The main legal point established in the judgment is that the Corporation was vicariously liable for the negligent act of the driver, and the agreement absolving the Corporation from liability was held to be invalid as against public policy.

Rajesh Balia, J.-Heard learned Counsel for the parties.

2. The appellant Corporation has hired a vehicle owned by a third partly for the purposes of its business of transporting passengers. The said vehicle met with an accident, in which, one Yaqoob died who was hit by the vehicle. While driver was employed by the owner of the vehicle, the conductor was employed by the Roadways and the driver was plying the vehicle under the control and instructions of the conductor of the Corporation and he was governed by the discipline of the Corporation while on duty. The Corporation sought to deny its liability on the ground that under its agreement with the owner of the vehicle, the liability to make the payment of compensation will be of the owner of the vehicle and not of the Corporation and consequently since the vehicle was insured by the owner of the vehicle and he has paid the premium to the Insurance Company, therefore, the insurer is liable to make the payment of the compensation.

3. The Motor Accident Claims Tribunal did not accept this plea of the Corporation and held Corporation liable for payment of compensation to the claimants on account of death of Yaqoob and awarded Rs. 2,37,000/-as compensation.

4. Aggrieved with the award dated 19.07.2001 passed by the M.A.C.T., S.B. Civil Misc. Appeal No. 4014/2001 [DR(J)] was preferred by the Corporation which was barred by time.

5. The learned Single Judge did not find any sufficient cause which could have prevented the Corporation from filing the appeal within limitation and rejected the application under Section 5 Limitation Act and consequently, the appeal was also dismissed. Against the said order dated 21st April, 2003, this appeal has been preferred.

6. Considering the application under Section 5 Limitation Act and the question involved in the case, we are of the opinion that in ordinary circumstances, the application under Section 5 Limitation Act ought to have been allowed by the learned Single Judge and the miscellaneous appeal which was in the nature of first appeal ought not to have been dismissed on the ground without even examining and considering the prima facie merit of the contention raising appeal.

7. Be that as it may, considering the fact that consideration of application under Section 5 Limitation Act invariably involves consideration of the merit raised in the appeal, we have examined the merits of the appeal.

8. The only contention that has been raised before us is that because of the agreement between the appellant Corporation and owner of the vehicle, the Insurance Company can be held liable to reimburse and indemnify the Corporation of the amount of compensation which it is held liable to pay to the claimants.

9. So far as liability of Corporation to compensate the victims of accident in respect of bus hired by it is concerned, the same is beyond the pale of controversy in view of the decision of Honble Supreme Court in Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari & Ors., II 1997 ACC 370 (SC). The Court considered that the conductor was the employee of the Corporation and the driver was to carry out the instructions, orders and directions of the conductor and other officers of the Corporation for operation of the bus on the route specified by the Corporation. For the negligent act of the driver, the Corporation must be held vicariously liable to pay the compensation awarded by the Tribunal to the claimants. In coming to this conclusion, the Honble Supreme Court affirmed the Bench Decision of this Court dated 22.01.1991.

10. The Division Bench of this Court in New India Assurance Company Limited vs. R.S.R.T.C. & Ors., 2002 WLC (Raj.), has held the word owner as has been defined under the Motor Vehicles Act, 1939 not to be exhaustive so as to exclude the transport like the Corporation. Should the Corporations hire the buses for their purpose on lease or otherwise from owners of the such vehicles and then carry on their business o