Court No. - 2
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No.488 of 2001
Appellant :- U.P. State Road Transport Corporation & Another
Respondent :- Smt. Usha Devi & Others
Counsel for Appellant :- Samir Sharma,Mritunjay Mohan Sahai
Counsel for Respondent :- Ram Shiromani Yadav
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri S.K. Mehrotra on the request of this Court for New India Insurance Company Limited.
2. This appeal preferred by U.P. State Road Transport Corporation can be disposed of even at the stage of it being defective as 17 years have elapsed before. The delay of 31 days would be condoned. The delay is condoned.
3. It is an admitted position of fact that the vehicle, which was plied, was insured with New India Insurance Company Limited.
4. The only ground raised is whether it would be the liability of New India Insurance Company or of appellant to pay compensation to claimants. It is submitted that it was not in issue as to who would be liable to pay compensation. It is not mentioned how there was any breach of condition. Tribunal while considering issues-2 and 3 and observing that vehicle was insured, has held that vr% ;g ugh a dgk tk ldrk fd n q? k ZVu k d s le; cl pkyd d s ikl o S/ k M ªk b Zf o ax ykblsUl ugh a Fkk and Issue-3 was decided in negative but in favour of appellant. Despite this, the Tribunal has exonerated the Insurance Company without assigning reason as why Insurance Company would not be liable to indemnify the owner of the vehicle and this finding that contract between UPSRTC and owner of vehicle was that in case of any accident, it would be payable by owner, it has been held that it is not liable.
5. Learned counsel appearing for the Insurance Company has relied on the decision of Hon'ble Apex Court in Rajasthan State Road Transport Corporation Vs. Kailash Nath Kothari and others 1998 (1) T.A.C. 42 (SC) and stated that it is this judgment on which Tribunal has relied. However, later on in the year 2011 the Apex Court has reconsidered this issue in U.P. State Road Transport Corporation Vs. Kulsum and others 2011 (8) SCC 142, and learned counsel appearing for Insurance Company could not dispute this fact that later decision in U.P. State Road Transport Corporation Vs. Kulsum and others (supra) holds to the contrary. The Insurance Company, therefore, cannot evade its liability in the light of decision in U.P. State Road Transport Corporation Vs. Kulsum and others (supra). The factual scenario as it emerges would show that contract of insurance was in force at the time of accident. Just because the vehicle was taken on contract by the appellant-Corporation, policy will not be absolved. We fortified in our view by decisions of the Apex Court in U.P. State Road Transport Corporation Vs. Kulsum and others JT 2011 (8) SCC 142 and Managing Director, K.S.R.T.C. Vs. India Insurance Company 2016 (2) SCC 382. Thus, the Insurance Company would be liable. The Insurance Company cannot avoid its liability by invoking the provision of Section 147. The Tribunal in our view has fallen in error on this ground. The cover note and the insurance policy clearly show that the Insurance Company would be liable. The finding of fact to the contrary cannot be sustained. The fact that Insurance Company was not a party to the contract cannot absolve it from indemnifying the owner of the vehicle. Just because the appellant had the control over the vehicle will not make it the owner of the vehicle. Hence, this appeal has to be allowed.
6. The next submission that Driver of offending vehicle in which deceased was traveling was negligent. Both the counsels for the appellant as well as Insurance Company have contended that Driver of the offending vehicle had contributed to the accident having taken place.
7. Learned counsel for the appellant placed reliance on the judgment of the Apex Court in U.P.S.R.T.C. Vs. Kulsum and others, (2011) 8 SCC 142, which has been followed time and again by Division Bench of this Court in Nasruddin Vs. Awadhesh Pandey and 9 others, First Appeal From Order Defective No.1620 of 2016, decided on 21.11.2016.
8. It is proved that the vehicle was insured and the vehicle was placed with U.P. State Road Transport Corporation but as there was no fitness nor proper permit, the Insurance company has been held not to be liable. This fact was one of the grounds and that has also been held against the Insurance company that the vehicle had proper licence and fitness. The driver also had a proper driving licence to drive the said vehicle despite that State Road Transport Corporation has bee held liable. This fact, as they are jointly liable, however, being insured as per the provisions of Motor Vehicles Act, 1988, the Insurance company will have to indemnify the insured hence this was an unwarranted litigation. However, no order as to cost.
9. Hence, the appeal is allowed to the aforesaid extent. The amount, which has been deposited before this Court, if not disbursed to the claimants, shall be disbursed to the claimants and the U.P. State Road Transport Corporation shall recover the same from the Insurance company.
Impugned award dated 24.4.2001 is modified to the aforesaid extent.
Order Date :- 30.5.2018 Irshad