NATIONAL INSURANCE CO. LTD. Vs. FEHMIDA AND ORS.

JUDGEMENT

(1.) Service on respondent no.5 is complete. Heard learned counsel for the appellant insurer and claimant respondent. This appeal has been filed by the insurer against the award of the Motor Accident Claims Tribunal, Meerut dated 9.11.2012, in MACP No. 669 of 2011 arising from the death of Mustafa who as claimed, was hit by a Bolero car bearing registration no. HR-16F- 9428 (hereinafter referred to as Bolero car), on 19.03.2011, on the Delhi - Saharanpur Road, near Bharat Dharm Kanta. He was 21 years of age and was a bachelor.

(2.) The solitary ground raised by the insurer, in the present appeal is that the death of Mustafa was murder and not an accidental death. Therefore, the insurer has prayed to be absolved of its liability arising from the death of Mustafa. The Tribunal framed six issues including the first issue whether the death of Mustafa was an accidental death as claimed or it was murder arising from animosity. In this regard, the claimants stated, the Bolero car, being driven in a rash and negligent manner knocked down the bicycle which the deceased was riding. Thereafter, the 'driver ' of the Bolero car, on account of animosity backed out that car and crushed the deceased under it, with intention to kill him. However, the claimants did not name the driver of the aforesaid Bolero car in the claim petition. They also did not implead the driver of the Bolero car as a party in the claim proceedings. Then, at the stage of evidence, the mother of the deceased Smt. Fehmida (PW-1) was examined. She was not a witness-of-fact. She stated the fact of her son having died in the accident caused by the driver of the Bolero car, on account of rash and negligent conduct of its driver. She was cross-examined by the insurer. In her cross-examination statement, she denied knowledge of name of the driver of Bolero car and also specifically stated that the deceased did not have animosity with anyone. Lastly, she stated, it was right to say Sandeep killed her son. An independent witness-of-fact, Mehardeen (PW-2) was also examined. He stated, the accident had been caused due to rash and negligent conduct of the driver of the Bolero car which knocked down the bicycle deceased was riding and that the driver of the Bolero car then backed out such that the deceased got crushed under that car. The insurer did not lead any evidence to establish that the death of Mustafa was murder simpliciter. On the other hand, admittedly, arising from the aforesaid event, one Sandeep was charged with offence under Section 304 IPC. However, the said trial failed and Sandeep was acquitted in by the trial court. It is in the above background that the Tribunal took note of the pleadings made and evidence led by the parties and after considering the First Information Report, it relied, largely on the independent eye witness account Mehardeen (PW-2) to infer that it was a case of accidental death and not one of murder simpliciter. The Tribunal also reasoned, since the insurer did not examine the driver of the offending vehicle in the proceedings before it to establish case of murder simpliciter, it was not murder but case of accidental death of Mustafa. Assailing the finding recorded by the Tribunal, learned counsel for the appellant submits, the claimant's own case as stated in the claim petition is consistent with the police case that deceased had been murdered. He also relied on the cross-examination statement of PW-1. Fehmida Begum wherein she stated her son had been killed by Sandeep. According to learned counsel for the appellant, in view of the fact, claimant had themselves stated deceased had been murdered, both in the claim petition as also in the police case and further in view of the fact that the mother of the deceased made that statement in her testimony before the Tribunal, the Tribunal could not hold otherwise. The claim version of the incident itself disentitles the claimants to compensation. No other evidence was required to be led by the insurer to establish, it was case of the murder simpliciter.

(3.) Learned counsel for the respondents on the other hand submits, in this case there is no dispute at all and there is no evidence to doubt, the death of Mustafa had been caused by the use of Bolero car. Therefore a presumption arose as to the cause of death being motor accident. To establish murder simpliciter, by Bolero car would be in the nature of an exception which if established may take the case out of the ambit of proceedings for award of compensation by the Tribunal. An exception to the presumption may arise if it is established, death had been caused because the driver of the Bolero car had intention to murder Mustafa and he therefore dashed his Bolero car with the bicycle of Mustafa and then crushed him under the wheels of Bolero car with intention to kill Mustafa. Only if it were so established that the Tribunal could have inferred 'murder simpliciter'.