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Saturday, January 11, 2014

M.V. Act - passenger died from moving bus while getting down - Hired Bus by APSRTC - Lower court fasten liability only on APSRTC and exonerated the owner of bus and insurance company - High court held that since the vehicle was hired along with insurance policy which is not against the terms and conditions of insurance policy - Driver was also appointed by the owner - vicarious liability fasten the owner as well as insurance company - High court set aside the judgment of lower court partly to the extent of liability of APSRTC and confirmed the award in respect of compensation awarded as there is no cross appeal - as the claimants are entitled for higher compensation than the awarded and directed the insurance company to comply with the award = The Managing Director, APSRTC, Musheerabad, Hyderabad....Appellant Bandaru Venkata Narsamma and 5 others.... Respondents = 2014 ( JANUARY - VOL - 1 ) JUDIS.NIC.IN / JUDIS _ANDHRA / FILE NAME = 10692

M.V. Act - passenger died from moving bus while getting down - Hired Bus by APSRTC - Lower court fasten liability only on APSRTC and exonerated the owner of bus and insurance company - High court held that since the vehicle was hired along with insurance policy which is not against the terms and conditions of insurance policy - Driver was also appointed by the owner - vicarious liability fasten the owner as well as insurance company - High court set aside the judgment of lower court partly to the extent of liability of APSRTC and confirmed the award in respect of compensation awarded as there is no cross appeal - as the claimants are entitled for higher compensation than the awarded and directed the insurance company to comply with the award =

whether the compensation payable in respect of the
claims arising out of accident involving insured but hired by the APSRTC should
be borne by the owner of the vehicle or by the Insurance Company or by the
APSRTC or by some or all of them =

The Apex Court in Uttar Pradesh State Road Transport
Corporation (1 supra) 
by referring to Section 146 to 149, 157 read with Section
2(3) and Section 103 of the M.V.Act, 1988 regarding the third party risk from
the statutory insurance on the scope and meaning of who is owner of a hired
vehicle when the policy taken out by lesser and transferred the vehicle to the
lessee covered by terms of lease held that
"The liability to pay compensation is based on a statutory provision.
Compulsory insurance of the vehicle is meant for the benefit of third parties.
The liability of the owner to have compulsory insurance is only in regard to the
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.
Third party rights have been considered by this Court and several expressions
and the law on the said point is now fairly well settled."

whether the compensation payable in respect of the
claims arising out of accident involving insured but hired by the APSRTC should
be borne by the owner of the vehicle or by the Insurance Company or by the
APSRTC or by some or all of them was referred to a Full Bench of this Court and
the Full Bench in L.P.A. No.206 of 2000 and batch vide common judgment, dated 
20.11.2012 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 and notwithstanding the hiring of insured buses by the
owner to the APSRTC, the Insurance Company 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.
Therefore, we are of the opinion that the issue raised in this appeal by the
APSRTC is squarely covered by the Full Bench judgment of this Court.
In the result, the appeal is allowed while confirming the quantum of
compensation of Rs.3,29,000/- with 7.5% interest awarded by the Tribunal in
favour of the claimants, however  by modifying the finding of the Tribunal in
fixing liability only against the 3rd respondent-APSRTC (appellant herein) to
the joint liability by directing the 2nd respondent-insurer of the vehicle to
satisfy the claim by payment or deposit of compensation amount (indemnifying the
real owner-insured) within one month from today, failing which the claimants can
execute and recover to the credit of the O.P before the Tribunal.  It is subject
to that the A.P.S.R.T.C. is permitted to withdraw the amount already made in
deposit.  On other aspects, the finding of the Tribunal regarding apportionment
and withdrawal holds good.  There is no order as to costs.

2014 ( JANUARY - VOL - 1 ) JUDIS.NIC.IN / JUDIS _ANDHRA / FILE NAME = 10692

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO        

M.A.C.M.A.No.3062 OF 2011  

02-01-2014

The Managing Director, APSRTC, Musheerabad, Hyderabad....Appellant

Bandaru Venkata Narsamma and 5 others.... Respondents  

Counsel for the Petitioner : Sri P.Harinadh Gupta

 Counsel for the Respondents:  Sri V.Brahmayya Chowdary

<Gist :

>Head Note:

?Cases referred:

1. (2011)8 SCC 142
2. 2013(1) ALD 644 (FB)
3. 1965(1) All. E.R - 563
4. 1963(2) All. E.R - 432
5. 1969(1) All. E.R - 555
6. 1955 ACJ 366 (SC)
7. 2009 ACJ 1298
8. (2001)8 SCC 197
9. 2013(4) ALT 35 (SC)
10. 2011(8) SCALE 240
11. (1988)3 SCC 1
12. 2013(1) ALD 644

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO        

M.A.C.M.A.No.3062 OF 2011  

JUDGMENT:
        The Managing Director, A.P.S.R.T.C-3rd respondent filed this appeal,
having been aggrieved by the Order/Award of the learned Chairman of the Motor
Accidents Claims Tribunal-cum-I Additional District Judge, Khammam,(for short,
'Tribunal') in M.V.O.P.No.452 of 2009 dated 07.02.2011, 
awarding compensation of
Rs.3,29,000/-(Rupees three lakhs twenty nine thousand only) with interest at
7.5% per annum with the finding that the 3rd respondent alone is liable and not
the respondents 1 and 2 as against the claim of the claimants 1 to 4 of
Rs.5,00,000/-(Rupees Five lakhs only), in the claim petition under Section 166
of the Motor Vehicle Act, 1988 (for short, 'the Act').

        2. Heard Sri Sridhar Reddy Pottigari, the learned standing counsel for the
appellant (APSRTC), Sri V.Brahmaiah Chowdary, learned counsel for the
respondents 1 to 4 (claimants) and Sri P.Harinadh Gupta learned counsel for the
6th respondent (insurer).  The 5th respondent (owner of the bus hired to
appellant RTC-served is remained absent and thus taken as heard the 5th
respondent to decide on merits.  Perused the material on record.  The parties
hereinafter are referred to as arrayed before the Tribunal for the sake of
convenience in the appeal.

3. The contentions in the grounds of appeal by the (appellant) 3rd respondent-
APSRTC in nutshell are that
though it is the hire bus with A.P.S.R.T.C since
belongs to the 1st respondent insured with the 2nd respondent insurer of the
claim petition, instead of finding the liability jointly and severally against
the respondents 1 and 2; 
the Tribunal went wrong in fastening the liability on
the A.P.S.R.T.C only and thus the award of the Tribunal is contrary to law,
weight of evidence and probabilities of the case in arriving such a wrong
conclusion; 
besides the quantum of compensation awarded is excessive and outcome   
of wrong application of multiplier and wrong taking of the income of the
deceased and hence to allow the appeal, by exonerating the APSRTC besides  
reducing the quantum. 
4. It is in support of above contentions of the 3rd respondent, relied upon the
Apex Court's expression in Uttar Pradesh State Road Transport Corporation V.
Kulsum1 and the Full Bench Judgment of this Court reported in APSRTC, Hyderabad
V. B.kanakaratnabai2 and another Division Bench Judgment dated 31.01.2013 in
M.A.C.M.A.No.2821 of 2011 following the full bench expression mainly on the
contention of the insured and insurer of the hire bus are liable jointly and
severally and not the 3rd respondent-A.P.S.R.T.C. The claimants sought for joint
liability by saying on quantum as what is awarded is low and to enhance the same
if at all.
5. Whereas, it is the contention of the learned counsel for the respondent No.2
insurer of said bus before the Tribunal, that the Tribunal came to the right
conclusion by following several expressions including of the Apex Court and of
this Court and thus while sitting against the same, for this Court, there is
nothing to interfere, but for if at all to reduce the quantum of compensation.
6. Now the points that arise for consideration in the appeal are:
1. Whether the finding of the Tribunal in fixing the liability only against the
3rd respondent-A.P.S.R.T.C. by exonerating the respondents 1 & 2 i.e., insured
and the insurer of the bus that was hired with the 3rd respondent-A.P.S.R.T.C is
unsustainable and requires interference by this Court while sitting in the
appeal
2. If so, whether there is any joint and several liability of all the three
respondents or only respondents 1 and 2 by exonerating 3rd respondent either
based on any general principles of law or factual matrix of the case for this
Court while sitting in appeal against the award
3. Whether the quantum of compensation awarded by the Tribunal including rate of
interest are high and requires interference and if so to what extent and with
what observations

4. To what result\
POINTS-1 TO 3:
7. As the points 1 to 3 are interrelated and to avoid repetition of facts and
discussion, these are taken up together for convenient disposal.  The fact that
the deceased Nageswara Rao (husband and father of claimants 1 to 4 (all majors)
respectively) aged about 45 years died in the motor accident dated 29.06.2008,
due to rash and negligent driving of the driver and conductor of the bus from
not closing the doors and moving the bus while deceased was getting down from
which he fell down, sustained injuries and succumbed on that day i.e.,
29.06.2008 while under treatment at Government hospital, Kothagudem are proved 
from the material on record and no way requires interference in the appeal.
        8. Before coming to the dispute on fixation of liability on the 3rd
respondent-APSRTC and not fixing the liability jointly on the owner and insurer
of the hired bus and the quantum of compensation whether excessive and what is
just compensation in the factual matrix of the case concerned, it is apt to
state that perfect compensation is hardly possible and money cannot renew a
physique or frame that has been battered and shattered, nor relieve from a pain
suffered as stated by Lord Morris. In Ward v. James3, it was observed by Lord
Denning that award of damages in personal injury cases is basically a
conventional figure derived from experience and from awards in comparable cases.
Thus, in a case involving loss of limb or its permanent inability or impairment,
it is difficult to say with precise certainty as to what composition would be
adequate to sufferer. The reason is that the loss of a human limb or its
permanent impairment cannot be measured or converted in terms of money.  The
object is to mitigate hardship that has been caused to the victim or his or her
legal representatives due to sudden demise. Compensation awarded should not be
inadequate and neither be unreasonable, excessive nor deficient. There can be no
exact uniform rule in measuring the value of human life or limb or sufferance
and the measure of damage cannot be arrived at, by precise mathematical
calculation, but amount recoverable depends on facts and circumstances of each
case. Upjohn LJ in Charle red House Credit v. Tolly4 remarked that the
assessment of damages has never been an exact science and it is essentially
practical. Lord Morris in Parry v. Cleaver5 observed that to compensate in money
for pain and for physical consequences is invariably difficult without some
guess work but no other process can be devised than that of making a monitory
assessment  though it is impossible to equate the money with the human
sufferings or personal deprivations.  The Apex Court in R.D.Hattangadi v. Pest
Control (India) Private Limited6 at paragraph No.12 held that in its very nature
whatever a Tribunal or a Court is to fix the amount of compensation in cases of
accident, it involves some guess work, some hypothetical consideration, some
amount of sympathy linked with the nature of the disability caused.  But all the
aforesaid elements have to be viewed with objective standard. Thus, in most of
the cases involving Motor Accidents, by looking at the totality of the
circumstances, an inference may have to be drawn and a guess work has to be made
even regarding compensation in case of death, for loss of dependent and estate
to all claimants; care, guidance, love and affection especially of the minor
children, consortium to the spouse, expenditure incurred in transport and
funerals etc., and in case of injured from the nature of injuries, pain and
sufferance, loss of earnings particularly for any disability and also probable
expenditure that has to be incurred from nature of injuries sustained and nature
of treatment required.

9. From the above legal position and coming to the factual matrix, the age of
the deceased was between 46 to 50, the Tribunal adopted the multiplier as 13, by
following the Honourable Apex Court's expression in Sarla Varma v. Delhi
Transport Corporation7.
The earnings of the deceased estimated by the Tribunal
at Rs.3,000/- per month.  The same also sustainable as in Latha Wadhwa vs. State
of Bihar8 the Honourable Apex Court held that even in the case of non-earning
member and domestic contribution of a house-wife can be assessed at Rs.3,000/- 
per month.  
Therefrom, the Tribunal arrived after 1/3rd deducted towards the
personal expenses of the deceased from the fact that the claimants 2 and 4 are
major sons there is nothing to interfere and it therefrom comes to Rs.3,12,000/-
.
In addition to that the claimants are entitled to loss of consortium of
Rs.1,00,000/- to the 1st claimant, funereal expenses of Rs.25,000/- and loss of
estate minimum of Rs.5,000/- as per Rajesh v. Ranabir Singh9, which comes to 
Rs.4,42,000/-.  
As such, the quantum of compensation awarded by the Tribunal of Rs.3,29,000/- at 7.5% p.a. is no way on high side but for to say a low amount.
As no cross-objections filed by the claimants muchless any independent appeal,
since there is a bar on the power of the Court even to exercise any power under
Order XLI, Rule 33 C.P.C to enhance the quantum from what is laid down in Ranjan
Prakash V. Divisional Manager10 that in the appeal filed by the driver or owner
or insurer, in the absence of cross-objections by the claimants they have no
right and Court also has no power to enhance the compensation, but for to
support the quantum on one ground or the other.
10. Now, coming to the liability,
the 1st respondent is the owner of the private
bus bearing bus No.AP 16 TS 5255 which was hired with the 3rd respondent-APSRTC    
and the insurance covered by Ex.B-1 policy with the claim petition-2nd
respondent.
The 3rd respondent-APSRTC no doubt exercising control over the bus 
including on the driver of the bus by engaging its own conductor under the
contract of hire.
The quantum is 
whether that by itself exonerates the real
owner and the insurer though APSRTC is a limited owner for the purpose that so
long as contract of hire in force and given full control of the bus if it is
with or without knowledge of the insurer of the vehicle insured by the owner and
not by APSRTC.  
11. In this regard the
The Apex Court in Uttar Pradesh State Road Transport
Corporation (1 supra)
by referring to Section 146 to 149, 157 read with Section
2(3) and Section 103 of the M.V.Act, 1988 regarding the third party risk from
the statutory insurance on the scope and meaning of who is owner of a hired
vehicle when the policy taken out by lesser and transferred the vehicle to the
lessee covered by terms of lease held that
"The liability to pay compensation is based on a statutory provision.
Compulsory insurance of the vehicle is meant for the benefit of third parties.
The liability of the owner to have compulsory insurance is only in regard to the
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.
Third party rights have been considered by this Court and several expressions
and the law on the said point is now fairly well settled."
11(a). The Apex Court in Guru Govekar V. Filomena F.Lobo11(1988 SC 1332) held  
that
"Thus if a policy is taken in respect of a motor vehicle from an insurer in
compliance with the requirements of chapter VII of the Act, the insurer is under
an obligation to pay the compensation payable to a third party on account of any
injury to his/her person or property or payable to the legal representatives of
the third party in case of death of the third party caused by or arising out of
the use of the vehicle at a public place.  The liability to pay compensation in
respect of death of or injury caused to the person or property of a third party
undoubtedly arises when such injury is caused when the insured is using the
vehicle in a public place.  It is also arises when the insured has caused or
allowed any other person (including an independent contractor) to use his
vehicle in a public place and the death of or injury to the person or property
of a third party is caused on account of the use of the said vehicle during such
period, unless such other person has himself taken out a policy of insurance to
cover the liability arising out of such an accident.
This meant that once the insurer had issued a certificate of insurance in
accordance with sub-section (4) of Section 95 of the Act the insurer had to
satisfy any decree which a person receiving injuries from the use of the vehicle
insured had obtained against any person insured by the policy.  He was liable to
satisfy the decree when he had been served with a notice under sub-section (2)
of Section 96 of the Act about the proceedings in which the judgment was
delivered.
Any other view will expose innocent third parties to go without compensation
when they suffer injury on account of such motor accidents and will defeat the
very object of introducing the necessity for taking out insurance policy under
the Act.
In a recent judgment of this Court,
in United India Insurance Co. Ltd., V. Santro Devi ((2009)1SCC 558)
it has been held as under:
The provisions of compulsory insurance have been framed to advance a social
object.  It is in a way part of the social justice doctrine.  When a certificate
of insurance is issued, in law, the insurance company is bound to reimburse the
owner.  There cannot be any doubt whatsoever that a contract of insurance must
fulfil the statutory requirements of formation of a valid contract but in case
of a third-party risk, the question has to be considered from a different angle.
Section 146 provides for statutory insurance.  An insurance is mandatorily
required to be obtained by the person in charge of or in possession of the
vehicle.  There is no provision in the Motor Vehicles Act that unless the
name(s) of the heirs of the owner of a vehicle is/are substituted on the
certificate of insurance or in the certificate of registration in place of the
original owner (since deceased), the motor vehicle cannot be allowed to be used
in apublic place.  Thus, in a case where the owner of a motor vehicle has
expired, although there does not exist any statutory interdict for the person in
possession of the vehicle to ply the same on road; but there being a statutory
injunction that the same cannot be plied unless a policy of insurance is
obtained, we are of the opinion that the contract of insurance would be
inforceable.  It would be so in a case of this nature as for the purpose of
renewal of insurance policy only the premium is to be paid.  It is not in
dispute that quantum of premium paid for renewal of the policy is in terms of
the provisions of the Insurance Act, 1938.
Perusal of the ratio of aforesaid judgments of this Court shows that Section 146
of the Act gives complete protection to the third party in respect of death or
bodily injury or damage to the property while using the vehicle in public place.
For that purpose, insurance of the vehicle has been made compulsory to the
vehicles or to the owners.
This would further reflect that compulsory insurance
is obviously for the benefit of third parties.
Certificate of insurance between the owner and the insurance company
contemplates under what circumstances the insurance company would be liable to  
pay the amount of compensation. 
The relevant conditions are reproduced
hereinbelow:
                "Rules with respect to use of the vehicle
Use only for carriage of passengers in accordance with permit (contract carriage
or stage carriage) issued within the meaning of the Motor Vehicles Act, 1988.
This policy does not cover:
1. Use for organized racing, pace making, reliability trial, speed testing.
2. Use whilst drawing a trailer except the towing (other than to reward) of any
one disabled mechanically propeller (sic propelled) vehicle.
        Persons who are qualified to use the vehicle:
        Any person including the insured provided that the person driving holds an
effective driving licence at the time of the accident and is not disqualified
from holding or obtaining such licence. 
 Provided also that a person holding an
effective learner's licence may also drive the vehicle when not used for
transport of passengers at the time of the accident and such a person satisfies
the requirement of Rule 3 of the Central Motor Vehicle Rules, 1989.
        
Perusal thereof would show that there has not been any violation of the
aforesaid terms and conditions of the policy.  
The respondent Insurance Company
has also failed to point out violation of any Act, Rules or conditions of
insurance.  
The Insurance Company has no legal justification to deny the payment
of compensation to the claimants.
        In the light of the foregoing discussions, the appeal filed by the
Insurance Company fails, wherein it has been directed that the amount would
first be paid by the Company, with right to it to recover the same from the
owner of the vehicle.  
This we hold so as the liability of the Insurance Company
is exclusive and absolute.
        Thus, looking to the matter from every angle, we are of the considered
opinion that the Insurance Company cannot escape its liability of payment of
compensation to third parties or claimants.  Admittedly, owner of the vehicle
has not violated any of the terms and conditions of the policy or provisions of
the Act.  The owner had taken the insurance so as to meet such type of liability
which may arise on account of use of the vehicle.
        Apart from the above, the learned counsel for the Insurance Company could
not point out any legal embargo which may give right to it to deny the payment
of compensation.  Thus, legally or otherwise, liability has to be fastened on
the Insurance Company only." 
11(b). From this expression it is also necessary to discuss the relevant
portions
"A critical examination thereof would show that the appellant and the owner had
specifically agreed that the vehicle will be insured and a driver would be
provided by owner of the vehicle but overall control, along with the driver
would be that of the APSRTC.  
Thus, the vehicle was given on hire by owner of
the vehicle together with 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.
On account of the aforesaid discussions, it is crystal clear that actual
possession of the vehicle was with the Corporation. 
The vehicle, driver and the
conductor were under the direct control and supervision of the Corporation.
Black's Law Dictionary defines "vicarious liability" as follows:
"Liability that a supervisory party (such as an employer) bears for the
actionable conduct of a subordinate or associate (such as an employee) because
of the relationship between the two parties."
So, through the above definition, it can be inferred that the person supervising
the driver through the principle of respondent superior should pay for the
damages of the victim."
 12. From the above, for all practical purposes, for the relevant period, the
APSRTC had become the owner of the vehicle during the specific hire period.
If
the Corporation had become the owner even for the specific period and for the
limited purpose 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.
So, through the definition of vicarious liability it can be inferred that the
person supervising the vehicle through the principal-respondeat superior to pay
the damages to the victim-third party, when it is not the case of the insurer
that driver was not holding a valid licence to drive the vehicle at the time of
accident.
It has not also been contended that there is any violation of terms
and conditions of the policy from saying driver was not entitled to drive the
vehicle.
The insured admittedly received the premium for the period at the time
that bus had met with accident and the bus being plied by APSRTC.
When there is
no statutory duty cast on the owner under the Act or the Rules to seek
permission or to give intimation to insurer in case of vehicle hired with APSRTC
for it is being plied to say any violation, the insurer cannot escape the
liability muchless any legal justification to deny the payment of compensation
to the third party claimants.  It is because the liability of the insurance
company is exclusive and absolute.
13. Apart from the above expression in the Full Bench judgment of this Court in
LPA No.206 of 2000, dated 20.11.2012 between A.P.S.R.T.C. V. B.Kanakaratnabai
and others12 it was held that
"The only question that arises for consideration is as to whether the
compensation payable in respect of third party claims arising out of accident,
involving insured vehicle hired by the APSRTC, should be borne by the owner of
the vehicle or by the insurance company or by the APSRTC or by some or all of
them
A similar question as to whether the compensation payable in respect of the
claims arising out of accident involving insured but hired by the APSRTC should
be borne by the owner of the vehicle or by the Insurance Company or by the
APSRTC or by some or all of them was referred to a Full Bench of this Court and
the Full Bench in L.P.A. No.206 of 2000 and batch vide common judgment, dated 
20.11.2012 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 and notwithstanding the hiring of insured buses by the
owner to the APSRTC, the Insurance Company 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.
Therefore, we are of the opinion that the issue raised in this appeal by the
APSRTC is squarely covered by the Full Bench judgment of this Court.
Having regard to the facts and circumstances of the case, the appeal is allowed
setting aside the order dated 22.03.2010 passed in O.P.No.904 of 2008 by the
Tribunal, in so far as dismissing the same as against the owner and insurance
company.  The 8th respondent-insurance company is directed to honour the claim 
of respondents 1 to 6 herein as ordered by the Tribunal notwithstanding hiring
of the said vehicle by the owner in favour of the APSRTC, as it is solely and
exclusively liable to pay compensation arising out of the third party claims."
14. The above propositions of law thus crystallizes the issue on hand to the
conclusion that even the APSRTC, for the limited purpose during the agreement of
hire in force, having control over the bus as well as the driver that belongs to
the owner by engaging its own conductor in plying the bus got control over it to
a limited extent as owner, the real owner is always the original person who
hired the bus and owned the bus registered in his name and once the insurance
company insured the vehicle by impugning for its hiring, insurer cannot escape
the liability muchless fastened the liability solely on the APSRTC.
As the bus
was taken on hire for plying by the APSRTC and from above expression of the
Honourable Apex Court, no doubt there is something left open to say that if
there is any violation of the policy terms and conditions saying that the driver
of the bus was not having valid driving licence at the time of accident; whether
the insurance company is liable to be exonerated and if so, the real owner or
the APSRTC limited owner can alone or both together subject to any direction to
the insurer to pay and recover from real owner to be given in the present case
that aspect also does not arise to answer but for to say among the respondents 1
to 3 i.e., real owner and the insurer of the bus which hired to APSRTC are
jointly liable and not the APSRTC.  From the above it is though not necessary
but for the purpose to clear the cloud to observe that even if there is any
violation from the driver engaged by the real owner from any conscious knowledge
of not having effective driving licence to make him liable but for the real
owner and not the APSRTC as limited owner, to be made liable to pay and recover
if at all the insurer was made liable to pay to recover by execution of the
award only against the real owner and not against the APSRTC who is not the real
owner.  Accordingly the above points for consideration were answered.
15. In the result, the appeal is allowed while confirming the quantum of
compensation of Rs.3,29,000/- with 7.5% interest awarded by the Tribunal in
favour of the claimants, however  by modifying the finding of the Tribunal in
fixing liability only against the 3rd respondent-APSRTC (appellant herein) to
the joint liability by directing the 2nd respondent-insurer of the vehicle to
satisfy the claim by payment or deposit of compensation amount (indemnifying the
real owner-insured) within one month from today, failing which the claimants can
execute and recover to the credit of the O.P before the Tribunal.  It is subject
to that the A.P.S.R.T.C. is permitted to withdraw the amount already made in
deposit.  On other aspects, the finding of the Tribunal regarding apportionment
and withdrawal holds good.  There is no order as to costs.
______________________    
Dr.B.SIVA SANKARA RAO, J  
Date:02-01-2014

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