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

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. Ond 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 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 amount3. Aggrieved, respondent No.1 insurance company assailed the Tribunals 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.

Reasoning: 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.