HALAPPAversusMALIK SAB

                                    (2017] 14 S.C.R. 500


        A                               HAL AP PA
                                             v.
                                       MALIK SAB
                          (Civil Appeal Nos. 22911-22912 of2017)
        B                      DECEMBER15,2017
                  [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                         DR. D. Y. CHANDRACHUD, JJ.)
                   Motor Vehicles - Accident - Compensation claim - Case of
            appellant that while attending an event of demonstration of tractors,
        C   the driver was unable to bring tractor to halt as a result of which it
            turned turtle and collided with appellant resulting in grievous
            injuries to him - FIR was registered - Appellant claimed
            compensation before the Tribunal - Tribunal accepted the testimony
            of the appellant which was corroborated by the evidence of PW-3,
        D   an eye-witness to the incide'}t and awarded compensation to the
            appellant - However. High Court reversed the judgment of the
            Tribunal and held that FIR was registered on the date of accident
            on the basis of the statement of the appellant and that appellant
            was sitting on the mud-guard next to the driver of the tractor and
            this was not a risk insured by the insurer - Upon this finding, High
        E   Court rejected the appeal .filed by the appellant for enhancement
            of compensation - On appeal. held: The Tribunal had noted the
            admission of RWJ 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
        F   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 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
            - Medical evidence on record, shows that lower limbs of the
        G   appellant have been paralysed resulting in a loss of bladder and
            bowel control - The medical evidence establishes that the disability
            of the appellant is one hundred percent - On facts, the compensation
            of Rs.8,66,0001- awarded by the Tribunal enhanced by an additional
            amount of Rs. 2,70.0001- .
        H
                                             500



,   .
                  HALAPPA v. MALIK SAB                            501


      Appellant, a 28 year old agriculturist met with an accident, A
resulting in grievous injuries to him. Motor Accident Claims
Tribunal awarded compensation to the appellant in the amount of
Rs.8,66,000/- with interest@ 7% per annum. High Court declined
the prayer of appellant for enhancement of compensation. Hence
the present appeals.
                                                                  B
     Allowing the· appeals, the Court
      HELD: 1. 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 c
Tribunal. The Tribunal had noted the admission of RWl 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 witn,ess was produced by the
insurer to displace the version of the incident as deposed to by D
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
arrived at a finding of fact without applying its mind to the E
documents produced by the claimant or that it had casually entered
a finding of fact. On the contrary, the reversal of the finding by
the High Court was without considering the material aspects of
the evidence which justifiably weighed with the Tribunal.
Therefore, the finding of the High Court is manifestly erroneous
and the finding of fact by the Tribunal was correct.[Para 8)(505- F
G-H; 506-A-C)
      2. Insofar as quantum of compensationis concerned, 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 G
disability of the appellant i's 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.
The monthly income of the appellant, having regard to the facts H
502             SUPREME COURT REPORTS                          [2017] 14 S.C.R.



A  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
B 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 ofRs.8,66,000/- awarded by the Tribunal
   shall be enhanced by an additional amount ofRs.2,70,000/-. [Para
 , 9)(506-C-F]
           CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. 22911-
C     22912of2017.
            From the Judgment and Order dated 12.07.2011 of the High Court
      of Karnataka at Bangalore in M. F. A.
             N. D. B. Raju, C. M. Angadi, Rameshwar Prasad Goyal, Advs.
      for the Appellant.
D
            Ekansh Bansal, Parmanand Gaur, Advs. for the Respondent.
            The Judgment of the Court was delivered by
             DR. D. Y. CHANDRACHUD, J. 1. The High Court of
      Kamataka by a judgment dated 12 July 2011 reversed a decision of the
      Motor Accident Claims Tribunal awarding compensation to the appellant
 E    in the amount of Rs.8,66,000/- with interest @ 7% per annum. While
      reversingthe 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 ri~k insured by the insurer. Upon this finding, the
      High Court allowed the appeal of the insurer and rejected the appeal
 F    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
 G    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 of2005 and
      a charge-sheet was filed against the driver for offences punishable under
 H    Sections 279 and 338 of the Penal Code.
                    HALAPPA v. MALIK SAB                                 503
                 [DR. D. Y. CHANDRACHUD, J.]

       3. The appellant claimed compensation in the amount of A
Rs.25,00,000/-. The appellant was examined as PW I in support of his
claim. PW 2Dr 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 B
aid. He was thereafter shifted toBapuji Hospital, Davangere from where
he was referred to the M S Ramayya Hospital, Bangalore for further
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 C
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 Joss of bladder.and bowel
control.
       4. Before the Tribunal the defence of the insurer was that the D
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 E
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 F
Rs.3,000/-permonth. 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 ofRs.50,000/-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 G
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.
504            SUPREME COURT REPORTS                        [2017] 14 S.C.R.


A        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
B 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
C 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
D to M S Rarnayya Hospital in Bangalore.
         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
E 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
F     the finding that the appellant was inj urcd 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
      insurnnce policy.
G           8. The judgment of the Tribunal indicates that the defence of the
      insurer based on the first information report, the complaint Exh.Pl and
      the supplementary statement of the appellant at Exh.P2 was duly
      evaluated. The Tribunal, however, observed thus:
            " ... the respondent no.3 and RW. l submitted that the petitioner
H
                    HALAPPA v. MALIK SAB                                       505
                  [DR D. Y. CHANDRACHUD, J.)

      has invited the alleged unfortunate accident but except the FIR          A
      and complaint Ex.P.l 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. l has
       admitted that the respondent no.3 has maintained a separate file        B
       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   c
       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    D
       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 ofpetitioner at Ex.P.2 and police
        statement of witnesses at'Ex.P.3 and Charge Sheet at Ex.P.6 it is      E
        clear that due to rash and negligent driving of said tractor by
        respondent no. I 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 Sheetagainst the respondent         F
   - " no.I 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        G
of RWl 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
                                                                               H
506                SUPREME COURT REPORTS                     [2017] 14 S.C.R.


A 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 arrived at a finding of fact without applying its mind to
B 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 Courtis manifestly
  erroneous and that the finding of fact by the Tribunal was correct.
c        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 ofbladder
  and bowel control. The medical evidence establishes that the disability
  of the appellant is one hundred per cent. The medical records have
D been scrutinized by the Tribunal. The appellant suffers from traumatic
  paraplegia and _was hospitalized for 42 days. The appellant was 28
  years of age whenthe 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
E expenses, the compensation payable to the appellant shallstand enhanced
  by an amount ofRs.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. l ,20,000/- having regard to the serious nature
  of the disability. In other words, the compensation of Rs.8,66,000/-
F awarded by the Tribunal shall be 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.
G
               10. The appeal is allowed in the above terms with no order as to
      costs.


      Ankit Gyan                                                   Appeal allowed.