Case: SHIVAWWA AND ANR Vs. THE BRANCH MANAGER NATIONAL INDIA INSURANCE CO. LTD. AND ANR

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 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 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 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 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 anyrelief 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 dated 21 st January, 2008 passed by the Motor Accident Claims Tribunal, Badalkot. We order accordingly.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 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 11.02.200112. 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 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 anyrelief 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 datedt January, 2008 passed by the Motor Accident Claims Tribunal, Badalkot.