IMPORTANT POINT
Expression owner for purposes of award in motor accident claim case must include in a given case, person who has the actual possession and control of vehicle and under whose directions and commands the driver is obliged to operate it.

JUDGMENT

Dr. A.S. Anand, J.-Common questions of law and fact are involved in this batch of appeals filed by the Rajasthan State Road Transport Corporation (hereinafter referred to as the RSRTC ) against the (common) judgment of the High Court dated 22.1.1991 upholding composite awards made by the Motor Accidents Claim Tribunal (hereinafter the Tribunal) on 13.3.1989 and are, therefore, being disposed of by this common order.

2. Bus No. RSB 3945, besides some other buses, was hired by the RSRTC from its owner Shri Sanjay Kumar-respondent, to ply on the routes specified by the RSRTC. An agreement was executed between the RSRTC and the owner of the bus containing the terms of hiring the bus.

3. Bus No. RSB 3945 was, on the fateful day, 17.7.1981, being driven by Gopal and was plying on the route Kekri to Jaipur, for which route RSRTC had the route permit. At about 9.30 P.M. when the bus was near Renwal, it was noticed that water was flowing over the bridge of Bandi river, due to heavy rains. The passengers travelling in the bus requested the driver not to drive the bus over the bridge because of overflowing water but their request had no effect and the driver, despite the warning by the passengers, drove the bus over the bridge and as a result of flood in the river, the bus was swept away. As a result 23 passengers travelling in the ill fated bus died due to the accident. The legal representatives/heirs of the 23 passengers who had died as a result of the accident, filed separate claim petitions under Section 110A of the Motor Vehicles Act, 1939 (hereinafter referred to as the 1939 Act) claiming compensation from the RSRTC and the insurance company. The claim petitions were resisted and the RSRTC in its written statement denied its liability on the ground that though it had hired the bus in question from Shri Sanjay Kumar and the bus was playing on the route specified by it, the driver of the bus, Gopal, due to whose negligence and rashness the accident had taken place, was not an employee of the RSRTC but of the bus owner, Shri Sanjay Kumar, and therefore it was not vicariously responsible for his negligence and rashness. It was also pleaded that liability to pay compensation in case of an accident was that of the "owner" and not of the hirer. Reliance in this behalf was placed on condition No. 15 of the agreement to disown its liability. The insurance company took the plea, in its reply to the claim petitions, that the bus at the time of the accident was under the control of the RSRTC, therefore it was the liability of the RSRTC to pay compensation and the insurance company was not liable. It was further pleaded by the insurance company that the liability of the insurance company, in any event, was limited and its liability could not exceed Rs. 75,000/- in respect of all the claim petitions arising out of one accident. The owner of bus, Shri Sanjay Kumar, though a party to the claim petitions did not file any reply. The following issues were framed by the Tribunal from the pleadings of the parties :

"(1) Whether on 17.7.81 opposite party Gopal was driving Bus No. RSB 3945 negligently and he drove the bus in the flooded river and the same was swept away, as a result of which Vijay Kumar, Ram Kishori Devi, Ram Pal, Prahlad, Galli Devi, Bhanwar Lal, Mohan Lal, Tabalya, Babli, Jayana, Kanahaya Lal, Champa Devi, Sewa Ram, Laxmi Narain, Kamal Kishore, Miwal Kishore, Kumari Seema, Vimla Devi, Ram Pyari Devi, Shakuntala Devi, Km. Bela, Pawan Kumar and Mahesh Kumar died?

(2) Whether on the basis of the preliminary objections the insurance company opposite party is not liable to pay the amount the compensation?

(3) Whether due to the terms and conditions of the contract, the Rajasthan State Road Transport Corporation is not liable?

(4) Whether petition No. 51/82 having been filed beyond limitation is not liable to be heard?

(5) Whether this incident comes within the definition of negligence?

(6) Relief."

4. A number of witnesses were examined by