SHIVAWWA AND ANRversusTHE BRANCH MANAGER, NATIONAL INDIA INSURANCE CO. LTD. AND ANR.

                        [2018] 4 S.C.R. 599                               599


                      SHIVAWWA AND ANR.                                   A
                                  v.
 THE BRANCH MANAGER, NATIONAL INDIA INSURANCE
              CO. LTD. AND ANR.
                   (Civil Appeal No. 2247 of 2018)                        B
                          MARCH 28, 2018
     [DIPAK MISRA, CJI AND A.M. KHANWILKAR, J.]
       Motor Vehicles Act, 1988 – s.166 – Person died after falling
off from the tractor-trailer owned by respondent No.2 – Claim
                                                                          C
petition filed by appellant No.1, father of the deceased before
Tribunal seeking compensation from respondent No.1-insurance
company, respondent No.2 and the driver (employee of respondent
no.2) – Tribunal passed award against the respondents, jointly and
severally, to compensate the family members of the deceased with a
sum of Rs.3,20,000/- with interest @ 6% p.a. – High Court in appeal       D
held that respondent No.1 insurance company could not be saddled
with any liability as 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 – Held: Tribunal analysed the evidence in
its entirety and also took into account the charge-sheet filed in
                                                                          E
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 and while
returning therefrom met with the accident – High Court by a sweeping
observation proceeded to reverse the finding of fact recorded by          F
the Tribunal – Conclusion reached by the Tribunal is a possible
view, which could not have been disturbed by the High Court in a
casual manner – Finding of the Tribunal that the deceased had
travelled along with his goods, affirmed and restored – Insurance
policy brought on record was a valid policy in respect of the
                                                                          G
offending tractor and thus, insurer would be obliged to satisfy the
compensation amount awarded to the claimants– Award passed by
Tribunal restored.


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                                   599
600            SUPREME COURT REPORTS                      [2018] 4 S.C.R.


A           Allowing the appeal, the Court
            HELD: 1.1 The Tribunal had analysed the evidence of PW-
      2 (eye-witness) and PW-1 (mother of the deceased) in its entirety
      and also took into account other evidence in the shape of charge-
      sheet filed by the Investigating Officer, in respect of the accident
B     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 employee of respondent
      No.2 and while returning from Holealur, met with the accident.
      When cross-examined, PW-2 stated that on the date of accident
C     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 unloading the same
      to Holealur and while returning met with an accident, has gone
      unchallenged. [Para 7] [604-B-C, H; 605-A]
D           1.2 The High Court by a sweeping observation proceeded
      to reverse the finding of fact recorded by the Tribunal. 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
E     by the High Court. [Para 9] [608-C-E]
             1.3 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
F     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 is 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. The
      Tribunal had found, as of fact, that the insurance policy brought
G     on record was a valid policy in respect of the offending tractor.
      Assuming 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
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 SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIA                              601
                INSURANCE CO. LTD.

recover the same from the owner of the vehicle owner                         A
(respondent No.2). However, in the facts of the present case,
consequent to affirmation and restoration of the finding of fact
recorded by the Tribunal regarding the factum that deceased had
travelled along with his goods at the time of accident, the insurer
would be obliged to satisfy the compensation amount awarded to
                                                                             B
the claimants. [Paras 10, 11 and 12] [608-F-H; 609-A-B; 610-G]
      National Insurance Co. v. Swarn Singh and Ors. (2004)
      3 SCC 297 – relied on.
                        Case Law Reference
(2004) 3 SCC 297                  relied on               Para 11            C

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2247
of 2018.
      From the Judgment and Order dated 09.07.2015 of the High Court
of Karnataka, Dharwad Bench in M. F. A. No. 4401 of 2008(MV).                D
      Sharanagouda Patil, Ms. Supreeta Sharanagouda, Advs. for the
Appellants.
     Ms. Meenakshi Midha, Kapil Midha, Bhavya Lakhwara, Chander
Shekhar Ashri, Advs. for the Respondents.
                                                                             E
      The Judgment of the Court was delivered by
      A. M. KHANWILKAR, J. 1. This appeal         th
                                                     emanates from the
judgment of the High Court of Karnataka dated 9 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      F
appellants.
       2. A claim petition was filed in reference to the death of one
Chanabasayya Sidramayya Hiremath,   rd
                                        son of appellant No.1 and brother
of appellant No.2 herein. On 23 January, 2001, the deceased was
returning, after unloading food-grains, on tractor-trailer bearing No. KA-   G
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
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602            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A     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
B
      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
C     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
D     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
E     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 deceased was the sole earning
      member of the family without whom, the family had no other source of
F     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
G     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.

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 SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIA                               603
     INSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

       6. The High Court has held that the insurer (respondent No.1)          A
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
                                                                              B
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          C
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
                                                                              D
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          E
      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  nd
      while returning
              rd
                       at about 01:00 hours in the night intervening 22
      and 23 January, 2001 has son sustained fatal injuries in the            F
      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.                      G

      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
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604            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A           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
B     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
C     with the 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
D           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
E           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:
F               “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
G           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
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 SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIA                               605
     INSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

accompanied the tractor for unloading the same to Holealur and while          A
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         B
      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         C
      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             D
      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      E
      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         F
      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       G
      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 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
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606             SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A           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.”
B
              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
C           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
D           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
E           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
F           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 against the accused i.e., driver of T.T. unit and
G           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
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 SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIA                               607
     INSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

      driving the said tractor and trailer on 23.1.2001 and caused accident   A
      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
                                                                              B
      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    C
      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.”
                                                                              D
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      E
      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          F
      insurance cover note is produced and it is marked at Exhp-1. The
      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           G
      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.          H
608            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A           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
B
            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…..”
C           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
D     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
E     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,
F     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
G     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
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    SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIA                                 609
        INSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

respect of the offending tractor for the period commencing from                    A
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          B
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         C
         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           D
         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,              E
         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           F
         part of the owner of the vehicle; the burden of proof where for
         would be on them.
         (v)           xxx
         (vi)          xxx
                                                                                   G
         (vii)         xxx
         (viii)        xxx
         (ix)          xxx
1
    (2004) 3 SCC 297
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610            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A           (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
B
            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
C           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
D
            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
E           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
F           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
G     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
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 SHIVAWWA v. THE BRANCH MANAGER, NATIONAL INDIA                                  611
     INSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

find that the appellants (claimants) did not file an appeal for enhancement      A
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
                                                                                 B
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    C
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 (respondentst No.1) as prayed and              D
consequently, by restoring the Award dated 21 January, 2008 passed
by the Motor Accident Claims Tribunal, Badalkot. We order accordingly.
      15. The appeal is allowed in the above terms with costs.

                                                                                 E
Divya Pandey                                                   Appeal allowed.




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                                                                                 H