NATIONAL INSURANCE CO LTD Vs. KASHENI

JUDGEMENT

(1.) This appeal, by the insurer, under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) is directed against the judgment and award dated 15.11.2002 passed by the learned Member, Motor Accident Claims Tribunal, Nagaland, Dimapur in MAC case No. 117/98. By the aforesaid award dated 15.11.2002, the learned Tribunal has granted compensation to the extent of Rs. 2,22,000/- in favour of the respondent/claimant on account of the death of her son in an incident which has been found by the learned Tribunal to have arisen out of the use of a motor vehicle (Auto Rickshaw) bearing Registration No. NL-01 /T-2217.

(2.) To appreciate the challenge made, the cases brought by the respective parties before the learned Tribunal may briefly be noticed at this stage. The respondent No.l, claimant, is the mother of one kughavi who, it is claimed, was travelling in an Auto Rickashaw bearing Registration No. NL-01/T-2217 on 11-10- 1997 as abonafide passenger. According to the claimant/respondent, on the said date, when the Auto Rickshaw was passing through Eros Line, some unidentified persons tried to stop the vehicle, but the driver of the vehicle instead of.stopping had speeded away. Thereafter, according to the claimant/ respondent, the persons who tried to stop the Auto Rickshaw fired on the Auto Rickshaw from behind and the bullet hit the son of the Claimant/respondent killing him on the spot. According to the claimant/respondent, the driver of the Auto Rickshaw fled from the place of occurrence and thereafter the assailants had set the Auto Rickshaw on fire. On the above facts, the claimant/respondent approached the learned Tribunal for grant of compensation on account of the death of her son and contended that such death had occurred while her son was travelling in the Auto Rickshaw as abonafide passenger, and therefore, the incident in which her son was killed occurred in the course of the use of the vehicle in a public place. On the basis of the claim petition filed, MAC Case No. 117/98 was registered before the learned Claims Tribunal at Dimapur.

(3.) The claim made by the claimant/ respondent was resisted by the appellant/ Insurer as well as the owner of the vehicle by filing their respective written statements. In the written statement filed, the appellant/ Insurer, apart from putting the claimant to strict proof that the Auto Rickshaw was driven under a valid permit and by a person having a valid license at the time of the incident, had contended that the statements made in the claim petition and the police report filed along with, had clearly established that the death of the son of the claimant/respondent was on account of a murder which was committed at a time when the deceased was travelling in the vehicle. The Insurer had, therefore, pleaded in the written statement filed that the alleged incident was not on account of the use of the motor vehicle and that there was no rash or negligent driving of the vehicle leading to the death of the son of the claimant. The Insurer had also contested the claim of the respondent/claimant on the point of quantum of the compensation, if any, payable. The owner of the vehicle (Auto Rickshaw) in the written statement filed, had taken the stand that on the relevant day, the deceased along with another were travelling in the Auto Rickshaw forcibly and they were being chased by some unknown miscreants in 3 Gypsy vehicles. The owner of the Auto Rickshaw, in the written statement filed, had further taken the stand that the aforesaid unknown miscreants who were chasing the deceased and his co-passenger overtook the Auto Rickshaw and subsequently shot dead the son of the claimant/respondent and abducted his co-passenger.