Rajesh Tandon and B.S. Verma, JJ.
1. This is an appeal against the judgment and order dated June 9, 2004 passed by Workmen's Compensation Commissioner, Chamoli. Briefly stated, a claim petition was filed on April 4, 2003 by the claimant under the Workmen's Compensation Act being Case No. 6 of 2002-2003 stating therein that on October 4, 2002, the son of the claimant namely late Deepak Singh was coming from Chamoli on Tata Sumo No. U.A.-07/6891. The vehicle in question was being driven by late Sri Deepak Singh himself. The said vehicle was looted in the forest of Laltappar, P.S. Doiwala and Deepak Singh was done to death and his dead body was recovered from that place, and information of this incident was sent to P.S. Doiwala.
2. It has been alleged in the claim petition by the claimant that late Sri Deepak Singh was aged about 19 years and was getting a salary of Rs. 5,500/-. In the Post Mortem Report the age of the deceased has been shown to be 26 years, which is not authenticated. It is disputed fact that at the time of accident/murder what was the age of the deceased. The evidence on the record is the F.I.R., Post Mortem Report and the statement of P.W.1. All these documentary/oral evidence have fully justified the incident. Apart from that Insurance Policy Cover Note, the registration of the vehicle and driving licence of Deepak Singh were produced on behalf of the respondents and D. W. 1 was also examined orally. The Insurance Company has taken defence that it is not a case of accident, it is a case of murder and as such the Insurance Company is not liable to pay compensation.
3. We have heard the learned Counsel for the parties and have perused the evidence on the record. The Presiding Officer has framed as many as five issues.
Issue No. 1 relates to the fact as to whether the deceased Deepak Singh was a driver in the vehicle of the defendant No. 1 and issue No. 2 relates to the fact as to whether late Deepak Singh was the workman within the meaning of the Workmen's Compensation Act while driving the vehicle.
Issues Nos. 3, 4 and 5 relate to the fact of the quantum of compensation and further as to whether the deceased was getting a salary of Rs. 5,500/- and whether the vehicle No. U.A.-07/6891 was insured. The Claims Tribunal vide order dated June 9, 2004 rejected the application on the ground that the present case relates to the theft of the vehicle as well as the murder of the deceased and a criminal case is registered in the P.S. Doiwala and as such the matter is not covered by Workmen's Compensation Act and no compensation is payable to the workman concerned.
4. The learned Counsel for the appellant has referred the judgment of Rita Devi and Ors. v. New India Assurance Co. Ltd. and Anr., MANU/SC/0312/2000 : (2000)ILLJ1656SC where the Apex Court on the similar circumstances has recorded a finding that the deceased was employed to drive the Auto-rickshaw for carrying passenger on hire and on the fateful day, the auto-rickshaw was parked at the rickshaw stand at Dhampur and about 5 to 6 p.m. some unknown passengers had engaged the said auto-rickshaw for their journey towards Singrijan area and thereafter nothing was known of the driver or rickshaw. It is only on the next day that the authorities were available to recover the body of the deceased and the auto-rickshaw in question was never traced till date.
5. In these circumstances, the question for consideration before the Apex Court was as to whether the murder to be an accident in any given case.
The Apex Court has relied upon the judgment of Challis v. London and South Western Railway Co. 1905 (2) King's Bench 154. The Apex Court has recorded a finding to the following effect 2000-I-LLJ-1656 at p. 1660:
'11. In Challis v. London and South Western Railway Co. (1905) 2 King's 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 body 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 v. Rayne and 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 Workmen's 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 international 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 Nisbet's case was followed by the majority judgment by the HOUSE OF LORDS in the case of Board of Management of Trim Joint District School v. Kelly. 1914 AC 667.
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.'
In the case of Shivaji Dayanu Paul and Anr. v. Vatschala Uttam More, MANU/SC/0402/1991 : [1991]3SCR26a , this Court while pronouncing on the interpretation of Section 92-A of the Motor Vehicles Act, 1939 held as follows:
'Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no-fault liability. In the matter of interpretation of a beneficial legislation, the approach of the Courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose.'
17. In that case in regard to the contention of proximity between the accident and the explosion that took place this Court held:
'This would show that as compared to the expression 'caused by', the expression 'arising out of has a wider connotation. The expression 'caused by' was used in Section 95(b)(i) and (ii) and choose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under Section 92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression 'arising out of the use of motor vehicle' in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.'
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.'
6. As it appears from the aforesaid observations of the Apex Court that the murder of the deceased was due to accident arising out of the use of the motor vehicle and therefore, the Apex Court has justified the claim awarded to the family of the deceased.
7. From the facts and circumstances narrated above, it is denied that the workman concerned has met with an accident on October 4, 2003 in the course of his employment and as such the employer shall be liable to pay compensation in accordance with the provisions of the Act.
8. We, therefore, are of the opinion that the Claims Tribunal has wrongly rejected the claim of the appellants. The death of deceased is enunciated to an accident arising out of the employment of the deceased as a driver and we, therefore, set aside the findings recorded by the Claims Tribunal dated June 9, 2004 with regard to the maintainability of the application.
9. So far as the amount of compensation is concerned according to P.W. 1 namely Sri Ravindra Singh Negi the deceased being a driver was earning a sum of Rs. 5,500/- per month. The aforesaid statement has not been rebutted by the respondents and thus we hold the income of the deceased as Rs. 5,500/-. per month. The age of the deceased has been shown as 26 years in the Post Mortem Report.
10. However, for calculation of the amount of compensation the monthly wages to the extent of Rs. 2,000/- only can be taken into consideration as provided under Explanation-II of Section 4 of the Act.
11. Taking into consideration 50 percent of the monthly wages i.e. Rs. 1,000/- be taken into consideration. The factor of 215.28 would be relevant taking into consideration the age of the deceased as 26 years. Thus, the claimant is entitled to get compensation of Rs. 2,15,280/-.
12. So far as the liability of the compensation is concerned, we find from the evidence on the record that insurance policy was intact and vehicle in question was insured with the Oriental Insurance Company Ltd. and therefore, the liability to pay compensation is extended to the Oriental Insurance Company.
13. The appeal is allowed. The appellant is awarded a compensation of Rs. 2,15,280/-along with pendente lite and future interest @ 12% per annum. No order as to costs.