- (1.) These two Civil Revision Petitions are being disposed of by this common order, at the admission stage, as they arise out of the applications in O.P.No.599 of 2013 on the file of the learned Principal District Judge, Mahabubnagar, seeking identical reliefs.
(2.) C.R.P.No.427 of 2016 arises out of an order in I.A.No.1309 of 2014, whereas C.R.P.No.772 of 2016 arises out of an order in I.A.No.1355 of 2014. Both the petitions were filed by the second respondent in O.P.No.599 of 2013. They were dismissed by a common order on 18.09.2015, challenging which the present Civil Revision Petitions are filed.
(3.) A ghastly road accident took place on 30.10.2013 at about 5:10 a.m. on the outskirts of Palem Village on NH -44 road (RHS) at culvert No.129/1 near KM stone No.128 Hyderabad in front of 33/11 KV electricity sub -station, where the entire bus was burnt along with the passengers. The Volvo bus bearing No.AP 02 TA 0963 started from Bangalore city on 29.10.2013 at about 11 p.m. with total occupancy. When it crossed the Pullor toll plaza, the driver of the bus appears to have driven it in a rash and negligent manner and dashed it to the culvert No.129/1 on the median (which is open to the sky in the middle), as a result of which the diesel tank was broken, sparks and flames erupted and total bus engulfed in fire, resulting in death of 45 passengers (including a little child). The above Original Petition was filed by three claimants claiming an amount of Rs.1,00,00,000/ - for the death of one Mohammed Asif in the said accident. The claim petition was filed against the owner of the bus, the insurance company and two others. A written statement was filed by the second respondent, insurance company in the said O.P and the relevant portions of the written statement are extracted hereunder: 8. It is humbly submitting that during the course of investigation by the police authority, it has came into light that the incident has occurred due to negligent in building the culvert protruding on the outer side of the highway road exposing to the risks of accidents by the National Highway Authority of India (hereinafter referred to as 'NHAI'). , 9. It is submitted that at the very same point of time, the investigation has revealed the manufacturing defect in the placement design of the battery and fuel tank in the Volvo Bus by the manufacturer i.e. M/s.Volvo Buses India Pvt. Ltd. (hereinafter referred to as 'M/s.Volvo'). 10. It is humbly submitted before the Hon'ble Tribunal that the petitioners may kindly be directed to join M/s.Jabbar Travels, the NHAI and M/s.Volvo as they are found to be necessary parties to the proceedings. 12. It is humbly submitted that M/s.Volvo is negligent in not providing the emergency exit door in the Volvo Buses and the very same point of time, ARAI was negligent in approving the design of the bus sparing the safety of the passengers. Hence the petitioners may kindly be directed to join the ARAI as they are found to be necessary parties to the proceedings. 18. It is submitted that the luggage compartment of the bus is meant to carry the baggage of the passengers traveling in the insured vehicle. At the material time of the accident, the respondent/insured and the alleged Lessees had permitted carriage of the good and parcels viz. baby -corn bags weighing in tones, cut hairs, cell phones, memory cards, boxes of flowers, iron, leather photo frames, pumps and machinery parts, etc. belonging to the entities other then the passengers. Hence this Insurance Company is not liable to pay any compensation. 21. This carriage of goods and plying the vehicle as stage carriage is grossly in violation of the permit and therefore, this respondent is not liable to indemnify the insured and/or any other respondents against their Third party liability. 27. It is submitted that further, the placement of the battery and the fuel tank in the design of the Volvo was found very close to each other. There are 3 interconnected fuel tanks with 600 liters capacity adjacent to the battery compartment. It was observed that the impact of the bus with the culvert led to bursting of the fuel tank and sparks from the battery which was the resultant effect of the ill -fated incident of fire in the bus. With the high fuel capacity, the fire engulfed the bus rapidly leaving the driver and the attendant -cleaner incapable to save the lives of the passengers who were in deep sleep in the early hours of the morning. 28. In view of the above facts, the incident has occurred solely on of the negligence and neglect of the NHAI in building the defective culvert. Further, M/s.Volvo is equally negligent in building the wrong design of the bus in placing the fuel tank and the battery in the proximity to cause such an ill -fated event and providing the emergency exit to ensure the safety of the passengers. It is further submitted that the ARAI is also negligent in approving the design of the Volvo Buses which endangers human life. It is submitted that the fitness to the said vehicle was issued by the Motor Vehicle Inspector - RTO Bangalore Central on dt.07.10.2013 who has shown negligence by ignoring the safety precautions and measures viz. fire extinguishers, emergency exit doors, hammer to break the window in case of emergency by allowing the said bus to ply on the road in such unsafe conditions and hence, the liability may kindly be saddled on the above mentioned tort feasors and hence this respondent is not liable to pay any amount of compensation to the petitioners. 34. This respondent submits that the Provisions of Section 147 makes it clear that the policy of insurance will have to insure the person (the owner) against any liability, which may be incurred by him (owner). Therefore, unless there is a liability fixed on the owner, the question of the insurance company indemnifying the owner will not arise. In other words, the Act presupposes that before calling upon the insurance company to satisfy the judgment and awards, it is precondition that there must be actual liability being cast on the insured and unless such a liability exists, the question of the insurance company being saddled with the responsibility to satisfy the judgment and award, does not arise. 36. This respondent craves leave of this Hon'ble Court to take all defenses available to the Respondent No.1 under section 170 of M.V.Act and contest the case on all the grounds apart from those specified U/s.149(2) of M.V.Act." I.A.No.1309 of 2014 was filed seeking impleadment of proposed respondent Nos.5 to 7 therein, who were stated to be the lessees of the bus, and I.A.No.1355 of 2014 was filed seeking impleadment of proposed respondent Nos.8 to 11 therein i.e., the National Highway Authority of India, M/s.Volvo Buses India Pvt. Ltd., Automotive Research Association of India and the Motor Vehicle Inspector - RTO Bangalore Central, Bangalore. The application in I.A.No.1309 of 2014 was supported by an affidavit stating that on the date of the accident, the bus was leased to the proposed respondent Nos.5 to 7 therein, who were in possession of the bus and the driver was under their sole control and hence they are necessary to be impleaded as parties. An affidavit was filed in support of I.A.No.1355 of 2014 with the following averments:;