SHIVRAJ versus RAJENDRA & ANR. on 5 September 2018

[2018] 10 S.C.R. 649

SHIVRAJ

v.

RAJENDRA & ANR.

(Civil Appeal Nos. 8278-8279 of 2018)

SEPTEMBER 05, 2018

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

Motor Vehicles Act, 1988 – s.166 – Compensation –Appellant was travelling in a tractor when the driver of the tractordriving in a rash and negligent manner dashed the tractor againsta big mud stone, consequent to which appellant sustained grievousinjuries – Claim petition u/s.166 – Tribunal held that claim ofappellant was covered by the insurance policy and awardedcompensation of Rs.9,02,324/- payable jointly by the owner of thevehicle and the respondent no.2-insurer – However, High Courtheld that appellant travelling in tractor was in breach of insurancepolicy and absolved the insurer from the liability to paycompensation – On appeal, held: High Court rightly found in favourof insurer that the appellant travelled in the tractor as a passengerwhich was in breach of the policy condition, for the tractor wasinsured for agriculture purposes and not for carrying goods –Appellant travelled in the tractor as a passenger, even though thetractor could accommodate only one person namely the driver –Resultantly, insurer was not liable for the loss or injuries sufferedby the appellant or to indemnify the owner of the tractor –However, in view of the consistent view taken by the Supreme Courtin various judgments, insurer directed to pay the compensationamount determined by the Tribunal and affirmed by the High Courtto the appellant with liberty to recover the same from the tractorowner.

Disposing of the appeals, the Court

HELD: 1. The High Court rightly found in favour ofrespondent No.2 (insurer) that the appellant travelled in thetractor as a passenger which was in breach of the policy condition,for the tractor was insured for agriculture purposes and not forcarrying goods. The evidence on record unambiguously pointed

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[2018] 10 S.C.R.

Aout that neither the trailer was insured nor any trailer was attachedto the tractor. Thus, the appellant travelled in the tractor as apassenger, even though the tractor could accommodate only oneperson namely the driver. As a result, the respondent No.2(insurer) was not liable for the loss or injuries suffered by theappellant or to indemnify the owner of the tractor. That conclusionBreached by the High Court is unexceptionable in the fact situationof the instant case. However, in the facts of the instant case, theHigh Court ought to have directed the Insurance Company topay the compensation amount to the claimant (appellant) withliberty to recover the same from the tractor owner, in view of theCconsistent view taken in that regard by this Court.[Paras 9 and 10] [654-A-D]

National Insurance Co. Ltd. v. Swarna Singh & Ors.(2004) 3 SCC 297 : [2004] 1 SCR 180 ; ManglaRam v. Oriental Insurance Co. Ltd. (2018) 5 SCCD656 ; Rani & Ors. v. National Insurance Co. Ltd. &Ors. 2018 (9) SCALE 310 ; Manuara Khatun andOthers v. Rajesh Kumar Singh And Others. (2017) 4SCC 796 – referred to.

2. As regards, the determination of compensation amountEby the tribunal and as affirmed by the High Court, the tribunalhad taken into account all the relevant aspects and provided forjust and proper compensation amount for different heads as arepermissible. The High Court, therefore, was justified in notdisturbing the said conclusion of the tribunal. The view so takenby the High Court affirmed. [Para 11] [654-F-G]F

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CIVIL APPELLATE JURISDICTION : Civil AppealNos. 8278-8279 of 2018.

From the Judgment and Order dated 13.08.2015 of the High Courtof Karnataka at Bengaluru in MFA No. 7662 of 2013 (MV) C/w MFANo. 9995 of 2013 (MV).

Ms. Kanika, Mrs. S. Usha Reddy, Ashwin V. K., Ms. RekhaChandra Sekhar, H. Chandra Sekhar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. These appeals are directedagainst the common judgment and order passed by the High Court ofKarnataka at Bengaluru dated 13[th] August, 2015 in M.F.A. No.7662 of2013 (MV) and M.F.A. No.9995 of 2013 (MV) whereby the High Courtallowed the appeal preferred by respondent No.2 (insurer) and dismissedthe appeal for enhancement of compensation preferred by the appellant(injured claimant).

2. Briefly stated, on 23[rd] February, 2010 at about 8:30 a.m., theappellant was travelling in a tractor bearing Registration No.KA-15-T-2011 as a Coolie, on Bangalore Road, Survey No.266, Bangalore. Thedriver of the tractor was driving at a high speed, in a rash and negligentmanner and dashed the tractor against a big mud stone, resulting in thetractor turning turtle and the appellant suffering grievous injuries. Theappellant was immediately taken to North Side Hospital and DiagnosticCenter, Bangalore, where he underwent medical treatment as aninpatient, from 23[rd] February, 2010 to 27[th] February, 2010. Later on, hewas shifted to Bowring and Lady Curzon Hospital, Bangalore, as aninpatient from 27[th] February, 2010 to 7[th] May, 2010 and underwent 4(four) different surgeries. According to the appellant, despite receivingbest medical treatment, he suffered permanent physical disability to anextent of 59.4% both lower limbs, 18.9% towards Vertebra, Clavicleand Scapula and 80% towards urethral injury, which is about 67% to thewhole body. The appellant was only 25 years of age at the time of theaccident and was working as a coolie. On account of his permanentdisability, the appellant has become incapable of working as a coolie andis thus denied of his income to the extent of Rs.6,000/- per month.

3. Resultantly, a claim petition was filed by the appellant beforethe III Additional Senior Civil Judge, Member, MACT, Bangalore,bearing M.V.C. No.3533/2010, under Section 166 of the Motor VehiclesAct, 1988, claiming compensation of Rs.15,00,000/- (Rupees FifteenLakh Only) for the injuries sustained by him in the accident.

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A4. The appellant examined 4 witnesses in support of his claimand also produced Exhs. P1 to P24. The respondent examined RW1Sagayaraj, Administrative Officer and produced Exhs. R1 and R2.After analysing the evidence produced by the parties, the tribunalproceeded to answer the three issues framed by it on the basis of thepleadings.B

5. The tribunal held that the claimant was able to prove the factsthat the accident occurred on 23[rd] February, 2010 at 8:30 a.m. while hewas going in the stated tractor, due to rash and negligent driving of thedriver of the tractor. The tribunal held that the appellant was travellingas a loader in the tractor and not as a gratuitous passenger. AfterCadverting to the Insurance Policy, the tribunal noticed that the samecovered risk of 1+4. The tribunal held that the respondent No.2 admittedissuance of the Insurance Policy to the offending vehicle and its validityas on the date of the accident. The tribunal then proceeded to quantifythe compensation amount on the notional income of the appellant at

DRs.150/- per day as a coolie and, keeping in mind the age of theappellant at the relevant time i.e. 25 years, applied multiplier of 18. Thetribunal adjudged the permanent disability of the appellant to the extentof 60% to the whole body and on that basis, computed the loss of futureincome of the appellant at Rs.5,83,000/-(Rupees Five Lakh Eighty ThreeThousand Only). The tribunal arrived at the following calculation to beEawarded as compensation to the appellant payable jointly by the ownerof the vehicle and the insurer, along with interest at the rate of 8% perannum from the date of petition till the date of realization. Thecomputation of compensation amount towards different heads arrivedat by the tribunal is as follows:FCompensation HeadsCompensation Compensation HeadsCompensation amount 1. Pain and agony Rs. 85,000/- 2. Medical expenses Rs.1,42,324/- 3. Future medical expensesRs. 50,000/--4. Loss of income during laid up periodRs. 12,000/5. Rest, Nourishment and attendant Rs. 5,000/- charges 6. Loss of future incomeRs.5,83,000/--7. ConveyanceRs. 5,000/8. Loss of amenities & discomfort in life Rs. 20,000/- Total Rs.9,02,324/- G

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6. Feeling aggrieved by the said award, respondent No.2 (insurer)preferred an appeal being M.F.A. No.7662 of 2013 (MV) and theappellant preferred a separate appeal being M.F.A. No.9995 of 2013(MV) for enhancement of the compensation amount. The High Courtdisposed of both these appeals by the impugned common judgment andorder. The High Court broadly agreed with all other findings given bythe tribunal but held that going by the stand taken by the appellantthroughout the proceeding and the contemporaneous documents Exhs.P2 to P5, nowhere was it mentioned that the appellant was travelling ina trailer attached to the tractor. The evidence, however, is unambiguousthat the appellant travelled in the tractor which was insured only foragriculture purposes and not for carrying goods. No additional insurancewas taken in respect of the trailer rather presence of trailer is not shownor demonstrated in any of the documents and there was no evidence todemonstrate that the tractor was attached to a trailer. The tractor couldaccommodate only one person namely the driver of the tractor and noneelse.

7. On that finding, the High Court concluded that the appellanttravelled in the tractor in breach of policy terms and conditions andtherefore, the Insurance Company cannot be made liable to compensatethe owner or the claimant. Accordingly, the appeal preferred by therespondent No.2 was allowed by the High Court and the insurer cameto be absolved from the liability to pay compensation. While dealing withthe appeal for enhancement of the compensation amount filed by theappellant, the High Court noted that the amount arrived at by the tribunalwas just and proper and reckoned all the mandatory heads ofcompensation. As a result, it concluded that the appellant was notentitled for enhanced compensation.

8. The appellant has assailed the said common judgment andorder of the High Court by these appeals. We have heard Ms. Kanikafor the appellant and Ms. Rekha Chandra Sekhar for the respondentNo.2 (insurer). Both the courts have accepted the case of the appellantthat the motor accident occurred on 23[rd] February, 2010 at about8:30 a.m. in which the appellant suffered grievous injuries due to therash and negligent driving of the driver of tractor. Further, both courtshave determined permanent disability of 60% to the whole bodysuffered by the appellant in the accident.

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A9. The High Court, however, found in favour of respondent No.2(insurer) that the appellant travelled in the tractor as a passenger whichwas in breach of the policy condition, for the tractor was insured foragriculture purposes and not for carrying goods. The evidence on recordunambiguously pointed out that neither was any trailer insured nor wasany trailer attached to the tractor. Thus, it would follow that theBappellant travelled in the tractor as a passenger, even though the tractorcould accommodate only one person namely the driver. As a result, theInsurance Company (respondent No.2) was not liable for the loss orinjuries suffered by the appellant or to indemnify the owner of thetractor. That conclusion reached by the High Court, in our opinion, isCunexceptionable in the fact situation of the present case.

10. At the same time, however, in the facts of the present casethe High Court ought to have directed the Insurance Company to paythe compensation amount to the claimant (appellant) with liberty torecover the same from the tractor owner, in view of the consistent viewDtaken 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]andincluding Manuara Khatun and Others Vs. Rajesh Kumar Singh AndOthers.[4] In other words, the High Court should have partly allowed theappeal preferred by the respondent No.2. The appellant may, therefore,Esucceed in getting relief of direction to respondent No.2 InsuranceCompany to pay the compensation amount to the appellant with libertyto recover the same from the tractor owner (respondent No.1).

11. Reverting to the issue regarding the determination ofcompensation amount by the tribunal and as affirmed by the High Court,Fwe find that the tribunal had taken into account all the relevant aspectsand provided for just and proper compensation amount for different headsas are permissible. The High Court, therefore, was justified in notdisturbing the said conclusion of the tribunal. We affirm the view sotaken by the High Court. Accordingly, the appeal preferred by theGappellant for enhancement of compensation amount does not warrantinterference.

1(2004) 3 SCC 2972(2018) 5 SCC 65632018 (9) SCALE 3104(2017) 4 SCC 796H

12. We may place on record that the appellant did make anAunsuccessful attempt to persuade us to take a view that the permanentdisability should be reckoned as 67% to the whole body. However, aftergoing through the evidence of the doctor who had treated the appellantand the medical records, we find that the assessment made by thetribunal about the extent of permanent disability at 60% to the wholeBbody seems to be a possible view. We are not inclined to disturb the saidfinding and also because it has been justly affirmed by the High Court,being concurrent finding of fact. Accordingly, the claim of the appellantfor enhancement of compensation amount does not merit interference.

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13. In view of the above, the appeals are partly allowed to theextent of directing the respondent No.2 (Oriental Insurance CompanyLtd.) to pay the compensation amount determined by the tribunal andaffirmed by the High Court to the appellant in the first place and withliberty to recover the same from the owner of the offending tractor(respondent No.1) in accordance with law.

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14. The appeals are disposed of in the aforementioned terms withno order as to costs.

Ankit Gyan

Appeals disposed of.

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