HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.2095 of 2017
JUDGMENT:
This appeal is preferred by Telangana State Road Transport Corporation (previously Andhra Pradesh State Road Transport Corporation), questioning the order and decree, dated 16.11.2016 passed in O.P.No.151 of 2015 (Old O.P.No.271 of 2013) on the file of the Chairman, Motor Accident Claims Tribunal-cum-III Additional District Judge, Asifabad (for short, "the Tribunal").
2. For the sake of convenience, hereinafter the parties will be referred to as per their array before the Tribunal.
3. Brief facts of the case are that the claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.5,00,000/- for the injuries sustained by him in the road accident that occurred on 21.12.2009. According to the claimant, on the fateful day, he boarded a bus bearing No. AP 15 Y 8557, owned by respondent No. 1, insured with respondent No. 2, hired by respondent No. 3, from Secunderabad to Mancherial. At 2 MGP,J MACMA No.2095 of 2017 about 04:25 a.m., when the said bus reached at the outskirts of Kundanapalli village on Rajiv Rahadar Highway, suddenly the said bus went beyond the road margin and fell down from a bridge in a Nala. As a result, the claimant was crushed in the bus and sustained multiple fractures and injuries all over the body. Immediately, he was taken to Government Area Hospital, Godavarkhani and thereafter he was admitted as inpatient in Apollo Hospital, Hyderabad, on 22.12.2009 and discharged on 30.12.2009 and underwent two surgeries on 23.12.2009 & 25.12.2009 respectively. He spent Rs.2,50,000/- towards hospital and medical expenses. According to the claimant, he was hale and healthy and earning Rs.15,000/- per month on business. Due to the accident, he suffered permanent disability and lost his earning capacity. Therefore, he laid the claim against the respondents.
4. Before the Tribunal, the respondent No. 1 remained ex parte. The respondent No. 2 filed counter denying the averments of petition, age, avocation, income of the 3 MGP,J MACMA No.2095 of 2017 claimant. It is further contended that the driver of respondent No. 1 has no valid driving licence and thereby violated terms and conditions of insurance policy, as such respondent No. 2 is not liable to pay the compensation. It is lastly contended that the claim is excessive and exorbitant and prayed to dismiss the petition. Per contra respondent No. 3 filed counter stating that respondent No. 1, owner of the bus which was insured with respondent No. 2 and that policy was in force as on the date of the accident. Hence, respondent No. 3 is not liable to pay compensation and prayed to dismiss the petition.
5. Considering the claim, counters filed by respondent Nos.2 & 3 and the oral and documentary, the Tribunal held that the accident occurred due to the negligent driving of the driver of the R.T.C. bus and awarded compensation of Rs.2,30,500/- to be paid by the respondent Nos.2 and 3 jointly and severally. Challenging the same, the present appeal is filed by the Road Transport Corporation.
6. Heard the learned counsel for the claimant, learned Standing Counsel for the Insurance Company and the 4 MGP,J MACMA No.2095 of 2017 learned Standing Counsel for the RTC. Perused the material available on record.
7. The learned Standing Counsel for the RTC-appellant has vehemently contended that the Tribunal grossly erred in fixing liability on the RTC, who is a mere hirer of the bus, and in fact, as policy was in force, the liability ought to have been fixed on the insurer and owner of the bus. It is contended that the hire agreement between the owner of the vehicle and the RTC does not absolve the liability of insurer from payment of compensation and therefore, the RTC ought to have been exonerated from the liability.
8. Per contra, learned Standing Counsel for the Insurance Company has submitted that the Tribunal has, in fact, granted adequate compensation and the same needs no interference. Insofar as the liability is concerned, it is contended that inasmuch as the RTC was hirer of the bus, the tribunal has rightly apportioned the compensation amount to be payable by the RTC and the Insurance company equally.
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9. With regard to the manner of the accident, the Tribunal having framed issue No.1 as to whether the accident took place due to rash and negligent driving of the driver of RTC bus bearing No. AP 15 Y 8557, and after considering the evidence of P.W.1 coupled with the documentary evidence i.e., Ex.A1, First Information Report and Ex.A9, copy of final report, the tribunal has categorically observed that the accident occurred due to the rash and negligent driving of the RTC bus by its driver and has answered the issue in favour of the claimant and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the RTC bus by its driver.
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10. Insofar as quantum of compensation is concerned, a perusal of medical record i.e., evidence of P.W.2, Orthopedic Surgeon at Apollo Hospital and Ex.A.2, Injury certificate, reveals that the claimant sustained fracture to right femur besides other injuries to left thigh and other parts of the body. Considering the nature of injuries 6 MGP,J MACMA No.2095 of 2017 sustained by the claimant, the Tribunal has rightly awarded Rs.50,000/- towards pain and sufferings; Rs.1,63,385/- towards medical expenses by relying upon Ex.A.6, A.7, A.12, A.13 & A.15; Rs.5,000/- towards attendant charges, which are reasonable and needs no interference by this Court. Coming to the income of the claimant, he had claimed that he was earning Rs.15,000/- per month on business. But no evidence is produced, either oral or documentary, to prove his income and avocation. In Latha Wadhwa vs. State of Bihar1, the Apex Court has held that even there is no proof of income and earnings, the income can be reasonably estimated. Since, the claimant was aged about 35 years at the time of the accident, the tribunal has rightly awarded Rs.12,000/- towards loss of earnings during the treatment.
11. Insofar as rate of interest is concerned, the tribunal has erroneously granted interest rate at 9% per annum instead of 7.5%. Therefore, in light of the decision of the Apex Court in Rajesh and others v. Rajbir Singh and 1 (2001) 8 SCC 197 7 MGP,J MACMA No.2095 of 2017 others2 the rate of interest is hereby reduced to 7.5% per annum from 9% on the compensation awarded by the Tribunal from the date of petition till the date of realization.
12. Insofar as the liability is concerned, admittedly, the R.T.C., is the hirer of the crime bus that belonged to respondent No. 1 and insured with respondent No. 2. It is also not in dispute that policy was in force as on the date of accident. The owner of the bus paid the premium towards liability of passengers and third parties risk. The insurance company collected the said premium and issued the policy. Therefore, merely because there is hire agreement between the owner of the bus and the RTC, it cannot absolve the liability of the Insurance Company from payment of compensation.
13. In A.P.S.R.T.C., Hyderabad v. B.Kanaratnabai3 a Full Bench of composite State of Andhra Pradesh held as under:-
2 2013 ACJ 1403 = 2013 (4) ALT 35
3
(2013) 1 ALD 644 (FB)
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"83. On principle, it is not open to the insurance companies to absolve themselves of liability towards passenger/third party risks on the short ground that the insured vehicle has been given on hire without following the prescribed procedure. This Court in Madineni Kondaiah's case (supra) has already held that even transfer of the ownership of an insured vehicle without following the due procedure would not absolve the insurance company of liability towards third party risks. Mere transfer of possession, through hire of the vehicle, cannot stand on a worse footing or exempt the Insurance Companies from liability in this regard.
84. .....
85. On the above analysis, 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."
14. In U.P.State Road Transport Corporation v. National Insurance Company Limited and others4 while referring to the judgment in U.P.State Road Transport Corporation v. Kulsum5 the Apex Court held as under: 4
2021 ACJ 2282 5 2011 ACJ 2145 (SC) 9 MGP,J MACMA No.2095 of 2017 "The Court has come to the conclusion that when the effective control and command of the bus is with the Corporation, the Corporation becomes the owner of the vehicle for the specified period. It was further held that when the actual possession of the vehicle is with the Corporation, the vehicle, the driver and the conductor were under the direct control and supervision of the Corporation. Therefore, "through the definition of 'vicarious liability' it can be inferred that the person supervising the driver is liable to pay the compensation to the victim. During such time, however, it will be deemed that the vehicle was transferred along with the insurance policy, even if it were insured at the instance of the original owner. Thus, the insurance company would not be able to escape its liability to pay the amount of compensation."
15. In view of the law laid down by the Apex Court in the judgments referred to above, the finding of the tribunal in fastening liability jointly and severally upon the RTC along with insurance company is not sustainable under law and liable to be set aside.
16. Accordingly, the M.A.C.M.A stands allowed setting aside the findings of the tribunal to the extent of fastening liability jointly and severally upon the appellant-RTC along with the Insurance Company, respondent No. 2. The appellant-RTC is exonerated from the liability of payment of compensation and the respondent No. 1 being owner and respondent No. 2 being insurer of the crime bus are liable 10 MGP,J MACMA No.2095 of 2017 to pay the compensation. The appellant-RTC is at liberty to recover the amount, if any already paid/deposited, from the insurer i.e., respondent No. 2. The rate of interest is reduced from 9% per annum to 7.5% per annum from the date of filing of O.P. till the date of realization. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
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M.G.PRIYADARSINI,J
29.03.2023
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THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A.No.2095 of 2017 DATE: 29.03.2023 gms