ORIENTAL INSURANCE CO. LTD Vs. DONGKHOLAM

JUDGEMENT

(1.) BY these appeals the Insurance Company has challenged the common judgment and award dated 26.3.2004 passed by the learned Member, Motor Accident Claims Tribunal, Dimapur, Nagaland awarding compensation to the claimants for the death of the passengers travelling in a bus bearing Registration No. NL-01/B/0273 belonging to Sri Thangkhomang Sitihon, on the ground that death of the deceased passengers were not accidental arising out of the use of the motor vehicle but purely murder.

(2.) THE facts leading to the filing the present appeals in brief is that, the claimants filed applications under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation for the death of the passengers travelling in the bus bearing Registration No. NL-01/B/0273, stating inter alia that on 9.12.96 at about 6.30 a.m. the vehicle was proceeding from Athibung to Dimapur via Jalukie with about 40 to 45 passengers, that while the bus was passing through a jungle area before Kiyevi village, some people coming from the opposite direction stopped the bus and informed its driver that they have definite information of the presence of some armed people in and around Jalukie area to attract innocent civilians travelling in any vehicle in that area and asked the driver to return back to Athibung and not to proceed any further towards Jalukie side but the driver in spite of the request made by the passengers not to proceed towards Dimapur further, did not pay any heed and continued to proceed towards Dimapur and while the bus was negotiating a curve of the road a little while ahead some armed persons stopped the bus and fired indiscriminately resulting in deaths of 28 passengers on the spot and other two in the hospitals. The claimants filed the claim applications claiming compensation for the death of the such passengers contending that it was an accident which occurred due to irresponsibility and negligence of the driver and had the driver taken due care for the safety of the passengers or acted upon the information given as well as paying heed to the warning given by the passengers, the accident could have been averted. The learned Tribunal upon appreciation of the evidences on record, both oral and documentary, awarded different sums as compensation ranging from Rs. 72,000 to 7,57,354, Hence the present appeals by the Insurance Company on the ground that the same was not an accident within the meaning of the Act but purely a murder, which occurred due to the enmity between two communities.

(3.) MR . Debnath, the learned Counsel for the appellant has submitted that the death of the passengers travelling in the vehicle in question was not an accident within the meaning of the Act but was purely a murder and, therefore, the claimants are not entitled to any compensation for the death of such passengers and consequently the Insurance Company is not liable to satisfy the award passed by the learned Tribunal. Referring to the police report submitted by the S.I. Athang Zeliang, the officer-in-charge of Jalukie police station, who was examined as witness by the Insurance Company as D.W. 5, the learned Counsel has submitted that the officer in-charge of the Police Station, within whose jurisdiction the incident occurred, has stated in the said report that the death occurred to the passengers of the vehicle because of ambush by the underground miscreants who opened fire on the bus which resulted in the death of 30 passengers. Referring to the deposition of D.W. 5 i.e. the officer-in-charge of the Jalukie Police Station, the learned Counsel has further submitted that the said witness in clear terms has deposed before the learned Tribunal that upon investigation he found that there was no negligence on the part of the driver and the deaths were purely as a result of the ambush, which incident occurred due to enmity between the two communities and related to some previous violence between two communities. The learned Counsel submits that the said incident cannot be termed as accident within the meaning of the Act, which was in fact the murder simplicitor, for which the claimants are not entitled to any compensation. Replying to a pointed query made by the Court about maintainability of the appeal by the Insurance Company in the absence of any permission under Section 170 of the Act, the learned Counsel for the appellant has submitted that though the vehicle was insured by the appellant Insurance Company, its liability will come only in the event it is an accident within the meaning of the Act and in the instant cases as the incident occurred was not an accident, claimants are not entitled to any compensation under the Act and, therefore, the Insurance Company can maintain an appeal, though it has limited right to appeal on the grounds as enumerated in Section 149(2) of the Act. The learned Counsel relying on a Division Bench decision of this Court in National Insurance Company Ltd. v. Smt. Kashenl and Ors. reported in 2005 (3) GLT 465 has submitted that as the claimants have failed to prove by producing cogent evidence that the incident occurred on that fateful day was an accident and not murder, the learned Tribunal has committed illegality in passing the award in favour of the claimants.