IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 414 of 2008 Date of Decision 10th March, 2011 __________________________________________________________ H.R.T.C. & another ….Appellants. Versus Leela Devi & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ___________________________________________________________ For the Appellant: Mr. N.K. Thakur and Mr. Jagdish Thakur, Advocates. For Respondent Nos.1 to 6: Mr. Dibender Ghosh, Advocate. __________________________________________________________________ Dev Darshan Sud, J(oral) The appellants challenge the award passed by the Motor Accident Claims Tribunal-II, Fast Track Court, Kullu awarding a sum of ` 13,11,952/- to the claimants alongwith future rate of interest at the rate of 7½% from the date of petition till the deposit of the amount before the Tribunal. 2. The petition was preferred by the dependents of the deceased late Amar Singh @ Amro whose age was established as 57 years on the evidence on record. The case of 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 the petitioners was that Amar Singh was employed as Beldar in NHPC at Larji and drawing a monthly salary of ` 13,749/-. On 29.7.2004 when he was walking to his office, bus bearing No. HP- 63-0760 being driven from Nagwain side came at a fast speed, hit the petitioner and crushed him under the tyres. He was brought to District Hospital, Kullu, whereafter immediately referred to Zonal Hospital, Mandi. He died on way to Mandi. The case pleaded by the claimants was that accident had occurred because of the rash and negligent driving of the driver of the bus. 3. First Information Report charging the driver for offences under Sections 279, 337 and 304A IPC was also instituted against him. It was pleaded that respondent M/s Jayimdrab Rasikbai Bavaria, Eagle Corporation Pvt. Ltd. was owner of the vehicle and the bus had been taken on lease by the appellant Himachal Road Transport Corporation by an agreement dated 6.8.2004. Before the learned Tribunal, the petition was contested by the HRTC as also the Regional Manager at Kullu. Driver Madho Singh and the owner were proceeded exparte before the Tribunal. In this appeal also, what I find is that both of them have been proceeded exparte. On the settled issues, with respect to the liability on the respondents, the Court, on the evidence of parties, concluded that evidence of PW3 Leela, who states that bus was being driven in rash and negligent, was corroborated by FIR Ext.P2 and this part of her testimony has remained unrebutted. The Court concluded that the accident was the result of rash and negligent act on the part of the driver of the bus. 3 4. Two crucial issues which require determination were on the question of quantum and apportionment of liability. The learned Court concluded that the salary of the deceased could be taken ` 1,05,996/- per annum, which would be available to the dependents after the necessary deduction having been made and after multiplying by 12, the compensation worked out to the tune of ` 12,71,952/-. In addition, the learned Court awarded `15,000/- as expenses for funeral etc., ` 25,000/- being the loss of love and affection and total amount of ` 13,11,952/- alongwith interest was awarded. 5. On the question of apportionment of liability, the learned Tribunal relied upon the decision in K. Matura Bai and others vs. A. Shiva Nageswar Rao and others 2004 (2) TAC 747 (A.P.) holding that under Section 166 of the Motor Vehicles Act, even if the vehicle had been hired by the Corporation, the responsibility would be that of the person exercising control. 6. I have heard learned counsel appearing for the appellant and gone through the record. It is urged by learned counsel appearing for the appellant that quantum of compensation which was awarded is on the higher side. I need not go into detials as I find that the precedent of the Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another (2009) 6 SCC 121 if applied, the petitioners would be entitled to more. But since no appeal has been preferred by them, I need not say anything more on this question. 7. On the second aspect that the liability should and ought to have been apportioned on the owner, I find that the decision of the Andhra Pradesh High Court in K. Matura’s case 4 (supra) and of the Supreme Court in Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari and others 1997 ACJ 1148 negate the contention so raised. 8. One last contention which has been urged by the learned counsel appearing for the appellant is that having satisfied the award of the learned Motor Accident Claims Tribunal, the right to recover this amount from the owner and driver should have been preserved. In other words, his submission is that the appellant’s rights were protected by agreement Ext.R1 which has been placed on record. It was the duty of the owner to have insured the vehicle and to have satisfied any liability arising therefrom. For this purpose, learned counsel relied upon two Clauses namely Clause 7 and Clause 12 of Ext.R1 in favour of his submission. Undoubtedly, this agreement determines the right interse the parties i.e. between the appellant as also the owner and driver. Unfortunately, both the driver and owner have been proceeded exparte before the Court below and they have also deemed it fit not to appear before this Court. It would be open to the appellant herein to seek retribution in accordance with law. That right at least should have been left open by the Tribunal. Learned counsel has placed reliance on the decision of Madhya Pradesh High Court in Chief General Manager, Northern Coalfields Ltd. and others vs Krishna Gond and others, 2009 ACJ 291. This appeal is accordingly disposed of. I do not intend to interfere with the award passed in favour of the claimants/respondents save and except that the Transport Corporation shall first satisfy the liability which has been imposed by the learned Tribunal and thereafter it will be for 5 it to recover this amount from respondent Nos. 3 and 4 in accordance with law and in terms of Ext.R-1. Appeal stands disposed of. No order as to costs. March 10th, 2011 (Dev Darshan Sud), ms Judge 6