- 1 - NC: 2025:KHC:12025-DB MFA No.7764/2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO.7764/2015 (MV-D) BETWEEN: 1. SMT.REENA ANAND W/O LATE SRI R.K.ANAND AGED ABOUT 49 YEARS 2. SRI RISHABH ANAND S/O LATE SRI.R.K.ANAND AGED ABOUT 21 YEARS BOTH ARE R/AT NO.620/B4 YAMUNA BLOCK, NATIONAL GAMES VILLAGE KORAMANGALA, BANGALORE - 560 047 …APPELLANTS (BY SRI NAGARAJ DAMODAR, ADVOCATE) AND: BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED., A-3, SECTOR -4, NOIDA (UP) – 201 301 REP. BY ITS BRANCH MANGER …RESPONDENT (BY SRI B.PRADEEP, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE IMPUGNED order DATED 29.10.2010 PASSED IN MVC NO.3515/2009 ON THE FILE OF XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BANGALORE ETC. THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 27.02.2025, COMING ON FOR Digitally signed by NARAYANA UMA Location: High Court of Karnataka - 2 - NC: 2025:KHC:12025-DB MFA No.7764/2015 PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE C.M. POONACHA CAV JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Challenging the order of rejection of their claim petition, the claimants in M.V.C.No.3515/2009 on the file of XVIII Additional Small Causes Judge and MACT, Bengaluru have preferred this appeal. 2. Appellants were claimant Nos.1 and 2 and the respondent was the sole respondent in M.V.C.No.3515/2009 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal. 3. Claimant Nos.1 and 2 are the wife and son of Rajender Kumar Anand (for short ‘R.K.Anand’). On 18.03.2008 at 8.30 a.m. when R.K.Anand was driving Santro Car bearing Registration No.DL-4-CR-9021 at Nuclear Power Corporation T Point, Sector 62, near D Park, Noida, some unidentified motorcyclists shot him by gun and he died. At the relevant - 3 - NC: 2025:KHC:12025-DB MFA No.7764/2015 time, the respondent was insurer of Santro Car bearing Registration No.DL-4-CR-9021. 4. Claimants filed M.V.C.No.3515/2009 contending that the incident was an accident arising out of the use of the motor vehicle. They contended that the victim was working and earning salary of Rs.32,401/- per month from his employment as Assistant Manager in Steel Authority of India, they were dependent on his income. They claimed that due to his death, they have suffered pecuniary and non-pecuniary loss. Thus they claimed compensation of Rs.50,00,000/- from the respondent. 5. Respondent entered appearance in the said case and filed I.A.1 under Order VII Rule 11 of CPC read with Section 151 of CPC seeking rejection of the claim petition on the ground that as contended in the claim petition itself, death was homicidal one and did not arise out of the use of the vehicle. Therefore, the Tribunal has no jurisdiction to try the matter. It was further contended that the personal accident risk of the insured/deceased was not covered under the policy. 6. The said application was opposed by the claimants by filing statement of objections. The Tribunal on hearing the - 4 - NC: 2025:KHC:12025-DB MFA No.7764/2015 parties, by the impugned order allowed the application and rejected the claim petition holding that the death did not arise out of the use of the motor vehicle as specified in Section 165 of the Motor Vehicles Act, 1988 (‘M.V.Act’ for short). Therefore the claim petition under Section 166 of M.V.Act is not maintainable. Claimants have challenged the said order in the above appeal. 7. Sri Nagaraj Damodar, learned Counsel for the claimants submits that whether death arose out of the use of the vehicle or it was murder had to be decided on examination of the evidence. Similarly, whether the risk of the deceased/owner of the vehicle was covered under the insurance policy was also the matter of evidence. Therefore the Tribunal was in error in invoking Order VII Rule 11 of CPC and rejecting the claim petition. 8. In support of his submissions, he relies on the following judgments: (i) United India Insurance Co.Ltd. v. Smt.Susila1 (ii) National Insurance Co. Ltd. v. Munesh Devi & Ors.2 1 M.F.A.No.22468/2011 DD 30.09.2022- KAR. HC 2 MAC.APP.No.563/2006 & Ors. DD 04.05.2012 – DEL. HC (2012) SCC Online DEL. 2603 - 5 - NC: 2025:KHC:12025-DB MFA No.7764/2015 9. Per contra, Sri B.Pradeep, learned Counsel for the Insurer submits that the claim petition/plaint can be rejected under Order VII Rule 11 of CPC if from the statements made in the claim petition if it is found that the petition was barred by law. The claimants in the claim petition unequivocally admitted that the victim was shot dead and his death was caused due to felonious act of unknown persons. As per claimants’ own documents i.e. F.I.R. and other records, it was the case of murder. Under the circumstances, no purpose would have been served if the proceedings were allowed to be continued. Hence, the Tribunal was justified in rejecting the application. The judgments relied are not applicable to the facts of the case. The appeal has no merits and the same be dismissed. 10. On hearing both sides and examining the materials on record, the point that arises for consideration of the Court is: “Whether the impugned order rejection of the claim petition by the Tribunal exercising power under Order VII Rule 11 of CPC is sustainable?” Analysis 11. The respondent did not dispute the relationship of the claimants with R.K.Anand and that he was on 18.03.2008 - 6 - NC: 2025:KHC:12025-DB MFA No.7764/2015 at 8.30 a.m. when victim was driving his Santro Car bearing Registration No.DL-04-CR-9021 to go to his office some unknown persons shot him with fire arm and he died. It is also not disputed that the car in question was insured with the respondent. It was also not disputed that the said car was covered under valid insurance policy issued by the respondent as mentioned in the claim petition. 12. The respondent sought rejection of the plaint on the following two grounds: (i) That death was homicidal one and did not arise out of the use of the motor vehicle, therefore Section 166 of MV Act is not applicable. (ii) The policy did not cover the personal accident risk of the insured. 13. Though specific clause of Order VII Rule 11 of CPC is not mentioned in the order/application, it is clear that the respondent tried to bring the same under Order VII Rule 11 (a) and (d) of CPC which read as follows: “11. Rejection of Plaint The plaint shall be rejected in the following cases:- (a) Where it does not disclose a cause of action; (b) ……………………………………………..…………………………… (c) ………………………………………………………………………….. - 7 - NC: 2025:KHC:12025-DB MFA No.7764/2015 (d) Where the suit appears from the statement in the plaint to be barred by any law; 14. In para 7 of the judgment of the Hon’ble Supreme Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal3, it was held as follows: “7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even 3 (2017) 13 SCC 174 - 8 - NC: 2025:KHC:12025-DB MFA No.7764/2015 when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” (Emphasis supplied) 15. The aforesaid judgment shows that if ingredients of Order VII Rule 11 (a) & (d) of CPC are satisfied, the Court shall reject the plaint/petition to nip such untenable petition at bud without unnecessarily taking that for trial. At the same time, it is also settled principle of law that while considering the rejection of the plaint/petition under Order VII Rule 11 of CPC, the Court has to consider only the statements made in the petition, including the petition documents and if at all the contentions raised by the parties require any adjudication or evidence, the petition cannot be rejected. It is also settled principle of law that for consideration of the application under Order VII Rule 11 of CPC, the Court cannot look into the defence of the respondent/defendant and only the petition averments have to be seen. - 9 - NC: 2025:KHC:12025-DB MFA No.7764/2015 16. So far as the first contention that the death did not arise out of the use of the motor vehicle, it is no doubt true that in para 22 of the claim petition, the claimant made the following two statements: “ (i) At that time, when the said Mr.Rajender Kumar Anand reached D-Block Park close to Sector-62 he was shot dead by unidentified motorcycle borne assailants. (ii) It is submitted that the death of R.K.Anand was caused by felonious act of certain unknown persons and the same is caused by the accident by use of motor vehicle.” 17. It is also true that in the very same paragraph the claimants contended that the police have registered the case against unknown assailants for the offence punishable under Section 302 of IPC. The above statements go to show that the claimants at one breath contented that victim was shot dead by some, but at the same time, it is also averred that the accident arose out of the use of the vehicle. Thus there were no clean or unambiguous admission regarding death being homicidal one. Whether the death was direct cause of the gunshot or due to gunshot injuries, the victim losing control over the vehicle he - 10 - NC: 2025:KHC:12025-DB MFA No.7764/2015 suffered accidental injuries leading to death is a matter of evidence. 18. The inquest mahazar produced by the claimants show that the inquest witness and the Investigating Officer opined that to ascertain cause of death it is necessary to secure postmortem report. Copy of the postmortem report is available in the trial Court records. In page 4 of the said translated copy of the postmortem report, the cause of death is mentioned as due to massive haemorrhage and shock and due to ante- mortem injuries. Whether those injuries are bullet injuries or any other injuries has to be elicited only on leading evidence of the doctor. 19. Similarly, whether the policy issued by the respondent covered the risk of the personal accident of the deceased/insured is again the matter of evidence. When the contention raised by the respondent by way of Order VII Rule 11 of CPC requires evidence, the petition could not have been rejected under Order VII Rule 11 of CPC. The judgment in United India Insurance Company’s case referred to supra, relied on by learned Counsel for the claimants/appellants shows that, in that case while the victim riding the bike, branch of the - 11 - NC: 2025:KHC:12025-DB MFA No.7764/2015 tree fell on him and he died, that was held as accidental injury. Similarly, in Munesh Devi’s case referred to supra, relied on by learned Counsel for the claimants, Delhi High Court referred to the judgment in Rita Devi v. New India Assurance Co. Ltd. [2000 ACJ 801 (SC)]. In paras 9 & 10 of judgment in Rita Devi’s case were extracted. Out of them para 10 is relevant and the same reads as follows: “10. The question, 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 intent and 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 differences 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 intention of the Act of felony is to kill any particular person then such killings is not an accidental murder but is a murder simplicitor, while if the cause of murder or 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.” (Emphasis supplied) 20. In the above paragraph, the Hon’ble Supreme Court made distinction between the murder which is not accident and the murder which is accident. Again that distinction has to be - 12 - NC: 2025:KHC:12025-DB MFA No.7764/2015 demonstrated by leading evidence. Therefore the contention raised by the respondent was incapable of being decided under Order VII Rule 11 of CPC. 21. Under the circumstances, the impugned order is liable to be set aside. The matter requires to be remanded to the Tribunal for fresh consideration after recording the evidence of both the parties. Hence the following: ORDER The appeal is allowed. The impugned order dated 29.10.2010 in M.V.C.No.3515/2009 passed by XVIII Additional Small Causes Judge, MACT, Bangalore is hereby set aside. I.A.No.1 filed by the respondent in M.V.C.No.3515/2009 before the Tribunal Order VII Rule 11 of CPC read with Section 151 of CPC is hereby rejected. The matter is remanded to the Tribunal for consideration after giving opportunity the parties to prove the cause of death. To avoid further delay, the parties are hereby directed to appear before the Tribunal on 15.04.2025. The respondent shall file its statement of objections on the date of its appearance. On filing of such objections, the - 13 - NC: 2025:KHC:12025-DB MFA No.7764/2015 Tribunal shall give reasonable opportunity to both the parties and dispose of the matter as expeditiously as possible. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (C.M. POONACHA) JUDGE KSR List No.: 19 Sl No.: 2