* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.830 of 2009
%09.07.2014
Between:
The New India Assurance Co. Ltd, Rep. by its Branch Manager. ... Appellant AND Chinthala Laxmi and others. ….
Respondents ! Counsel for Appellant : Sri B. Naresh ^ Counsel for Respondents 1 to 7 : Sri Venkateswar Varnasi ^ Counsel for Respondent No.10 : Mrs. D. Radhika < Gist:
> Head Note:
? Cases referred:
1) 2001 (1) ALT 485
2) 2013 (1) ALT 727 (FB) HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.830 of 2009
JUDGMENT:
Challenging the award dated 21.12.2005 in O.P.No.632 of 2004 passed by the Chairman, M.A.C.T-cum-IV District Judge (FTC), Karimnagar (for short “the Tribunal”), the New India Assurance Company Limited preferred the instant appeal.
The appellant herein is the 3rd respondent before the Tribunal; respondents 1 to 7 in the appeal are claimants; respondent Nos.8 and 9 herein are the first and second respondents and respondent No.10/ APSRTC (hirer of the bus) is the 4th respondent before the Tribunal.
2) Facts in nutshell are thus:
a) Claimants 1 to 7 are the wife and children of the deceased—Chinthala Narsaiah. Their case is that on 05.04.2004 at about 3.00 PM while the deceased was returning home on his bicycle and reached near old petrol bunk, Sircilla, a hired APSRTC bus bearing No.AP 15 U 9975 being driven by its driver in a rash and negligent manner and at high speed, dashed the bicycle and thereby the deceased sustained fatal injuries and died. It is averred that accident was occurred due to rash and negligent driving of bus driver. It is further averred that the deceased by doing coolie work was earning Rs.4,000/- per month and fending his family and due to his death the claimants became destitutes. On these pleas, claimants filed O.P.No.632 of 2004 against respondents 1 and 2, who are driver and owner and respondents 3 and 4, who are insurer and hirer of the offending bus and claimed Rs.2,00,000/- as compensation under different heads.
b) R2/owner of hired bus opposed the claim denying all the petition averments. R.2 contended that the accident was occurred due to the fault of deceased himself. R2 denied the age, avocation and income of the deceased and urged to put the claimants in strict proof. Nextly, R2 contended that R1/driver of the hired bus had valid and effective driving license as on the date of the accident and therefore, R3/insurer and R4/hirer are liable for the claim of the claimants. Finally, R2 contended that the claim is highly excessive and exorbitant and prayed for dismissal of the O.P.
c) R1/driver adopted the counter filed by R2.
d) R3/Insurance Company opposed the claim denying all the petition averments. R3 contended that offending bus was hired to APSRTC and hence, RTC is liable to pay compensation. R3 further contended that there is no negligence on the part of R1 and deceased was at fault. R.3 contended that driver had no valid driving licence at the time of accident.
e) R4/APSRTC submitted that there is no negligence on the part of R1 and accident was happened due to negligence of the deceased himself. It further submitted that they are not liable to pay any compensation, as the bus was hired from R2 who got insured the same with R3. Hence, R1 to R3 are responsible for payment of compensation.
f) During trial P.Ws.1 and 2 were examined and Exs.A.1 to A5 were marked on behalf of claimants. Ex.B1—policy copy was marked on behalf of respondents.
g) A perusal of the award would show with reference to issue No.1, the Tribunal having relied upon the eye-witness account of PW.2 coupled with Ex.A1-FIR, Ex.A2-inquest report and Ex.A3-charge sheet, held that the accident was occurred due to fault of RTC driver.
h) Issue No.2 relating to the driving licence, the Tribunal on perusal of Ex.A5—Form No.54, held that R1/driver was having valid driving licence.
i) Then, issue No.3 regarding insurance policy is concerned, the Tribunal having perused Ex.B1—policy held that insurance policy was subsisting at the time of accident.
j) Issue No.4 which relates to quantum of compensation, the Tribunal after careful analysis of oral and documentary evidence awarded Rs.1,99,200/- against all the respondents under different heads as follows:
Loss of dependency Rs. 1,87,200-00 Loss of consortium Rs. 10,000-00 Funeral expenses Rs. 2,000-00 Total Rs. 1,99,200-00 Hence, the appeal by the Insurance Company.
3) Heard arguments of Sri B.Naresh, learned counsel for appellant/Insurance Company, Sri Venkateswar Varanasi, learned counsel for respondents 1 to 7/claimants and Mrs.D.Radhika, learned counsel for respondent No.10/APSRTC. Notice sent to respondents 8 and 9 not yet returned. However, since they suffered decree before the Tribunal, their absence is not a consequence in this appeal in view of the decision reported in Meka Chakra Rao vs.
[1]
Yelubandi Babu Rao @ Reddemma and others .
4) Challenging the award insofar as fixing liability on Insurance Company jointly and severally along with other respondents, learned counsel for appellant argued that though the bus was insured with appellant/Insurance Company, but the owner of the bus hired the same to APSRTC and at the relevant time of accident, the bus was under the control and possession of APSRTC and driver also belongs to Corporation and as such, the owner had absolutely no control over the vehicle at the time of accident and hence, for all practical purposes APSRTC was the owner of the vehicle. Since no liability can be fastened on the original owner, the question of Insurance Company indemnifying the same does not arise. The Tribunal without considering these aspects, wrongly fastened the liability on Insurance Company also. He thus at the first instance, prayed to exonerate the Insurance Company from the liability and allow the appeal.
Learned counsel advanced an alternative argument also. He submitted that in view of Full Bench judgment of our
[2]
High Court in APSRTC vs. B.Kanakaratnabai holding that mere hiring of bus by the owner to APSRTC would not limit the liability and accountability of the Insurance Company, if this appellate Court declines to agree with the appellant’s argument, it may dismiss the appeal by confirming the award of the Tribunal. But, while so dismissing, the Court may not exonerate APSRTC from the liability as fixed by the Tribunal jointly on all the respondents since APSRTC has not filed any appeal against the award to exempt it from liability.
5) Per contra, learned counsel for APSRTC argued that in view of Full Bench Judgment, the entire liability rests on owner and insurer of the vehicle but not on the Corporation despite the fact that bus was hired with APSRTC. Learned counsel further argued that though APSRTC has not preferred any appeal, still, it can raise this argument since question of liability was thrown upon in the appeal.
6) In the light of above rival arguments, the point for determination in this appeal is:
“Which of the respondents are liable to answer the claimants?”
7) POINT: In the recent Full Bench judgment, our High Court answering the similar points raised by the Insurance Company in the present appeal has laid down thus:
“We hold that mere hiring of insured buses by the owners to the APSRTC would not in any manner limit the liability and accountability of the Insurance Companies, be it under the Act of 1988 or the Act of 1939, to honour passengers/third party risks covered by the Insurance Policies issued by them in favour of the owners. Notwithstanding the hiring of insured buses by the owners to the APSRTC, the Insurance Companies shall be solely and exclusively liable for payment of the compensation arising out of such passengers/third party claims unless any of the grounds in Section 149(2) of the Act of 1988/Section 96(2) of the Act of 1939 are made out...”
8) As the legal point raised by the appellant is no more res integra and decided by Full Bench of our High Court, the argument of the appellant cannot be countenanced. Hence, the appeal is liable to be dismissed. Sofaras its alternative argument is concerned, the same is also not maintainable. As rightly submitted by learned counsel for APSRTC the question of liability was thrown open by the Insurance Company by filing the appeal. Therefore, APSRTC has every right to argue in terms of Full Bench decision to its advantage despite its not preferring appeal against the award passed by the Tribunal.
9) In the result, this MACMA is dismissed and the award passed by the Tribunal is modified to the effect that APSRTC (4th respondent in OP) is not liable to answer the claim of the claimants. Rest of the award shall hold good. No order as to costs in the appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 09.07.2014
Note: L.R Copy to be marked: YES / NO
Murthy
[1] 2001 (1) ALT 485
[2] 2013 (1) ALT 727 (FB)