United India Insurance Co. Ltd. rep. by its Branch Manager, Sangareddy v. Sharapuram Balavva
2012-11-15
R.KANTHA RAO
body2012
DigiLaw.ai
JUDGMENT : This appeal is filed by the United India Insurance Company Limited against the order dated 03.05.2011 passed in O.P.No.62 of 2009 by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Siddipet. 2. I have heard the learned counsel appearing for the appellant-Insurance Company, learned counsel appearing for the A.P.S.R.T.C. and also the learned counsel appearing for the claimants. 3. Mr.S. Balreddy, hereinafter referred to as ‘the deceased’ while travelling in the bus bearing No.AP-23-U-8523 from Sircilla to village Gangapur on 19.05.2009 fell down from the bus at Ramachandrapuram bus stop at about 7.30 p.m. while he was about to get down from the bus as the driver of the bus started the same in a rash and negligent manner without observing him. He received a severe head injury and was admitted in Government Hospital, Sircilla, from there he was taken to Gandhi Hospital, Secunderabad where he succumbed to injuries while undergoing treatment. 4. The legal representatives of the deceased filed a claim case under Section 163-A of the Motor Vehicles Act, 1988 claiming compensation of Rs.4 lakhs. Admittedly, Mr.S.Konda Reddy, the 4th respondent in the appeal is the owner of the bus and the bus was on hire with the 5th respondent at the time when the deceased was involved in the accident. It is also an admitted fact that the bus was under a valid policy of the insurance with the appellant at relevant time. The learned Tribunal after making enquiry into the claim, awarded compensation of Rs.3,37,000/-together with interest @ 9% per annum from the date of petition till realization holding the appellant-insurance company, 4th respondent, owner of the vehicle and the 5th respondent-APSRTC jointly and severally liable to pay compensation to the claimants. The insurance company filed the present appeal questioning the finding of the Tribunal below making it liable to pay compensation along with the owner of the vehicle and the A.P.S.R.T.C. jointly and severally. 5. As regards the quantum, the learned Tribunal proceeded on the basis that the deceased was aged 50 years on the date of his death as disclosed from the post mortem report, was a labourer and was earning Rs.3,000/- per month, computed the compensation on the said basis and awarded an amount of Rs.3,37,000/- together with interest @ 9% per annum from the date of petition till realization.
The quantum of compensation having been properly computed and being just and reasonable needs no interference in the present appeal. 6. The specific contention, however, raised by the appellant-insurance company in this appeal is that when once the bus was given on hire to A.P.S.R.T.C., for all practical purposes, the A.P.S.R.T.C. becomes the owner of the vehicle, the liability, if any, has to be fastened on the A.P.S.R.T.C. alone and the insurance company is no longer liable to pay compensation to the claimants though the bus involved in the accident was under a valid policy issued by it to the original owner of the vehicle. 7. On the other hand, it is the contention of the A.P.S.R.T.C. that the vehicle which was insured with the appellant-insurance company under valid policy was deemed to have been transferred along with the said policy and when it was given on hire to the A.P.S.R.T.C. by its owner, the liability of the insurance company in such an event does not cease and the insurance company in law is not entitled to disown its liability. 8. Sri AVKS Prasad, learned counsel appearing for the insurance company contended that as per the terms and conditions of the policy when the owner of the vehicle intended to give the vehicle on hire to A.P.S.R.T.C. he is under a duty to inform the same in advance to the insurance company and has to pay extra premium. In the instant case, according to the learned counsel, the owner of the vehicle did not inform the insurance company about giving the vehicle on hire to A.P.S.R.T.C. and did not pay any extra premium, thus, violated the stipulations of the policy and therefore, the insurance company is not liable to pay compensation. In support of his contention, the leaned counsel relied on NATIONAL INSURNACE CO.LTD.
In support of his contention, the leaned counsel relied on NATIONAL INSURNACE CO.LTD. v. DEEPA DEVI AND OTHERS ( 2008 ACJ 705 ), RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. KAILASH NATH KOTHARI AND OTHERS (1997 ACJ 1148) wherein a view was taken having regard to the facts and circumstances of the said cases to the effect that the privity of contract of the passengers of the bus was with the R.T.C. to whom they had paid the fare and the corporation is vicariously liable for the negligence of the driver since the vehicle was in possession and under the actual control of the Corporation for the purpose of running on the specific route and was being used for carrying passengers on hire by the Corporation. The basis for the view taken in the aforesaid cases is seems to be that when the vehicle was on hire or under hire purchase agreement, the person or the corporation in possession of the vehicle under the agreement shall be the owner for all practical purposes and is liable to pay compensation. 9. On the other hand, the learned counsel appearing for the A.P.S.R.T.C. relied on UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION v. KULSUM AND OTHERS (2011) 8 SCC 142 ) wherein the Supreme Court after reviewing the earlier judgments of the Supreme Court and various High Courts held as follows: “Under the agreement owner had specifically agreed that the vehicle will be insured and a driver would be provided by owner of the vehicle but overall control, not only on the vehicle but also on the driver, would be that of the Corporation. Thus, the vehicle was given on hire by the owner of the vehicle together with its existing and running insurance policy. In view of the aforesaid terms and conditions, the Insurance Company cannot escape its liability to pay the amount of compensation. For all practical purposes, for the relevant period, the corporation had become the owner of the vehicle for the specific period. If the corporation had become owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the insurance policy in existence to the corporation and thus the insurance company would not be able to escape its liability to pay the amount of compensation.
The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice.” 10. The Supreme Court in the case above referred took into consideration the definition of the owner in the Old (1939) Act and in the New (1988) Act and rendered the decision keeping in view the exhaustive definition of the owner in the New Act. Section 2(19) of the Motor Vehicles Act, 1939 defined the owner as under: . “Owner means, where the person in possession of a motor vehicle is minor the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement.” 11. Whereas, under the New (1988) Act, the term owner is defined under Section 2(30) of the Motor Vehicles Act as under: “Owner means person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.” 12. The Supreme Court in KULSUM’s case (3rd supra) said as under: “That a critical examination of both the definitions of the ‘owner’ would show that it underwent a drastic change in the Act of 1988, already reproduced hereinabove. In our considered opinion, in the light of the drastic changes incorporated in the definition of ‘owner’ in the Old Act and the present Act, Kailash Nath Kothari case (2nd supra) shall have no application to the facts of the present case.
In our considered opinion, in the light of the drastic changes incorporated in the definition of ‘owner’ in the Old Act and the present Act, Kailash Nath Kothari case (2nd supra) shall have no application to the facts of the present case. In KULSUM’s case (3rd supra), the Supreme Court specifically mentioned in its judgment as follows: “Since it is a vexed question, with no unanimity in the judgments of various High Courts and as it has not been considered directly so far by this Court, we deem it fit and appropriate to do so.” 13. The Supreme Court, apart from considering the exhaustive nature of the definition of the owner under the New Act, also took into consideration the requirement of compulsory insurance against the third party risk under Section 146 of the Act. The liability of the insurance company to pay compensation to the third parties under a comprehensive policy, and also the duty of the insurance company to satisfy the judgments and awards against the persons insured in respect of third party risks, as envisaged under Sections 147 and 149 of the Motor Vehicles Act. The Supreme Court also took the view that there is neither any statutory duty cast on the owner under the Act or under any Rules to seek permission from the Insurance Company nor is it under any of the orders issued by the Company before giving the vehicle on hire to the Corporation. 14. In the instant case, the learned Tribunal below mentioned in its judgment that in the cross-examination the Administrative Officer of the insurance company who was examined as RW-1 admitted that the policy of insurance is a comprehensive policy and the policy did not contain any clause, that the bus could not be given on hire. Therefore, there is no statutory requirement which obligates the owner to inform in advance to the insurance company of his intention to give the bus on hire to A.P.S.R.T.C. and also the policy does not place any such restriction.
Therefore, there is no statutory requirement which obligates the owner to inform in advance to the insurance company of his intention to give the bus on hire to A.P.S.R.T.C. and also the policy does not place any such restriction. Even if there is any such clause, it would be contrary to the statutory provisions of the Motor Vehicles Act since none of the provisions contain any embargo that the owner of the vehicle has to obtain consent from the insurance company before hiring the vehicle insured to A.P.S.R.T.C. According to the law laid down by the Supreme Court in KULSUM’s case (3rd supra), when the vehicle insured with the insurance company was hired to A.P.S.R.T.C. under the provisions of the Act, it is deemed to have been hired along with the policy and it is not open for the insurance company to disown its liability. 15. For the foregoing reasons and in view of the ratio laid down by the Supreme Court in recent judgment in KULSUM’s case (3rd supra), I hold that the insurance company cannot be exonerated from the liability to pay compensation to the claimants who are the third parties, it’s appeal fails and the same is accordingly dismissed without any order as to costs.