was contended that it was the simple case of a criminal offence in the nature of murder, it had nothing to do with the use of the motor vehicle within the meaning of the Motor Vehicles Act so as to give a cause for a claim petition being filed under Section 163-A.
The Tribunal framed seven issues for determination. Issue no. 6 was as to whether the alleged incident was a motor accident within the meaning assigned to the same under the Motor Vehicles Act, 1988. The Tribunal after considering the evidence has recorded a categorical finding that at the relevant point of time the bus was standing at the bus stop and the victim girl was seated therein. It has specifically been recorded that an offence under Section 302 IPC had been committed. The only cause of death disclosed in the Post Mortem Report was the firearm injury suffered by the victim. The Tribunal has gone on to hold that the accident resulting in the death of the deceased does not reflect upon the use of the motor vehicle in any manner. Therefore, the claim petition as filed under Section 163-A of the Motor Vehicles Act, was not maintainable.
The Tribunal has taken note of the judgement which had been relied upon on behalf of the claimant namely Pushpa Agrawal Vs. Insurance Ombudsman, U.P. and Uttaranchal and another 2014 ACJ 1237, National Insurance Company Limited vs. Gitaben Shaitan Singh Rajput and others 3 (2010) ACC 339, U.P. S.R.T.C. vs. Rajendra Kumar Gupta and others 2012 (3) ACC D Page 1443 (All), Delhi Transport Corporation vs. Smt. Shakila Parveen and others 2013 (1) TAC page 459 (Delhi), Rita Devi and others vs. New India Assurance Company Limited and others 2000 ACJ page 801. The Tribunal has specifically recorded that in all the said cases accident was caused out of use of the vehicle while in the facts of the case there was nothing to establish the use of the vehicle in the incident concerned.
Learned counsel for the appellants has placed reliance before us upon a judgement of the Apex Court in the case of Rita Devi and others vs. New India Assurance Company Limited decided on 27.4.2000. In paragraph 18 of the said judgement, the Apex Court has held that the murder of the deceased did arise out of use of the motor vehicle. We may record that in the said case auto rickshaw was hired by certain unknown passengers and thereafter the dead body of the driver of the auto rickshaw was recovered. It is in this background that the Apex Court held that the accident has arisen out of the use of the vehicle. The facts before us are clearly distinguishable as has been recorded by the Tribunal. The victim was sitting in a bus which was stationed at a bus stop and then the miscreants fired upon the sitting victim.
In our our opinion, the facts do not disclose any use of the vehicle in the murder of the victim and, therefore, the Tribunal appears to be more than justified in recording a finding that in the facts of the case, the claim petition as filed under Section 163-A of the Motor Vehicles Act, was not misconceived.
We may record that Section 163-A of the Motor Vehicles Act permits an applicant to claim compensation, from the owner of the motor vehicle or the insurer only "in case of the death or permanent disability due to accident arising out of the use of the motor vehicle. Therefore, it is necessary that the accident must arise out of the use of the motor vehicle for a claim petition under Section 163-A to be maintained".
In the facts of the case, no accident because of use of the vehicle has been caused. The deceased has been assaulted upon by fire arm by persons while she was seated in a stationary bus at bus depot.
In our opinion, the facts on record do not answer the description of an accident arising out of use of the motor vehicle. Therefore, the Tribunal appears to be more than justified in dismissing the claim petition filed under Section 163-A of the Motor Vehicles Act.
No substantial question of law arises in this appeal.
The appeal is, accordingly, dismissed.
Order Date :- 30.3.2016 Puspendra