1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2247 OF 2018
(Arising out of SLP (C) NO. 5485 of 2017)
SHIVAWWA AND ANR. …. APPELLANTS
:Versus:
THE BRANCH MANAGER, NATIONAL INDIA
INSURANCE CO. LTD. AND ANR. …. RESPONDENTS
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal emanates from the judgment of the High
Court of Karnataka dated 9th July, 2015 in M.F.A.
No.4401/2008 (MV) which had allowed the appeal filed by
respondent No.1 (Insurance Company) and set aside the award
of the Motor Accident Claims Tribunal (for short “the
Tribunal”) granting compensation to the appellants.
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2. A claim petition was filed in reference to the death of one
Chanabasayya Sidramayya Hiremath, son of appellant No.1
and brother of appellant No.2 herein. On 23rd January, 2001,
the deceased was returning, after unloading food-grains, on
tractor-trailer bearing No. KA-29/T-1651/T-1652 belonging to
respondent No.2, and being driven by an employee of
respondent No.2, one Mallikarjuna Beemappa Ganiger. At
around 1.00 AM, it is alleged that owing to the rash and
negligent driving of the said Mallikarjuna Beemappa Ganiger,
the deceased fell off the tractor-trailer and suffered fatal
injuries. A claim petition under Section 166 of the Motor
Vehicles Act, 1988 was subsequently filed before the Tribunal,
Bagalkot, by the legal representatives of the deceased seeking
compensation of Rs. 8 lakh from respondent No.1 - insurance
company, respondent No.2 - owner and the driver,
Mallikarjuna Beemappa Ganiger. After considering the facts
and evidence on record, the Tribunal rejected the respondents’
contention that the deceased had himself been negligent by
standing on a tractor hook which connected the tractor and
the trailer and concluded that the accident had occurred due
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to the negligence of the driver of the motor vehicle. The
Tribunal, thus, passed an award against the respondents,
jointly and severally, to compensate the family members of the
deceased with a sum of Rs.3,20,000/- (Rupees three lakh
twenty thousand only) with interest at the rate of 6% per
annum, from 3.7.2001 to 29.4.2003 and from 11.7.2007 till
date of realisation of the award amount.
3. Aggrieved, respondent No.1 insurance company assailed
the Tribunal’s award before the High Court of Karnataka,
contending that the deceased had not travelled along with his
goods in the tractor-trailer and therefore, it could not be made
liable to pay any compensation. The High Court found merit in
the contention raised by respondent No.1, that the deceased
was not travelling along with his goods at the time of the
accident and thus held that respondent No.1 insurance
company could not be saddled with any liability in that regard.
4. The appellants have challenged the impugned judgment
including on the ground that the High Court failed to
appreciate the evidence on record and the fact that the
4
deceased was the sole earning member of the family without
whom, the family had no other source of income. The
appellants also submit that the quantum of compensation
awarded by the Tribunal was meager and unjustifiable and
therefore, also seek enhancement of the Tribunal’s award.
5. We have heard Mr. Sharanagouda Patil, learned counsel
for the appellants and Ms. Meenakshi Midha, learned counsel
for the respondents. Be it noted, the driver of the offending
vehicle has not been arrayed as a party either before the High
Court or before this Court and the claim of the appellants is
only against respondent No.1 - Insurance Company and the
respondent No.2 – owner of the vehicle.
6. The High Court has held that the insurer (respondent
No.1) cannot be saddled with the liability to satisfy the award
and on that finding, allowed the appeal preferred by
respondent No.1. The reason which weighed with the High
Court for arriving at that conclusion, as can be discerned from
the impugned judgment, is based on the selective reading of
evidence of PW-2 (eye-witness) who had stated that the
5
deceased was standing on the hook connecting the tractor and
trailer and the deceased fell down due to rash driving of the
tractor, which ran over his head and chest. The High Court
has also selectively adverted to the evidence of PW-1, mother
of the deceased and opined that even her evidence was to the
same effect. Additionally, she has stated that the deceased was
studying in B.A. and running a Pan-Beedi shop. After so
noting, the High Court jumped to a conclusion that a
combined reading of the evidence of these witnesses leads to
an inference that the victim was not travelling with his goods
at the time of accident which occurred at about 01.00 Hours
in the night. On recording this opinion, the High Court
absolved the insurer. The analysis by the High Court is in the
following words:
“6. Per contra, learned counsel for the respondents
strongly relies on the evidence of P.W.2 and contends that
P.W.2 is an eyewitness and deposed before the Court that
while returning from Holealur, the driver of the tractor was
driving the vehicle in a rash and negligent manner and
caused the accident in which the deceased died on the spot.
Ex. P-1 is the complaint given by the father of the deceased.
It is stated therein that on 22.01.2001 his son had gone to
Holealur in the tractor belonging to respondent No.1 and
while returning at about 01:00 hours in the night
intervening 22nd and 23rd January, 2001 has son sustained
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fatal injuries in the accident. It is also clearly stated therein
that the deceased was standing in the hook which connects
tractor to the trailer and the victim fell down due to rash
driving and the tractor ran over his head and the chest. The
evidence of P.W.1, mother is also to the same effect. She has
also stated in her evidence that the deceased was studying in
B.A. and running a Pan Beedi shop.
7. A combined reading of all witnesses leads to an
inference that the victim was not travelling with his goods at
the time of accident. The accident has occurred at about
00:01 hours in the night. In the circumstances, the insurer
cannot be saddled with the liability to satisfy the award. The
appeal merits consideration and accordingly allowed.”
7. On the other hand, a perusal of the judgment of the
Tribunal reveals that the Tribunal had analysed the evidence
of PW-2 and PW-1 in its entirety and also took into account
other evidence in the shape of charge-sheet filed by the
Investigating Officer, in respect of Crime No.12/2001
registered in respect of the accident in question for accepting
the factum that deceased had travelled in the tractor along
with his goods to Holealur where he had gone to unload the
foodgrains of Maize loaded on the tractor belonging to
respondent No.2, which was driven by Mallikarjuna Beemappa
Ganiger and while returning from Holealur, met with the
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accident. In her examination-in-chief, PW-1 deposed as
follows:
“On the fatal day of accident i.e., on 23.01.2001 in the
evening at about 5:00 p.m., my son deceased Chanabasayya
gone to Hole-Alur for unloading the foodgrains in
Commission Agent shop for sale of the same in a TT Unit
bearing No.KA, 29/T-1651 T-1652 belongs to Basanagouda
Hireniganagoudar, after unloading the foodgrains belongs to
us while returning to the village by my son in the said TT
unit the driver of the said T.T. unit was driving the vehicle in
rash and Regulations and caused the accident near Heballi
village at anappana halls (stream) due to this negligent
driving of the driver, my son fell down from the T.T. unit and
the said vehicle passed on the head of my and due to
gracious injuries to head my son was succumbed on the
spot, and P.M. was conducted at Govt. Hospital Badami.”
PW-2 in his examination-in-chief stated as follows:
“On 23.11.2001 Lt. chanabasayya and myself together
went to Rone in the tractor of Basanagouda
Hireninganagouder by loading the maize in the said tractor
and while returning back near our city near Ganapan village
the driver of the tractor drove a tractor in very rash and
negligent manner and in a high speed endangering the
human life and injured Lt. Chanabasayya and he died on the
spot. I have witnessed the said accident. Like me others were
also in the tractor.”
When cross-examined, PW-2 stated that on the date of
accident they had taken maize crop in the said tractor.
Notably, the fact that the deceased had loaded his agricultural
produce on the tractor and also accompanied the tractor for
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unloading the same to Holealur and while returning met with
an accident, has gone unchallenged.
8. In light of the entire evidence, the Tribunal found
thus:
“7. …..This fact has been denied by respondent no.3 and as
such the burden of proving of issue No.1 is on the petitioner
and in order to prove issue No.1 second petitioner is
examined as PW-1 who has filed her affidavit evidence and
PW-1 deposed in her evidence regarding the accident caused
to her son deceased Chanabasayya on 23.1.2001 involved
with tractor and trailer belongs to respondent no.1 driven by
respondent no.2 on the date of accident. Through counsel
for respondent no.3 cross examined PW-1, but PW-1 has not
given admissions in order to discard her evidence. Even PW1
has denied the suggestion that deceased was standing on a
hook portion in the tractor trailer which connects the tractor
Engine and trailer portion of the vehicle and travelling on
that day, but PW-1 has denied this suggestion. In order to
prove the accident an independent witness PW-2 is examined
by the petitioner wherein this witness has also filed affidavit
evidence and stated regarding the accident caused to
deceased Chanabasayya on 23.1.2001 involved with tractor
and trailer unit belongs to respondent no.1. This witness is
also cross-examined by counsel for respondent no.3, but
nothing is elicited to discard the evidence of PW-2. The
petitioners have relied upon police documents, which are
marked through PW-1 as per Exp-1 to Ex.P-5. ExP-1 is the
true copy of FIR registered before Badami P.S in Crime
No.12/2001 as per the complaint filed by first petitioner i.e,
father of the deceased u/sec.279 and 304 (A) of IPC. The
Copy of complaint is also annexed to the FIR wherein
petitioner no.1 has filed this complaint before the Badami
P.S. on 23.1.2001 against the driver of T.T. Unit. ExP-2 is
the charge sheet filed by the I.O. against respondent no.2,
driver of the T.T. unit before JMFC Badami wherein a
criminal case bearing C.C.No.314 of 2001 was registered
against driver of T.T. unit for the offence punishable u/Secs.
279 and 304 (A) of IPC. Ex.P3 is the spot mahazar and
contents of Ex.P-3 clearly proves the spot and accident and
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also it corroborated with spot of accident as relief by the
petitioners in their claim petitioner. ExP-4 is the IMV report
filed by the Motor Vehicle Inspector after examination of T.T.
unit involved in the accident and this document proves that
accident in question did not cause due to any mechanical
defect in the vehicle. ExP-5 is the post mortem examination
report of the deceased Chanabasayya conducted by M.O.
Community Health Center at Badami and as per P.M. report
the death had occurred due to head injuries and also
damage to the vital organs of brain of the deceased.”
The Tribunal also considered the plea taken by the
insurer (respondent No.1) which was sought to be established
through evidence of its officer working as an administrative
officer, in the following words:
“8. Respondent No.3 has examined its officer who is working
as Administrative officer in the office of respondent no.3 and
this witness has filed affidavit evidence accepted u/0 18 rule
4 of CPC wherein RW-1 stated that, deceased Chanabasayya
died as he was standing on a hook portion of Tractor Trailer
and died due to his negligence on the date of accident. But
in support of this contention RW-1 has not produced any
rebuttal documents to that of Ex.P-1 to Ex.P-5. However,
RW-1 in his cross examination clearly admitted that in the
complaint marked at Ex.P-1 it is not recited with deceased
obtained T.T. unit from respondent no.1 on hire basis and
RW-1 has denied the suggestion made to him during cross
examination that he is deposing false evidence regarding
deceased was standing on a tractor hook which connects
the engine and trailer portion. After considering the evidence
of RW-1 though respondent no.3 in its petition filed to the
claim petition and also RW-1 in his oral evidence stated that
the accident had occurred due to the gross negligence of
deceased himself, but to support this contention there is no
cogent and oral evidence nor documentary evidence placed
on record by the respondent no.3. On the contrary, there is
evidence of PW-1 and 2 and also Ex.P-1 to Ex.P-5 which are
the documents obtained from C.C. file wherein as per the
complaint filed by the petitioner No.1, a crime was registered
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against the accused i.e., driver of T.T. unit and I.O. after due
investigation has filed charge sheet against respondent no.2
who was driver of the T.T. unit on the date of accident and
hence there documents are not denied by the respondent
no.3. on the contrary, Ex.P-1 to Ex.P-5 clearly establish that
the accident in question was occurred due to actionable
negligence of driver of T.T. unit wherein respondent No.2 was
driving the said tractor and trailer on 23.1.2001 and caused
accident at 1.00 a.m. near Ganappan Halla just 1.00 k.m.
away from Hebballi village on Cholchagudda-Govankoppa
PWD road and the gross negligence of driver caused the
death of Chanabasayya who succumbed to injuries and died
on the spot as he was travelling in the said T.T. unit on that
day and hence the negligence is clearly attributed on the
part of driver of T.T. unit and death of Chanabasayya was
the proximate cause of road traffic accident which comes
under the preview of Sec. 166 of M.V. Act and this positive
evidence lead by the petitioners is proved by the
documentary evidence, but the contention of respondent
no.3 has to be rejected and also there is no cogent evidence
to hold that the death of Chanabasayya was due to his own
negligence. Hence, after appreciation of evidence of PW-1
and 2 and RW-1 and by perusal of Ex.P-1 to Ex.P-51 I hold
that, the petitioners have prove issue No.1 as against
respondent no.1 to 3. Accordingly, issued no.1 is answered
in affirmative.”
And again in paragraph 11, on the issue of entitlement of
compensation it noted thus:-
“…The petitioners claimed compensation from respondent
No.1 to 3 jointly and severally wherein respondent No.1 is
owner of offending vehicle respondent No.2 driver of vehicle
and respondent No.3 is the insurer, but RW-1 representing
insurance company has given evidence denying its liability
contending that, there is breach of policy conditions
particularly there is violation of condition clause “A” of Ex.R1
wherein deceased had hired the vehicle of respondent No.1
in order to load maize corns to dump at hole Alur in
Commission Agent shop. In the evidence of RW-1 insurance
cover note is produced and it is marked at Exhp-1. The
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contention of respondent No.3 is rejected by this Tribunal
regarding the defence taken that death of Chanabasayya was
due to his gross negligence. On perusal of Ex. R1 it is valid
policy obtained from respondent No.1 over his T.T. unit
wherein policy period commences from 12.2.2000 to
11.2.2001. In view of admission of RW-1 in cross
examination wherein RW-1 admitted in his cross reads as
follows:-
“…..On the contrary, the deceased had went to dump
maize corns belongs to them in the vehicle owned by
respondent No.1. Hence, the contention of respondent No.3
that vehicle and its use was for hire and reward is not
proved by any cogent evidence on record. On the contrary,
the offending vehicle T.T. unit was used for carrying
foodgrains to each the sale point i.e., Commission Agent
shop at Hole-Alur which an agricultural produce of
petitioners family carried called Tractor- Trailer. Therefore
this decision relied by the petitioners is aptly applicable
wherein the use of vehicle is for agricultural purpose and not
for any other commercial purpose. Once it is held use of
vehicle by the deceased for agricultural purpose then
question of violating any policy conditions by respondent
No.1 will not arise…..”
9. As mentioned earlier, the High Court by a sweeping
observation proceeded to reverse the finding of fact recorded
by the Tribunal. Whereas, the Tribunal had duly considered
the evidence of PW-1, PW-2 and the material accompanying
the charge-sheet filed in respect of Crime No.12/2001 as also
the plea taken by the insurer and the evidence of RW-1. In
our opinion, the conclusion reached by the Tribunal is a
possible view, which could not have been disturbed by the
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High Court in the appeal filed by the insurer, much less in
such a casual manner, as has been done by the High Court.
10. Notably, the High Court has not even adverted to the
other findings recorded by the Tribunal as regards the manner
in which accident occurred and, in particular, about the rash
and negligent act of the driver of the tractor which had caused
the accident resulting into the death of Chanabasayya on the
spot due to grievous injuries suffered by him. The High Court
has also not adverted to the finding recorded by the Tribunal
in respect of Issue Nos.2 and No.3 regarding the proof of age,
occupation and income of the deceased and the quantum of
just and reasonable compensation. The High Court based its
conclusion that the insurer cannot be saddled with the
liability to satisfy the award, on the finding that the deceased
was not travelling along with his goods at the time of accident.
No more and no less. However, as the said finding recorded by
the High Court cannot be sustained, the finding of the
Tribunal on the factum that the deceased had travelled along
with his goods will have to be affirmed and restored. It would
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necessarily follow that the insurer was not absolved of its
liability to pay the compensation amount awarded to the
claimants. We say so because the Tribunal has found, as of
fact, that the insurance policy brought on record was a valid
policy in respect of the offending tractor for the period
commencing from 12.02.2000 to 11.02.2001.
11. Assuming for the sake of argument that the insurance
company was not liable to pay compensation amount awarded
to the claimants as the offending tractor was duly insured, the
insurer would be still liable to pay the compensation amount
in the first instance with liberty to recover the same from the
owner of the vehicle owner (respondent No.2), in light of the
exposition in the case of National Insurance Co. Vs. Swarn
Singh and Ors.1 In paragraph 110 of the said decision, a
three-Judge Bench of this Court observed thus:
“110. The summary of our findings to the various issues
as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third party
risks is a social welfare legislation to extend relief by
1
(2004) 3 SCC 297
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compensation to victims of accidents caused by use of
motor vehicles. The provisions of compulsory insurance
coverage of all vehicles are with this paramount object
and the provisions of the Act have to be so interpreted
as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim
petition filed under Section 163A or Section 166 of the
Motor Vehicles Act, 1988 inter alia in terms of Section
149(2)(a)(ii) of the said Act.
(iii) xxx
(iv) The insurance companies are, however, with a view
to avoid their liability must not only establish the
available defence(s) raised in the said proceedings but
must also establish 'breach' on the part of the owner of
the vehicle; the burden of proof where for would be on
them.
(v) xxx
(vi) xxx
(vii) xxx
(viii) xxx
(ix) xxx
(x) Where on adjudication of the claim under the Act
the tribunal arrives at a conclusion that the insurer
has satisfactorily proved its defence in accordance
with the provisions of Section 149(2) read with Subsection
(7), as interpreted by this Court above, the
Tribunal can direct that the insurer is liable to be
reimbursed by the insured for the compensation and
other amounts which it has been compelled to pay
to the third party under the award of the tribunal
Such determination of claim by the Tribunal will be
enforceable and the money found due to the insurer
from the insured will be recoverable on a certificate
issued by the tribunal to the Collector in the same
manner under Section 174 of the Act as arrears of
land revenue. The certificate will be issued for the
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recovery as arrears of land revenue only if, as
required by Sub-section (3) of Section 168 of the Act
the insured fails to deposit the amount awarded in
favour of the insurer within thirty days from the
date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with
proviso thereunder and Sub-section (5) which are
intended to cover specified contingencies
mentioned therein to enable the insurer to recover
amount paid under the contract of insurance on
behalf of the insured can be taken recourse of by the
Tribunal and be extended to claims and defences of
insurer against insured by, relegating them to the
remedy before, regular court in cases where on given
facts and circumstances adjudication of their claims
inter se might delay the adjudication of the claims
of the victims.”
(emphasis supplied)
12. However, in the facts of the present case, we have no
hesitation in taking a view that consequent to affirmation and
restoration of the finding of fact recorded by the Tribunal
regarding the factum of deceased had travelled along with his
goods at the time of accident, the insurer would be obliged to
satisfy the compensation amount awarded to the claimants.
13. Reverting to the argument of the appellants that the
Tribunal committed manifest error in computing the
compensation amount, we find that the appellants (claimants)
did not file an appeal for enhancement of compensation
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amount against that part of the award passed by the Tribunal
nor chose to file any cross-objection in the First Appeal filed by
the insurer before the High Court. Moreover, from the
judgment of the High Court there is no indication that any
attempt was made on behalf of the appellants to ask for
enhanced compensation amount on the grounds as would
have been available to the appellants in that behalf.
Significantly, in the present appeal also, the appellants have
not asked for any “relief” against that part of the award passed
by the Tribunal, regarding the quantum of compensation. The
relief claimed in this appeal is only to set aside the decision of
the High Court passed in the First Appeal preferred by the
insurer. In this backdrop, it will not be appropriate for this
Court to consider the argument regarding the quantum of
compensation at the instance of the appellants (claimants).
14. As a result, the appeal would succeed only to the extent
of setting aside the impugned judgment of the High Court
passed in the First Appeal filed by the insurer (respondent
No.1) as prayed and consequently, by restoring the Award
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dated 21st January, 2008 passed by the Motor Accident Claims
Tribunal, Badalkot. We order accordingly.
15. The appeal is allowed in the above terms with costs.
..……………………………...CJI.
(Dipak Misra)
…..…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
March 28, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2247 OF 2018
(Arising out of SLP (C) NO. 5485 of 2017)
SHIVAWWA AND ANR. …. APPELLANTS
:Versus:
THE BRANCH MANAGER, NATIONAL INDIA
INSURANCE CO. LTD. AND ANR. …. RESPONDENTS
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal emanates from the judgment of the High
Court of Karnataka dated 9th July, 2015 in M.F.A.
No.4401/2008 (MV) which had allowed the appeal filed by
respondent No.1 (Insurance Company) and set aside the award
of the Motor Accident Claims Tribunal (for short “the
Tribunal”) granting compensation to the appellants.
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2. A claim petition was filed in reference to the death of one
Chanabasayya Sidramayya Hiremath, son of appellant No.1
and brother of appellant No.2 herein. On 23rd January, 2001,
the deceased was returning, after unloading food-grains, on
tractor-trailer bearing No. KA-29/T-1651/T-1652 belonging to
respondent No.2, and being driven by an employee of
respondent No.2, one Mallikarjuna Beemappa Ganiger. At
around 1.00 AM, it is alleged that owing to the rash and
negligent driving of the said Mallikarjuna Beemappa Ganiger,
the deceased fell off the tractor-trailer and suffered fatal
injuries. A claim petition under Section 166 of the Motor
Vehicles Act, 1988 was subsequently filed before the Tribunal,
Bagalkot, by the legal representatives of the deceased seeking
compensation of Rs. 8 lakh from respondent No.1 - insurance
company, respondent No.2 - owner and the driver,
Mallikarjuna Beemappa Ganiger. After considering the facts
and evidence on record, the Tribunal rejected the respondents’
contention that the deceased had himself been negligent by
standing on a tractor hook which connected the tractor and
the trailer and concluded that the accident had occurred due
3
to the negligence of the driver of the motor vehicle. The
Tribunal, thus, passed an award against the respondents,
jointly and severally, to compensate the family members of the
deceased with a sum of Rs.3,20,000/- (Rupees three lakh
twenty thousand only) with interest at the rate of 6% per
annum, from 3.7.2001 to 29.4.2003 and from 11.7.2007 till
date of realisation of the award amount.
3. Aggrieved, respondent No.1 insurance company assailed
the Tribunal’s award before the High Court of Karnataka,
contending that the deceased had not travelled along with his
goods in the tractor-trailer and therefore, it could not be made
liable to pay any compensation. The High Court found merit in
the contention raised by respondent No.1, that the deceased
was not travelling along with his goods at the time of the
accident and thus held that respondent No.1 insurance
company could not be saddled with any liability in that regard.
4. The appellants have challenged the impugned judgment
including on the ground that the High Court failed to
appreciate the evidence on record and the fact that the
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deceased was the sole earning member of the family without
whom, the family had no other source of income. The
appellants also submit that the quantum of compensation
awarded by the Tribunal was meager and unjustifiable and
therefore, also seek enhancement of the Tribunal’s award.
5. We have heard Mr. Sharanagouda Patil, learned counsel
for the appellants and Ms. Meenakshi Midha, learned counsel
for the respondents. Be it noted, the driver of the offending
vehicle has not been arrayed as a party either before the High
Court or before this Court and the claim of the appellants is
only against respondent No.1 - Insurance Company and the
respondent No.2 – owner of the vehicle.
6. The High Court has held that the insurer (respondent
No.1) cannot be saddled with the liability to satisfy the award
and on that finding, allowed the appeal preferred by
respondent No.1. The reason which weighed with the High
Court for arriving at that conclusion, as can be discerned from
the impugned judgment, is based on the selective reading of
evidence of PW-2 (eye-witness) who had stated that the
5
deceased was standing on the hook connecting the tractor and
trailer and the deceased fell down due to rash driving of the
tractor, which ran over his head and chest. The High Court
has also selectively adverted to the evidence of PW-1, mother
of the deceased and opined that even her evidence was to the
same effect. Additionally, she has stated that the deceased was
studying in B.A. and running a Pan-Beedi shop. After so
noting, the High Court jumped to a conclusion that a
combined reading of the evidence of these witnesses leads to
an inference that the victim was not travelling with his goods
at the time of accident which occurred at about 01.00 Hours
in the night. On recording this opinion, the High Court
absolved the insurer. The analysis by the High Court is in the
following words:
“6. Per contra, learned counsel for the respondents
strongly relies on the evidence of P.W.2 and contends that
P.W.2 is an eyewitness and deposed before the Court that
while returning from Holealur, the driver of the tractor was
driving the vehicle in a rash and negligent manner and
caused the accident in which the deceased died on the spot.
Ex. P-1 is the complaint given by the father of the deceased.
It is stated therein that on 22.01.2001 his son had gone to
Holealur in the tractor belonging to respondent No.1 and
while returning at about 01:00 hours in the night
intervening 22nd and 23rd January, 2001 has son sustained
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fatal injuries in the accident. It is also clearly stated therein
that the deceased was standing in the hook which connects
tractor to the trailer and the victim fell down due to rash
driving and the tractor ran over his head and the chest. The
evidence of P.W.1, mother is also to the same effect. She has
also stated in her evidence that the deceased was studying in
B.A. and running a Pan Beedi shop.
7. A combined reading of all witnesses leads to an
inference that the victim was not travelling with his goods at
the time of accident. The accident has occurred at about
00:01 hours in the night. In the circumstances, the insurer
cannot be saddled with the liability to satisfy the award. The
appeal merits consideration and accordingly allowed.”
7. On the other hand, a perusal of the judgment of the
Tribunal reveals that the Tribunal had analysed the evidence
of PW-2 and PW-1 in its entirety and also took into account
other evidence in the shape of charge-sheet filed by the
Investigating Officer, in respect of Crime No.12/2001
registered in respect of the accident in question for accepting
the factum that deceased had travelled in the tractor along
with his goods to Holealur where he had gone to unload the
foodgrains of Maize loaded on the tractor belonging to
respondent No.2, which was driven by Mallikarjuna Beemappa
Ganiger and while returning from Holealur, met with the
7
accident. In her examination-in-chief, PW-1 deposed as
follows:
“On the fatal day of accident i.e., on 23.01.2001 in the
evening at about 5:00 p.m., my son deceased Chanabasayya
gone to Hole-Alur for unloading the foodgrains in
Commission Agent shop for sale of the same in a TT Unit
bearing No.KA, 29/T-1651 T-1652 belongs to Basanagouda
Hireniganagoudar, after unloading the foodgrains belongs to
us while returning to the village by my son in the said TT
unit the driver of the said T.T. unit was driving the vehicle in
rash and Regulations and caused the accident near Heballi
village at anappana halls (stream) due to this negligent
driving of the driver, my son fell down from the T.T. unit and
the said vehicle passed on the head of my and due to
gracious injuries to head my son was succumbed on the
spot, and P.M. was conducted at Govt. Hospital Badami.”
PW-2 in his examination-in-chief stated as follows:
“On 23.11.2001 Lt. chanabasayya and myself together
went to Rone in the tractor of Basanagouda
Hireninganagouder by loading the maize in the said tractor
and while returning back near our city near Ganapan village
the driver of the tractor drove a tractor in very rash and
negligent manner and in a high speed endangering the
human life and injured Lt. Chanabasayya and he died on the
spot. I have witnessed the said accident. Like me others were
also in the tractor.”
When cross-examined, PW-2 stated that on the date of
accident they had taken maize crop in the said tractor.
Notably, the fact that the deceased had loaded his agricultural
produce on the tractor and also accompanied the tractor for
8
unloading the same to Holealur and while returning met with
an accident, has gone unchallenged.
8. In light of the entire evidence, the Tribunal found
thus:
“7. …..This fact has been denied by respondent no.3 and as
such the burden of proving of issue No.1 is on the petitioner
and in order to prove issue No.1 second petitioner is
examined as PW-1 who has filed her affidavit evidence and
PW-1 deposed in her evidence regarding the accident caused
to her son deceased Chanabasayya on 23.1.2001 involved
with tractor and trailer belongs to respondent no.1 driven by
respondent no.2 on the date of accident. Through counsel
for respondent no.3 cross examined PW-1, but PW-1 has not
given admissions in order to discard her evidence. Even PW1
has denied the suggestion that deceased was standing on a
hook portion in the tractor trailer which connects the tractor
Engine and trailer portion of the vehicle and travelling on
that day, but PW-1 has denied this suggestion. In order to
prove the accident an independent witness PW-2 is examined
by the petitioner wherein this witness has also filed affidavit
evidence and stated regarding the accident caused to
deceased Chanabasayya on 23.1.2001 involved with tractor
and trailer unit belongs to respondent no.1. This witness is
also cross-examined by counsel for respondent no.3, but
nothing is elicited to discard the evidence of PW-2. The
petitioners have relied upon police documents, which are
marked through PW-1 as per Exp-1 to Ex.P-5. ExP-1 is the
true copy of FIR registered before Badami P.S in Crime
No.12/2001 as per the complaint filed by first petitioner i.e,
father of the deceased u/sec.279 and 304 (A) of IPC. The
Copy of complaint is also annexed to the FIR wherein
petitioner no.1 has filed this complaint before the Badami
P.S. on 23.1.2001 against the driver of T.T. Unit. ExP-2 is
the charge sheet filed by the I.O. against respondent no.2,
driver of the T.T. unit before JMFC Badami wherein a
criminal case bearing C.C.No.314 of 2001 was registered
against driver of T.T. unit for the offence punishable u/Secs.
279 and 304 (A) of IPC. Ex.P3 is the spot mahazar and
contents of Ex.P-3 clearly proves the spot and accident and
9
also it corroborated with spot of accident as relief by the
petitioners in their claim petitioner. ExP-4 is the IMV report
filed by the Motor Vehicle Inspector after examination of T.T.
unit involved in the accident and this document proves that
accident in question did not cause due to any mechanical
defect in the vehicle. ExP-5 is the post mortem examination
report of the deceased Chanabasayya conducted by M.O.
Community Health Center at Badami and as per P.M. report
the death had occurred due to head injuries and also
damage to the vital organs of brain of the deceased.”
The Tribunal also considered the plea taken by the
insurer (respondent No.1) which was sought to be established
through evidence of its officer working as an administrative
officer, in the following words:
“8. Respondent No.3 has examined its officer who is working
as Administrative officer in the office of respondent no.3 and
this witness has filed affidavit evidence accepted u/0 18 rule
4 of CPC wherein RW-1 stated that, deceased Chanabasayya
died as he was standing on a hook portion of Tractor Trailer
and died due to his negligence on the date of accident. But
in support of this contention RW-1 has not produced any
rebuttal documents to that of Ex.P-1 to Ex.P-5. However,
RW-1 in his cross examination clearly admitted that in the
complaint marked at Ex.P-1 it is not recited with deceased
obtained T.T. unit from respondent no.1 on hire basis and
RW-1 has denied the suggestion made to him during cross
examination that he is deposing false evidence regarding
deceased was standing on a tractor hook which connects
the engine and trailer portion. After considering the evidence
of RW-1 though respondent no.3 in its petition filed to the
claim petition and also RW-1 in his oral evidence stated that
the accident had occurred due to the gross negligence of
deceased himself, but to support this contention there is no
cogent and oral evidence nor documentary evidence placed
on record by the respondent no.3. On the contrary, there is
evidence of PW-1 and 2 and also Ex.P-1 to Ex.P-5 which are
the documents obtained from C.C. file wherein as per the
complaint filed by the petitioner No.1, a crime was registered
10
against the accused i.e., driver of T.T. unit and I.O. after due
investigation has filed charge sheet against respondent no.2
who was driver of the T.T. unit on the date of accident and
hence there documents are not denied by the respondent
no.3. on the contrary, Ex.P-1 to Ex.P-5 clearly establish that
the accident in question was occurred due to actionable
negligence of driver of T.T. unit wherein respondent No.2 was
driving the said tractor and trailer on 23.1.2001 and caused
accident at 1.00 a.m. near Ganappan Halla just 1.00 k.m.
away from Hebballi village on Cholchagudda-Govankoppa
PWD road and the gross negligence of driver caused the
death of Chanabasayya who succumbed to injuries and died
on the spot as he was travelling in the said T.T. unit on that
day and hence the negligence is clearly attributed on the
part of driver of T.T. unit and death of Chanabasayya was
the proximate cause of road traffic accident which comes
under the preview of Sec. 166 of M.V. Act and this positive
evidence lead by the petitioners is proved by the
documentary evidence, but the contention of respondent
no.3 has to be rejected and also there is no cogent evidence
to hold that the death of Chanabasayya was due to his own
negligence. Hence, after appreciation of evidence of PW-1
and 2 and RW-1 and by perusal of Ex.P-1 to Ex.P-51 I hold
that, the petitioners have prove issue No.1 as against
respondent no.1 to 3. Accordingly, issued no.1 is answered
in affirmative.”
And again in paragraph 11, on the issue of entitlement of
compensation it noted thus:-
“…The petitioners claimed compensation from respondent
No.1 to 3 jointly and severally wherein respondent No.1 is
owner of offending vehicle respondent No.2 driver of vehicle
and respondent No.3 is the insurer, but RW-1 representing
insurance company has given evidence denying its liability
contending that, there is breach of policy conditions
particularly there is violation of condition clause “A” of Ex.R1
wherein deceased had hired the vehicle of respondent No.1
in order to load maize corns to dump at hole Alur in
Commission Agent shop. In the evidence of RW-1 insurance
cover note is produced and it is marked at Exhp-1. The
11
contention of respondent No.3 is rejected by this Tribunal
regarding the defence taken that death of Chanabasayya was
due to his gross negligence. On perusal of Ex. R1 it is valid
policy obtained from respondent No.1 over his T.T. unit
wherein policy period commences from 12.2.2000 to
11.2.2001. In view of admission of RW-1 in cross
examination wherein RW-1 admitted in his cross reads as
follows:-
“…..On the contrary, the deceased had went to dump
maize corns belongs to them in the vehicle owned by
respondent No.1. Hence, the contention of respondent No.3
that vehicle and its use was for hire and reward is not
proved by any cogent evidence on record. On the contrary,
the offending vehicle T.T. unit was used for carrying
foodgrains to each the sale point i.e., Commission Agent
shop at Hole-Alur which an agricultural produce of
petitioners family carried called Tractor- Trailer. Therefore
this decision relied by the petitioners is aptly applicable
wherein the use of vehicle is for agricultural purpose and not
for any other commercial purpose. Once it is held use of
vehicle by the deceased for agricultural purpose then
question of violating any policy conditions by respondent
No.1 will not arise…..”
9. As mentioned earlier, the High Court by a sweeping
observation proceeded to reverse the finding of fact recorded
by the Tribunal. Whereas, the Tribunal had duly considered
the evidence of PW-1, PW-2 and the material accompanying
the charge-sheet filed in respect of Crime No.12/2001 as also
the plea taken by the insurer and the evidence of RW-1. In
our opinion, the conclusion reached by the Tribunal is a
possible view, which could not have been disturbed by the
12
High Court in the appeal filed by the insurer, much less in
such a casual manner, as has been done by the High Court.
10. Notably, the High Court has not even adverted to the
other findings recorded by the Tribunal as regards the manner
in which accident occurred and, in particular, about the rash
and negligent act of the driver of the tractor which had caused
the accident resulting into the death of Chanabasayya on the
spot due to grievous injuries suffered by him. The High Court
has also not adverted to the finding recorded by the Tribunal
in respect of Issue Nos.2 and No.3 regarding the proof of age,
occupation and income of the deceased and the quantum of
just and reasonable compensation. The High Court based its
conclusion that the insurer cannot be saddled with the
liability to satisfy the award, on the finding that the deceased
was not travelling along with his goods at the time of accident.
No more and no less. However, as the said finding recorded by
the High Court cannot be sustained, the finding of the
Tribunal on the factum that the deceased had travelled along
with his goods will have to be affirmed and restored. It would
13
necessarily follow that the insurer was not absolved of its
liability to pay the compensation amount awarded to the
claimants. We say so because the Tribunal has found, as of
fact, that the insurance policy brought on record was a valid
policy in respect of the offending tractor for the period
commencing from 12.02.2000 to 11.02.2001.
11. Assuming for the sake of argument that the insurance
company was not liable to pay compensation amount awarded
to the claimants as the offending tractor was duly insured, the
insurer would be still liable to pay the compensation amount
in the first instance with liberty to recover the same from the
owner of the vehicle owner (respondent No.2), in light of the
exposition in the case of National Insurance Co. Vs. Swarn
Singh and Ors.1 In paragraph 110 of the said decision, a
three-Judge Bench of this Court observed thus:
“110. The summary of our findings to the various issues
as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third party
risks is a social welfare legislation to extend relief by
1
(2004) 3 SCC 297
14
compensation to victims of accidents caused by use of
motor vehicles. The provisions of compulsory insurance
coverage of all vehicles are with this paramount object
and the provisions of the Act have to be so interpreted
as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim
petition filed under Section 163A or Section 166 of the
Motor Vehicles Act, 1988 inter alia in terms of Section
149(2)(a)(ii) of the said Act.
(iii) xxx
(iv) The insurance companies are, however, with a view
to avoid their liability must not only establish the
available defence(s) raised in the said proceedings but
must also establish 'breach' on the part of the owner of
the vehicle; the burden of proof where for would be on
them.
(v) xxx
(vi) xxx
(vii) xxx
(viii) xxx
(ix) xxx
(x) Where on adjudication of the claim under the Act
the tribunal arrives at a conclusion that the insurer
has satisfactorily proved its defence in accordance
with the provisions of Section 149(2) read with Subsection
(7), as interpreted by this Court above, the
Tribunal can direct that the insurer is liable to be
reimbursed by the insured for the compensation and
other amounts which it has been compelled to pay
to the third party under the award of the tribunal
Such determination of claim by the Tribunal will be
enforceable and the money found due to the insurer
from the insured will be recoverable on a certificate
issued by the tribunal to the Collector in the same
manner under Section 174 of the Act as arrears of
land revenue. The certificate will be issued for the
15
recovery as arrears of land revenue only if, as
required by Sub-section (3) of Section 168 of the Act
the insured fails to deposit the amount awarded in
favour of the insurer within thirty days from the
date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with
proviso thereunder and Sub-section (5) which are
intended to cover specified contingencies
mentioned therein to enable the insurer to recover
amount paid under the contract of insurance on
behalf of the insured can be taken recourse of by the
Tribunal and be extended to claims and defences of
insurer against insured by, relegating them to the
remedy before, regular court in cases where on given
facts and circumstances adjudication of their claims
inter se might delay the adjudication of the claims
of the victims.”
(emphasis supplied)
12. However, in the facts of the present case, we have no
hesitation in taking a view that consequent to affirmation and
restoration of the finding of fact recorded by the Tribunal
regarding the factum of deceased had travelled along with his
goods at the time of accident, the insurer would be obliged to
satisfy the compensation amount awarded to the claimants.
13. Reverting to the argument of the appellants that the
Tribunal committed manifest error in computing the
compensation amount, we find that the appellants (claimants)
did not file an appeal for enhancement of compensation
16
amount against that part of the award passed by the Tribunal
nor chose to file any cross-objection in the First Appeal filed by
the insurer before the High Court. Moreover, from the
judgment of the High Court there is no indication that any
attempt was made on behalf of the appellants to ask for
enhanced compensation amount on the grounds as would
have been available to the appellants in that behalf.
Significantly, in the present appeal also, the appellants have
not asked for any “relief” against that part of the award passed
by the Tribunal, regarding the quantum of compensation. The
relief claimed in this appeal is only to set aside the decision of
the High Court passed in the First Appeal preferred by the
insurer. In this backdrop, it will not be appropriate for this
Court to consider the argument regarding the quantum of
compensation at the instance of the appellants (claimants).
14. As a result, the appeal would succeed only to the extent
of setting aside the impugned judgment of the High Court
passed in the First Appeal filed by the insurer (respondent
No.1) as prayed and consequently, by restoring the Award
17
dated 21st January, 2008 passed by the Motor Accident Claims
Tribunal, Badalkot. We order accordingly.
15. The appeal is allowed in the above terms with costs.
..……………………………...CJI.
(Dipak Misra)
…..…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
March 28, 2018.
