IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 14Th DAY OF DECEMBER, 2011 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR M.F.A.No.30817 OF 2010(MV) Iw M.F.A.NO.30818 OF 2010(MV) IN M.F.A.NO.30817/2010: BE1WEEN: THE DIVISIONAL MANAGER NEKRTC. RAICHUR. REP. BY THE CHIEF LAW OFFICER. NEKRTC CENTRAL OFFICES, GULBARGA. .. .APPELLANT (BY SRI. SHIVASHANKAR H. MANUR, ADVOCATE) AND: I. MANSOOR PASHA. S/O YUSUF ALl AGE: 3 YEARS, MINOR U/G OF NATURAL FATHER YUSUF ALl, Sb HANNURSAB. AGE 36 YEARS, 0CC: COOLIE, R/O ATHANOOR VILLAGE, TQ: MANVI, DIST: RAICHUR. 2. RAME5H S/O SHIVALINGAPPA MADIVAL, AGE: 30 YEARS. 0CC: DRIVER, R/O JAKKALADINNI VILLAGE, TQ: MANVI, DIST: RAICHUR. 3. THE MANAGER SRI. SAT VAIBHAVA, TRANSPORT COMPNAY dO SHIVAJI. OIL MILL TIPPU SULTAN ROAD, RAICHUR, (OWNER OF BUS NO.KA-36/3 135). 4. THE BRANCH MANAGER. NEW INDIA INSURANCE CO. LTD.. GUNJ ROAD. RAICHUR, INSURED AT HYDERABAD.... RESPONDENTS (BY SRI. SHIVANAND PATIL, ADVOCATE FOR R4, NOTICE TO Ri - R3 DISPENSED WITH V/C/O DATED 14.12.2011, R2 SERVED) THIS MFA IS FILED U/S 173(1) OF MVC ACT AGAINST THE JUDGMENT AND AWARD DATED:25.02.2010 PASSED IN MVC NO.75/2009 ON THE FILE OF ADDL DISTRICT JUDGGE (MACI) RAICHUR. PARTLY ALLOWING THE CLAIM PETITION BY AWARDING COMPENSATION OF RS.4, 15,000/- WITH INTEREST AT 6% P.A. IN M.F.A.NO.30818/2010: BE1WEEN: THE DIVISIONAL MANAGER NEKRTC. RAICHUR-DIVISION RAICHUR THE APPELLANT IS REPRESENTED BY THE CHIEF LAW OFFICER, NEKRTC CENTRAL OFFICES. GULBARGA. APPELLANT (BY SRI. SHIVASHANKAR H. MANUR, ADVOCATE) AND: 1. TANGAMMA D/O MALLAYYA KABBERU AGED 20 YEARS. 0CC: HOUSEHOLD WORK 2. MUTFANNA S/O MALLAYYA, AGED 14 YEARS -3- 3. SHIVAKUMAR 5/0 MALLAYYA. AGED 10 YEARS, CLAIMANTS 2 AND 3 ARE MINORS U/G OF NATURAL MOTHER CLAIMANT NO.1 4. KAMALAMMA D/O MALLAYYA KABBER, 24 YEARS, 0CC: HOUSEHOLD WORK ALL ARE R/O: MURANPUR VILLAGE TQ. & DISTRICT RAICHUR. 5. RAMESH Sb SHIVALINGAPPA MADIVAL AGED 31 YEARS, 0CC: DRIVER R/O: JAKKALADINNI VILLAGE, TQ.MANVI. DISTRICT RAICHUR. 6. THE MANAGER SRI.SAI VAIBHAVA TRANSPORT COMPANY C/O SHIVAJI OIL MILL TIPPU SULTAN ROAD, RAICHUR (OWNER OF BUS NO.KA-36/3 135) 7. THE BRANCH MANAGER NEW INDIA INSURANCE CO.. LTD.. GUNJ ROAD, RAICHUR, INSURED AT HYDERABAD. RESPONDENTS (BY SRI. SHIVANAND. ADVOCATE FOR R-7) THIS MFA IS FILED U/S 173(1) OF MC ACT AGAINST THE JUDGMENT AND AWARD DATED:25.02.2010 PASSED IN MVC NO.116/2008 ON THE FILE OF ADDL DISTRICT JUDGE (MACi’) RAICHUR, PARTLY ALLOWING THE CLAIM PETITION BY AWARDING COMPENSATION OF Rs.4, 15,000/- WITh INTEREST AT 6% P.A. THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED ThE FOLLOWING: JUDGMENT These appeals are by the Corporation questioning the correctness and legality of the judgment and award dated 25.02.2010 passed in MVC Nos.75/2009 and 116/2009 on the file of the Addl. District Judge (MACT) Raichur. whereunder claim petitions were allowed in part and liability is fastened on the appellant. 2. Heard Sri. Shivashankar H. Manur, learned counsel appearing for appellant-corporation and Sri. Shivanand Patil learned counsel appearing for respondent-Insurance Company. Though claimants are served, they are un-represented. Notice to Respondent Nos.1 to 3 in MFA No.30817/2010 has been dispensed with by this Court by order of even date. Perused the impugned judgment and award passed by the Tribunal. 3. Though matter is listed for orders same is taken up for final disposal, since it is submitted by the learned advocates appearing for parties that issue -5- involved in this appeal is no more res-integra and same is covered by the judgment of Hon’ble Apex Court in the case of Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others reported in 201 fl8) SCC 142. 4. Issue in this appeal relates to the liability fastened on the Corporation. Tribunal has fastened liability on the appellant-Corporation on the ground that vehicle in question had been taken on hire and there was no privity of contract between passengers travelling in the Bus and the Insurance Company. Admittedly. claimants are third parties and Insurance Company cannot escape its liability since vehicle in question was insured and policy was in force as on the date of the accident. The Hon’ble Supreme Court in Kulsum’s case referred to supra at Paragraph 45 has held as under: -6-- 45. “Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third Parties or claimants. Admittedly. owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicle.” 5. In fact, Division Bench of this Court in MFA.No.8444/2007 and other connected matters disposed of on 2 1.09.2010 has held that liability to pay compensation is on the Insurance company and it cannot be absolved of its liability. The principles laid down in these judgments are squarely applicable to the facts on hand. 6. In view of the law laid down by the Apex Court as well as this Court in the judgments referred to supra, I am of the considered view that present appeal deserves -7- to be allowed by modifying the judgment and award passed by the Tribunal. Hence, following order is passed: ORDER 1. Appeals are allowed. 2. Judgment and award passed by the Tribunal is modified and liability is fastened on the Insurance Company. The appellant is absolved of its liability. 3. Registry to draw the award accordingly. 4. Amount in deposit before this Court is ordered to be refunded to the appellant by the registry. 5. Insurance company is hereby directed to deposit the award amount with interest upto date before the Jurisdictional Tribunal within an outer limit of six weeks from the date of receipt of certified copy of this order. Sd! JUDGE PL