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Krishnan Sreemathy vs Padmanabhan Gangadharan on 22 September, 2004

Kerala High Court
Krishnan Sreemathy vs Padmanabhan Gangadharan on 22 September, 2004
Equivalent citations: III (2005) ACC 410, 2005 (2) KLT 691
Author: J Koshy
Bench: J Koshy, J James


JUDGMENT

J.B. Koshy, J.

1. Appellants in this case are the unfortunate legal representatives (widow and three minor children) of one deceased Sivadasan. He was employed as a lorry attender by the first respondent (very same person was arrayed as first and second respondents, one as owner and second as driver). He died during the pendency of the appeal and his legal representatives are impleaded as additional respondents 5 and 6. On 28.8.1983, at about 12.15 p.m., owner of the goods vehicle bearing Registration No. KLQ 6855 took the lorry with the intention of killing another person. But, it accidentally hit Sivadasan, who was standing in the road side of a petrol bunk. He was taken to the hospital, but on the way to the hospital, he died. It is stated that at the time of” accident, he was aged 48 years and his monthly salary was Rs. 900 per month. The allegation in the application was that the accident occurred due to the negligence of the driver-cum-owner of the lorry.

2. The first respondent admitted the accident and stated that the lorry was insured by the 3rd respondent. He also contended that he was driving the vehicle very carefully and the accident occurred as the deceased carelessly crossed the road. The 3rd respondent Insurance Company filed a written statement stating that they are not liable to pay any compensation as the death occurred not due to the accident; it was an intentional murder, and therefore, the claim will not come within the purview of the Motor Vehicles Act. It was also submitted that in any event, they are not liable to indemnify first respondent

3. On the facts of the case, it has come out in evidence that the deceased Sivadasan was standing on the western side of the M.C. road, close to a petrol bunk in Kilimanoor Junction at M.C. road, near to me place where lorry in which he was employed as driver was parked. He was a cleaner of lorry KLQ 6855. It was parked nearby. Owner of that lorry (first respondent) drove the lorry to kill a person in a rash manner, but, it accidentally hit the deceased Sivadasan which resulted in his death. He died on the way to the hospital. He was convicted by the Court of Sessions, Trivandrum in S.C.No. 85 of 1984 which was affirmed by the High Court. The first question to be considered is whether he died in an accident. Second question to be considered is whether legal representatives of the deceased can claim compensation under the Motor Vehicles Act or under the Workmen’s Compensation Act. Thirdly, whether the Insurance Company is liable to deposit the compensation, and if so, whether they are entitled to recover the same from the insured.

4. The word ‘accident’ is not defined in the Motor Vehicles Act or Workmen’s Compensation Act. Therefore, the word ‘accident’ should be understood in the popular and ordinary sense as denoting an untoward event which is not expected or designed. The meaning of ‘accident’ in Oxford English Dictionary is ‘unfortunate event, disaster, mishap; has also anything that happens without foresight or expectation; an unusual event, which proceeds from unknown cause, or is an unusual effect in non-cause; a casualty, a contingency’. In Webster’s 3rd New International Dictionary, ‘accident’ has been defined as ‘sudden event or change without intend or volition through carelessness, unawareness, ignorance or a combination of causes and producing an unfavourable result; an unexpected happening causing loss or injury which is not due to any fault or misconduct on the part of the person injured but from the consequences of which he may be entitled to some legal reliefs’. In Chamber’s 20th Century Dictionary ‘accident’ has been defined to mean an unforeseen or unexpected event, a chance’. Lord Atkinson has observed as follows in Clover, Clayton and Co. Ltd. v, Hughes (1910 AC 242).

“I think the meaning put upon the word ‘accident’ in Fenton v. Thorley (1903 AC 443), must now be accepted in all cases turning on the construction of the phrase ‘injury by accident’ used in the Workmen’s Compensation Act, 1906, as its true meaning, namely, ‘an unlooked for mishap; or an untoward event which is not expected or designed’. It must exclude disease. What is ‘unlocked for’ or ‘unexpected’ must, in every case, exist either; in the external influences to which the sufferer is subjected, or in the effect upon him which those influences produce.”

The test whether an occurrence is unexpected so as to be an accident is whether it is unexpected by the person who suffers from it and not whether it would be expected by medical men or persons other than the deceased or injured person. A Division Bench of this Court in Mathew Joseph v. Johny Sunny, 1995 Lab.I.C. 1350, held that “the term ‘accident’ for the purpose of the law relating to compensation for personal injuries sustained by workmen and the employer’s liability in that behalf includes any injury which is not designed by the workmen himself, and it is of no consequence that the injury was designed and intended by the person inflicting the same”.

5. In Challi’s v. London and South Western Railway Company, 1905 (2) KB 154, the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone wilfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. An attack on the watchman of a mill by persons who were annoyed due to his refusal to allow grazing of cattle inside the premises of the mill, has been held to be an accident in Shri Sabari Milld Ltd. v. M. Kulandai, 1984(11) LLJ 254 Mad.. When a casual worker was killed by striking workers, a Division Bench of this Court in Varkeychan v. Thommen Thomas, 1979 (1) LLJ 873, held that it is an accident in the point of view of the workman, though the injury was intentionally inflicted by other person. From the aforesaid discussions and case law, we are of the opinion that in the point of view of the deceased and his legal representatives (appellants), he died out of injuries caused in an ‘accident’, or by an event, which is not expected or designed by the deceased. It is true that the first respondent was convicted and sentenced by the Sessions Court and the above Judgment has become final. But, his intention was not to kill the deceased; but, another person, who was examined as P.W. 1 in the criminal case. Accidentally, lorry hit his employee Sivadasan. As far as the deceased was concerned, in any event, it was purely an accident.

6. The next question is whether application for compensation is maintainable before the Motor Accidents Claims Tribunal. According to the Insurance Company, accident was not ‘arising out of the use of a motor vehicle’ as occurring in the explanation under Section 92A of the Motor Vehicles Act as the motor vehicle was used as an instrument to kill a person. In this connection we refer to the decision of the Supreme Court reported in Rita Devi v. New India Assurance Co. Ltd., 2000 (2) KLT 528, where an autorickshaw driver was killed by the assailors, who were trying to steal the vehicle. The Supreme Court held that it is an accident arising out of the use of motor vehicle. Intention of the first respondent was to kill another person. But, in that process, accidentally, Sivadasan was killed. The Supreme Court also held that Motor Vehicles Act and Workmen’s Compensation Act are beneficial pieces of legislation and hence a liberal construction is wanted.

7. In Shivaji Dayanu Patil and Anr. v. Vatschala Uttam More, JT 1991 (3) SC 133, the Apex Court while pronouncing on the interpretation of Section 92A of the Motor Vehicles Act, 1939 held as follows:

“Section 92A was in the nature of beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amountby way of compensation to the victim of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the Courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose.”

The Apex Court in the above case further held as follows:

“…. This wound imply that accident should be connected; with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression ‘arising out of the use of a motor vehicle’ in Section 92 A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.”

In this case death of Sivadasan was caused as he was hit by the motor vehicle accidentally while first respondent was trying to kill another person by the use of motor vehicle. Hence accident of Sivadasan was arising out of the use of a motor vehicle.

8. Then the question is what is the amount of compensation payable. We have seen that the death of Sivadasan was due to an accident arising out of the use of the motor vehicle by the first respondent. Insurance policy covers driver and the cleaner to the extent of Workmen’s Compensation Liability. P.W.1 deposed that he was employed as a cleaner of the vehicle which was involved in the accident. He was standing near to the petrol bunk on the side of M.C. road near the lorry. Then first respondent, owner, took the same with the intention of killing another person, and in that process, it accidentally hit Sivadasan, who was the cleaner of the lorry. According to the Insurance Company, he died in a murderous assault in the course of employment. The accident arose in the course of employment is not disputed. It is true that if he is considered as a third party compensation amount payable will be more. Since he was an employee, compensation is payable as per the provisions of the Workmen’s Compensation Act. He was aged 48 at the time of his death. Hence, relevant factor is 169.44 and his monthly income was Rs. 900. Compensation payable will be Rs. 60,998/- (rounded to Rs. 61,000). With regard to the question of interest payable, it is the contention of the fourth and fifth respondents that after the death of the first respondent they were impleaded after a long time and, therefore, there should not be any direction to pay interest. We have also held that the accident occurred during the course of employment and the dependants of the victim will only get compensation as provided under the Workmen’s Compensation Act as per the provisions as existed on the date of accident, and not as a third party. Under the Workmen’s Compensation Act, as existing at the time of accident, interest payable was only 6% per annum from the date of accident till the dale of payment. In this case, first respondent ought to have deposited the compensation amount within 30 days from the date of accident before the Commissioner for Workmen’s Compensation. Considering the erosion of money value, we are of the opinion that interest is payable at the rate of 6% per annum (simple interest) from the date of accident till the date of deposit.

9. Last question is who should pay the compensation. We have seen that there was valid insurance and the driver and cleaner of the lorry are insured to the extent of workmen’s compensation payable by the first respondent. Therefore, insurance Company should deposit the amount before the Motor Accidents Claims Tribunal. It is contented by the learned counsel for the Insurance Company that there is violation of the permit conditions. First respondent is not permitted to use the vehicle as a weapon for murdering, even though it was not intended against the late Sivadasan. First respondent used the vehicle as a murderous weapon or hitting his enemy even though Sivadasan died accidentally. We agree with the contention that first respondent should not have used the vehicle for murdering a person and there is violation of permit conditions. In the above circumstances, the Insurance Company is entitled to recover the amount from the insured, from the estate of the first respondent, as the first respondent has died, from his legal representatives, R-5 & R-6.

Appeal is partly allowed. Insurance Company is directed to deposit Rs. 61,000/-with simple interest at the rate of 6% per annum, from 28.8.1983 till its deposit, within one month from the date of receipt of a copy of this judgment, before the Tribunal, Insurance Company is also allowed to recover the same from the insured or his legal representatives, in execution of the award.

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