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REPORTABLE

                     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS 022911-022912  OF 2017  (Arising out of SLP (C ) Nos 6891-6892 of 2017)

HALAPPA                    .....  APPELLANT

Versus  

MALIK SAB     .....  RESPONDENT       

J U D G M E N T

Dr D Y CHANDRACHUD, J

1 The High Court of Karnataka by a judgment dated 12 July 2011 reversed a

decision of the Motor Accident Claims Tribunal awarding compensation to the

appellant in the amount of Rs.8,66,000/- with interest @ 7% per annum.  While

reversing the award of compensation, the High Court has come to the conclusion

that the appellant was sitting on the mudguard of a tractor and this was not a risk

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insured by the insurer.  Upon this finding, the High Court allowed the appeal of

the insurer and rejected the appeal filed by the appellant for enhancement of

compensation.

2 The accident took place on 24 September 2005.  The appellant was 28

years old at the time of the accident.  The case of the appellant is that on 24

September 2005 he was visiting Sirigere to attend an event.  A demonstration of

tractors was being held at 11.30 A.M. by Sonalika tractors. The appellant, who is

an agriculturist,  claimed that  when he approached the tractor, the driver  was

unable to bring it to a halt as a result of which it turned turtle and collided with the

appellant resulting in his sustaining grievous injuries.  A first information report

was registered at the Bharamasagara Police Station under Case Crime 147 of

2005 and a charge-sheet was filed against  the driver for offences punishable

under Sections 279 and 338 of the Penal Code.

3 The appellant claimed compensation in the amount of Rs.25,00,000/-.  The

appellant was examined as PW 1 in support of his claim.  PW 2 Dr Jayaprakash

was examined to prove the nature of the injuries sustained by the appellant.  The

evidence indicated that immediately after the accident the appellant was taken

for  treatment  to  the  community  health  centre,  Sirigere  where  he  was

administered first aid.  He was thereafter shifted to Bapuji Hospital, Davangere

from where he was referred to the M S Ramayya Hospital, Bangalore for further

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treatment.   The  medical  records  showed  that  the  appellant  had  suffered

paraplegia with a compression fracture.  The appellant has been permanently

immobilized, is wheel-chair bound, and requires artificial support for bladder and

bowel  evacuation.   The  lower  portion  of  his  body  has  been  paralyzed.   Dr

Jayaprakash, PW 2, deposed in evidence that the disability of the appellant is

one hundred per cent since both his lower limbs have been paralyzed resulting in

a loss of bladder and bowel control.  

4 Before the Tribunal the defence of the insurer was that the appellant was

riding  on  the  mudguard  of  the  tractor,  this  having  been  stated  in  the  FIR.

According to the insurer, the policy of insurance did not cover the risk of anyone

other than the driver of  the tractor.  The Tribunal  rejected the defence of  the

insurer and relied upon the testimony of the appellant which was found to have

been corroborated by the evidence of PW 3, an eye-witness to the incident.  On

the aspect of compensation the Tribunal noted that the appellant belongs to a

family of agriculturists which has a land holding of 5 acres and 25 gunthas.  The

appellant was married. The Tribunal did not accept the plea of the appellant that

his  monthly  income  was  Rs.10,000/-,  in  the  absence  of  cogent  proof.   The

Tribunal assumed the income of the appellant to be Rs.3,000/- per month.  The

age of  the appellant at  the time of  the accident  being 28 years,  the Tribunal

applied a multiplier of 16 and computed the compensation on account of the loss

of future earning capacity at Rs.5,76,000/-. An additional amount of Rs.50,000/-

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was  awarded  towards  loss  of  amenities  and  Rs.30,000/-  for  future  medical

expenses. An amount of Rs.2,10,000/- was awarded towards medical expenses,

pain and suffering.  Consequently, a total compensation of  Rs.8,66,000/- was

awarded together  with  interest  at  7% per  annum from the  date  of  the  claim

petition until  realization.  The driver, owner and insurer have been held to be

jointly and severally  liable.  

5 The appellant  filed  an  appeal  for  enhancement  of  compensation.   The

insurer  had also  filed  an  appeal  questioning  its  liability. The High  Court  has

allowed the appeal of the insurer and dismissed the appeal filed by the appellant.

The High Court held that in the first information report which was registered on

the date of the accident on the basis of the statement of the appellant, it was

stated that the appellant was sitting on the mud-guard next to the driver of the

tractor.  Subsequently on 30 September 2005 another statement was recorded

by the police in which the appellant stated that the accident had taken place as a

result of the rash and negligent act of the tractor driver, due to which the tractor

had turned turtle and fallen over the appellant.  In the view of the High Court, the

police had attempted to protect  the liability of  the owner and had recorded a

further statement to support the plea that the appellant was a third party and that

the tractor had fallen upon him.  The High Court has also doubted as to how the

police could have recorded the statement of the appellant on 30 September 2005

when he was shifted to M S Ramayya Hospital in Bangalore.  

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6 Learned counsel  appearing on behalf  of  the appellant  submits  that  the

High Court  has manifestly  erred in  reversing the considered judgment  of  the

Tribunal.  The appellant urged that the finding of fact recorded by the Tribunal on

the basis of substantive evidence could not have been reversed purely on the

basis of the FIR.  Moreover, it was urged that the insurer had not produced any

ocular evidence  to displace what was stated by the appellant in the course of his

deposition and which was supported by PW 3 who had witnesses the accident.

7 On the other hand, the learned counsel appearing on behalf of the insurer

has supported the judgment of the High Court and urged that the finding that the

appellant  was injured while riding on the mud-guard of  the tractor  is  correct.

Consequently it  was urged that the insurance policy which was issued to the

owner did not cover the risk arising from a third party riding on the tractor and

there was hence a breach of the insurance policy.  

8 The judgment  of  the  Tribunal  indicates  that  the  defence  of  the  insurer

based  on  the  first  information  report,  the  complaint  Exh.P1  and  the

supplementary statement of  the appellant at  Exh.P2 was duly evaluated. The

Tribunal, however, observed thus:

“…the  respondent  no.3  and  RW.1  submitted  that  the  petitioner  has invited the alleged unfortunate accident but except the FIR and complaint Ex.P.1 the respondent no.3 has not produced any documents to show that at the time of accident the petitioner was travelling as a passenger by sitting on the engine of the tractor in question. During the course of cross-examination  RW.1  has  admitted  that  the  respondent  no.3  has

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maintained a separate file in respect of accident in question and he has also  admitted  that  the  respondent  no.3  has  not  produced  the investigator’s report of this case. Admittedly the respondent no.3 has not examined any independent eye witness to the accident to prove that on the relevant date and time of the accident the petitioner was travelling as a passenger by sitting on the engine of the tractor.  If really the petitioner has sustained grievous injuries by falling down from the engine of said tractor the respondent no.3 insurer could have produced the separate file maintained by it in respect of the accident in question and it could have also produced investigator’s report  in respect  of the said accident but admittedly the respondent no.3 has not produced the said separate file and investigator’s report  in respect  of  the accident in question for the reasons best known to it.  On the other hand as already stated above it is clear from the statement of petitioner on oath and eye witness and from the supplementary statement of petitioner at Ex.P.2 and police statement of witnesses at Ex.P.3 and Charge Sheet at Ex.P.6 it is clear that due to rash and negligent driving of said tractor by respondent no.1 the said tractor turtle down and fell over the petitioner who was about to board the tractor  and as a result  of  which the petitioner has sustained grievous injuries.   Moreover  as  already  stated  above  the  Investigating  Officer concern after detail investigation has filed the Charge Sheet against the respondent no.1 for the offences punishable u/s.279 and 338 IPC…”

The High Court has proceeded to reverse the finding of the Tribunal purely on the

basis that the FIR which was lodged on the complaint of the appellant contained

a version which was at variance with the evidence which emerged before the

Tribunal.   The Tribunal had noted the admission of  RW1 in the course of his

cross-examination that the insurer had maintained a separate file in respect of

the accident.   The insurer did not  produce either the file or the report  of  the

investigator in the case.  Moreover, no independent witness was produced by the

insurer to displace the version of the incident as deposed to by the appellant and

by  PW  3.  The  cogent  analysis  of  the  evidence  by  the  Tribunal  has  been

displaced by the High Court without considering material aspects of the evidence

on the record.  The High Court was not justified in holding that the Tribunal had

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arrived at a finding of fact without applying its mind to the documents produced

by the claimant or that it had casually entered a finding of fact.  On the contrary,

we find that the reversal of the finding by the High Court was without considering

the material aspects of the evidence which justifiably weighed with the Tribunal.

We are, therefore, of the view that the finding of the High Court is manifestly

erroneous and that the finding of fact by the Tribunal was correct.

9 That leaves  the Court to determine the quantum of compensation. The

medical evidence on the record shows that the lower limbs of the appellant have

been paralyzed resulting in a loss of bladder and bowel control.  The medical

evidence establishes that the disability of the appellant is one hundred per cent.

The  medical  records  have  been  scrutinized  by  the  Tribunal.   The  appellant

suffers  from  traumatic  paraplegia  and  was  hospitalized  for  42  days.   The

appellant was 28 years of age when the accident took place on 24 September

2005.  In our view, the monthly income of the appellant, having regard to the

facts  and  circumstances  of  the  case  should  be  taken  at  Rs.4,000/-.   After

allowing for future prospects and making a deduction for present expenses, the

compensation payable to the appellant shall stand enhanced by an amount of

Rs.1,50,000/-  from  Rs.5,75,000/-  to  Rs.7,75,000/-.   The  amount  for  future

medical expenses which has been fixed at Rs.30,000/- should be enhanced to

Rs.1,20,000/-  having  regard  to  the  serious  nature  of  the  disability.  In  other

words,  the  compensation  of  Rs.8,66,000/-  awarded  by  the  Tribunal  shall  be

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enhanced  by  an  additional  amount  of  Rs.2,70,000/-.   The  appellant  shall  be

entitled to interest @7% p.a. from the date of the claim petition until realization.

The insurer shall deposit the compensation or, as the case may be, the balance

payable in terms of this judgment within a period of 12 weeks from today before

the Tribunal which shall be released to the appellant upon due verification.  

10 The appeals are allowed in the above terms with no order as to costs.

….....................................CJI  [DIPAK MISRA]

                         …......................................J

[A.M. KHANWILKAR]

…......................................J    [Dr D Y  CHANDRACHUD]

                        New Delhi December 15, 2017