The APSRTC vs Kotra Allaji

Dr. B. Siva Sankara Rao, J.—The Managing Director, A.P.S.R.T.C-3rd respondent to the claim petition filed this appeal, having been aggrieved by the Order/Award of the learned Chairman of the Tribunal-cum-IV Additional Metropolitan Sessions Judge-cum-XVIII Additional Chief Judge, Hyderabad, (for short, Tribunal) in O.P. No. 384 of 2008 dated 15.06.2010, awarding compensation of Rs. 1,54,500/- (Rupees one lakh fifty four thousand five hundred 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 original owner and insurer of the vehicle (hired with RTC) as against the claim of claimants 1 and 2 of Rs. 2,00,000/- (Rupees two lakhs only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, the Act).

Heard learned standing counsel for the appellant (APSRTC), learned counsel for the respondents 1 and 2 (claimants) and learned standing counsel for the 4th respondent (insurer). The 3rd respondent herein who is the original owner of the bus, hired to appellant--RTC though served called absent, remained ex parte and thus taken as heard 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 (a). The contentions in the grounds of appeal as well as the oral submissions, during the appeal hearing, by the appellant (3rd respondent-APSRTC) in nutshell are that though it is the bus hired 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. It is also the contention that the tribunal went wrong in exonerating the insurer though the law is fairly settled as per the Apex Courts expression in Uttar Pradesh State Road Transport Corporation V. Kulsum and the subsequent Full Bench expression of this Court in APSRTC, Hyderabad V. B. Kanakaratnabai, hence to fix the liability only on the 2nd respondent-insurer to indemnify the 1st respondent- owner of the bus as the insurer cannot exonerate the liability merely because the bus is hired by the owner with APSRTC R3.

3 (b). It is contest particularly by the claim petition 2nd respondent Insurer of the vehicle belongs to the 1st respondent as not liable for the vehicle is under hire with APSRTC by the owner during the relevant time of accident and with other contentions of driver not having valid license, there is failure of intimation under Section 157 of the M.V. Act about the bus hired to the RTC by kept under control of RTC by the 1st respondent owner of the vehicle, which is a breach and that aspect not fallen for consideration in Kulsum (supra) and earlier to Kulsum it was considered by the 3 Judge bench expression of the Apex Court in Rikhi Ram vs. Smt. Sukhrania that the transferee for non-intimation to insurer of the transfer, cannot get any personnel benefit under the policy, however, so far as third party injured or victim concerned, he can enforce liability undertaken by the insurer; but insurer can recover the same from insured or transferee and further latest expression of Apex Courts three judge bench in Purnya Kala Devi vs. State of Assam holding that when the bus was under the possession and control of the State of Assam having been requisitioned at the time of accident, it is the owner as per Section 2(30) of the M.V. Act to be made liable to compensate the claimants and as such since the bus was in hire with APSRTC that can be termed as owner within the meaning of Section 2(30) of M.V. Act and therefore, APSRTC has to bear the liability but not the Insurance Company hence to dismiss the appeal by upholding the findings of the Tribunal though not in reverse to the above law.

3 (c). It is the contention of the respondents 1 and 2 (claimants) to the appeal that the Court can decide on merits whoever liable to pay compensation for their entitlement as the accident was result of rash and negligent driving of the driver of the bus owned by 1st respondent, that was insured with 2nd respondent and hired with 3rd respondent. The 3rd respondent to the appeal (1st respondent to the claim petition) original owner of the bus remained ex parte even served equally before the Tribunal, hence taken as heard to decide on merits.

3 (d) Perused the material on record. The parties are being referred as arrayed before the Tribunal for sake of convenience.

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 within the meaning of Section 2(30) of M.V. Act, in fastening the liability on the RTC alone is unsustainable and requires interference by this Court while sitting in the appeal, if so, with what observations and conclusions on the liability of the insurer and insured?

To what result? POINT No. 1."

The facts in nutshell are that on 14.01.2008 at 7.30 am the deceased Arun Kumar and his mother were waiting near Chennaram bus stop to cross the road, a bus bearing No. AP 22 W 3520 driven by its driver in a rash and negligent manner at high speed came from the direction of Achmapet and hit Arun Kumar and his mother--2nd petitioner as a result, 2nd petitioner sustained grievous injuries and her son Arun Kumar sustained fatal injuries and died on the spot. There is no dispute in the manner of accident and the age of the deceased and the age of the parents and entitlement to the compensation but for the dispute is in relation to which of the respondents that are liable to pay compensation.

Before coming to the dispute against fixation of liability on the 3rd respondent-APSRTC and not fixing the liability jointly against the respondents 1 and 2 being original owner (insured) 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. James, 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. Tolly remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver 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 Limited 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.

Now, coming to the liability, the 1st respondent in claim petition is the owner of the bus bearing bus No. AP 22 W 3520 which was hired with the 3rd respondent-APSRTC insured with 3rd respondent-Insurance Company covered by Ex. B-1 policy. 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 question is whether that by itself exonerates the real owner and the insurer though APSRTC is a limited owner within the meaning of Section 2(30) of the Act so long as the 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.

In this regard the Apex Court in Kulsums case (1 supra) by referring to Section 146 to 149, 157 read with Section 2(30) 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.

8(a). The Apex Court in Guru Govekar V. Filomena F. Lobo 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 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 a public 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:

Use for organized racing, pace making, reliability trial, speed testing.

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 learners 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.

8(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.

Blacks 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.

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-respondent 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 third party risk for the period at the time that bus had met with accident and the bus being plied by APSRTC. No doubt the above expression in Kulsums case (supra) proceeded that 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 much less any legal justification to deny the payment of compensation to the third party claimants. In fact Section 157 of the Act provides that the insured-owner in the event of transfer of ownership of the vehicle also deemed transferred the certificate of insurance (policy) w.e.f. date of vehicle ownership with rights and liabilities of the policy. Further that the transferee shall apply within (14) days of transfer of vehicle ownership to the insurer for making necessary changes in the certificate of insurance (policy). The term transfer is not defined in the Act but for the term owner in Section 2(30) that includes person in possession of hire purchase or lease or hypothecation agreement. The Apex Court in Rikhi Ram (3rd supra) held the non-intimation of transfer of ownership even no way exonerates insurer from liability but for saying on that case the insurer can recover from insured or transferee. That expression is not relating to lease but alienation of ownership rights by sale. Section 157 of the Act from reading of the expression in Kulsums case to say not applicable to hiring of vehicle but for transfer by sale, though it was not so held in specific terms, in holding of rights, conceded by counsel for insurer of no specific provision of intimation to insurer about hiring and any non-intimation to exonerate the insurer. It is because the liability of the insurance company is exclusive and absolute to the third party from the Act policy even, leave about any other specific coverage of risks.

Apart from the above expression in the Full Bench judgment of this Court [in LPA No. 206 of 2000, dated 20.11.2012] in APSRTC Vs. B. Kanakaratnabai and others (2nd supra) 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.

In the expressions of kakanaratna bais case (2nd supra) and Rikhi Rams case (3rd supra) also referred and held at para 81 that It is however to be noticed that in all the cases, premium towards liability towards passengers and third party risk was collected. Once separate premium was collected by the Insurance Companies for covering the risk to the passengers and third parties, it is no longer open to them to escape their liability in this regard. The failure in paying the additional premium as per IMT.44, at best, would absolve the Insurance Companies from covering the liability and loss, if any, of the APSRTC. It would not extend to protect the Insurance Companies from their acknowledged liability towards third parties as is evident from the policy documents. The Supreme Court in Rikhi Rams case (supra), in no uncertain terms, held that whenever a vehicle covered by an Insurance Policy was transferred to a transferee, the liability of the insurer would not cease so far as the third party/victim is concerned, even if the owner or purchaser did not give intimation as required under the provisions of the Act. The cases on hand stand on a better footing as the insured, being the owner of the vehicle, did not transfer the title or ownership of the vehicle but only its possession. IMT.44, as pointed out earlier, has application when the hirer of the vehicle requires protection and it does not apply to or abridge the liability of the Insurance Company insofar as third party risks are concerned.

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 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 even not intimated, the insurer cannot escape the liability to third parties much less can say to fasten the liability solely on the APSRTC. As the bus was taken on hire for plying by the APSRTC and from above expression of the Hon''ble 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 license 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 even from any non-intimation of hire, for not a case of driver having no valid license and the like for pay and recovery 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.

Now coming to the decision of Purnya Kala Devis case (4th supra) placed reliance on by the insurer to the contention of RTC is the owner and not the hirer (original owner) concerned as observed by this Court in MACMA Nos. 2953 of 2009 and 1846 of 2010 dated 22.04.2014 the said decision in Purnya Kala Devi will not come in aid to the Insurance Company to claim exoneration from liability for the reason that in that case one Md. Abdul Salam, registered owner of the bus (who did not at all insure the vehicle) was requisitioned by the State of Assam on Government Duty and within two days of requisition the vehicle under the control of Government while driving on the way it dashed the cyclist, who died and the vehicle for not covered by Insurance, the claim was preferred against the registered owner and State of Assam. The registered owner contended that the vehicle at the time of accident was under the requisition and control of the State Government that is only liable to pay. Whereas the State taken a converse plea that it only requisitioned the vehicle and not the owner under the provisions of Assam Requisition and Control of Vehicles Act, 1968 and the Tribunal though directed the registered owner, placing reliance on the Act, to pay compensation exonerating the State of Assam. On appeal by the claimants, the High Court of Gauhati enhanced the compensation but held that the State Government was not liable as it was not the owner. On appeal, the Apex Court by referring to Section 2(30) of M.V. Act on the definition of owner held when the vehicle was not released by the State Government by serving notice in writing on the owner as contemplated by Section 5(1) of the Assam Act as such the State can be squarely covered under the definition of owner as contained in Section 2(30) of the M.V. Act and fastened the liability on the State of Assam.

Here, appellant did not requisition the vehicle with full control but only taken possession without ownership to ply on hire as discussed supra in Kulsums case of the Apex Court and also the full bench expression of this Court in Kanakaratna Bai (supra) though under Section 2(30) of the Act the owner in the limited purpose for the vehicle not only that who has hired to APSRTC but also the APSRTC.

Having regard to the above, it is the insurer to indemnify the original owner with joint liability along with the original owner as well as the APSRTC and the tribunal went wrong in exonerating the original owner and insurer and in fixing liability only against the APSRTC-3rd respondent to the claim in stead of saying all the three respondents are jointly liable for the insurer to indemnify 1st respondent as well as the hireree--3rd respondent. Accordingly, point No. 1 is answered.

Point No. 2:

In the result, the appeal is partly allowed by fixing joint liability against claim petition respondents 1 to 3 that the original owner and the 3rd respondent to whom the original owner hired the vehicle as well as the vehicle insurer 2nd respondent to indemnify the original owner as well as the APSRTC equally the owner within the definition of Section 2 Subsection 30 of M.V. Act. Needless to say if any amount paid or deposited by the APSRTC, if not permitted to withdraw can claim back by filing cheque petition and any amount permitted to withdraw by claimants, the APSRTC can recover from the insurer and the insurer thus to pay the remaining.

Miscellaneous petitions, pending if any, in this appeal shall stand closed.