Insurance company is not liable to pay compensation for death of third party if vehicle is used as a weapon to murder by crushing down

Whether the brutal killing of two persons by the 7 th Respondent/Driver (who has been found guilty of murder under Section 302 IPC and has been convicted and sentenced to life imprisonment by the Trial Court) using the Truck as a weapon and crushing them down, could be treated as an 'accident' or as 'out of the use of a motor vehicle' so as to award compensation to the legal representatives of the deceased, on the strength of a policy issued by the Appellant-Insurer? The finding of the Tribunal that the said incident is an accident and the Appellant/Insurer is liable to pay the compensation, is put to challenge in these appeals.[Para No.1]

    Coming to the scope for payment of compensation under the MV Act and the coverage of third party risk, Chapter XI has been provided for insurance of the motor vehicles against the third party risk. Section 146 speaks about the necessity for insurance against third party risk to the effect that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the said Chapter. The requirements of policy and limits of liability have been mentioned under Section 147 of the MV Act; whereas the duty of the insurers to satisfy judgments against persons insured in respect of third party risk has been dealt with under Section 149 of the MV Act.[Para No.11]

    As mentioned already, on occurrence of an accident involving use of a motor vehicle, compensation can be claimed either under Section 163A of the MV Act on the basis of a structured formula (where it is not necessary for the Claimants to plead or prove negligence on the part of the Driver or the Owner) or under Section 166 of the MV Act by proving the negligence on the part of the Driver of the offending vehicle. It is quite possible that in a given case, 'murder' can be an 'accident'. If only it amounts to an 'accident', can it lead to a claim petition, to be filed by the Claimants, seeking compensation in respect of such accident because of the use of the motor vehicle either under Section 163A or under Section 166 of the MV Act. The Claims Tribunal envisaged under Section 165 of the MV Act names the Tribunal as 'Motor Accidents Claims Tribunal' and if it is not an accident, no such claim can be held as maintainable, to be entertained by the Tribunal.[Para No.12]

    The question whether a murder can be an accident in a given case had come up for consideration before the Apex Court in Rita Devi (supra). It was a case where some unknown passengers hired an Autorickshaw from an autostand at Dimapur and later, the vehicle was reported stolen and the dead body of the Driver was recovered by the Police on the next day. The Autorickshaw was never recovered and the claim of the owner for the loss of Autorickshaw was considered and sanctioned by the Insurer, satisfying the amount for which it was settled. A claim petition was filed by the legal representatives of the deceased Driver under Section 163A of the MV Act, claiming compensation for the death as having arisen out of and in the course of his employment. The Tribunal held that it was caused by 'accident' coming within the purview of the MV Act and the owner and the Insurer were liable. The Insurance Company took up the matter before the High Court where it was held that there was no motor accident as contemplated under the MV Act and that it was an act of murder. Accordingly, the appeal was allowed and the award passed by the Tribunal was set aside. This led to the proceedings before the Apex Court where the question was subjected to a threadbare analysis; particularly on the point of 'dominant intention'. The Apex Court observed that there are instances where murder can be by accident on a given set of facts and that the difference between a murder 'which is not an accident' and a murder 'which is an accident' depends upon the proximity of the cause of murder. The Apex Court held that if the 'dominant intention' of the act of felony is to kill any particular person, then such killing is not an accidental murder but a 'murder simplicitor'; whereas, in a case where 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'.[Para No.13]

Extra judicial confession of absconded co-accused cannot be used to record conviction

The prosecution is also relying on evidence of PW No.9 Tapan Mandal to establish that the other accused Kishor Shelar had made extra-judicial confession to him about killing of women by both accused. His evidence is also relied to establish that motorcycle brought by Kishor Shelar was produced by him. The other accused was apparently juvenile in conflict with law. The Judgment of trial Court mentions that, the other accused Kishor Shelar is Juvenile in conflict with law against whom the proceeding is going on before juvenile justice Board. The outcome of the proceedings is not known. Thus, the said accused was not before Trial Court in this proceeding. PW No.9 is silent about words 'Hari Om' being written on number plate of motorcycle. PW No.9 has stated that accused No.2 is absconding, although the investigating officer is silent in that regard. According to him he was working on Vadapav stall of father of accused No.2. The motorcycle belongs to relative of accused. The said accused went to Pune and confessed to him. The accused was arrested and PW No.9 was told to deposit motorcycle. The recovery is not at the instance of accused. It is difficult to accept that the accused would go to Pune and make confession to PW No.9. The witness have not stated as to why accused visited him and whether he stayed with him and what was the nature of relationship between them to confess about crime. In any case it is a extra-judicial confession of accused who is not tried in this proceeding. The owner of motorcycle was not examined. Appellant cannot be convicted on the basis of such extra-judicial confession.[Para No.30]

    The extra-judicial confession is weak piece of evidence. The extra judicial confession is questionable in the present case. The witness did not allude the information to anyone about the confession made by the appellant. In the case of Sahadevan V/s State of Tamilnadu, (2012), 6 SCC 403 referring to the aspect of evidentiary value of extra judicial confession it was observed :-

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspired confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities an does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstance, the court would be fully justified in ruling such evidence out of consideration".[Para No.31]