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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 2247   OF  2018  (Arising out of SLP (C) NO. 5485 of 2017)  

 SHIVAWWA AND ANR.   ….          APPELLANTS  

:Versus:  

THE BRANCH MANAGER, NATIONAL INDIA   INSURANCE CO. LTD. AND ANR. ….      RESPONDENTS   

J U D G M E N T  

A.M. Khanwilkar, J.  

1. This appeal emanates from the judgment of the High  

Court of Karnataka dated 9th July, 2015 in M.F.A.  

No.4401/2008 (MV) which had allowed the appeal filed by  

respondent No.1 (Insurance Company) and set aside the award  

of the Motor Accident Claims Tribunal (for short “the  

Tribunal”)  granting compensation to the appellants.  

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2. A claim petition was filed in reference to the death of one  

Chanabasayya Sidramayya Hiremath, son of appellant No.1  

and brother of appellant No.2 herein. On 23rd January, 2001,  

the deceased was returning, after unloading food-grains, on  

tractor-trailer bearing No. KA-29/T-1651/T-1652 belonging to  

respondent No.2, and being driven by an employee of  

respondent No.2, one Mallikarjuna Beemappa Ganiger. At  

around 1.00 AM, it is alleged that owing to the rash and  

negligent driving of the said Mallikarjuna Beemappa Ganiger,  

the deceased fell off the tractor-trailer and suffered fatal  

injuries. A claim petition under Section 166 of the Motor  

Vehicles Act, 1988 was subsequently filed before the Tribunal,  

Bagalkot, by the legal representatives of the deceased seeking  

compensation 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 rejected the respondents’  

contention that the deceased had himself been negligent by  

standing on a tractor hook which connected the tractor and  

the trailer and concluded that the accident had occurred due

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to the negligence of the driver of the motor vehicle. The  

Tribunal, thus, passed an award against the respondents,  

jointly and severally, to compensate the family members of the  

deceased with a sum of Rs.3,20,000/- (Rupees three lakh  

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 of the award amount.  

 3. Aggrieved, respondent No.1 insurance company assailed  

the Tribunal’s award before the High Court of Karnataka,  

contending that the deceased had not travelled along with his  

goods in the tractor-trailer and therefore, it could not be made  

liable to pay any compensation. The High Court found merit in  

the contention raised by respondent No.1, that the deceased  

was not travelling along with his goods at the time of the  

accident and thus held that respondent No.1 insurance  

company could not be saddled with any liability in that regard.  

4. The appellants have challenged the impugned judgment   

including on the ground that the High Court failed to  

appreciate the evidence on record and the fact that the

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deceased was the sole earning member of the family without  

whom, the family had no other source of income. The  

appellants also submit that the quantum of compensation  

awarded 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  

for the appellants and Ms. Meenakshi Midha, learned counsel  

for the respondents. Be it noted, the driver of the offending  

vehicle has not been arrayed as a party either before the High  

Court or before this Court and the claim of the appellants is  

only against respondent No.1 - Insurance Company and the  

respondent No.2 – owner of the vehicle.  

 6. The High Court has held that the insurer (respondent  

No.1) cannot be saddled with the liability to satisfy the award  

and on that finding, allowed the appeal preferred by  

respondent No.1.  The reason which weighed with the High  

Court for arriving at that conclusion, as can be discerned from  

the impugned judgment, is based on the selective reading of  

evidence of PW-2 (eye-witness) who had stated that the

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deceased was standing on the hook connecting the tractor and  

trailer and the deceased fell down due to rash driving of the  

tractor, which ran over his head and chest. The High Court  

has also selectively adverted to the evidence of PW-1, mother  

of the deceased and opined that even her evidence was to the  

same effect. Additionally, she has stated that the deceased was  

studying in B.A. and running a Pan-Beedi shop. After so  

noting, the High Court jumped to a conclusion that a  

combined reading of the evidence of these witnesses leads to  

an inference that the victim was not travelling with his goods  

at the time of accident which occurred at about 01.00 Hours  

in the night. On recording this opinion, the High Court  

absolved the insurer. The analysis by the High Court is in the  

following words:    

“6. Per contra, learned counsel for the respondents  

strongly relies on the evidence of P.W.2 and contends that  

P.W.2 is an eyewitness and deposed before the Court that  

while returning from Holealur, the driver of the tractor was  

driving the vehicle in a rash and negligent manner and  

caused the accident in which the deceased died on the spot.  

Ex. P-1 is the complaint given by the father of the deceased.  

It is stated therein that on 22.01.2001 his son had gone to  

Holealur in the tractor belonging to respondent No.1 and  

while returning at about 01:00 hours in the night  

intervening 22nd and 23rd January, 2001 has son sustained

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fatal injuries in the accident. It is also clearly stated therein  

that the deceased was standing in the hook which connects  

tractor to the trailer and the victim fell down due to rash  

driving and the tractor ran over his head and the chest. The  

evidence of P.W.1, mother is also to the same effect. She has  

also stated in her evidence that the deceased was studying in  

B.A. and running a Pan Beedi shop.   

7. A combined reading of all witnesses leads to an  

inference that the victim was not travelling with his goods at  

the time of accident. The accident has occurred at about  

00:01 hours in the night. In the circumstances, the insurer  

cannot be saddled with the liability to satisfy the award. The  

appeal merits consideration and accordingly allowed.”   

7. On the other hand, a perusal of the judgment of the  

Tribunal reveals that the Tribunal had analysed the evidence  

of PW-2 and PW-1 in its entirety and also took into account  

other evidence in the shape of charge-sheet filed by the  

Investigating Officer, in respect of Crime No.12/2001  

registered in respect of the accident in question for accepting  

the factum that deceased had travelled in the tractor along  

with his goods to Holealur where he had gone to unload the  

foodgrains of Maize loaded on the tractor belonging to  

respondent No.2, which was driven by Mallikarjuna Beemappa  

Ganiger and while returning from Holealur, met with the

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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 at about 5:00 p.m., my son deceased Chanabasayya  gone to Hole-Alur for unloading the foodgrains in  

Commission Agent shop for sale of the same in a TT Unit  bearing No.KA, 29/T-1651 T-1652 belongs to Basanagouda  

Hireniganagoudar, after unloading the foodgrains belongs to  us while returning to the village by my son in the said TT  unit the driver of the said T.T. unit was driving the vehicle in  

rash and Regulations and caused the accident near Heballi  village at anappana halls (stream) due to this negligent  

driving of the driver, my son fell down from the T.T. unit and  the said vehicle passed on the head of my and due to  gracious injuries to head my son was succumbed on the  

spot, and P.M. was conducted at Govt. Hospital Badami.”      

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

“On 23.11.2001 Lt. chanabasayya and myself together  went to Rone in the tractor of Basanagouda  Hireninganagouder by loading the maize in the said tractor  

and while returning back near our city near Ganapan village  the driver of the tractor drove a tractor in very rash and  

negligent manner and in a high speed endangering the  human life and injured Lt. Chanabasayya and he died on the  spot. I have witnessed the said accident. Like me others were  

also in the tractor.”     

When cross-examined, PW-2 stated that on the date of  

accident they had taken maize crop in the said tractor.  

Notably, the fact that the deceased had loaded his agricultural  

produce on the tractor and also accompanied the tractor for

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unloading the same to Holealur and while returning 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  such the burden of proving of issue No.1 is on the petitioner  and in order to prove issue No.1 second petitioner is  

examined as PW-1 who has filed her affidavit evidence and  PW-1 deposed in her evidence regarding the accident caused  to her son deceased Chanabasayya on 23.1.2001 involved  

with tractor and trailer belongs to respondent no.1 driven by  respondent no.2 on the date of accident.  Through counsel  

for respondent no.3 cross examined PW-1, but PW-1 has not  given admissions in order to discard her evidence. Even PW- 1 has denied the suggestion that deceased was standing on a  

hook portion in the tractor trailer which connects the tractor  Engine and trailer portion of the vehicle and travelling on  that day, but PW-1 has denied this suggestion. In order to  

prove the accident an independent witness PW-2 is examined  by the petitioner wherein this witness has also filed affidavit  

evidence and stated regarding the accident caused to  deceased Chanabasayya on 23.1.2001 involved with tractor  and trailer unit belongs to respondent no.1. This witness is  

also cross-examined by counsel for respondent no.3, but  nothing is elicited to discard the evidence of PW-2. The  

petitioners have relied upon police documents, 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 in Crime  

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  Copy of complaint is also annexed to the FIR wherein  

petitioner no.1 has filed this complaint before the Badami  P.S. on 23.1.2001 against the 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 JMFC Badami wherein a  criminal case bearing C.C.No.314 of 2001 was registered  

against driver of T.T. unit for the offence punishable u/Secs.  279 and 304 (A) of IPC. Ex.P3 is the spot mahazar and  

contents of Ex.P-3 clearly proves the spot and accident and

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also it corroborated with spot of accident as relief by the  petitioners in their claim petitioner.  ExP-4 is the IMV report  

filed by the Motor Vehicle Inspector after examination of T.T.  unit involved in the accident and this document proves that  

accident in question did not cause due to any mechanical  defect in the vehicle. ExP-5 is the post mortem examination  report of the deceased Chanabasayya conducted by M.O.  

Community Health Center at Badami and as per P.M. report  the death had occurred due to head injuries and also  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 evidence of its officer working as an administrative  

officer, in the following words:       

“8.  Respondent No.3 has examined its officer who is working  

as Administrative officer in the office of respondent no.3 and  this witness has filed affidavit evidence accepted u/0 18 rule  4 of CPC wherein RW-1 stated that, deceased Chanabasayya  

died as he was standing on  a hook portion of Tractor Trailer  and died due to his negligence on the date of accident. But  

in support of this contention RW-1 has not produced any  rebuttal documents to that of Ex.P-1 to Ex.P-5. However,  RW-1 in his cross examination clearly admitted that in the  

complaint marked at Ex.P-1 it is not recited with deceased  obtained T.T. unit from respondent no.1 on hire basis and  RW-1 has denied the suggestion made to him during cross  

examination that he is deposing false evidence regarding  deceased was standing on  a tractor hook which connects  

the engine and trailer portion. After considering the evidence  of RW-1 though respondent no.3 in its petition filed to the  claim petition and also RW-1 in his oral evidence stated that  

the accident had occurred due to the gross negligence of  deceased himself, but to support this contention there is no  

cogent and oral evidence nor documentary 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. file wherein as per the  complaint filed by the petitioner No.1, a crime was registered

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against the accused i.e., driver of T.T. unit and I.O. after due  investigation has filed charge sheet against respondent no.2  

who was driver of the T.T. unit on the date of accident and  hence there documents are not denied by the respondent  

no.3. on the contrary, Ex.P-1 to Ex.P-5 clearly establish that  the accident in question was occurred due to actionable  negligence of driver of T.T. unit wherein respondent No.2 was  

driving the said tractor and trailer on 23.1.2001 and caused  accident at 1.00 a.m. near Ganappan Halla just 1.00 k.m.  away from Hebballi village on Cholchagudda-Govankoppa  

PWD road and the gross negligence of driver caused the  death of Chanabasayya who succumbed to injuries and died  

on the spot as he was travelling in the said T.T. unit on that  day and hence the negligence is clearly attributed on the  part of driver of T.T. unit and death of Chanabasayya was  

the proximate cause of road traffic accident which comes  under the preview of Sec. 166 of M.V. Act and this positive  

evidence lead by the petitioners is proved by the  documentary evidence, but the contention of respondent  no.3 has to be rejected and also there is no cogent evidence  

to hold that the death of Chanabasayya was due to his own  negligence. Hence, after appreciation of evidence of PW-1  and 2 and RW-1 and by perusal of Ex.P-1 to Ex.P-51 I hold  

that, the petitioners have prove issue No.1 as against  respondent no.1 to 3. Accordingly, issued no.1 is answered  

in affirmative.”      

And again in paragraph 11, on the issue of entitlement of  

compensation it noted thus:-  

“…The petitioners claimed compensation from respondent  

No.1 to 3 jointly and severally wherein respondent No.1 is  owner of offending vehicle respondent No.2 driver of vehicle  

and respondent No.3 is the insurer, but RW-1 representing  insurance company has given evidence denying its liability  contending that, there is breach of policy conditions  

particularly there is violation of condition clause “A” of Ex.R- 1 wherein deceased had hired the vehicle of respondent No.1  in order to load maize corns to dump at hole Alur in  

Commission Agent shop. In the evidence of RW-1 insurance  cover note is produced and it is marked at Exhp-1. The

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contention of respondent No.3 is rejected by this Tribunal  regarding the defence taken that death of Chanabasayya was  

due to his gross negligence. On perusal of Ex. R1 it is valid  policy obtained from respondent No.1 over his T.T. unit  

wherein policy period commences from 12.2.2000 to  11.2.2001. In view of admission of RW-1 in cross  examination wherein RW-1 admitted in his cross reads as  

follows:-    “…..On the contrary, the deceased had went to dump  maize corns belongs to them in the vehicle owned by  

respondent No.1. Hence, the contention of respondent No.3  that vehicle and its use was for hire and reward is not  

proved by any cogent evidence on record. On the contrary,  the offending vehicle T.T. unit was used for carrying  foodgrains to each the sale point i.e., Commission Agent  

shop at Hole-Alur which an agricultural produce of  petitioners family carried called Tractor- Trailer. Therefore  

this decision relied by the petitioners is aptly applicable  wherein the use of vehicle is for agricultural purpose and not  for any other commercial purpose. Once it is held use of  

vehicle by the deceased for agricultural purpose then  question of violating any policy conditions by respondent  No.1 will not arise…..”   

9. As mentioned earlier, the High Court by a sweeping  

observation proceeded 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 of Crime No.12/2001 as also  

the plea taken by the insurer and the evidence of RW-1.  In  

our opinion, the conclusion reached by the Tribunal is a  

possible view, which could not have been disturbed by the

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High Court in the appeal filed by the insurer, much less in  

such a casual manner, as has been done by the High Court.     

 10. Notably, the High Court has not even adverted to the  

other findings recorded by the Tribunal as regards the manner  

in which accident occurred and, in particular, about the rash  

and negligent act of the driver of the tractor which had caused  

the accident resulting into the death of Chanabasayya on the  

spot due to grievous  injuries suffered by him.  The High Court  

has also not adverted to the finding recorded by the Tribunal  

in respect of Issue Nos.2 and No.3 regarding the proof of age,  

occupation and income of the deceased and the quantum of  

just and reasonable compensation. The High Court based its  

conclusion that the insurer cannot be saddled with the  

liability to satisfy the award, on the finding that the deceased  

was not travelling along with his goods at the time of accident.  

No more and no less.  However, as the said finding recorded by  

the High Court cannot be sustained, the finding of the  

Tribunal on the factum that the deceased had travelled along  

with his goods will have to be affirmed and restored. It would

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necessarily follow that the insurer was not absolved of its  

liability to pay the compensation amount awarded to the  

claimants. We say so because the Tribunal has found, as of  

fact, that the insurance policy brought on record was a valid  

policy in respect of the offending tractor for the period  

commencing from 12.02.2000 to 11.02.2001.   

 11. Assuming for the sake of argument that the insurance  

company was not liable to pay compensation amount awarded  

to the claimants as the offending tractor was duly insured, the  

insurer would be still liable to pay the compensation amount  

in the first instance with liberty to recover the same from the  

owner of the vehicle owner (respondent No.2), in light of the  

exposition in the case of National Insurance Co. Vs. Swarn  

Singh and Ors.1  In paragraph 110 of the said decision, a  

three-Judge Bench of this Court observed thus:   

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

(i) Chapter XI of the Motor Vehicles Act, 1988 providing  compulsory insurance of vehicles against third party  risks is a social welfare legislation to extend relief by  

                                                           1   (2004) 3 SCC 297

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compensation to victims of accidents caused by use of  

motor vehicles. The provisions of compulsory insurance  coverage of all vehicles are with this paramount object  and the provisions of the Act have to be so interpreted  

as to effectuate the said object.  

(ii) Insurer is entitled to raise a defence in a claim  petition filed under 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 avoid their liability must not only establish the  available defence(s) raised in the said proceedings but  must also establish 'breach' on the part of the owner of  the vehicle; the burden of proof where for would be on  them.  

(v)  xxx  

(vi)  xxx  

(vii)  xxx  

(viii) xxx  

(ix) xxx  

(x) Where on adjudication of the claim under the Act  

the tribunal arrives at a conclusion that the insurer  

has satisfactorily proved its defence in accordance  

with the provisions of Section 149(2) read with Sub-

section (7), as interpreted by this Court above, the  

Tribunal can direct that the insurer is liable to be  

reimbursed by the insured for the compensation and  

other amounts which it has been compelled to pay  

to the third party under the award of the tribunal  

Such determination of claim by the Tribunal will be  

enforceable and the money found due to the insurer  

from the insured will be recoverable on a certificate  

issued by the tribunal to the Collector in the same  

manner under Section 174 of the Act as arrears of  

land revenue. The certificate will be issued for the

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recovery as arrears of land revenue only if, as  

required by Sub-section (3) of Section 168 of the Act  

the insured fails to deposit the amount awarded in  

favour of the insurer within thirty days from the  

date of announcement of the award by the tribunal.  

(xi) The provisions contained in Sub-section (4) with  proviso thereunder and Sub-section (5) which are  

intended to cover specified contingencies  

mentioned therein to enable the insurer to recover  

amount paid under the contract of insurance on  

behalf of the insured can be taken recourse of by the  

Tribunal and be extended to claims and defences of  

insurer against insured by, relegating them to the  

remedy before, regular court in cases where on given  

facts and circumstances adjudication of their claims  

inter se might delay the adjudication of the claims  

of the victims.”  

(emphasis supplied)  

12. However, in the facts of the present case, we have no  

hesitation in taking a view that consequent to affirmation and  

restoration of the finding of fact recorded by the Tribunal  

regarding the factum of deceased had travelled along with his  

goods at the time of accident, the insurer would be obliged to  

satisfy the compensation amount awarded to the claimants.   

 13. Reverting to the argument of the appellants that the  

Tribunal committed manifest error in computing the  

compensation amount, we find that the appellants (claimants)  

did not file an appeal for enhancement of compensation

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amount against that part of the award passed by the Tribunal  

nor chose to file any cross-objection in the First Appeal filed by  

the insurer before the High Court.  Moreover, from the  

judgment of the High Court there is no indication that any  

attempt was made on behalf of the appellants to ask for  

enhanced compensation amount on the grounds as would  

have been available to the appellants in that behalf.   

Significantly, in the present appeal also, the appellants have  

not asked for any “relief” against that part of the award passed  

by the Tribunal, regarding the quantum of compensation. The  

relief claimed in this appeal is only to set aside the decision of  

the High Court passed in the First Appeal preferred by the  

insurer.  In this backdrop, it will not be appropriate for this  

Court to consider the argument regarding the quantum of  

compensation at the instance of the appellants (claimants).    

  14. As a result, the appeal would succeed only to the extent  

of setting aside the impugned judgment of the High Court  

passed in the First Appeal filed by the insurer (respondent  

No.1) as prayed and consequently, by restoring the Award

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dated 21st January, 2008 passed by the Motor Accident Claims  

Tribunal, Badalkot.  We order accordingly.   

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

 ..……………………………...CJI.  

             (Dipak Misra)   

…..…………………………..….J.           (A.M. Khanwilkar)     

New Delhi;  March 28, 2018.