Andhra HC (Pre-Telangana)
National Insurance Co. Ltd. vs Lunavathi Hariya And Ors. on 26 August, 2002
Equivalent citations: 2004ACJ1792, 2003(2)ALD617
JUDGMENT V.V.S. Rao, J.
1. This common order shall dispose of sixteen CMAs being CMA No. 1529 and other fifteen CMAs and five CRPs being CRP No. 2452 of 1999. These matters are filed by National Insurance Company Limited, Warangal Branch, aggrieved by the common order dated 11.4.1997 passed by the Motor Vehicle Accidents Claims Tribunal-cum-District Judge, Warangal, in OP Nos. 272 of 1995 and batch and hence the common judgment. The parties are referred by their status before the Tribunal.
2. The second respondent is owner of a private bus bearing No. AEO 4237. The bus was hired and owned by Andhra Pradesh State Road Transport Corporation (APSRTC). On 27.1.1995 the bus was involved in an accident while the same was driven by the first respondent and going from Venkirala Village to Warangal by reason of the bus hitting a culvert and falling into a trench. As a result of the accident seven persons died and eighteen persons suffered injuries. The claimants filed as many as thirty six petitions under Section 166 of the Motor Vehicles Act, 1988 claiming damages for death and injuries. The Tribunal appears to have dismissed eleven OPs and allowed twenty five OPs. The fourth respondent Insurance Company filed nineteen CMAs and six CRPs, out of which sixteen CMAs and five CRPs were listed today. Be it noted that CRPs were filed because the amount awarded by the Tribunal is less than Rs. 10,000/-. The details of these cases are as under.
Sl. No. C.M.A.No. O.P.No. Death/injury Amount claimed, Rs.
Amount awarded, Rs.
1. 1529 of 1998 285 of 1995 Injuries 30,500 30, 500 2 1535 of 1998 277 of 1995 Injuries 48,500 40,000
3. 1753 of 1998 651 of 1995 Death 1,80,000 1,68,000
4. 2469 of 1998 364 of 1995 Injuries 1,00,000 28,000
5. 2532 of 1998 282 of 1995 Injuries 41,500 20,000
6. 2564 of 1998 284 of 1995 Injuries 25,500 1 7,000
7. 2565 of 1998 281 of 1995 Injuries 15,500 10,000
8. 2566 of 1998 276 of 1995 Injuries 48,500 35,000
9. 2567 of 1998 366 of 1998 Death 3,00,000 2,07,000
10. 2568 of 1998 272 of 1995 Injuries 36,500 26,000
11. 2571 of 1998 332 of 1995 Injuries 25,000 18,000
12. 2572 of 1998 411 of 1995 Death 2,00,000 65,000
13. 2573 of 1998 658 of 1995 Death 95,000 75,000
14. 2592 of 1998 296 of 1995 Injuries 45,500 21,000
15. 2594 of 1998 273 of 1995 Injuries 20,500 20,500
16. 3190 of 1998 376 of 1995 Death 1,50,000 1,49,400
17. 3201 of 1998 547 of 1995 Death 1,50,000 1,21,632
18. 3202 of 1998 280 of 1995 Injuries 41,500 29,000
19. 1004 of 1999 323 of 1995 Death 1,00,000 65,000 CRP. No
20. 2452 of 1999 329 of 1995 Injuries 25,000 4,500
21. 2453 of 1999 274 of 1995 Injuries 20,000 4,500
22. 2492 of 1999 328 of 1995 Injuries 20,000 4,000
23. 3822 of 2001 327 of 1995 Injuries 15,000 4,000
24. 4463 of 2001 530 of 1995 Injuries 10,000 1,000
25. 7761 of 1998 331 of 1995 Injuries 15,000 3,000 (CRP. SR.)
3. Before considering various grounds, the defence of the respondents may be briefly noticed. The second respondent, who is owner of the vehicle denied any negligence on the part of the first respondent. He also contended that the vehicle was insured with the fourth respondent, that as the vehicle is hired by the third respondent APSRTC, the APSRTC alone is liable to pay the amount. The third respondent in their counter affidavit contended that the second respondent is employer of the first respondent, that APSRTC has no control over the first respondent and therefore the owner alone is liable to pay the amount. The Insurance Company filed a counter affidavit contending that the bus was overloaded beyond the permitted limit and therefore it is not liable to pay the amount On these averments and counter averments, the Tribunal framed the following issues.
(i) Whether the accident was due to rash and negligence in driving the RTC hired bus bearing No. AEO 4237 by its driver ?
(ii) Whether the petitioners are entitled for compensation claimed in their respective claim petition, if so, from which of the respondents and what amount ?
(iii) To what relief ?
4. The claimants examined as many as 26 witnesses as PWs. 1 to 26 and marked Exs.A1 to A73. First respondent remained ex parte. The insurance Company examined its Branch Manager as RW1 besides marking Exs.Bl and B2. On appreciation of the evidence on record the lower Tribunal came to the conclusion that the first respondent was negligent in driving the vehicle. On the second issue, the Tribunal placed reliance on unreported judgment of this Court in A.P.S.R. T. C. v. Ranga Lakshman (CMA No. 973 of 1984, dated 26.10.1988) and held that the driver belongs to the owner and therefore APSRTC (hirer) is not liable to pay compensation. It also held that owner and the Insurance Company alone are liable to pay compensation. The Tribunal further proceeded to consider the claims and awarded the amounts as indicated in the above table.
5. Learned Counsel for the appellants Sri B.V. Rama Mohan Rao submits that admittedly the conductor was employee of the third respondent-APSRTC and that because of overloading of the bus by the Conducter only the accident occurred. Therefore, APSRTC alone is responsible. The learned Counsel, however, does not dispute that the driver was under the control of the owner. The learned Counsel also placed reliance on the Judgment of the Supreme Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari, , in support of the submission that even if the bus belonging to second respondent is hired by the third respondent, the latter cannot escape the liability. The learned Counsel also placed reliance on the judgment of this Court in General Manager, APSRTC v. B, Kanaka Ratnabai, 2000 (2) ACJ 56. The learned counsel does not seriously dispute the finding of the Tribunal on the question of negligence and on the question of quantum of compensation awarded to various claimants.
6. The only point that arises for consideration is having regard to the facts and circumstances of the case whether APSRTC can be held liable to pay compensation awarded by the Tribunal.
7. In Usha Sehgal v. Chhote, 1985 ACJ 515, the Delhi Transport Corporation (DTC) hired a bus from a private person which met with an accident resulting in death of Narinder Prakash Sehgal. A question arose whether DTC was not liable according to the Act. The Delhi High Court held as under. The vehicle in question was a private vehicle of the owner, but under the service of the DTC. The counsel for the DTC submitted that DTC was not liable as according to the Motor Vehicles Act the liability is only of the owner. He also submits that by virtue of a contract between the owner and the DTC the liability for payment of compensation in case of accident was passed on to the owner of the bus and not on the DTC. In reply the counsel for the appellant has submitted that the private vehicle of the owner was being plied into service of the DTC. The licence was also held by the DTC. For these reasons, he submitted that the DTC is liable to pay compensation. Considering the provisions of the Act and the contract between the owner and the DTC there is no doubt that it is only the owner who is liable. DTC is not liable. The fact that the vehicle was in the service of the DTC or that the licence was in the name of the DTC would not make any difference. That is because the contract has by a specific term excluded the DTC from any liability and had reiterated the liability of the owners as provided by the Act.
8. In CMA No. 973 of 1984 dated 26.10.1988 this Court relied on agreement between the owner and hirer (APSRTC) and placing reliance on the judgment of the Delhi High Court in Usha Sehgal v. Chhote (supra) held that APSRTC is not liable. The following observations are relevant. In this case also on a reading of the language adopted in Section 110-B of the Act and the agreement, Ex.B4, it can be said that the owner of the vehicle is liable ultimately in the event of any accident. The APSRTC is not liable merely because the private vehicle was taken on hire in service of the APSRTC and when the licence was in the name of the owner of the vehicle and what is contemplated in Ex.B4 about the liability is correct. The contract Ex.B4 exclude the APSRTC from any liability. So, the APSRTC is not liable to pay any amount towards compensation.
9. In General Manager, APSRTC. v. Kanaka Ratnabai (supra) agreement between owner and APSRTC was marked as Ex.B.4 and interpreting the said agreement in the light of the judgment of the Supreme Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari (supra) this Court held that APSRTC is not excluded from the liability.
10. In Rajasthan State Road Trasnport Corporation v. Kailash Nath Kothari (supra) also the agreement between the RTC and private owner was marked. The Supreme Court referred to Clauses 6, 7 and 15 of the agreement and came to the conclusion that the owner had not merely transferred the services of the driver to RTC, but until contrary is proved driver has to act under the instructions, control and command of the conductor and other officers of the RTC. Thus, referring to the agreement itself it is concluded that in fastening liability to pay compensation on the RTC, the Motor Vehicle Accidents Claims Tribunal has not committed any error. The Supreme Court observed as under:
...If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principles noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC.
11. As per the decision of the Supreme Court referred to hereinabove, if the original employer established that when he lent servant, effective control over him was also transferred to hirer, the original owner can avoid liability and the temporary employer or hirer as the case may be must be held vicariously liable for the tort committed by the concerned employee. In this case, the driver remained ex parte. Though the owner of the bus, second respondent, filed counter, he did not come into box and produce necessary documents. Even the Insurance Company which examined its Branch Manager did not take any steps to summon the agreement between the APSRTC and the second respondent. In the absence of any agreement, the submission that even if there is such clause in the agreement excluding the liability of APSRTC on the authority of the Supreme Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari (supra) such clause must be held contrary to public policy, cannot be countenanced. This is the most glaring and distinguishable feature in Rajasthan Transport Corpn, v. Kailash Nath Kothari (supra) as well as the case in General Manager, APSRTC v. B. Kanaka Ratnabai (supra). In the absence of agreement between second and third respondents, it is impermissible to surmise as to what are rights and obligations of respondents 2 and 3 under the agreement. Hence, I am of the considered opinion that the judgment of the Supreme Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari (supra) goes against the contention of the learned Counsel for the appellants. In these cases, the original employer, the second respondent has failed to establish necessary facts to come to a conclusion that hirer (APSRTC) was having control over the driver and therefore it has vicarious liability.
12. In the result, for the above reasons, the CMAs and the CRPs fail and are accordingly dismissed without any order as to costs.