1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8278-8279 OF 2018
(Arising out of SLP(C) Nos.1116-1117/2018)
Shivaraj .…Appellant(s)
:Versus:
Rajendra & Anr. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. These appeals are directed against the common
judgment and order passed by the High Court of Karnataka
at Bengaluru dated 13th August, 2015 in M.F.A. No.7662 of
2013 (MV) and M.F.A. No.9995 of 2013 (MV) whereby the
High Court allowed the appeal preferred by respondent No.2
(insurer) and dismissed the appeal for enhancement of
compensation preferred by the appellant (injured claimant).
2. Briefly stated, on 23rd February, 2010 at about 8:30
a.m., the appellant was travelling in a tractor bearing
Registration No.KA-15-T-2011 as a Coolie, on Bangalore
2
Road, Survey No.266, Bangalore. The driver of the tractor
was driving at a high speed, in a rash and negligent manner
and dashed the tractor against a big mud stone, resulting in
the tractor turning turtle and the appellant suffering
grievous injuries. The appellant was immediately taken to
North Side Hospital and Diagnostic Center, Bangalore,
where he underwent medical treatment as an inpatient,
from 23rd February, 2010 to 27th February, 2010. Later on,
he was shifted to Bowring and Lady Curzon Hospital,
Bangalore, as an inpatient from 27th February, 2010 to 7th
May, 2010 and underwent 4 (four) different surgeries.
According to the appellant, despite receiving best medical
treatment, he suffered permanent physical disability to an
extent of 59.4% both lower limbs, 18.9% towards Vertebra,
Clavicle and Scapula and 80% towards urethral injury,
which is about 67% to the whole body. The appellant was
only 25 years of age at the time of the accident and was
working as a coolie. On account of his permanent disability,
the appellant has become incapable of working as a coolie
and is thus denied of his income to the extent of Rs.6,000/-
per month.
3
3. Resultantly, a claim petition was filed by the appellant
before the III Additional Senior Civil Judge, Member, MACT,
Bangalore, bearing M.V.C. No.3533/2010, under Section
166 of the Motor Vehicles Act, 1988, claiming compensation
of Rs.15,00,000/- (Rupees Fifteen Lakh Only) for the
injuries sustained by him in the accident.
4. The appellant examined 4 witnesses in support of his
claim and also produced Exhs. P1 to P24. The respondent
examined RW1 Sagayaraj, Administrative Officer and
produced Exhs. R1 and R2. After analysing the evidence
produced by the parties, the tribunal proceeded to answer
the three issues framed by it on the basis of the pleadings.
5. The tribunal held that the claimant was able to prove
the facts that the accident occurred on 23rd February, 2010
at 8:30 a.m. while he was going in the stated tractor, due to
rash and negligent driving of the driver of the tractor. The
tribunal held that the appellant was travelling as a loader in
the tractor and not as a gratuitous passenger. After
4
adverting to the Insurance Policy, the tribunal noticed that
the same covered risk of 1+4. The tribunal held that the
respondent No.2 admitted issuance of the Insurance Policy
to the offending vehicle and its validity as on the date of the
accident. The tribunal then proceeded to quantify the
compensation amount on the notional income of the
appellant at Rs.150/- per day as a coolie and, keeping in
mind the age of the appellant at the relevant time i.e. 25
years, applied multiplier of 18. The tribunal adjudged the
permanent disability of the appellant to the extent of 60% to
the whole body and on that basis, computed the loss of
future income of the appellant at Rs.5,83,000/-(Rupees Five
Lakh Eighty Three Thousand Only). The tribunal arrived at
the following calculation to be awarded as compensation to
the appellant payable jointly by the owner of the vehicle and
the insurer, along with interest at the rate of 8% per annum
from the date of petition till the date of realization. The
computation of compensation amount towards different
heads arrived at by the tribunal is as follows:
5
Compensation Heads Compensation
amount
1. Pain and agony Rs. 85,000/-
2. Medical expenses Rs.1,42,324/-
3. Future medical expenses Rs. 50,000/-
4. Loss of income during laid up period Rs. 12,000/-
5. Rest, Nourishment and attendant
charges
Rs. 5,000/-
6. Loss of future income Rs.5,83,000/-
7. Conveyance Rs. 5,000/-
8. Loss of amenities & discomfort in life Rs. 20,000/-
Total Rs.9,02,324/-
6. Feeling aggrieved by the said award, respondent No.2
(insurer) preferred an appeal being M.F.A. No.7662 of 2013
(MV) and the appellant preferred a separate appeal being
M.F.A. No.9995 of 2013 (MV) for enhancement of the
compensation amount. The High Court disposed of both
these appeals by the impugned common judgment and
order. The High Court broadly agreed with all other findings
given by the tribunal but held that going by the stand taken
by the appellant throughout the proceeding and the
contemporaneous documents Exhs. P2 to P5, nowhere was
it mentioned that the appellant was travelling in a trailer
attached to the tractor. The evidence, however, is
unambiguous that the appellant travelled in the tractor
which was insured only for agriculture purposes and not for
carrying goods. No additional insurance was taken in
6
respect of the trailer rather presence of trailer is not shown
or demonstrated in any of the documents and there was no
evidence to demonstrate that the tractor was attached to a
trailer. The tractor could accommodate only one person
namely the driver of the tractor and none else.
7. On that finding, the High Court concluded that the
appellant travelled in the tractor in breach of policy terms
and conditions and therefore, the Insurance Company
cannot be made liable to compensate the owner or the
claimant. Accordingly, the appeal preferred by the
respondent No.2 was allowed by the High Court and the
insurer came to be absolved from the liability to pay
compensation. While dealing with the appeal for
enhancement of the compensation amount filed by the
appellant, the High Court noted that the amount arrived at
by the tribunal was just and proper and reckoned all the
mandatory heads of compensation. As a result, it concluded
that the appellant was not entitled for enhanced
compensation.
7
8. The appellant has assailed the said common judgment
and order of the High Court by these appeals. We have
heard Ms. Kanika for the appellant and Ms. Rekha Chandra
Sekhar for the respondent No.2 (insurer). Both the courts
have accepted the case of the appellant that the motor
accident occurred on 23rd February, 2010 at about 8:30
a.m. in which the appellant suffered grievous injuries due to
the rash and negligent driving of the driver of tractor.
Further, both courts have determined permanent disability
of 60% to the whole body suffered by the appellant in the
accident.
9. The High Court, however, found in favour of
respondent No.2 (insurer) that the appellant travelled in the
tractor as a passenger which was in breach of the policy
condition, for the tractor was insured for agriculture
purposes and not for carrying goods. The evidence on record
unambiguously pointed out that neither was any trailer
insured nor was any trailer attached to the tractor. Thus, it
would follow that the appellant travelled in the tractor as a
passenger, even though the tractor could accommodate only
one person namely the driver. As a result, the Insurance
8
Company (respondent No.2) was not liable for the loss or
injuries suffered by the appellant or to indemnify the owner
of the tractor. That conclusion reached by the High Court,
in our opinion, is unexceptionable in the fact situation of
the present case.
10. At the same time, however, in the facts of the present
case the High Court ought to have directed the Insurance
Company to pay the compensation amount to the claimant
(appellant) with liberty to recover the same from the tractor
owner, in view of the consistent view taken in that regard by
this Court in National Insurance Co. Ltd. Vs. Swarna
Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co.
Ltd.2
, Rani & Ors. Vs. National Insurance Co. Ltd. &
Ors.3 and including Manuara Khatun and Others Vs.
Rajesh Kumar Singh And Others.
4 In other words, the
High Court should have partly allowed the appeal preferred
by the respondent No.2. The appellant may, therefore,
succeed in getting relief of direction to respondent No.2
Insurance Company to pay the compensation amount to the
1 (2004) 3 SCC 297
2 (2018) 5 SCC 656
3 2018 (9) SCALE 310
4 (2017) 4 SCC 796
9
appellant with liberty to recover the same from the tractor
owner (respondent No.1).
11. Reverting to the issue regarding the determination of
compensation amount by the tribunal and as affirmed by
the High Court, we find that the tribunal had taken into
account all the relevant aspects and provided for just and
proper compensation amount for different heads as are
permissible. The High Court, therefore, was justified in not
disturbing the said conclusion of the tribunal. We affirm the
view so taken by the High Court. Accordingly, the appeal
preferred by the appellant for enhancement of compensation
amount does not warrant interference.
12. We may place on record that the appellant did make
an unsuccessful attempt to persuade us to take a view that
the permanent disability should be reckoned as 67% to the
whole body. However, after going through the evidence of
the doctor who had treated the appellant and the medical
records, we find that the assessment made by the tribunal
about the extent of permanent disability at 60% to the
whole body seems to be a possible view. We are not inclined
10
to disturb the said finding and also because it has been
justly affirmed by the High Court, being concurrent finding
of fact. Accordingly, the claim of the appellant for
enhancement of compensation amount does not merit
interference.
13. In view of the above, the appeals are partly allowed to
the extent of directing the respondent No.2 (Oriental
Insurance Company Ltd.) to pay the compensation amount
determined by the tribunal and affirmed by the High Court
to the appellant in the first place and with liberty to recover
the same from the owner of the offending tractor
(respondent No.1) in accordance with law.
14. The appeals are disposed of in the aforementioned
terms with no order as to costs.
……………………………...CJI.
(Dipak Misra)
…..…….…………………..….J.
(A.M. Khanwilkar)
New Delhi;
September 05, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8278-8279 OF 2018
(Arising out of SLP(C) Nos.1116-1117/2018)
Shivaraj .…Appellant(s)
:Versus:
Rajendra & Anr. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. These appeals are directed against the common
judgment and order passed by the High Court of Karnataka
at Bengaluru dated 13th August, 2015 in M.F.A. No.7662 of
2013 (MV) and M.F.A. No.9995 of 2013 (MV) whereby the
High Court allowed the appeal preferred by respondent No.2
(insurer) and dismissed the appeal for enhancement of
compensation preferred by the appellant (injured claimant).
2. Briefly stated, on 23rd February, 2010 at about 8:30
a.m., the appellant was travelling in a tractor bearing
Registration No.KA-15-T-2011 as a Coolie, on Bangalore
2
Road, Survey No.266, Bangalore. The driver of the tractor
was driving at a high speed, in a rash and negligent manner
and dashed the tractor against a big mud stone, resulting in
the tractor turning turtle and the appellant suffering
grievous injuries. The appellant was immediately taken to
North Side Hospital and Diagnostic Center, Bangalore,
where he underwent medical treatment as an inpatient,
from 23rd February, 2010 to 27th February, 2010. Later on,
he was shifted to Bowring and Lady Curzon Hospital,
Bangalore, as an inpatient from 27th February, 2010 to 7th
May, 2010 and underwent 4 (four) different surgeries.
According to the appellant, despite receiving best medical
treatment, he suffered permanent physical disability to an
extent of 59.4% both lower limbs, 18.9% towards Vertebra,
Clavicle and Scapula and 80% towards urethral injury,
which is about 67% to the whole body. The appellant was
only 25 years of age at the time of the accident and was
working as a coolie. On account of his permanent disability,
the appellant has become incapable of working as a coolie
and is thus denied of his income to the extent of Rs.6,000/-
per month.
3
3. Resultantly, a claim petition was filed by the appellant
before the III Additional Senior Civil Judge, Member, MACT,
Bangalore, bearing M.V.C. No.3533/2010, under Section
166 of the Motor Vehicles Act, 1988, claiming compensation
of Rs.15,00,000/- (Rupees Fifteen Lakh Only) for the
injuries sustained by him in the accident.
4. The appellant examined 4 witnesses in support of his
claim and also produced Exhs. P1 to P24. The respondent
examined RW1 Sagayaraj, Administrative Officer and
produced Exhs. R1 and R2. After analysing the evidence
produced by the parties, the tribunal proceeded to answer
the three issues framed by it on the basis of the pleadings.
5. The tribunal held that the claimant was able to prove
the facts that the accident occurred on 23rd February, 2010
at 8:30 a.m. while he was going in the stated tractor, due to
rash and negligent driving of the driver of the tractor. The
tribunal held that the appellant was travelling as a loader in
the tractor and not as a gratuitous passenger. After
4
adverting to the Insurance Policy, the tribunal noticed that
the same covered risk of 1+4. The tribunal held that the
respondent No.2 admitted issuance of the Insurance Policy
to the offending vehicle and its validity as on the date of the
accident. The tribunal then proceeded to quantify the
compensation amount on the notional income of the
appellant at Rs.150/- per day as a coolie and, keeping in
mind the age of the appellant at the relevant time i.e. 25
years, applied multiplier of 18. The tribunal adjudged the
permanent disability of the appellant to the extent of 60% to
the whole body and on that basis, computed the loss of
future income of the appellant at Rs.5,83,000/-(Rupees Five
Lakh Eighty Three Thousand Only). The tribunal arrived at
the following calculation to be awarded as compensation to
the appellant payable jointly by the owner of the vehicle and
the insurer, along with interest at the rate of 8% per annum
from the date of petition till the date of realization. The
computation of compensation amount towards different
heads arrived at by the tribunal is as follows:
5
Compensation Heads Compensation
amount
1. Pain and agony Rs. 85,000/-
2. Medical expenses Rs.1,42,324/-
3. Future medical expenses Rs. 50,000/-
4. Loss of income during laid up period Rs. 12,000/-
5. Rest, Nourishment and attendant
charges
Rs. 5,000/-
6. Loss of future income Rs.5,83,000/-
7. Conveyance Rs. 5,000/-
8. Loss of amenities & discomfort in life Rs. 20,000/-
Total Rs.9,02,324/-
6. Feeling aggrieved by the said award, respondent No.2
(insurer) preferred an appeal being M.F.A. No.7662 of 2013
(MV) and the appellant preferred a separate appeal being
M.F.A. No.9995 of 2013 (MV) for enhancement of the
compensation amount. The High Court disposed of both
these appeals by the impugned common judgment and
order. The High Court broadly agreed with all other findings
given by the tribunal but held that going by the stand taken
by the appellant throughout the proceeding and the
contemporaneous documents Exhs. P2 to P5, nowhere was
it mentioned that the appellant was travelling in a trailer
attached to the tractor. The evidence, however, is
unambiguous that the appellant travelled in the tractor
which was insured only for agriculture purposes and not for
carrying goods. No additional insurance was taken in
6
respect of the trailer rather presence of trailer is not shown
or demonstrated in any of the documents and there was no
evidence to demonstrate that the tractor was attached to a
trailer. The tractor could accommodate only one person
namely the driver of the tractor and none else.
7. On that finding, the High Court concluded that the
appellant travelled in the tractor in breach of policy terms
and conditions and therefore, the Insurance Company
cannot be made liable to compensate the owner or the
claimant. Accordingly, the appeal preferred by the
respondent No.2 was allowed by the High Court and the
insurer came to be absolved from the liability to pay
compensation. While dealing with the appeal for
enhancement of the compensation amount filed by the
appellant, the High Court noted that the amount arrived at
by the tribunal was just and proper and reckoned all the
mandatory heads of compensation. As a result, it concluded
that the appellant was not entitled for enhanced
compensation.
7
8. The appellant has assailed the said common judgment
and order of the High Court by these appeals. We have
heard Ms. Kanika for the appellant and Ms. Rekha Chandra
Sekhar for the respondent No.2 (insurer). Both the courts
have accepted the case of the appellant that the motor
accident occurred on 23rd February, 2010 at about 8:30
a.m. in which the appellant suffered grievous injuries due to
the rash and negligent driving of the driver of tractor.
Further, both courts have determined permanent disability
of 60% to the whole body suffered by the appellant in the
accident.
9. The High Court, however, found in favour of
respondent No.2 (insurer) that the appellant travelled in the
tractor as a passenger which was in breach of the policy
condition, for the tractor was insured for agriculture
purposes and not for carrying goods. The evidence on record
unambiguously pointed out that neither was any trailer
insured nor was any trailer attached to the tractor. Thus, it
would follow that the appellant travelled in the tractor as a
passenger, even though the tractor could accommodate only
one person namely the driver. As a result, the Insurance
8
Company (respondent No.2) was not liable for the loss or
injuries suffered by the appellant or to indemnify the owner
of the tractor. That conclusion reached by the High Court,
in our opinion, is unexceptionable in the fact situation of
the present case.
10. At the same time, however, in the facts of the present
case the High Court ought to have directed the Insurance
Company to pay the compensation amount to the claimant
(appellant) with liberty to recover the same from the tractor
owner, in view of the consistent view taken in that regard by
this Court in National Insurance Co. Ltd. Vs. Swarna
Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co.
Ltd.2
, Rani & Ors. Vs. National Insurance Co. Ltd. &
Ors.3 and including Manuara Khatun and Others Vs.
Rajesh Kumar Singh And Others.
4 In other words, the
High Court should have partly allowed the appeal preferred
by the respondent No.2. The appellant may, therefore,
succeed in getting relief of direction to respondent No.2
Insurance Company to pay the compensation amount to the
1 (2004) 3 SCC 297
2 (2018) 5 SCC 656
3 2018 (9) SCALE 310
4 (2017) 4 SCC 796
9
appellant with liberty to recover the same from the tractor
owner (respondent No.1).
11. Reverting to the issue regarding the determination of
compensation amount by the tribunal and as affirmed by
the High Court, we find that the tribunal had taken into
account all the relevant aspects and provided for just and
proper compensation amount for different heads as are
permissible. The High Court, therefore, was justified in not
disturbing the said conclusion of the tribunal. We affirm the
view so taken by the High Court. Accordingly, the appeal
preferred by the appellant for enhancement of compensation
amount does not warrant interference.
12. We may place on record that the appellant did make
an unsuccessful attempt to persuade us to take a view that
the permanent disability should be reckoned as 67% to the
whole body. However, after going through the evidence of
the doctor who had treated the appellant and the medical
records, we find that the assessment made by the tribunal
about the extent of permanent disability at 60% to the
whole body seems to be a possible view. We are not inclined
10
to disturb the said finding and also because it has been
justly affirmed by the High Court, being concurrent finding
of fact. Accordingly, the claim of the appellant for
enhancement of compensation amount does not merit
interference.
13. In view of the above, the appeals are partly allowed to
the extent of directing the respondent No.2 (Oriental
Insurance Company Ltd.) to pay the compensation amount
determined by the tribunal and affirmed by the High Court
to the appellant in the first place and with liberty to recover
the same from the owner of the offending tractor
(respondent No.1) in accordance with law.
14. The appeals are disposed of in the aforementioned
terms with no order as to costs.
……………………………...CJI.
(Dipak Misra)
…..…….…………………..….J.
(A.M. Khanwilkar)
New Delhi;
September 05, 2018.
