KAUSHALYA BAI Vs. RAMKISHAN KIRAR

JUDGEMENT

(1.) Claimants have filed the present appeal aggrieved by dismissal of their claim petition which was filed under section 166 of the Motor Vehicles Act, 1988. The appellants claimed compensation for the death of Shambhu Dayal Sharma in an accident dated 11.6.90, who was serving as a Forest Guard in the Forest Department and was posted at Kolaras, District Shivpuri. Claimants averred in the claim petition that at about 6-6-30 p.m. when the deceased was performing his duty at village Ropura, within the periphery of the Police Station, Tenduwa, the non-applicant No. 2 Bhanu alias Chandrabhan, son of Ramkishan Kirar was driving the tractor-trolley in question, which was owned by non-applicant No. 1 Ramkishan Kirar, at that time, deceased Shambhu Dayal Sharma intercepted the tractortrolley to check it as it was carrying in it forest produce, wood, etc., which were collected by committing theft in forest area. As soon as the Forest Guard Shambhu Dayal Sharma came in front to note down the registration number of the tractortrolley, the driver drove it on being instigated by one Kalla sitting in the tractor, as a result of which deceased Shambhu Dayal Sharma was dashed by the tractor and suffered injuries on his legs, back, chest and at several other places. He succumbed to the injuries. The report of the incident was lodged. A case under section 302/34, Indian Penal Code was registered against Bhanu alias Chandrabhan and Kalla. Accident was caused by Bhanu alias Chandrabhan. The tractor and trolley were insured with the New India Assurance Co. Ltd. The non-applicants: driver, owner and the insurer were responsible jointly and severally to compensate the claimants. The deceased was earning Rs. 1,100 per month and the dependency of family on him was Rs. 700 per month. Besides, the family also owned agricultural land. The agriculture operation also suffered owing to the death of deceased Shambhu Dayal Sharma. A total sum of Rs. 1,17,200 was claimed as compensation. The non-applicant Nos. 1 and 2 in their joint written statement denied the accident. They contended that since the allegation of death is by way of murder, not by an act of rash and negligent driving, hence the claim petition is not maintainable and Government has also paid money by way of settling service benefits owing to death during the course of employment. The claim petition could not be tried under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the 1988 Act') by Motor Accidents Claims Tribunal.

(2.) The insurer New India Assurance Co. Ltd. also raised preliminary objection on 25.8.1992 as to the maintainability of the claim petition before the Claims Tribunal. The Claims Tribunal without recording the evidence of the parties, allowed the preliminary objection and came to the conclusion that as the death was caused intentionally or at least with the knowledge that the act was likely to cause death, hence, for the tortious liability arising from the same, suit for damage could be filed before the civil court and the Motor Accidents Claims Tribunal had no jurisdiction to try the case.

(3.) An application filed under section 140 of the 1988 Act for directing payment of interim compensation has also been dismissed by the impugned order. The present appeal has been fifed by the appellants assailing the order passed by the learned 2nd Addl. Motor Accidents Claims Tribunal, Shivpuri on 2.9.1992 in Claim Case No. 26 of 1990, on both counts.