Prakash Krishna - (1.) -All the three appeals were heard together and are being disposed of by a common judgment as common questions of law and facts are involved. These appeals are under Section 110D of Motor Vehicles Act, 1939.
(2.) ON 15.3.1984 in a collision in between Bus No. USI-9813 and Bus No. DLP 1231, one Ajay Sharma and his sister Smt. Madhu Shukla lost their lives and husband of Madhu Shukla i.e. brother-in-law of Ajay Sharma received injuries. Parents of Ajay Sharma filed Claim Petition No. 23 of 1984 giving rise to the First Appeal From Order No. 336 of 1988. These persons were travelling in Bus No. USI 9813. The claim petition was filed by the parents of Ajay Sharma on the pleas inter alia that the driver of the Bus No. USI 9813 in which Ajay Sharma was travelling from Moradabad to Rampur side was driving it rashly and negligently. When the bus reached near village Kunda about 6 kilometres away from Rampur towards Moradabad, the Bus No. DLP 1231 came from Rampur side and there took place head-on-collision between the aforesaid two buses. The driver of Bus No. USI 9813 lost control over the speed and it fell into a ditch (Khad.) Ajay Sharma and his sister Madhu received fatal injuries. The Bus No. USI 9813 was insured with the appellant, Oriental Fire and General Insurance Company, was being plied under the control of U. P. State Road Transport Corporation. The Claims Tribunal decreed the Claim Petition No. 23 of 1984 for recovery of Rs. 34,000 against the defendant No. 3 therein, namely Oriental Fire and General Insurance Company. The Oriental Fire and General Insurance Company has approached this Court by way of above First Appeal From Order No. 336 of 1988. ON similar allegations the Claim Petition No. 12 of 1984 was filed by Shri Shreekant Shukla, husband of Smt. Madhu Shukla claiming compensation of the death of his wife, before the Claims Tribunal and he has been awarded a sum of Rs. 28,600 against the insurance company, the appellant herein by the award dated 30.1.1988. Shri Shreekant Shukla who was also a co-passenger had received injuries, filed the Claim Petition No. 11 of 1984 for compensation of injuries received by him the aforestated accident before the Claims Tribunal and it has awarded a sum of Rs. 24,000 by the award dated 3rd of January, 1988 against which the First Appeal From Order No. 428 of 1988 has been filed. It was jointly agreed by the learned counsel for the parties that in all these three appeals, a common question whether award can be passed on the facts of the present case against the insurance company, is involved. These appeals were heard together and are being disposed of by a common judgment. Issue No. 5 was framed in Claim Petition No. 23 of 1984 to the following effect: "Who is liable to pay compensation", is the point involved in these appeals. It is not in dispute that the ill-fated Bus No. USI-9813 was insured with the present appellant at the relevant point of time when the accident took place. It is also not in dispute that the said bus was being plied under the control of U. P. State Road Transport Corporation. Shri K.S. Amist, the learned counsel for the appellant in all these appeals submits that in view of the fact as the bus in question was under the control of U. P. State Road Transport Corporation, the registered owner ceases to be owner of the vehicle and as such the insurer is not liable to indemnify the insured person. Shri Sameer Sharma, the learned counsel for U. P. State Road Transport Corporation, on the other hand, submits that in view of Section 95 and various other provisions of Motor Vehicles Act, 1939, the insurer is liable to pay the compensation amount to the claimant. It has come on the record that the bus in question was being driven by the driver of the insured person. But the tickets to the passengers were issued by the U. P. State Road Transport Corporation. It has also been admitted that in the fare, passenger's tax and insurance charges were included therein. The Tribunal under issue No. 4 reached to the conclusion that in view of Section 95 (1) (b) of the Motor Vehicles Act, the insurer is liable to indemnify the insured person. The Bus being driven by the driver of the insured person, the master (owner) is vicariously liable for the act of his servant.
(3.) STRONG reliance was placed by the learned counsel for the appellant on a decision of the Apex Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and others, 1997 ACJ 1148 : 1998 (1) AWC 508 (SC). This decision is the anchor-sheet of the appellant. In the case cited above, the ill-fated bus was under the control of Rajasthan State Road Transport Corporation and was being driven by its driver on the ill-fated day. The said bus met with an accident and a question arose as to who will bear the liability to compensate the claimants and victims. The insurance company was held liable to pay the compensation amount to the extent of its limited statutory liability, a total amount of Rs. 75,000 only. The Rajasthan State Road Transport Corporation was also held liable for the remaining balance amount, a compensation over and above the statutory liability of the insurer. The contention of the Rajasthan State Road Transport Corporation that since it was only hirer and not owner of the bus, it could not be fastened with any liability of payment of compensation, was examined and rejected by the Apex Court. Therefore, the learned counsel for the appellant submits that it is for the State Road Transport Corporation to bear the burden of compensation in its entirety. However, it is difficult to agree with his submission. At a first flash, the argument is attractive but on a deeper probing it has got no merit. In the decision cited above the controversy involved therein was totally different. Issue was with regard to the liability of Rajasthan State Road Transport Corporation with regard to the payment of compensation over and above the liability of the insurer. A close reading of the aforesaid citation shows that in no uncertain terms the insurer therein accepted its liability up to the statutory limit. The Rajasthan State Road Transport Corporation was disowning its liability to pay compensation over and above the statutory liability of the insurer. The ratio laid down in the said decision should be read keeping in mind these essential facts. It was not a case of total denial of liability by the insurer. In the case on hand, the insurer is completely disowning its liability which is otherwise on it under the insurance policy to pay the compensation amount to the claimants.;