United India Insurance Company ... vs Sunnapuredy Rama Mohan Reddy
2021 Latest Caselaw 4818 AP

          HON'BLE SRI JUSTICE NINALA JAYASURYA

     M.A.C.M.A.No.555 of 2021 and M.A.C.M.A.No.339 of 2006

COMMON JUDGMENT:

      These two appeals are being disposed of by this common

judgment, as they arise out of the same accident and the parties to the

proceedings are one and the same.

1.    Heard Mr. Srinivasa Rao Vutla, learned Standing Counsel for the

appellant-Insurance Company in M.A.C.M.A.No.555 of 2021 and for the

3rd respondent-Insurance Company in M.A.C.M.A.No.339 of 2006,

Mr. P. Nagendra Reddy, learned counsel for the 1st respondent-claimant

in M.A.C.M.A.No.339 of 2006, and Mr. Arjun Chowdary, learned

counsel, representing Mr. N. Srihari, learned Standing Counsel for the

appellant-APSRTC in M.A.C.M.A.No.339 of 2006 and for the 3rd

respondent-APSRTC in M.A.C.M.A.No.555 of 2021.

2. M.A.C.M.A.No.555 of 2021 was preferred by the United India

Insurance Company Limited, while M.A.C.M.A.No.339 of 2006 was

preferred by the A. P. State Road Transport Corporation, aggrieved by

the award dated 29.08.2005 in M.V.O.P.No.502 of 2002 on the file of the

Chairman, Motor Accident Claims Tribunal-cum-II Additional District

Judge, Kadapa at Proddutur (for short 'the Claims Tribunal').

3. For the sake of convenience, the parties are hereinafter referred to,

as they were arrayed before the Tribunal in the original petition.

NJS,J MACMA Nos.339/2006 & 555/2021

4. The original petition was filed by the petitioner-claimant seeking

compensation for the injuries sustained by him in a motor vehicle

accident that occurred on 14.05.2001. The petitioner is working as Sub-

Engineer in A.P. Transco, North Division, Proddutur and drawing a

monthly salary of Rs.7446.75 ps.

i) On 14.05.2001 at about 8.30 a.m. the petitioner proceeded to office

on his scooter bearing No.AP 04 9617 and as there was a red light signal

at T.B. Circle near Vijaya Kumar Theatre, Proddutur, he stopped his

scooter at the Circle. After the green signal being switched on, the

petitioner started and turned his scooter towards Eastern side of the T.B.

Road. In the meantime, a bus bearing No.AP 04U 2016 being driven by

its driver came from Gandhi Road in a rash and negligent manner

without blowing horn and hit the leg of the petitioner, as a result of

which, the petitioner fell down and received injuries to his left leg.

ii) Immediately after the accident, on the advice of the doctor, the

petitioner was admitted in NIMS Hospital, Hyderabad where he took

treatment and spent a sum of Rs.35,000/-. Subsequently, he joined

Apollo Hospital, Hyderabad and undergone operation by spending

Rs.50,000/- apart from spending an amount of Rs.30,000/- towards

medical check-ups. In spite of taking treatment, the petitioner is not in a

position to walk without assistance and attend his personal work.

NJS,J MACMA Nos.339/2006 & 555/2021

iii) As the 1st respondent is the owner, the 2nd respondent is the insurer

and the 3rd respondent is the hirer of the bus, a compensation of

Rs.8,00,000/- was claimed against all the respondents, jointly and

severally.

5. The 1st respondent-owner remained ex parte.

6. The 2nd respondent-Insurance Company filed a written statement

denying the averments made in the petition and contending that the

offending vehicle was given on hire by the 1st respondent to the 3rd

respondent-APSRTC and therefore, the 2nd respondent is not liable to

indemnify the 1st respondent and further that the amount claimed is

excessive. Accordingly, the 2nd respondent prayed for dismissal of the

original petition.

7. The 3rd respondent-APSRTC also filed a written statement. It is

inter alia contended that the accident occurred due to the negligence of

the petitioner and the offending vehicle was hired with APSRTC and the

1st respondent-owner of the bus had entered into an agreement with

APSRTC. It is also contended that as per Clause 5(iv) of the agreement,

the owner shall be responsible for all the claims that may arise due to

statutory violations out of operations like claim due to accidents payable

under the provisions of the M.V. Act and that APSRTC shall not be made

liable for payment of compensation that may be awarded. It is contended

that the petition is bad for non-joinder of necessary parties i.e., the owner

NJS,J MACMA Nos.339/2006 & 555/2021

and the insurer of the scooter bearing No.AP 04A 9617 as also that the

petition is not maintainable against APSRTC. On the said grounds, it is

urged that the original petition is liable to be dismissed.

8. On the basis of the said pleadings, the following issues were

framed for consideration:

1) Whether the petitioner sustained injuries in a motor vehicle accident that occurred on 14.05.2001 at 8.30 a.m. due to rash and negligent driving of the driver of Bus bearing No.AP 04U 2016?

2) Whether the petitioner is entitled for compensation, and if so, to what amount and from whom?

3) To what relief?

9. On behalf of the petitioner, the petitioner himself examined as

P.W.1 and got marked Exs.A.1 to A.34. On behalf of the 3rd respondent,

R.W.1 was examined and Ex.B.1 was marked. On behalf of the 2nd

respondent, R.W.2 was examined and Ex.B.2 was marked.

10. The Claims Tribunal, on the basis of the oral and documentary

evidence, came to the conclusion that the accident occurred due to rash

and negligent driving of the Bus by its driver, and accordingly, allowed

the original petition in part against the respondents granting a

compensation of Rs.1,88,400/- to the petitioner with proportionate costs

and interest at 7.5% p.a. from the date of petition till realization, by

award dated 29.08.2005. It is directed that from out of the compensation

NJS,J MACMA Nos.339/2006 & 555/2021

amount, respondent Nos.1 and 2 are jointly and severally liable to pay

50% of the compensation amount and the 3rd respondent is liable to pay

the remaining 50% of the compensation amount. Aggrieved by the same,

the 2nd respondent-Insurance Company preferred M.A.C.M.A.No.555 of

2021, while the 3rd respondent-APSRTC preferred M.A.C.M.A.No.339

of 2006.

11. On hearing the learned counsel for the respective parties and

perusing the material on record, it is noted that there is no dispute with

regard to occurrence of the accident and the quantum awarded towards

compensation.

12. The only issue is whether the Claims Tribunal is right in fastening

the liability against the appellants in the present appeals i.e., United

Insurance Company Limited and APSRTC as indicated in the award

under challenge, if not, who has to pay the compensation awarded.

13. The issue with regard to liability in respect of accidents where the

buses hired by Transport Corporation on lease are involved, is no longer

res integra. Third party claims arising out of accidents involving hired

buses by APSRTC were succinctly dealt with by a Full Bench of the

erstwhile High Court of Andhra Pradesh at Hyderabad in A.P.S.R.T.C.

Vs. B. Kanakaratnabhai, reported in 2013 (1) ALD 644 (F.B). Placing

reliance on the said judgment, the learned Standing Counsel for APSRTC

would submit that the Corporation is not liable to pay the compensation

NJS,J MACMA Nos.339/2006 & 555/2021

and therefore, the award and decree, insofar as the Corporation is

concerned, is liable to be set aside. The Hon'ble Full Bench, while

answering the reference as to whether compensation payable in respect of

claims arising out of accidents involving insured buses hired by the A. P.

State Road Transport Corporation (APSRTC) should be borne by the

owner of the vehicle, the Insurance Company, the APSRTC or by some

or all of them, referred to a catena of judgments and inter alia held 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 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 the light of the authoritative judgment of the Hon'ble Full

Bench, the submission of the learned counsel for APSRTC is upheld.

15. Accordingly, the appeal filed by the Insurance Company,

M.A.C.M.A.No.555 of 2021 is dismissed. The appeal filed by APSRTC

in M.A.C.M.A.No.339 of 2006 is allowed by setting aside the award and

NJS,J MACMA Nos.339/2006 & 555/2021

decree to the extent of fastening of 50% compensation awarded. In terms

of the judgment of the Hon'ble Full Bench referred to supra, the

Insurance Company is liable to pay the entire compensation and the same

shall be deposited together with interest @ 7.5% p.a. from the date of

petition till the date of realization, within a period of eight weeks from

the date of receipt of a copy of this order. On such deposit, the claimant

is entitled to withdraw the same. No order as to costs in these two

appeals.

16. Consequently, miscellaneous petitions, if any, pending in the

appeals shall stand disposed of.

_______________________ NINALA JAYASURYA, J 24th November, 2021 cbs

NJS,J MACMA Nos.339/2006 & 555/2021

HON'BLE SRI JUSTICE NINALA JAYASURYA

M.A.C.M.A.No.555 of 2021 and M.A.C.M.A.No.339 of 2006

24th November, 2021

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