MACMA/2911/2015 of A.P.S.R.T.C., Vs Smt. Hazeera Begum on 31 December 2015

ORDER:

The appellant, who is the 3[rd] respondent ofO.P.No.3089 of 2004, aggrieved by the award of thetribunal dated 14.09.2007 of the claim filed by sevenclaimants, no other than legal representatives of thedeceased by name, Syed Habeeb under Section 163-A ofthe Motor Vehicles Act(for short ‘the Act’) for Rs.4,00,000/-,against owner, insurer and hirer of the private bus i.e.,M.Sumathi Reddy, The New India Assurance CompanyLtd, A.P.State Road Transport Corporation(for short‘A.P.S.R.T.C’), held by fixing compensation ofRs.3,61,600/- with interest at 7.5%p.a. in saying all thethree are jointly and severally liable in directing insurer ofthe bus to deposit the entire amount and can recover thesame from owner and the APSRTC (hirer), respectivelyequally with the conclusion that liability of the owner willnot cease from non-intimation of the Apex Court inRikhiram v. Smt.Sukhrania[[1]](three judges Bench) heldunder Section 94 of the old Act, 1939=new 146, thetransfer of the vehicle ownership, equally that of thepurchaser and thereby following the same. It is the samenow impugned in the appeal filed by APRTC against claimants, owner and the insurer of the said private busbearing No.AP 22U 1965.

2. The appeal is filed with delay condonation of 213days with the affidavit explanation for the delay, asadministrative delay in obtaining certified copies,according sanction to file and obtaining funds in filing theappeal.

3. Heard and perused the material on record. Thedelay is condoned. The appeal is taken up for hearing atrequest of the appellant/APSRTC the 3[rd] respondent tothe claim petition and 2[nd] respondent-insurer of the claimpetition. The 1[st] respondent, no other than ownerimpleaded as 8[th] respondent to the appeal, even served failed to attendand thus taken as heard. Even among the sevenclaimants appeal dismissed but for against respondents 3and 4, it is represented in this regard that they are notnecessary parties as the dispute is between the owner,insurer, and hirer/APSRTC, respectively regarding liabilityfor not disputing the quantum or entitlement by theclaimants .

4. It is the contention of the learned counsel for theASPRTC in support of the grounds of appeal that thetribunal gravely erred in fixing liability for recovery from theAPSRTC and the owner of the vehicle, respectively by the insurer while directing the insurer of the vehicle to initiallypay to the claimants, that the tribunal gravely ignored thescope of Section 157 of the Act, equally Section94(old)=146(new) which have no application for the hiredvehicle, as the same was even held by the Apex Court inUttar Pradesh State Road Transport Corporation v.

Kulsum[[2]]that followed by the Full Bench of this Court in APSRTC, Hyderabad V. B.Kanakaratnabai[[3]]andhence to allow the appeal setting aside the fixing of liabilityof recovery against APSRTC despite insurer is liable toindemnify from the policy holds good and covers the risk.

5. Whereas, it is the contention of the insurer, who isrespondent No.9 herein by placing reliance on the latestexpression of the Apex Court in Managing Director,Karnataka State Road Transport Corporation v. New India Assurance Co. Ltd.[[4]]that liability to be fixed is jointwith the provision for recovery and thereby the tribunal isright in holding so and for this Court while sitting in appealthere is nothing to interfere including from the latestexpression in Karnataka State Road TransportCorporation (supra) and hence to dismiss the appeal.

6. Heard and perused the material on record.

7. In Rikhiram (supra), the principle laid down is withreference to transfer of ownership of the vehicle and non-

intimation to the insurer and not with reference to the hiringof the vehicle. In fact, from reading of the expression of theApex Court in Kulsum (supra) Section 157 of the Act isnot applicable for hiring of the vehicle as it is not transfer ofownership to intimate within four months of the transfereven for such violation though mandatory to pay andrecover. Thus, the tribunal gravely erred in relying onRikhiram (supra) for the hire of the vehicle. No doubt, bythe time the judgment of the tribunal delivered on14.09.2007 Kulsum (supra) and Kanakaratnabai (supra)are not there.

8. Even coming to the decision placed reliance by theinsurer inKarnataka State Road TransportCorporation(supra), it is by scanning the entire law rightfrom Rajasthan State Road Transport Corporation v.Kailash Nath Kothari (1997 ACJ 1148(SC)), NationalInsurance Co. Ltd. v. Deepa Devi (2008 ACJ 705 SC),Pushpa v. Shakuntala (2011 ACJ 705(SC)), PurnyaKala Devi v. State of Assam (2014 ACJ 1269(SC))(threejudges Bench) in the course of requisition of a vehicle foran election purpose by State of Assam, GodavariFinance Company v. Degala Satyanarayanamma (2008ACJ 1612 SC), in case of hire purchase and the latestexpression in relation to hire purchase HDFC Bank Ltd. v.Reshma (2015 ACJ 1 SC) (three judges Bench), whereholding financier of hire purchase agreement cannot be made liable for not accrual user owner but the actualowner of the vehicle that in control to be made liable andthe expression in Kulsum(supra) of insurer cannot beexonerated from liability once policy covered the risk eventhere is no intimation of the transfer of the vehicle underhire to the RTC concerned and there from concluded thejoint liability of the owner and the person taken on hire i.e.,APSRTC and also the insurer and also with theobservation that once there is a transfer for the limitedpurpose by hire it is deemed with the policy also vehicletransfers with the liability of the insurer to indemnify. Nodoubt, on facts held from the award of the tribunal went inappeal, the Karnataka High Court fixed the liability againstthe RTC only holding within the meaning of Section 2(30)of the Act as owner and not the original owner and insurerfrom which the RTC paid the amount in directing torecover from the owner. Needless to say equally from theinsurer to indemnify do not so specifically stated. Thus,there is nothing new laid down by the expression ofKarnataka State Road Transport Corporation(supra)but for to say followed Kulsum (supra) to hold all jointlyliable. The Full Bench expression of this Court inKanakaratnabai (supra) following Kulsum(supra) heldthat the insurer is liable and not the RTC. Whereas, thelatest expression in Karnataka State Road TransportCorporation(supra), referred three judge Bench

Conclusion

expressions of PurnyaKalaDevi(supra) and HDFCBankLtd(supra) held, all the three i.e., real owner and the RTC.to whom it is hired and the insurer all jointly liable. As suchonce there is a liability of insurer to indemnify and eventhere is no intimation of the hire to RTC, as Section 157 ofthe Act has no application but for transfer of ownership, sofar as hiring of vehicle concerned as laid down in Kulsumreiterated in Kanakaratnabai(supra), the question ofrecovering by the insurer from the owner or the RTC doesnot arise but for any other violations of the policy andpermit or driver has no valid license. Herein it is not such acase of other violations of the policy to order pay andrecovery even.

9. Having regard to the above, the fixing of liability bythe tribunal on insurer though holds good, the furtherobservation to recover by the insurer equally from theowner and the APSRTC is unsustainable and liable to beset aside.

10. Accordingly and in the result, the appeal is allowedby setting aside the observation of the tribunal fixingrecovery of liability to the insurer against the owner andAPSRTC for no such contingency arises but for theinsurer to pay from the policy covered the risk and liable toindemnify. It is needless to say whatever the amount sofar deposited by the APSRTC and permitted if any to theclaimants, the APSRTC is entitled to recover from the owner and insurer and whatever the amount in deposit ifnot permitted is to withdraw by the APSRTC.

11. Miscellaneous petitions, if any pending, shall stand closed.

Date:31-12-2015pab

_________________________

Dr. B. SIVA SANKARA RAO, J

L.R. copy to be marked-Yes

*HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

M.A.C.M.A.M.P.No.1899 of 2010IN/AND

M.A.C.M.A.No.2911 of 2015

% 31-12-2015

#A.P.State Road Transport Corporation

….Appellant

Vs.

$ Smt.Hazeera Begum and eight others

…. Respondents

!Counsel for the appellant : Sri K.Madhava ReddyCounsel for Respondent No.9: K.Subba Rao <Gist :

>Head Note:

? Cases referred:

[1] 2003 ACJ 534 SC

2 (2011)8 SCC 1423 2013(1)ALD 644 (FB)

4 2015 ACJ 2849

IN THE HIGH COURT OF JUDICATURE ATHYDERABAD

FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRAPRADESH

*****

M.A.C.M.A.M.P.No.1899 of 2010IN/ANDM.A.C.M.A.No.2911 of 2015

#A.P.State Road Transport Corporation

….Appellant

Vs.

$ Smt.Hazeera Begum and eight others

…. Respondents

DATE OF ORDER PRONOUNCED: 31-12-2015

SUBMITTED FOR APPROVAL:

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

1. Whether Reporters of Local newspapers may be allowed to see the Judgment? Yes/No

2. Whether the copies of judgment may be marked to Law Reporters/Journals? Yes/No

3. Whether Their Ladyship/Lordship wishto see the fair copy of the Judgment? Yes/No [1]2003 ACJ 534 SC[2](2011)8 SCC 142[3]2013(1)ALD 644 (FB)

[4]2015 ACJ 2849