(Prayer: This MFA Filed Under Section 173 (1) of MV Act praying to call for the records in Mvc.No.706/2009 on the file of the PRL. Civil Judge (Sr. Dn) and MACT, Gulbarga Dated 12.07.2010, set aside the judgment and award Dated 12.07.2010 passed by the Prl. Civil Judge (SR. DN) And MACT, Gulbarga, In Mvc.No.706/2009 by allowing the above appeal and set aside the judgment and award Dated 12.07.2010 passed by the Prl. Civil Judge (Sr. DN) and MACT, Gulbarga, in respect of imposing the liability on the appellant and the NEKRTC is liable to pay the award amount, by allowing the above appeal.)
1. The Insurance Company has filed present appeal against the judgment and award dated 12.07.2010 on the file of Prl. Civil Judge (Sr. Dn) and MACT Gulbarga awarding compensation of Rs.3,37,000/- with 6% interest per annum from the date of petition till realization.
2. It is the case of the claimants that on 25.04.2009 deceased Hameedsab was traveling along with other passengers in a NEKSRTC bus bearing No.KA-39-F-83 Gunj Bus Stand Gulbarga to go to his village Ratkal. When the said bus was plying near Swami Samarth Temple situated on Gulbarga- Humnabad main road, in the limits of Aurad village, the driver after hearing sound, suddenly stopped the bus and parked on the left side of the road and saw that the front right tyre was punctured. The driver, Nizamuddin got down from
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the bus and fixed the jack and started to remove the tyre. The deceased and other passengers of the bus got down from the bus and stood in front of the bus and were watching the replacing of the tyre. At that time at about 07.30 p.m. another NEKRTC (Private) bus bearing No.KA-39-1727, which was coming from Gulbarga side, being driven by its driver, in a rash and negligent manner in a high speed, suddenly hit to the parked bus from backside. As a result Nizamuddin and deceased Hameedsab both struck below the front wheel. The wheel of the bus ran over the legs of deceased and driver. The driver Nizamuddin succumbed on the spot due to the injuries and Hameedsab along with other passengers sustained fatal injuries.
3. A criminal case was registered against the respondent No.1 in Crime No.124/2009 in Gulbarga (R) Police Station, Gulbarga. It is further contended that deceased Hameedsab was hale and healthy prior to the accident and was aged about 50 years. It is submitted that he was running a Hotel, Kirana Business, was also a Nayab Khazi and also agriculturist by profession and thereby earning Rs.6,000/- per month and contributed the same to the welfare of the family. The deceased was the only bread earner of his family. The petitioners were dependent on the deceased. The accident occurred due to the rash and negligent driving of the NEKSRTC Bus bearing No.KA-39-1727 by the respondent No.1. The respondent No.2 is the owner of the said Bus and the said vehicle is insured with respondent No.3. As such respondents No.1 to 3 are jointly and severally liable to pay compensation to the claimants for the death of the deceased.
4. The respondent No.2 did not appear before the Court and placed ex-parte on 08.09.2009. The respondent No.1 and 3 appeared through their counsels. But respondent No.1 did not filed any objection. The respondent No.3 has filed written statement denying the death of deceased in a Road Traffic Accident and also denied the age, income and occupation of the deceased. It was further contended that the amount of compensation claimed by the claimants is highly excessive, exorbitant and with any basis. Therefore, sought for dismissal of the claim petition.
5. Based on the aforesaid rival pleadings, the Tribunal framed the following issues;
01. Whether the petitioners prove that on 25.04.2009 the deceased Hameedsab was standing in front of the bus as the said bus was punctured as he was traveling in the saidbus from Swamy Samarth Temple situated on Gulbarga-Humnabad main road, at that time another NEKRTC (private) bus bearing No.KA-39-1727 came from Gulbarga side driver by respondent No.1 who drove the same in a rash and negligent manner so as to endanger human life and dashed to the standing bus and due to that parked bus moved for a short distance and ran over the legs of deceased Hameedsab and caused the accident?
02. Whether the petitioners further prove that, the above said accident occurred due to the rash and negligent driving of the driver of the another NEKSRTC bus bearing NO.KA-39-1727, as a result, deceased Hameedsab died in the Hospital while treatment as alleged?
03. Whether the petitioners are entitled for the compensation? If so, to what amount and from whom?
04. What award or order?
6. In order to establish the case of the claimants, the claimant No.1 examined as PW.1 and marked documents Exs.P.1 to 6. On the other hand respondent No.3 examined as RW.1 and marked the documents Exs.R.1 and R.2.
7. The Tribunal considering the entire material on record, recorded a finding that claimants have proved that deceased was standing in front of the bus as the said bus was punctured, as he was traveling in the said bus. At that time another NEKRTC (Private) Bus bearing No.KA-39-1727 came from Gulbarga side, driver of the said bus drove the same in a rash and negligent manner and dashed to parked bus and it is moved for a short distance and ran over the legs of deceased Hameedsab. As a result deceased died to accidental injuries and claimants are entitled for compensation. Accordingly, the Tribunal has awarded compensation of Rs.3,37,000/- with 6% per annum from the date of petition till realization. Hence, present appeal is filed by Insurance Company for setting aside the judgment and decree passed by the Tribunal.
8. I have heard learned counsel for the appellant.
9. The respondents served and unrepresented.
10. Sri.S.S.Aspalli, learned counsel for the appellant-Insurance Company contended that, the impugned judgment and award passed by the Tribunal awarding compensation of Rs.3,37,000/- with interest at the rate of 6% per annum from the date of petition till realization is without any basis and same is liable to be set-aside. He would further contended that Tribunal is pleased to hold that, the Insurance Company is liable to pay the compensation, which is illegal and against the well established Principles of Law settled by the Apex Court in the case of Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari and others, reported in AIR 1997 SC 3444 and New India Assurance Co. Ltd., vs. B.G. Suma and others reported in 2004(2) ACJ 883.
11. He would further contended that NEKRTC is in actual possession and control of the said Bus bearing Reg.No.KA-39-1727 under the direction of NEKRTC. The driver is obliged to operate the said Bus and the Bus was hired by the NEKRETC and was running on the route with a permit granted in favour of NEKRTC by competent authority. Hence, NEKRTC is liable to pay the compensation awarded by the Tribunal and not by the Appellant-Insurance Company. He would further contended that NEKRTC is a necessary party to the proceedings since the appellant is not liable to pay the compensation. Due to non impleading of necessary party to the proceedings appellant is not liable to pay the compensation. Hence, impugned judgment and award passed by the Tribunal is liable to set-aside.
12. He further contended that there is a contributory negligence on the part of the deceased Hameedsab in standing himself which was dangers and the deceased had also exposed to danger. The Tribunal has not taken into consideration the contributory negligence. Therefore, he sought to set-aside the judgment and award passed by the Tribunal.
13. Having heard the learned counsel for the appellant, it is not in dispute that the respondents/claimants have filed a claim petition claiming compensation on account of the death of the deceased Hameedsab who died in a road traffic accident on account of rash and negligent driving of the driver of the bus bearing No.KA-39-1727. The evidence of PW.1 and material documents Exs.P1 to P6 clearly depicts that the deceased died due to rash and negligent driving of the driver of the bus stated supra. The said finding recorded by the Tribunal has reached finality.
14. The only contention raised by the learned counsel for the appellant that NEKRTC is in actual possession and control of the said bus bearing Reg.No.KA-39-1727 under the direction of NEKRTC. The driver is obliged to operate the said bus and the bus was hired by the NEKRTC and was running on the route with a permit granted in favour of NEKRTC by the competent authority. Hence, NEKRTC is liable to pay the compensation awarded by the Tribunal and not by the Appellant-Insurance Company. The said contention cannot be accepted.
15. The material on record clearly depicts that NEKRTC bus bearing No.KA-39-1727 of respondent No.2 was insured with the appellant - insurance company. The policy is issued in respect of the said bus of respondent No.2 to use the same under their control only and the said policy was valid as on the date of the accident. In the course of cross-examination of RW.1, he admits that the policy was valid and in force as on the date of the accident. He also admits that the bus was meant for carrying passengers and on the date of the accident it was carrying passengers from Gulbarga to Humnabad and he does not have knowledge whether the bus bearing No.KA-39-1727 dashed to the bus bearing No.KA-32/F-832, which was parked on the road. He also admits that he does not know whether the deceased was travelling in the bus, which was stationed and also admits that under what capacity the bus was under the control of the NEKRTC. He also admitted that he has not seen any agreement or document pertaining to the Kalyani travels and NEKRTC.
16. The Tribunal further recorded a finding that in view of the dictum of this Court in the case of New India Assurance Co. Ltd., vs. Venkatlaxmi and Others made in MFA No.6393/2008 held that the bus involved in the accident was under the control of the owner and not under the control of KSRTC. Following the said judgment, the Tribunal recorded a finding that there is no evidence to show that the driver was employed by the NEKRTC and the bus exclusively under the control of NEKRTC. Therefore, held that the respondent No.3 - Insurance Company/present appellant is liable to pay compensation to the claimants. It was further held that due to rash and negligent act of respondent No.1 - driver of NEKRTC (private) bus bearing No.KA-39-1727, the accident has occurred. Respondent No.2 being the owner and respondent No.3 being the insurer of the said vehicle are liable to pay the compensation to the claimants.
17. The judgment relied upon by the learned counsel for the appellant in the case of Rajasthan State Road Transport Corporation supra has no longer res-integra in view of the dictum of the Hon'ble Supreme Court in the case of Uttar Pradesh State Road Transport Corporation vs. Kulsum and Others reported in (2011) 8 SCC 142. Considering the judgment relied upon by the learned counsel for the appellant in Rajasthan State Road Transport Corporation supra, the Hon'ble Supreme Court in paragraph Nos.35 and 39 to 42 held as under:
"35. Perusal of the ratio of aforesaid judgement 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.
39. 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.
40. 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.
41. In the light of the aforesaid discussion, the appeals of the Corporation are allowed. The impugned judgement and order passed by the High Court qua the Corporation are hereby set aside and quashed and we hold that the Insurance Company would be liable to pay the amount of compensation to the claimants.
42. The appeals filed by the Corporation thus stand allowed and the appeal filed by the Insurance Company stands dismissed with costs. Counsel's fee quantified at Rs.10,000 in each appeal."
18. In view of the aforesaid reasons, the impugned judgment and decree passed by the Tribunal directing the appellant to pay compensation to the claimants in a sum of Rs.3,37,000/- with interest at 6% per annum is in accordance with law. The appellant has not made out any ground to interfere with the impugned judgment and award by exercising the powers of this Court under the provisions of Section 173(1) of the Motor Vehicles Act.
Accordingly, the appeal is dismissed.
19. The learned counsel for the appellant submits that the entire award amount made by the Tribunal has been deposited before the Tribunal. Therefore, he submits that the statutory deposit made before this Court has to be refunded to the appellant.
The said submission is placed on record.
Office is directed to refund the statutory deposit to the appellant in accordance with Law.