Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAC APP. No.674/2007
Judgment delivered on: November 30 ,2007
United India Insurance Co. Ltd. ..... Appellant
Through: Mr.L.K. Tyagi, Advocate.
versus
Sayyada Begum & Ors. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
Counsel for the appellant contends that the Tribunal
has entertained the petition under Section 163A of the Motor
Vehicles Act in a case of simple murder. Trying to distinguish the
MAC APP. No.674/2007 Page 1 of 5
judgment of Smt. Rita Devi Vs. New India Assurance Co.
Ltd. & Anr., reported in 2001 ACJ 801, counsel contends that
during the course of the duty, the passengers had decided to
commit an act of felony to steal the auto rickshaw and in the
course of achieving the said objective, they eliminated the driver
of the auto rickshaw. The contention of the counsel is that the
facts of the case in hand are distinguishable as no such case was
set up by the claimants that there was any kind of lifting of the
offending vehicle by the criminals. The contention raised by the
appellant is that since it is a case of death of driver himself,
therefore, he cannot be considered to be a third party.
I have heard learned counsel for the appellant at
considerable length and have perused the records.
Perusal of the award shows that FIR against the
accused person was registered under Section 394 IPC. Section
394 IPC deals with an offence of committing robbery simply
because the tankers were left at the spot and was not taken away
by the attackers, it cannot be said that the dominate intention of
the attackers was only to murder the driver and not to commit
robbery. The Tribunal has elaborately deliberated on this point
and it would be appropriate to refer to Para 12 to 14 as
MAC APP. No.674/2007 Page 2 of 5
reproduced under:-
“12. In the case of Nisbet Vs. Rayne and Burn,
(1910) 1 KB 689, where a cashier, while
travelling in a railway to a colliery with a large
sum of money for the payment of his
employer's workmen, was robbed and
murdered. The court of Appeal held:
“That the murder was an 'accident'
from the standpoint of the person who
suffered from it and that it arose out of
an employment which involved more
than the ordinary risk, and consequently
that the widow was entitled to
compensation under the Workmen's
Compensation Act, 1906. In this case
the court followed its earlier judgment in
the case of Challis Vs. London and South
Western Railway Company, (1905) 2 KB
154. In the case of Nisbet, the court
also observed that it is contended by the
employer that this was not an 'accident'
within the meaning of the Act, because
it was an intentional felonious act which
caused the death, and that the work
'accident' negatives the idea of
intention. In my opinion, this contention
ought to prevail. I think it was an
accident from the point of view of
Nisbet, and that it makes no difference
whether the pistol shot was deliberately
fired at Nisbet or whether it was
intended for somebody else and not for
Nisbet.”
13.The judgment of the court of Appeal in
Nisbet's case (1910) 1 KB 689, was followed
by the majority judgment by the House of
Lords in the case of Board of Management of
Trim Joint District School Vs. Kelly, 1914 AC
MAC APP. No.674/2007 Page 3 of 5
667.
14.Applying the principles laid down in the
above cases to the facts of the case in hand,
we find that the deceased, a driver of the
autorickshaw, was duty bound to have
accepted the demand of fare paying
passengers to transport them to the place of
their destination. During the course of this
duty, if the passengers had decided to commit
an act of felony of stealing the autorickshaw
and in the course of achieving the said object
of stealing the autorickshaw, they had to
eliminate the driver of the autorickshaw then it
cannot but be said that the death so caused to
the driver of the autorickshaw was an
accidental murder. The stealing of the
autorickshaw was the object of the felony and
the murder that was caused in the said
process of stealing the autorickshaw is only
incidental to the act of stealing of the
autorickshaw. Therefore, it has to be said that
on the facts and circumstances of this case the
death of the deceased (Dasarath Singh) was
caused accidentally in the process of
committing the theft of the autorickshaw.”
In view of the said discussion, I do not find that there is
any infirmity in the impugned award. As regards, the second
contention raised by the appellant, I do not find any merit in the
same as admittedly the driver himself was not the owner of the
offending vehicle.
Dismissed.
Counsel for the appellant states that the amount of
MAC APP. No.674/2007 Page 4 of 5
statutory deposit made by the appellant be released in favour of
the appellant. Let same be released in favour of the appellant.
KAILASH GAMBHIR, J.
November 30, 2007
ga
MAC APP. No.674/2007 Page 5 of 5
MAC APP. No.674/2007
Judgment delivered on: November 30 ,2007
United India Insurance Co. Ltd. ..... Appellant
Through: Mr.L.K. Tyagi, Advocate.
versus
Sayyada Begum & Ors. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
Counsel for the appellant contends that the Tribunal
has entertained the petition under Section 163A of the Motor
Vehicles Act in a case of simple murder. Trying to distinguish the
MAC APP. No.674/2007 Page 1 of 5
judgment of Smt. Rita Devi Vs. New India Assurance Co.
Ltd. & Anr., reported in 2001 ACJ 801, counsel contends that
during the course of the duty, the passengers had decided to
commit an act of felony to steal the auto rickshaw and in the
course of achieving the said objective, they eliminated the driver
of the auto rickshaw. The contention of the counsel is that the
facts of the case in hand are distinguishable as no such case was
set up by the claimants that there was any kind of lifting of the
offending vehicle by the criminals. The contention raised by the
appellant is that since it is a case of death of driver himself,
therefore, he cannot be considered to be a third party.
I have heard learned counsel for the appellant at
considerable length and have perused the records.
Perusal of the award shows that FIR against the
accused person was registered under Section 394 IPC. Section
394 IPC deals with an offence of committing robbery simply
because the tankers were left at the spot and was not taken away
by the attackers, it cannot be said that the dominate intention of
the attackers was only to murder the driver and not to commit
robbery. The Tribunal has elaborately deliberated on this point
and it would be appropriate to refer to Para 12 to 14 as
MAC APP. No.674/2007 Page 2 of 5
reproduced under:-
“12. In the case of Nisbet Vs. Rayne and Burn,
(1910) 1 KB 689, where a cashier, while
travelling in a railway to a colliery with a large
sum of money for the payment of his
employer's workmen, was robbed and
murdered. The court of Appeal held:
“That the murder was an 'accident'
from the standpoint of the person who
suffered from it and that it arose out of
an employment which involved more
than the ordinary risk, and consequently
that the widow was entitled to
compensation under the Workmen's
Compensation Act, 1906. In this case
the court followed its earlier judgment in
the case of Challis Vs. London and South
Western Railway Company, (1905) 2 KB
154. In the case of Nisbet, the court
also observed that it is contended by the
employer that this was not an 'accident'
within the meaning of the Act, because
it was an intentional felonious act which
caused the death, and that the work
'accident' negatives the idea of
intention. In my opinion, this contention
ought to prevail. I think it was an
accident from the point of view of
Nisbet, and that it makes no difference
whether the pistol shot was deliberately
fired at Nisbet or whether it was
intended for somebody else and not for
Nisbet.”
13.The judgment of the court of Appeal in
Nisbet's case (1910) 1 KB 689, was followed
by the majority judgment by the House of
Lords in the case of Board of Management of
Trim Joint District School Vs. Kelly, 1914 AC
MAC APP. No.674/2007 Page 3 of 5
667.
14.Applying the principles laid down in the
above cases to the facts of the case in hand,
we find that the deceased, a driver of the
autorickshaw, was duty bound to have
accepted the demand of fare paying
passengers to transport them to the place of
their destination. During the course of this
duty, if the passengers had decided to commit
an act of felony of stealing the autorickshaw
and in the course of achieving the said object
of stealing the autorickshaw, they had to
eliminate the driver of the autorickshaw then it
cannot but be said that the death so caused to
the driver of the autorickshaw was an
accidental murder. The stealing of the
autorickshaw was the object of the felony and
the murder that was caused in the said
process of stealing the autorickshaw is only
incidental to the act of stealing of the
autorickshaw. Therefore, it has to be said that
on the facts and circumstances of this case the
death of the deceased (Dasarath Singh) was
caused accidentally in the process of
committing the theft of the autorickshaw.”
In view of the said discussion, I do not find that there is
any infirmity in the impugned award. As regards, the second
contention raised by the appellant, I do not find any merit in the
same as admittedly the driver himself was not the owner of the
offending vehicle.
Dismissed.
Counsel for the appellant states that the amount of
MAC APP. No.674/2007 Page 4 of 5
statutory deposit made by the appellant be released in favour of
the appellant. Let same be released in favour of the appellant.
KAILASH GAMBHIR, J.
November 30, 2007
ga
MAC APP. No.674/2007 Page 5 of 5