Shivaraj vs Rajendra

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)

JUDGMENT

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).

Signature Not Verified 2. Briefly stated, on 23rd February, 2010 at about 8:30 Digitally signed by CHETAN KUMAR Date: 2018.09.05 12:21:46 IST Reason: 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 Rs. 5,000/- charges

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.