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Judgment
HON'BLE MR. JUSTICE NCHUMBEMO MOZHUI
Heard Mr. Pfosekho Pfotte, learned counsel for the Appellant, and Mr. Sarif Ahmed, learned counsel for the Claimants/Respondent Nos. 1 to 7. Also heard Ms. Lhousino, learned counsel for the Vehicle Owner/Respondent No. 8, and Mr. K. Angami, learned Senior Government Advocate for Respondent Nos. 10 and 11. Respondent No. 9 have not appeared inspite of notice being completed.
The present appeal is preferred under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the MV Act) by the New India Assurance Co. Ltd assailing and impugning the Judgment and Award dated 06.01.2025 passed by the learned Member, Motor Accident Claims Tribunal, Dimapur passed in MAC Case No. 17/2015 directing the Appellant to pay awarded compensation amount of Rs. 6,45,470/-(Rupees Six Lakhs Forty Five Thousand Four hundred Seventy) only with interest thereon @ 7.5 % per annum from the date of filing the claim petition i.e. 04.02.2015 till the realization of the awarded amount within a period of 30 days.
The facts of the Respondents as Claimants, namely, Claimant No. 1 Hikaba Yimchunger, brother of the deceased; Claimant No. 2 Smti. Chimkila, wife of the deceased; and Claimant Nos. 3 to 7 who are the sons and daughters of the deceased, has jointly filed a claim petition before the learned Tribunal, Motor Accident Claims Tribunal, Dimapur, Nagaland, which was registered as MAC Case No.17/2015 praying for grant of compensation from the Opposite Parties on account of death of late Shri L. Peter Yimchunger caused due to a motor vehicle accident on 15.09.2005 who was travelling in a vehicle (Bus) bearing Registration No. NL-06/B-0135 and heading towards Tuensang, Nagaland and on reaching near Borpathar, met an accident with a Bolero bearing Registration No. NL 10-4495 which was driven by the driver, namely Lungshung Phom (Respondent No. 10), herein, coming from opposite direction in rash and negligent manner hit/collided with the Bus, and some police personnel of the said Bolero got inside the Bus and started firing, and as a result of which Shri. Late L. Peter Yimchunger, a passenger in seat No.4 sustained bullet injuries in his abdomen and was taken to Dimapur Civil Hospital for treatment and succumbed to his injuries on the same day at Dimapur Civil Hospital.
The learned Tribunal was pleased to frame 9 (nine) issues and proceeded with the case. In the course of proceeding, the Tribunal examined two witnesses PW-1, namely, Smti Chimkila (Claimant); and one witness DW-1, namely, Shri Kito Sumi (Owner of Bus), whereas no witnesses on behalf of the Appellant were examined.
The case of the Appellant is that the learned Member, MACT, Dimapur, Nagaland after hearing the parties without taking into consideration of the evidence from proper perspective, has passed the impugned Judgment & Award dated 06.01.2025.
The counsel for the appellant, Mr. Pfosekho Pfotte submits that the Appellant/Insurer had contested the claim by filing the written statement. The learned Tribunal after hearing the parties has directed the Appellant/Insurer to pay an award amount of Rs. 6,45,470/- (Rupees Six Lakhs Forty Five Thousand Four Hundred Seventy) only against the Insurer of the vehicle i.e., New India Assurance Co. Ltd.
Learned counsel submits that the present appeal is preferred by the appellant on the grounds that the cause of death of the deceased person was due to a bullet injury and not out of the use of the motor vehicle @ Bus bearing registration No. NL-06/B-0135 involved in alleged accident occurred on 15.09.2005 at S P Turning Point, Borpathar, Assam. At the time of the collision between the Bus and the Bolero, the deceased did not sustain any injury but after the accident the Police personnel got inside the Bus and assaulted the Driver and in the scuffle, the Police fired some rounds which hit the deceased and succumbed to the bullet injury after been brought to the hospital. As such, the insurer of the vehicle (Bus) is not liable and the impugned Judgment is liable to be quashed and set aside.
It is also submitted that there were two vehicles involved in the accident on 15.09.2005, between a bus bearing Registration No. NL 06/B-0135 and Bolero NL-10-4495, as the offending vehicle was the Bolero and not the Bus in question, as such the Appellant is not liable to indemnify for the fault of the Bolero.
The counsel further submits that the learned Member, Motor Accident Claims Tribunal, Dimapur, Nagaland has failed to apply judicious mind and reasonableness while passing the impugned Judgment & Order and have caused manifest injustice to the Appellant and the same been result of miscarriage of justice, as such, the impugned Judgment & Order is not sustainable and liable to be quashed and set aside.
Further it is the submission of the learned counsel that the impugned Judgment and Award dated 06.01.2025, passed by the learned Member, Motor Accident Claims Tribunal in MAC Case No. 17/2015 is mechanical, passed without application of judicious mind and reasonableness and without adducing evidence from proper prospective resulting in miscarriage of justice, therefore, the same is not tenable in the eye of law and is liable to be interfered with by this Hon’ble Court and is liable to be quashed and set aside.
Mr. Sarif Ahmed, learned counsel for the Respondent Nos. 1 to 7 on the contrary submits that the claim petition was filed by the deceased brother, Hikaba Yimchunger arrayed as Claimant No.1 being authorized by Claimant No.2, wife of the deceased, L. Peter Yimchunger and Claimant Nos. 3 to 7 were the minor children of the deceased. The claim petition was filed against the driver and owner of the Bus and the Insurer of the Bus was made a noticee under section 149(2) of the M.V. Act, 1988. The owner of the Bus as well as the Insurer of the Bus filed their written statements and the Tribunal altogether framed nine issues.
The learned counsel further submits that the Appellant/Insurer of the Bus is challenging the Judgment and Award dated 06.01.2025. During the course of hearing on 13.10.2026 the Appellant raised the contention that the deceased, L. Peter Yimchunger had not died at the time of use of the vehicle.
In this regard the counsel draws attention to the provisions of Section 147 of the MV Act which is reproduced herein:-
“147.Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(i)against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place;
(ii)against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place.”
To supplement to his argument on the interpretation of Section 147 of the MV Act, the learned counsel relies on the decision of the Hon’ble Supreme Court in Rita Devi (Smt.) and Others v. New India Assurance Co. Ltd. and Another reported in 2000 (5) SCC 113, wherein the Hon’ble Court has held that the Motor Vehicle Act does not define the word “accident “. However, Section 163-A of the Motor Vehicle Act provides for payment compensation for the death or injury suffered in a Motor Vehicle accident on a structured formula basis in Section 163-A of the MV Act. The learned counsel has also relied in support of his submission, the case of Nisbet Vs. Rayne and Burn.
Learned counsel also submitted that, in National Insurance Co. Ltd –vs- Swaran Singh & Ors reported in (2004) 3 SCC 297 at paragraphs 25, 30, 31, 32, 33 and 110(i), the Hon’ble Apex Court has held that accident includes negligence and the MV Act of 1988, provides compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend the relief by compensation to victims of accidents caused by use of motor vehicles.
Further, it is the submission of the counsel that the instant appeal is not maintainable on the ground that the Insurer (the Appellant) was not made a party in the claim petition MAC 17/2015 but a mere noticee as per Section 149(2) of the motor vehicle act 1988. The statutory defense available to the Appellant is confined to limited defense available as per the statute. The Insurer did not take the leave of the Tribunal as per Section 170 of the MV Act, 1988. In support of his submission, the counsel relies in the full bench of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi and Others reported in (2002) 7 SCC 456.
Ms. Lhousino, learned counsel appearing for the Respondent No. 8 submits that there is no dispute to the fact that the vehicle (Bus) is insured with the Appellant/Insurer Company and all the documents are up-to-date. Further, it is not disputed by the Appellant that the deceased, late L. Peter Yimchunger was an occupant of the Bus, a passenger at Seat No. 4.
Mr. K. Angami, learned counsel appearing for the Respondent Nos. 10 and 11 submits that since the deceased, late L. Peter Yimchunger was an occupant of the Bus where the untoward incident happened where he was hit by a stray bullet and succumbed to his injuries, the State Respondent have nothing to submit as the learned Motor Accident Tribunal, Dimapur had passed the impugned Judgment and Award dated 06.01.2025 against the Appellant/Insurer.
After hearing the parties at length, this Court has given due consideration to the submissions and perused the authorities relied upon.
It is well settled that an appeal is a continuation of the original proceedings and that Appellate jurisdiction is undoubtedly wide. At the same time, the provisions of Order 41 Rule 2 of the Code of Civil Procedure, 1908 provides that an Appellant shall not, except by leave of the Appellate Court, urge or be heard in respect of a ground of objection, which was not set forth in the Memorandum of Appeal. The proviso further requires that the party likely to be affected by such ground must be afforded sufficient opportunity of contesting it. This provision is intended to ensure fairness to the opposite party and to prevent a party from setting up an entirely new case at the appellate stage; particularly where the mention of such ground would require investigation of facts and consideration of evidence, which was never placed before the Tribunal.
The present case at hand, the only issue to be taken into consideration is on the issue whether the deceased, late L. Peter Yimchunger had died at the time of use of motor vehicle.
This Court also has taken into consideration the provisions of Section 147 of the MV Act and the decisions relied upon by the Respondents in the case of Rita Devi (supra). Even in the present case, it is not disputed that the deceased died when he was an occupant of the Bus and such death has occurred on account of use of motor vehicle.
This Court has also taken into aspect of the provisions of the two sub-sections of section 163-A of the MV Act which shows that a victim or his heirs are entitled to claim from the Owner/Insurance Company a compensation for death permanent disablement suffered due to accident arising out of the use of the motor vehicle, without having to prove wrongful act or neglect or default of anyone. Thus it is clear, if it is established by the Claimants that the death or disablement was caused due to an accident arising out of the use of the motor vehicle then they will be entitled for payment of compensation.
The question before this Court in the present case, therefore is, can a murder be an accident in any given case? There is no doubt that “murder“, as it is understood, in the common parlance is a felonious act where death is caused with intend as the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a “murder” which is not an accident and a “murder” which is an accident depends on the proximity of the cause of such murder. In our opinion, if the dominant in tension of the act felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder nor act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder. The answer is in positive in the instant case. The deceased, late L. Peter Yimchunger, died which can be termed as accidental murder during the course of use of vehicle.
In view of the law laid down by the Hon’ble Supreme Court, this Court is of the view that the impugned Judgment and Award dated 06.01.2025 passed by the learned MACT Tribunal, Dimapur, Nagaland in MACT Case No. 17/2015 does not warrant interference of this Hon’ble Court.
Accordingly, the appeal stands dismissed. No order as to cost.
It appears from the record that the appellant has deposited an amount of Rs.25,000/- (Rupees Twenty Five Thousand) as statutory deposit in the Registry of this Court at the time of filing of this appeal and has also deposited 50% of the awarded amount in the Registry of this Court as per Court's direction. The said amount may be withdrawn by the respondent No. 1 from the Registry after proper verification by the Registry, if not already withdrawn. The appellant is directed to pay the remaining amount of the award after adjusting the amount which has already been deposited in the Registry, to the Motor Accident Claims Tribunal, Dimapur within a period of 1 (one) month from today. Same shall be disbursed by the Member, Motor Accident Claims Tribunal, Dimapur to the present respondent Nos. 1 to 7 after proper verification.
Registry is directed to send back the Trial Court Records expeditiously.