The National Insurance Co. Ltd. Vs. Saroj Kumari and ors. - Court Judgment

Excerpt:
prayer: petition filed seeking for a writ of mandamus, directing the 1st and 2nd respondents herein to release the goods viz., 91 units of old and used digital multifunction print & copying machines with standard accessories, imported vide bill of entry no.787095, dated 21.02.2011, under free as second hand capital goods in terms of para 2.17 read with definitions under 9.12 of the foreign trade policy 2009-2014 without imposing any restriction in the absence of specific restriction in para 2.17 of foreign trade policy and in para 2.33 of hand book of procedures 2009-2014 and any notification by 3rd respondent.1. this is a first appeal from order under section 173 of the motor vehicles act has been preferred against the impugned award dated 17.11.2007, passed in m.a.c.p. no.186 of 2003 by motor accident claims tribunal/addl. district judge, court no.1, lakhimpur kheri. heard learned counsel for the appellant and learned counsel appearing for the respondents and also perused the record.2. one ram jash son of asharfi lal boarded bus no.d.l. 1 p.0064 to travel from laukhania to dhakherwa. an altercation took place between ram jash and the conductor of the bus shri guddu alias istiyaq ali with regard to fare. ram jash felt that the conductor is realising higher fare than what is required under the rules. during the course of altercation, guddu alias istiyaq ali pushed ram jash out, in consequence.....

Judgment:
1. This is a First Appeal From Order under Section 173 of the Motor Vehicles Act has been preferred against the impugned award dated 17.11.2007, passed in M.A.C.P. No.186 of 2003 by Motor Accident Claims Tribunal/Addl. District Judge, Court No.1, Lakhimpur Kheri. Heard learned counsel for the appellant and learned counsel appearing for the respondents and also perused the record.

2. One Ram Jash son of Asharfi Lal boarded bus No.D.L. 1 P.0064 to travel from Laukhania to Dhakherwa. An altercation took place between Ram Jash and the conductor of the bus Shri Guddu alias Istiyaq Ali with regard to fare. Ram Jash felt that the conductor is realising higher fare than what is required under the rules. During the course of altercation, Guddu alias Istiyaq Ali pushed Ram Jash out, in consequence thereof, Ram Jash fell down on the road and sustained injuries. Later on, Ram Jash succumbed to the injuries on being brought to the hospital. Ram Jash was aged about 21 years and was agriculturist and was also doing some business. The claimants approached the tribunal for payment of compensation under Section 166 of the Motor Vehicles Act. The tribunal has framed the following issues while adjudicating the controversy :

"1. Whether on 7.3.03 at about 2 p.m. Ramjash (deceased) was travelling in Bus No. D.L. 1P 0064 and that there was altercation between Conductor Guddu O.P. No.1 and the deceased on the issue of realising more rent and that O.P. No.1 pushed Ram Jash from the Bus and he sustained injuries and died If so its effect ?

2. Whether Driver of the said Bus was having valid and effective driving licence at the time of alleged accident If so its effect ?

3. Whether the Bus was insured on the date of alleged accident If so its effect ?

4. Whether the petitioner is entitled to any compensation and if so, to what amount and from which of the o.ps. ?"

3. The parties led their evidence. On behalf of the claimant, P.W. 1 Smt. Saroj Kumari who happens to be the wife of the deceased appeared. P.W. 2 Ramu Giri is an eye-witness and is said to had been travelling in the bus along with Ram Jash. He stated that some tussle with regard to payment of fare took place with bus conductor Guddu alias Istiyaq Ali and in consequence thereof, Ram Jash fell down from the bus and sustained injuries. It has been further stated by Ramu Giri that it was the bus conductor who pushed down Ram Yash and in consequence thereof, he sustained injuries.

4. One other witness P.W. 3 Pushpendra Singh was also travelling in the bus and supported the version that Ram Jash who fell down from the bus being pushed by the conductor Guddu alias Istiyaq Ali, later on succumbed to the injuries in the hospital.

5. The tribunal awarded compensation with the finding that Ram Jash succumbed to the injuries in the accident occurred in the manner aforesaid. Keeping in view the age of the deceased of 21 years, the tribunal applied the multiplier of 17 and awarded total compensation of Rs.1,62,500/-.

6. Solitary argument advanced by the appellant's counsel is that it was not a simplicitor accident occurred on account of negligence on the part of the bus conductor; rather it was a murder caused by Guddu alias Istiyaq Ali, hence no compensation can be awarded.

7. On the other hand, the respondents' counsel submits that the accident occurred because of the dispute with regard to fare and accidentally being pushed by Guddu alias Istiyaq Ali, Ram Jash fell down from the bus and sustained injuries and succumbed to it later on in the hospital. Now, the question cropped up is whether the death of Ram Jash is an accidental death or a murder ?

8. The submission of the learned counsel for the appellant that it cannot be treated to be an accidental death; rather it is a murder being caused by Guddu alias Istiyaq Ali does not seem to carry weight because of the fact that the entire occurrence is preceded by quarrel with regard to payment of fare. From the evidence on record, it appears that Ram Jash gathered impression that the fare charged by Guddu alias Istiyaq Ali was higher than what is required for travelling to the destination. Because of alleged higher rent being charged by the bus conductor, Ram Jash objected and in consequence thereof, scuffle took place and being pushed by Guddu alias Istiyaq Ali, Ram Jash fell down from the bus. There appears to be no evidence on record which may indicate that there was some prior animosity between Guddu alias Istiyaq Ali and Ram Jash or they were having bad blood because of certain dispute. Sudden scuffle took place because of the dispute with regard to payment of fare and in the tussle, Raj Jash was pushed out on the road and he sustained injuries succumbing to it later on in the hospital.

9. Attention of this Court has been invited by the learned counsel for the respondents to a Division Bench's judgment of this Court reported in 2010(2)ACCD 637(All) U.P. State Road Transport Corporation and another versus Smt. Vidya Devi and others, of which one of us(Hon'ble Devi Prasad Singh, J) was a member in which this Court has decided the identical issue where a person had fallen down from the bus after considering various statutory provisions of the Motor Vehicles Act and relying upon the judgment of Hon'ble Supreme Court in [2000(2)TAC 213(SC) Smt. Rita Devi and others versus New India Assurance Co. Limited and another.

10. In the case of Smt. Rita Devi(supra), it was held that if the dominant intention of the Act of felony is to kill any particular person, then such killing shall not be an accidental murder but shall be a murder simplicitor but 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. Where the death is because of accidental murder, then in such a situation, the dependents of the victim shall be entitled for compensation. Keeping in view the parameter laid down by this Court in the case of Vidya Devi(supra), there appears to be no doubt that the intention of Guddu alias Istiyaq Ali was not to kill the deceased Ram Jash; rather it was an accidental death caused due the scuffle with regard to fare.

11. In view of above, the argument advanced by the learned counsel for the appellant while assailing the impugned award does not seem to be sustainable. The appeal is devoid of merit and is accordingly dismissed. Costs easy.

12. Let the entire amount be deposited within two months from today before the tribunal and the tribunal may proceed in terms of the award.