IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTYFIFTH DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.3228 of 2002 Between: The Oriental Insurance Company, Divisional Office, Kothapet, Guntur. .. Appellant AND R. Shanthi and 5 others .. Respondents JUDGMENT: This appeal is directed against the award in O.P.No.1413 of 1995 dated 6-8-1999 on the file of the Motor Accidents Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad. The deceased Vijaya Kumar and his father the deceased Ramanujam going on a TVS moped on 26-09-1995 at about 6.10A.M. met with a motor accident near ITI, Musheerabad, when the bus No.AP-16 U 4289, owned by the 5th respondent herein, insured with the appellant herein and hired by the 6th respondent herein, hit the moped coming in opposite direction due to rash and negligent driving of the bus. Both the deceased were declared dead when taken to Gandhi Hospital and Chikkadapally police registered the crime. The mother, sister and brother of Vijay Kumar sought for a compensation of Rs.2,75,000/- from the driver, owner, insurer and hirer of the bus. While the driver and owner remained ex parte, the insurer denied all the allegations of the claimants and contended that O.P.No.1411 of 1995 was already filed under Section 140 of the Motor Vehicles Act for compensation. The APSRTC claimed that they were no way connected with the accident and not liable to pay any compensation. The Tribunal framed issues about the responsibility for the accident, entitlement of the claimants to compensation and the liability of the respondents for the same. It examined PWs.1 and 2 and marked Exs.A.1 to A.7 and B.1 during the enquiry. The Tribunal rendered the impugned award accepting the evidence of eye-witness-PW.2, corroborated by Ex.A.1-FIR and Ex.A.2-Charge Sheet. The conviction of the bus driver on admission under Ex.A.3-Judgment was also noted and in the absence of any evidence for the respondents, the accident was concluded to have been caused due to the rash and negligent driving of the bus. The Tribunal assessed the compensation at Rs.1,91,000/- including Rs.1,76,000/- towards loss of dependency and Rs.15,000/- towards loss of estate. The Tribunal considered that the driver of the bus, the owner of the bus and the insurer of the bus alone are liable jointly and severally to pay the compensation, as Ex.B.1-Policy of insurance was in force and as it was held in 1990 (1) Law Summary 144 (APSRTC v. K. Veeraswamy) and 1997 (2) ALT 605 (APSRTC v. Lingaiah) that the APSRTC being the hirer was not liable to pay the compensation. The Tribunal also referred to Apex Court’s decision, which came to its notice and decided that the Corporation cannot be considered as owner under Section 2 (19) of the Motor Vehicles Act and cannot be made vicariously liable for the acts of the driver. Hence, the award was passed only against respondents 1 to 3 for the sum of Rs.1,91,000/- with interest at 12% p.a. and proportionate costs. The insurer filed the present appeal being aggrieved by the said award and contended that the liability has to be fastened to APSRTC, the hirer, which becomes vicariously liable as per the decision of the Apex Court in 1997 SC 3444. While questioning the quantum of compensation also, the insurer desired the award to be reversed against it. Smt. A. Triveni Reddy, learned counsel, representing Sri P. Harinath Gupta, learned counsel for the appellant and Sri K. Satyanarayana Murthy, learned standing counsel for 6th respondent-APSRTC and Sri I.V. Radhakrishna Murthy, learned counsel for respondents 1 to 3 are heard. The findings of the Tribunal about the responsibility of the driver for the accident with his rash and negligent driving, the ownership of the vehicle with the 2nd respondent, its subsisting insurance with the 3rd respondent and its hire with the 4th respondent to the claim are not under challenge and the entitlement of the claimants to just and adequate compensation from the driver and owner of the bus are also not under challenge herein. The only point that is left is as to whether the insurer of the bus or the hirer of the bus are responsible to pay the compensation? I n Branch Manager, Oriental Insurance Company Limited, City Branch Office-II, Vijayawada v. Javvaji Bhaskar Rao and others[1], Hon’ble Sri Justice V.V.S. Rao has considered the question in depth. Though Sri K. Satyanarayana Murthy, learned standing counsel for APSRTC desired this appeal to await the result of a reference made to a Full Bench on the issue, the learned Judge had clearly stated that as the issue is covered by three judgments of the Apex Court, reference of matter to Full Bench does not bar the Court from deciding the case. The considered views of the learned Judge are of great persuasive value, more so, when they were based on binding precedents from the Apex Court. The learned Judge concluded in para-10, which reads as under: “There is no dispute that though appellant insured the offending bus, it was on hire to APSRTC. There is also no dispute that the bus was put to schedule as per the trip sheet fixed by concerned APSRTC officials and the driver was under the control of hirer. In such a case, APSRTC alone would be liable to pay compensation. In that view of the matter, the appellant cannot be made jointly and severally liable to pay award sum. If so advised, first respondent may proceed against APSRTC and recover entire amount awarded.” In the light of the facts of the present case being identical, APSRTC alone has to be made liable to pay compensation awarded by the Tribunal and the appeal has to be allowed accordingly. In the result, the award in O.P.No.1413 of 1995 on the file of the Motor Accidents Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad, dated 6-8-1999 is modified by setting aside the award against the appellant herein and passing the award against 6th respondent herein, who shall be jointly and severally liable for the amount awarded along with respondents 4 and 5 herein. The appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 25-01-2011 Ksn [1] 2009 (2) Andhra Law Times 512