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2009 Supreme(Kar) 137
High Court of Karnataka
THE HONOURABLE MR. JUSTICE V. JAGANNATHAN
North West Karnataka Road Transport Corporation
Versus
D. Kenchappa & Others
Miscellaneous First Appeal No. 8042 of 2006 C/w M.FA.No. 11440 of 2007 (MVC)
Decided on : 20-02-2009
For the Appellant:D. Vijaykumar & A.K. Bhat, Advocates. For the Respondents:M.T. Jagan Mohan, M.S. Sriram, Shwetha Anand, Sundar Raj, V.B. Siddaramaiah, Advocates.
Headnote:MOTOR VEHICLES ACT, 1988 - Section 147 :[V.Jagannathan,J] Liability of Insurer - Requirements of policies and limits of liability - Held, Though a person may be a registered owner, yet for the purpose f awarding compensation, the courts will have to find out from the facts of each case as to who the real owner is. 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 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 a precondition that there must be actual liability being case 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. From the wordings used in sub-Section (1) of Section 149 that it is only where a judgment or award is obtained against the person insured by the policy, only then that the insurer is required to satisfy the judgment and award and not otherwise. On facts held, Vehicle in question was under the exclusive control of the KSRTC, in the light of the terms and conditions of the agreement entered into by it, it is the KSRTC which has to be held as the owner of the bus in question for the purpose of M.V. Act in the light of the definition as contained under Section 2 (30) of the Act. -Hence, having regard to the provisions contained in the Act and taking into account the facts and circumstances of the case, the KSRTC is liable to pay the compensation and not the Insurance Company.
Jagannathan, J.
As common question of law arises for consideration in these two appeals, they are being disposed of by this common judgment.
2. In both the cases, the Tribunal has recorded a positive finding that the accidents in question were caused on account of the buses, which were driven under the control of the K.S.R.T.C. In both the cases, though the buses in question belong to the registered owners, the K.S.R.T.C. had taken them on hire under an agreement with the registered owners.
3. M.F.A.No. 8042/2006 is preferred by the N. W.K.R.T.C. aggrieved by the liability being put on it exclusively to satisfy the award amount and in M.F.A. No. 11440/2007, the liability was put on the Insurance Company with whom the registered owner had insured the bus. The contention of the Road Transport Corporation in both the cases is that the buses in question were owned by the registered owners, who had insured them with the Insurance Company and, therefore, the K.S.R.T.C. is not liable. Whereas, the contention of the Insurance Company, which is the appellant in M.F.A.No. 11440/2007 is that, at the relevant point of time, the buses were under the control of the K.S.R.T.C. pursuant to the agreements entered into between the K.S.R.T.C. and the registered owners and, therefore, it is the K.S.R.T.C., which is liable to satisfy the award amounts.
4. The facts, briefly stated, are that insofar as M.F.A.No. 8042/2006 is concerned, the claimant therein, who is R-1, had preferred the claim petition seeking compensation for the injuries sustained by him in the accident in question and according to him, when he was going on his motorcycle, the bus bearing No. KA-26/ B-3465 belonging to the K.S.R.T.C. came from behind and dashed to the motorcycle on account of which he sustained the injuries. The Tribunal awarded Rs.27,000/- as compensation and put the liability on the K.S.R.T.C. and in doing so, the Tribunal took note of the decision reported in 2005 ACJ 883 to hold that, on the date of the accident, the K.S.R.T.C. was deemed to be the owner of the bus and it was the K.S.R.T.C., which had full control and custody of the bus and, for this reason, it is the K.S.R.T.C. which is liable to pay the compensation.
5. Insofar as M.F.A.No. 11440/2007 is concerned, the claim petition was filed by the major sons of deceased Channaveeraiah and the said Channaveeraiah succumbed to the injuries sustained by him in the accident when the K.S.R.T.C. bus bearing No. KA-16/C-2526 dashed against him while he was going along the extreme left side of the road by towing his bicycle. The Tribunal awarded Rs.4,09,000/- as compensation to the claimants and put the liability on the Insurance Company following the terms of the agreement between the K.S.R.T.C., which is the hirer, and the registered owner, indicating that the Insurance Company will be liable.
6. I have heard learned Counsel Shri D.Vijayakumar for the K.S.R.T.C. and learned Counsel Shri A.K.Bhat for the Insurance Company and, in view of the important question of law involved, learned Counsel Shri A.N. Krishnaswamy, Shri B.C.Seetharama Rao, Shri O.Mahesh and Sri. Gangadhar Sangolli also assisted the Court.
7. Learned counsel Shri D.Vijayakumar for the K.S.R.T.C. contended that, in both cases, the buses in question were insured by the registered owners and the insurance policies were also in force as on the date of the accidents. The K.S.R.T.C. had only hired the buses from the registered owners on certain terms and conditions as per the agreements and, therefore, it is the Insurance Company, which will have to be held liable to pay the compensation and not the K.S.R.T.C.
8. Referring to the terms and conditions of the agreements, the learned Counsel pointed out that the agreements clearly specify that the owners of the buses alone shall be solely liable for any claim arising out of any accident, damage or loss or hurt caused, during the operation of the bus and that the K.S.R.T.C. shall not be liable
