The General Manager, Rajasthan State Road Transport vs Hari Prasad s/o Shri Bal Kishanji Tinwari

This appeal is directed against the judgment and award

dated 17/9/1999 passed by Motor Accident Claims Tribunal,

Chittorgarh (''the Tribunal''), whereby, the Tribunal awarded a sum

of Rs.90,220/- as compensation against the appellant Corporation

and has exonerated the owner of the bus along with Insurance

Company.

The application for compensation was filed by Hari Prasad

for the injuries suffered by him while travelling in bus No. RJ-14-

P-2795.

The application for compensation was contested by the

owner of the vehicle as well as the Corporation with which the

vehicle was attached/on contract.

The Insurance Company also contested its liability to make

payment of amount of compensation on the ground that the

vehicle in question was on contract with the appellant Corporation,

and as the Insurance Company had contracted for compensating

the owner i.e. non-claimant no.4, the Insurance Company cannot

be saddled with the liability.

The Tribunal after hearing the parties, relying on the

judgment in the case of RSRTC vs. Kailash Nath Kothari & Ors :

(1997) 7 SCC 481, came to the conclusion that owner of the

vehicle as well as the Insurance Company were not liable and it

was only the Corporation which was liable for making payment of

amount of compensation.

Feeling aggrieved, the appellant Corporation has filed the

present appeal.

It is submitted learned counsel for the appellant that the

Tribunal committed error in relying on the judgment in the case of

Kailash Nath Kothari (supra) and that the said judgment has

subsequently been considered by the Hon''ble Supreme Court in

the case of Uttar Pradesh State Road Transport Corporation vs.

Kulsum & Ors . : (2011) 8 SCC 142, wherein, it has been laid down

that the Insurance Company cannot escape its liability and that

the judgment in the case of Kailash Nath Kothari (supra) pertained

to the Motor Vehicles Act, 1939, the same would not have no application.

Learned counsel appearing for the Insurance Company

submitted that the Tribunal was justified in coming to the

conclusion that the Insurance Company was not liable to make

payment of amount of compensation and the case is covered by

the judgment in case of Kailash Nath Kothari (supra), which does

not require any interference.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The Hon''ble Supreme Court in Kulsum (supra) while

considering the case of Kailash Nath Kothari (supra) inter alia laid

down as under:

"18. In our considered opinion, in the light of the drastic and distinct changes incorporated in the definition of "owner" in the old Act and the present Act, Kailash Nath case has no application to the facts of this case. We are unable to persuade ourselves with the specific question which arose in this and connected appeals as the question projected in these appeals was neither directly nor substantially in issue in Kailash Nath case. Thus, reference to the same may not be of much help to us. Admittedly, in the said case, this Court was dealing with regard to earlier definition of "owner" as found in Section 2(19) of the old Act. 19. Section 2(19) of the Motor Vehicles Act, 1939 is reproduced hereinbelow: "2. (19) ''owner'' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire- purchase agreement, the person in possession of the vehicle under that agreement;" 20. A critical examination of both the definitions of the "owner" would show that it underwent a drastic change in the Act of 1988, already reproduced hereinabove. In our considered opinion, in the light of the distinct changes incorporated in the definition of "owner" in the old Act and the present Act, Kailash Nath Kothari case shall have no application to the facts of this case." "41. In the light of the aforesaid discussion, the appeals of the Corporation are allowed. The impugned judgment 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."

Admittedly, the accident in the present case took place on

2/7/1995 and the provisions applicable would be of the Act of

1988 and, therefore, the Tribunal was not justified in relying on

the judgment in the case of Kailash Nath Kothari (supra), which

pertained to a case which arose under the Act of 1939.

In view of the above discussion, the direction of the Tribunal

exonerating the owner and the Insurance Company cannot be

sustained.

Consequently, the appeal of the Corporation is allowed. The

judgment and award dated 17/9/1999 is modified to the extent

that along with the appellants, the owner of the bus as well as

Insurance Company would be jointly and severally liable for

making payment of amount of compensation as awarded by the

Tribunal.

Learned counsel for the appellant submitted that amount of

Rs.25,000/- was deposited by the appellant under proviso to

Section 173 of the Act of 1988 at the time of filing of the appeal

and while admittedly the appeal, rest of the award was stayed by

this Court.

In view of the above, the Insurance Company is directed to

make payment of the balance amount of award along with interest

as awarded within a period of six weeks to the claimant/claimants.

Further, the amount paid by the appellant Corporation would also

be refunded back along with interest @ 7% p.a. from the date the

amount was deposited by the appellant Corporation till the date of

actual payment.