SHIVAWWA AND ANR versus THE BRANCH MANAGER, NATIONAL INDIA INSURANCE CO. LTD. AND ANR. on 28 March 2018

[2018] 4 S.C.R. 599

SHIVAWWA AND ANR.

v.

THE BRANCH MANAGER, NATIONAL INDIA INSURANCECO. LTD. AND ANR.

(Civil Appeal No. 2247 of 2018)

MARCH 28, 2018

[DIPAK MISRA, CJI AND A.M. KHANWILKAR, J.]

Motor Vehicles Act, 1988 – s.166 – Person died after fallingoff from the tractor-trailer owned by respondent No.2 – Claimpetition filed by appellant No.1, father of the deceased beforeTribunal seeking compensation from respondent No.1-insurancecompany, respondent No.2 and the driver (employee of respondentno.2) – Tribunal passed award against the respondents, jointly andseverally, to compensate the family members of the deceased with asum of Rs.3,20,000/- with interest @ 6% p.a. – High Court in appealheld that respondent No.1 insurance company could not be saddledwith any liability as the deceased had not travelled along with hisgoods in the tractor-trailer and therefore, it could not be made liableto pay any compensation – Held: Tribunal analysed the evidence inits entirety and also took into account the charge-sheet filed inrespect of the accident in question for accepting the factum thatdeceased had travelled in the tractor along with his goods toHolealur where he had gone to unload the foodgrains of Maizeloaded on the tractor belonging to respondent No.2 and whilereturning therefrom met with the accident – High Court by a sweepingobservation proceeded to reverse the finding of fact recorded bythe Tribunal – Conclusion reached by the Tribunal is a possibleview, which could not have been disturbed by the High Court in acasual manner – Finding of the Tribunal that the deceased hadtravelled along with his goods, affirmed and restored – Insurancepolicy brought on record was a valid policy in respect of theoffending tractor and thus, insurer would be obliged to satisfy thecompensation amount awarded to the claimants– Award passed byTribunal restored.

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AAllowing the appeal, the Court

HELD: 1.1 The Tribunal had analysed the evidence of PW-2 (eye-witness) and PW-1 (mother of the deceased) in its entiretyand also took into account other evidence in the shape of charge-sheet filed by the Investigating Officer, in respect of the accidentBin question for accepting the factum that deceased had travelledin the tractor along with his goods to Holealur where he had goneto unload the foodgrains of Maize loaded on the tractor belongingto respondent No.2, which was driven by employee of respondentNo.2 and while returning from Holealur, met with the accident.When cross-examined, PW-2 stated that on the date of accidentCthey had taken maize crop in the said tractor. Notably, the factthat the deceased had loaded his agricultural produce on thetractor and also accompanied the tractor for unloading the sameto Holealur and while returning met with an accident, has goneunchallenged. [Para 7] [604-B-C, H; 605-A]

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1.2 The High Court by a sweeping observation proceededto reverse the finding of fact recorded by the Tribunal. Theconclusion reached by the Tribunal is a possible view, which couldnot have been disturbed by the High Court in the appeal filed bythe insurer, much less in such a casual manner, as has been doneEby the High Court. [Para 9] [608-C-E]

1.3 The High Court based its conclusion that the insurercannot be saddled with the liability to satisfy the award, on thefinding that the deceased was not travelling along with his goodsat the time of accident. No more and no less. However, as theFsaid finding recorded by the High Court cannot be sustained, thefinding of the Tribunal on the factum that the deceased hadtravelled along with his goods is affirmed and restored. It wouldnecessarily follow that the insurer was not absolved of its liabilityto pay the compensation amount awarded to the claimants. TheTribunal had found, as of fact, that the insurance policy broughtGon record was a valid policy in respect of the offending tractor.Assuming that the insurance company was not liable to paycompensation amount awarded to the claimants as the offendingtractor was duly insured, the insurer would be still liable to paythe compensation amount in the first instance with liberty to H

SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIAINSURANCE CO. LTD.

recover the same from the owner of the vehicle owner(respondent No.2). However, in the facts of the present case,consequent to affirmation and restoration of the finding of factrecorded by the Tribunal regarding the factum that deceased hadtravelled along with his goods at the time of accident, the insurerwould be obliged to satisfy the compensation amount awarded tothe claimants. [Paras 10, 11 and 12] [608-F-H; 609-A-B; 610-G]

National Insurance Co. v. Swarn Singh and Ors. (2004)3 SCC 297 – relied on.

Case Law Reference

(2004) 3 SCC 297relied onPara 11

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2247of 2018.

From the Judgment and Order dated 09.07.2015 of the High Courtof Karnataka, Dharwad Bench in M. F. A. No. 4401 of 2008(MV).

Sharanagouda Patil, Ms. Supreeta Sharanagouda, Advs. for theAppellants.

Ms. Meenakshi Midha, Kapil Midha, Bhavya Lakhwara, ChanderShekhar Ashri, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. This appeal emanates from thethjudgment of the High Court of Karnataka dated 9 July, 2015 in M.F.A.No.4401/2008 (MV) which had allowed the appeal filed by respondentNo.1 (Insurance Company) and set aside the award of the Motor AccidentClaims Tribunal (for short “the Tribunal”) granting compensation to theappellants.

2. A claim petition was filed in reference to the death of oneChanabasayya Sidramayya Hiremath, son of appellant No.1 and brotherrdof appellant No.2 herein. On 23 January, 2001, the deceased wasreturning, after unloading food-grains, on tractor-trailer bearing No. KA-29/T-1651/T-1652 belonging to respondent No.2, and being driven by anemployee of respondent No.2, one Mallikarjuna Beemappa Ganiger. Ataround 1.00 AM, it is alleged that owing to the rash and negligent drivingof the said Mallikarjuna Beemappa Ganiger, the deceased fell off the

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Atractor-trailer and suffered fatal injuries. A claim petition under Section166 of the Motor Vehicles Act, 1988 was subsequently filed before theTribunal, Bagalkot, by the legal representatives of the deceased seekingcompensation 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 rejectedBthe respondents’ contention that the deceased had himself been negligentby standing on a tractor hook which connected the tractor and the trailerand concluded that the accident had occurred due to the negligence ofthe driver of the motor vehicle. The Tribunal, thus, passed an awardagainst the respondents, jointly and severally, to compensate the familyCmembers of the deceased with a sum of Rs.3,20,000/- (Rupees threelakh 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 ofthe award amount.

3. Aggrieved, respondent No.1 insurance company assailed theDTribunal’s award before the High Court of Karnataka, contending thatthe deceased had not travelled along with his goods in the tractor-trailerand therefore, it could not be made liable to pay any compensation. TheHigh Court found merit in the contention raised by respondent No.1, thatthe deceased was not travelling along with his goods at the time of theaccident and thus held that respondent No.1 insurance company couldEnot be saddled with any liability in that regard.

4. The appellants have challenged the impugned judgmentincluding on the ground that the High Court failed to appreciate theevidence on record and the fact that the deceased was the sole earningmember of the family without whom, the family had no other source ofFincome. The appellants also submit that the quantum of compensationawarded 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 forthe appellants and Ms. Meenakshi Midha, learned counsel for theGrespondents. Be it noted, the driver of the offending vehicle has notbeen arrayed as a party either before the High Court or before thisCourt and the claim of the appellants is only against respondent No.1 -Insurance Company and the respondent No.2 – owner of the vehicle.

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6. The High Court has held that the insurer (respondent No.1)cannot be saddled with the liability to satisfy the award and on thatfinding, allowed the appeal preferred by respondent No.1. The reasonwhich weighed with the High Court for arriving at that conclusion, ascan be discerned from the impugned judgment, is based on the selectivereading of evidence of PW-2 (eye-witness) who had stated that thedeceased was standing on the hook connecting the tractor and trailerand the deceased fell down due to rash driving of the tractor, which ranover his head and chest. The High Court has also selectively adverted tothe evidence of PW-1, mother of the deceased and opined that even herevidence was to the same effect. Additionally, she has stated that thedeceased was studying in B.A. and running a Pan-Beedi shop. After sonoting, the High Court jumped to a conclusion that a combined readingof the evidence of these witnesses leads to an inference that the victimwas not travelling with his goods at the time of accident which occurredat about 01.00 Hours in the night. On recording this opinion, the HighCourt absolved the insurer. The analysis by the High Court is in thefollowing words:

“6. Per contra, learned counsel for the respondents strongly relieson the evidence of P.W.2 and contends that P.W.2 is an eyewitnessand deposed before the Court that while returning from Holealur,the driver of the tractor was driving the vehicle in a rash andnegligent manner and caused the accident in which the deceaseddied on the spot. Ex. P-1 is the complaint given by the father ofthe deceased. It is stated therein that on 22.01.2001 his son hadgone to Holealur in the tractor belonging to respondent No.1 andndwhile returning at about 01:00 hours in the night intervening 22rdand 23 January, 2001 has son sustained fatal injuries in theaccident. It is also clearly stated therein that the deceased wasstanding in the hook which connects tractor to the trailer and thevictim fell down due to rash driving and the tractor ran over hishead and the chest. The evidence of P.W.1, mother is also to thesame effect. She has also stated in her evidence that the deceasedwas studying in B.A. and running a Pan Beedi shop.

7. A combined reading of all witnesses leads to an inference thatthe victim was not travelling with his goods at the time of accident.The accident has occurred at about 00:01 hours in the night. Inthe circumstances, the insurer cannot be saddled with the liability A

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Ato satisfy the award. The appeal merits consideration andaccordingly allowed.”

7. On the other hand, a perusal of the judgment of the Tribunalreveals that the Tribunal had analysed the evidence of PW-2 and PW-1in its entirety and also took into account other evidence in the shape ofBcharge-sheet filed by the Investigating Officer, in respect of Crime No.12/2001 registered in respect of the accident in question for accepting thefactum that deceased had travelled in the tractor along with his goods toHolealur where he had gone to unload the foodgrains of Maize loadedon the tractor belonging to respondent No.2, which was driven byMallikarjuna Beemappa Ganiger and while returning from Holealur, metCwith the 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 atabout 5:00 p.m., my son deceased Chanabasayya gone to Hole-Alur for unloading the foodgrains in Commission Agent shop forsale of the same in a TT Unit bearing No.KA, 29/T-1651 T-1652Dbelongs to Basanagouda Hireniganagoudar, after unloading thefoodgrains belongs to us while returning to the village by my sonin the said TT unit the driver of the said T.T. unit was driving thevehicle in rash and Regulations and caused the accident nearHeballi village at anappana halls (stream) due to this negligentEdriving of the driver, my son fell down from the T.T. unit and thesaid vehicle passed on the head of my and due to gracious injuriesto head my son was succumbed on the spot, and P.M. wasconducted at Govt. Hospital Badami.”

PW-2 in his examination-in-chief stated as follows:F

“On 23.11.2001 Lt. chanabasayya and myself together wentto Rone in the tractor of Basanagouda Hireninganagouder byloading the maize in the said tractor and while returning back nearour city near Ganapan village the driver of the tractor drove atractor in very rash and negligent manner and in a high speedGendangering the human life and injured Lt. Chanabasayya and hedied on the spot. I have witnessed the said accident. Like meothers were also in the tractor.”

When cross-examined, PW-2 stated that on the date of accident theyhad taken maize crop in the said tractor. Notably, the fact that thedeceased had loaded his agricultural produce on the tractor and alsoH

accompanied the tractor for unloading the same to Holealur and whilereturning 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 suchthe burden of proving of issue No.1 is on the petitioner and inorder to prove issue No.1 second petitioner is examined as PW-1who has filed her affidavit evidence and PW-1 deposed in herevidence regarding the accident caused to her son deceasedChanabasayya on 23.1.2001 involved with tractor and trailerbelongs to respondent no.1 driven by respondent no.2 on the dateof accident. Through counsel for respondent no.3 cross examinedPW-1, but PW-1 has not given admissions in order to discard herevidence. Even PW-1 has denied the suggestion that deceasedwas standing on a hook portion in the tractor trailer which connectsthe tractor Engine and trailer portion of the vehicle and travellingon that day, but PW-1 has denied this suggestion. In order to provethe accident an independent witness PW-2 is examined by thepetitioner wherein this witness has also filed affidavit evidenceand stated regarding the accident caused to deceasedChanabasayya on 23.1.2001 involved with tractor and trailer unitbelongs to respondent no.1. This witness is also cross-examinedby counsel for respondent no.3, but nothing is elicited to discardthe evidence of PW-2. The petitioners have relied upon policedocuments, 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 inCrime 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 Copyof complaint is also annexed to the FIR wherein petitioner no.1has filed this complaint before the Badami P.S. on 23.1.2001 againstthe 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 JMFCBadami wherein a criminal case bearing C.C.No.314 of 2001 wasregistered against driver of T.T. unit for the offence punishableu/Secs. 279 and 304 (A) of IPC. Ex.P3 is the spot mahazar andcontents of Ex.P-3 clearly proves the spot and accident and alsoit corroborated with spot of accident as relief by the petitioners intheir claim petitioner. ExP-4 is the IMV report filed by the MotorVehicle Inspector after examination of T.T. unit involved in the A

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accident and this document proves that accident in question didnot cause due to any mechanical defect in the vehicle. ExP-5 isthe post mortem examination report of the deceased Chanabasayyaconducted by M.O. Community Health Center at Badami and asper P.M. report the death had occurred due to head injuries andalso 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 evidenceof its officer working as an administrative officer, in the following words:

“8. Respondent No.3 has examined its officer who is working asAdministrative officer in the office of respondent no.3 and thiswitness has filed affidavit evidence accepted u/0 18 rule 4 ofCPC wherein RW-1 stated that, deceased Chanabasayya died ashe was standing on a hook portion of Tractor Trailer and died dueto his negligence on the date of accident. But in support of thiscontention RW-1 has not produced any rebuttal documents to thatof Ex.P-1 to Ex.P-5. However, RW-1 in his cross examinationclearly admitted that in the complaint marked at Ex.P-1 it is notrecited with deceased obtained T.T. unit from respondent no.1 onhire basis and RW-1 has denied the suggestion made to him duringcross examination that he is deposing false evidence regardingdeceased was standing on a tractor hook which connects theengine and trailer portion. After considering the evidence of RW-1 though respondent no.3 in its petition filed to the claim petitionand also RW-1 in his oral evidence stated that the accident hadoccurred due to the gross negligence of deceased himself, but tosupport this contention there is no cogent and oral evidence nordocumentary 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. filewherein as per the complaint filed by the petitioner No.1, a crimewas registered against the accused i.e., driver of T.T. unit andI.O. after due investigation has filed charge sheet againstrespondent no.2 who was driver of the T.T. unit on the date ofaccident and hence there documents are not denied by therespondent no.3. on the contrary, Ex.P-1 to Ex.P-5 clearly establishthat the accident in question was occurred due to actionablenegligence of driver of T.T. unit wherein respondent No.2 was driving the said tractor and trailer on 23.1.2001 and caused accidentat 1.00 a.m. near Ganappan Halla just 1.00 k.m. away fromHebballi village on Cholchagudda-Govankoppa PWD road andthe gross negligence of driver caused the death of Chanabasayyawho succumbed to injuries and died on the spot as he was travellingin the said T.T. unit on that day and hence the negligence is clearlyattributed on the part of driver of T.T. unit and death ofChanabasayya was the proximate cause of road traffic accidentwhich comes under the preview of Sec. 166 of M.V. Act and thispositive evidence lead by the petitioners is proved by thedocumentary evidence, but the contention of respondent no.3 hasto be rejected and also there is no cogent evidence to hold that thedeath of Chanabasayya was due to his own negligence. Hence,after appreciation of evidence of PW-1 and 2 and RW-1 and byperusal of Ex.P-1 to Ex.P-51 I hold that, the petitioners have proveissue No.1 as against respondent no.1 to 3. Accordingly, issuedno.1 is answered in affirmative.”

And again in paragraph 11, on the issue of entitlement of compensationit noted thus:-

“…The petitioners claimed compensation from respondent No.1to 3 jointly and severally wherein respondent No.1 is owner ofoffending vehicle respondent No.2 driver of vehicle and respondentNo.3 is the insurer, but RW-1 representing insurance companyhas given evidence denying its liability contending that, there isbreach of policy conditions particularly there is violation ofcondition clause “A” of Ex.R-1 wherein deceased had hired thevehicle of respondent No.1 in order to load maize corns to dumpat hole Alur in Commission Agent shop. In the evidence of RW-1insurance cover note is produced and it is marked at Exhp-1. Thecontention of respondent No.3 is rejected by this Tribunal regardingthe defence taken that death of Chanabasayya was due to hisgross negligence. On perusal of Ex. R1 it is valid policy obtainedfrom respondent No.1 over his T.T. unit wherein policy periodcommences from 12.2.2000 to 11.2.2001. In view of admission ofRW-1 in cross examination wherein RW-1 admitted in his crossreads as follows:- “…..On the contrary, the deceased had went to dump maizecorns belongs to them in the vehicle owned by respondent No.1.

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AHence, the contention of respondent No.3 that vehicle and its usewas for hire and reward is not proved by any cogent evidence onrecord. On the contrary, the offending vehicle T.T. unit was usedfor carrying foodgrains to each the sale point i.e., CommissionAgent shop at Hole-Alur which an agricultural produce ofpetitioners family carried called Tractor- Trailer. Therefore thisBdecision relied by the petitioners is aptly applicable wherein theuse of vehicle is for agricultural purpose and not for any othercommercial purpose. Once it is held use of vehicle by the deceasedfor agricultural purpose then question of violating any policyconditions by respondent No.1 will not arise…..”

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9. As mentioned earlier, the High Court by a sweeping observationproceeded 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 ofCrime No.12/2001 as also the plea taken by the insurer and the evidenceDof RW-1. In our opinion, the conclusion reached by the Tribunal is apossible view, which could not have been disturbed by the High Court inthe appeal filed by the insurer, much less in such a casual manner, as hasbeen done by the High Court.

10. Notably, the High Court has not even adverted to the otherEfindings recorded by the Tribunal as regards the manner in which accidentoccurred and, in particular, about the rash and negligent act of the driverof the tractor which had caused the accident resulting into the death ofChanabasayya on the spot due to grievous injuries suffered by him.The High Court has also not adverted to the finding recorded by theTribunal in respect of Issue Nos.2 and No.3 regarding the proof of age,Foccupation and income of the deceased and the quantum of just andreasonable compensation. The High Court based its conclusion that theinsurer cannot be saddled with the liability to satisfy the award, on thefinding that the deceased was not travelling along with his goods at thetime of accident. No more and no less. However, as the said findingGrecorded by the High Court cannot be sustained, the finding of the Tribunalon the factum that the deceased had travelled along with his goods willhave to be affirmed and restored. It would necessarily follow that theinsurer was not absolved of its liability to pay the compensation amountawarded to the claimants. We say so because the Tribunal has found, asof fact, that the insurance policy brought on record was a valid policy inH

respect of the offending tractor for the period commencing from12.02.2000 to 11.02.2001.

11. Assuming for the sake of argument that the insurance companywas not liable to pay compensation amount awarded to the claimants asthe offending tractor was duly insured, the insurer would be still liable topay the compensation amount in the first instance with liberty to recoverthe same from the owner of the vehicle owner (respondent No.2), inlight of the exposition in the case of National Insurance Co. Vs. SwarnSingh and Ors.[1]In paragraph 110 of the said decision, a three-JudgeBench of this Court observed thus:

“110. The summary of our findings to the various issues as raisedin these petitions are as follows:

(i) Chapter XI of the Motor Vehicles Act, 1988 providingcompulsory insurance of vehicles against third party risks is asocial welfare legislation to extend relief by compensation to victimsof accidents caused by use of motor vehicles. The provisions ofcompulsory insurance coverage of all vehicles are with thisparamount object and the provisions of the Act have to be sointerpreted as to effectuate the said object.

(ii) Insurer is entitled to raise a defence in a claim petition filedunder 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 avoidtheir liability must not only establish the available defence(s) raisedin the said proceedings but must also establish ‘breach’ on thepart of the owner of the vehicle; the burden of proof where forwould be on them.

(v) xxx(vi)xxx(vii)xxx(viii)xxx(ix)xxx

1 (2004) 3 SCC 297

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(x) Where on adjudication of the claim under the Act thetribunal arrives at a conclusion that the insurer hassatisfactorily proved its defence in accordance with theprovisions of Section 149(2) read with Sub-section (7), asinterpreted by this Court above, the Tribunal can directthat the insurer is liable to be reimbursed by the insuredfor the compensation and other amounts which it has beencompelled to pay to the third party under the award of thetribunal Such determination of claim by the Tribunal will beenforceable and the money found due to the insurer fromthe insured will be recoverable on a certificate issued bythe tribunal to the Collector in the same manner underSection 174 of the Act as arrears of land revenue. Thecertificate will be issued for the recovery as arrears of landrevenue only if, as required by Sub-section (3) of Section168 of the Act the insured fails to deposit the amountawarded in favour of the insurer within thirty days from thedate of announcement of the award by the tribunal.

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(xi) The provisions contained in Sub-section (4) with provisothereunder and Sub-section (5) which are intended to coverspecified contingencies mentioned therein to enable theinsurer to recover amount paid under the contract ofinsurance on behalf of the insured can be taken recourseof by the Tribunal and be extended to claims and defencesof insurer against insured by, relegating them to the remedybefore, regular court in cases where on given facts andcircumstances adjudication of their claims inter se mightdelay the adjudication of the claims of the victims.”

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12. However, in the facts of the present case, we have no hesitationin taking a view that consequent to affirmation and restoration of thefinding of fact recorded by the Tribunal regarding the factum of deceasedGhad travelled along with his goods at the time of accident, the insurerwould be obliged to satisfy the compensation amount awarded to theclaimants.

13. Reverting to the argument of the appellants that the Tribunalcommitted manifest error in computing the compensation amount, we H

find that the appellants (claimants) did not file an appeal for enhancementof compensation amount against that part of the award passed by theTribunal nor chose to file any cross-objection in the First Appeal filed bythe insurer before the High Court. Moreover, from the judgment of theHigh Court there is no indication that any attempt was made on behalfof the appellants to ask for enhanced compensation amount on thegrounds as would have been available to the appellants in that behalf.Significantly, in the present appeal also, the appellants have not askedfor any “relief” against that part of the award passed by the Tribunal,regarding the quantum of compensation. The relief claimed in this appealis only to set aside the decision of the High Court passed in the FirstAppeal preferred by the insurer. In this backdrop, it will not be appropriatefor this Court to consider the argument regarding the quantum ofcompensation at the instance of the appellants (claimants).

14. As a result, the appeal would succeed only to the extent ofsetting aside the impugned judgment of the High Court passed in theFirst Appeal filed by the insurer (respondent No.1) as prayed andstconsequently, by restoring the Award dated 21 January, 2008 passedby the Motor Accident Claims Tribunal, Badalkot. We order accordingly.

15. The appeal is allowed in the above terms with costs.

Divya Pandey

Appeal allowed.

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