New India Assurance Company Limited v. Salim and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934 MACA.No.2709 of 2009 ( B) ------------------------(AGAINST THE AWARD IN OP(MV).NO.528/2003 of M.A.C.T., PERUMBAVOOR). APPELLANT(S)/3RD RESPONDENT: -------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, PERUMBAVOOR, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS.SRI.MATHEWS JACOB (SR.), SRI.P.JACOB MATHEW. RESPONDENT(S)/ADDL.PETITIONERS AND RESPONDENTS 1 & 2: ---------------------------------------------------------------------------------------------- 1. SAMITHA, W/O.SALIM, VELAMKUDY HOUSE, CHALAKKAL, MARAMBILLY P.O., ALUVA. 2. SAMEENA (MINOR), D/O.SALIM, DO. DO. 3. ABDUL RAHIMAN (MINOR), S/O.SALIM, DO. DO. 4. KUNJATHU, W/O.ABDUL RAHIMAN, DO. DO. 5. SULAIMAN.E.K., ERADIMUCHETH HOUSE, MANJAPETTY, MARAMBILLY P.O., ALUVA. 6. ALIYAR, DO. DO. (MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER IST RESPONDENT). R1 TO R4 BY ADVS.SRI.K.I.ABDUL RASHEED, SRI.K.A.SHAMSUDEEN, SRI.K.J.MOHAMMED ANZAR, R5 BY ADV. SRI.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, SRI.P.G.PRAMOD, SRI.RAHUL KANDAMPULLY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- M.A.C.A. No.2709 of 2009. --------------------------------------------Dated this the 22[nd] day of August, 2012. ## **JUDGMENT** ## **Ramakrishna Pillai, J** . The insurance company is in appeal. 2. The claim under Section 166 of the Motor Vehicles Act, 1988 was filed by one Salim, claiming compensation of `12 lakhs alleging that, while he was standing at a junction on 18/07/2002, a mini lorry driven by the 6[th] respondent came there, stopped and moved immediately, hitting him down, as a result of which he sustained very serious injuries. According to the claimant, the above incident occurred due to the rash and negligent driving of the 6[th] respondent. The 5[th] respondent is the owner of the said lorry. The lorry was insured with the appellant. 3. The appellant, while admitting the policy of the mini lorry, contended before the Tribunal that the averment in the claim petition is totally false and misleading and it was not an accident but was a case of _**M.A.C.A No.2709 of 2009. -:2:-**_ intentional murderer. Respondents 5 and 6 remained exparte before the Tribunal. The deceased Salim died on 26/06/2004. Consequently his legal heirs got themselves impleaded and they prosecuted the claim. 4. The learned Tribunal on the basis of evidence consisting of oral testimony of PWs.1 to 3 and Exts.A1 to X1 series held that the accident occurred due to the rash and negligence driving of the mini lorry, i.e. the 6[th] respondent and granted a total amount of Rs.4,87,140/as compensation with interest and the appellant was saddled with the liability of paying compensation. In this appeal, the appellant insurance company is challenging the finding of the learned Tribunal that the death of the claimant was accidental. Inter alia, they have contended that the amount of compensation awarded is high. 5. We have heard the learned senior counsel appearing for the appellant insurance company and the learned counsel for the respondents/claimants. The impugned award was also perused. 6. The learned senior counsel for the appellant, on the basis of Ext.X1, which is the copy of CD file, would contend that the death of the original claimant arose out of an intentional act of the driver of the mini _**M.A.C.A No.2709 of 2009.**_ _**-:3:-**_ lorry. Ext.X1(a) is the F.I.Statement and the FIR in Crime No.730/2002 on the file of the Aluva Police Station registered under Sections 307, 379 and 188 r/w. 34 IPC and Sec.12(2) r/w.20 of Kerala River Bank Protection and Sand Mining Control Act (Act 18 of 2002). The F.I.Statement was given by the brother of the deceased. What was stated in the F.I.Statement was that, while the mini lorry involved in the accident was carrying the river sand unauthorisedly, the original claimant intercepted and asked the persons in the lorry whether they were holding a valid pass for transporting the river sand. Immediately, the driver moved the lorry forward and claimant was hit down; so stated in the statement. 7. Ext.X1(e) is the wound certificate issued by the Medical Trust Hospital, Ernakulam. The deceased was admitted to that hospital at 6 PM. The accident was at about 4.30 PM. The deceased was brought to the said Hospital by his brother. The alleged cause of the injury as per the wound certificate is road traffic accident. Ext.X1(h) is the final report. The driver of the lorry along with another person was charge sheeted under Section 188, 379, 302 r/w. 34 IPC and also under Sec.12(2) r/w.20 ## _**M.A.C.A No.2709 of 2009.**_ ## _**-:4:-**_ of Act 18 of 2002. The main argument advanced by the learned senior counsel is that murder being an intentional act cannot be treated as an accident and thus, the claim for compensation under the Motor Vehicles Act is not maintainable. 8. The meaning of the word ‘ _accident’_ as per Oxford Dictionary is ‘ _an unpleasant event that happens incidentally and causes damage, injuries etc.’_ It is true that, the basis of the claim petitions arising out of the use of motor vehicles is essentially ‘ _negligence_ ’. Winfield has defined “negligence” as a tort, as the breach of legal duty to take care, which results in damage, undesired by the defendant to the plaintiff. 9. In the instant case, the deceased Salim intercepted the offending vehicle which was carrying river sand unauthorisedly. The driver though stopped the vehicle for a while, moved the vehicle without caring the deceased, who was standing in front. In **United India Insurance Co. Ltd. v. Thankamma (2011 (3) KLT 466)** , a Division Bench of this Court observed that, only if the dominant intention of the act of felony is to kill any particular person, then alone such killing can be termed as a murder simplicitor, otherwise is an accidental murder. ## _**M.A.C.A No.2709 of 2009. -:5:-**_ There, this Court was considering the implication of the murder of a driver by a passenger in the vehicle, pursuant to an altercation between them. Relying on the decision of the Apex Court in **Rita Devi v. New India Assurance Co. Ltd. (2000 (2) KLT 526 (SC))** , it was held that the incident in that case arose out of the use of a motor vehicle giving rise to a claim for damages. In the decision rendered above by the Apex court, the difference between the murder simplicitor and accidental murder was discussed. The Apex Court held that the distinction depends on the proximity of cause of such murder. It was held that in a murder simplicitor, the dominant intention of the Act of felony is to kill any particular person whereas, the cause of murder or act is not originally intended in accidental murder. 10. In the instant case, it is true that the driver along with another person was charge sheeted under the penal provisions referred to above. What can be discerned from the evidence is that the actual genesis of the incident arose out of the interception of the lorry by the deceased. Acts where the mental conditions of the wrongdoer cannot be ascertained with reasonable certainty, are to be treated as accidental, which will give rise _**M.A.C.A No.2709 of 2009.**_ ## _**-:6:-**_ to a claim for damages. Hence, we hold that this was an accidental murder, which arose out of the house of a vehicle and the respondents/ claimants, who are the legal heirs -cum-dependents of the deceased Salim are entitled to get compensation. So, we see no reason to interfere with the finding entered into by the learned Tribunal regarding that aspect. 11. Coming to the question of compensation, we find that the amount awarded by the Tribunal under the conventional heads like pain and suffering, funeral expenses, loss of love and affection, loss of consortium and loss of dependency are reasonable. The learned Tribunal has also awarded a sum towards medical expenses which is supported by bills. For awarding the compensation for loss of dependency, the learned Tribunal adopted a reasonable multiplicand and the correct multiplier applicable to the age group of the deceased. However, we notice that the learned Tribunal has awarded a sum of `25,000/- towards loss of amenities in life, which is uncommon in death cases. Once, the claimants get adequate compensation for loss of dependency, the compensation for loss of amenities of the deceased in life does not come into play and we are of the view that the said amount has to be deducted from the amount _**M.A.C.A No.2709 of 2009. -:7:-**_ of compensation; we do so. That means, the total compensation awarded by the Tribunal shall stand reduced by `25,000/-. In the result, the appeal is allowed and the impugned award is modified to the above extent only. Sd/- **PIUS C. KURIAKOSE JUDGE** Sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj