1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 5 of 1996 RSRTC V/S GOPAL LAL Mr. VINEET PANDYA for Mr. VK MATHUR, for the appellant / petitioner Mr. TRIBHUVAN GUPTA and Mr. USMAN GANI for claimants. Mr. SABIR KHAN for Mr. PRADEEP SHAH, for respondent no.3. Date of Order : 17.3.2009 HON'BLE SHRI N P GUPTA,J. ORDER ----- This appeal has been filed by the Rajasthan State Road Transport Corporation against the award of Motor Accident Claims Tribunal, Bhilwara dt. 16.11.1994 passed in Claim Petition No. 640/1992 (21/92) decreeing the same for a sum of Rs. 1,92,472/- along with interest etc. The findings on question of negligence and quantum are not assailed before me, therefore, I need not go into detailed facts of the matter. Beyond that the necessary facts are, that on fateful day being 5.7.1991 at about 1- 1.30 the deceased Ram Laxman was driving his truck no. RSG- 4118, and when the same reached near Hindustan Processors Factory on Bhilwara-Chittor highway it was hit from behind by the bus as a result of which the truck lost balance, and 2 after travelling 40 ft. ahead, it over-turned, and the driver deceased Ram Laxman died on the spot. Other passengers of the bus also got injured. Bus also could come to halt only after travelling a distance of about 70 ft., on going on the right hand side of the highway, breaking fencing, and the plants of nursery, of Forest Department. The only submission made before me is, that the delinquent bus was on contract with the Corporation. It belonged to the defendant no.1 Gopal Lal which was insured, and was insured with the defendant no.3, and the defendant no. 4 being the present appellant was neither registered owner, nor the driver being defendant no. 2 was its salaried employee, therefore, no liability can be fastened. That apart defendant no. 1, the owner, driver and insurer of the truck are necessary parties. I find from the judgment and even claim petition that the owner, driver and insurer of the bus have already been impleaded as parties. The controversy in this regard, about liability of the defendant appellant, was covered by issue no.1, and in deciding that issue the learned Tribunal has found, that it is admitted position that defendant no. 1 was the owner of the bus which was being driven by defendant no. 2, and was insured with the defendant no.3, and was on contract with defendant no. 4, and therefore, all the defendants are liable for the compensation. Then, deciding issue no. 3 3 also the learned trial court has declined to exonerate the insurer, and ultimately the award has been passed against all the defendants jointly and severely. A look at the written statement filed on behalf of the present appellant would show, that therein also this very plea has been taken about the vehicle being owned by defendant no.1, defendant no.2 not being its salaried employee, and the vehicle being insured with defendant no.3, and therefore, claimants being not entitled to recover the amount from the defendant no. 4. It has also been pleaded that the accident did not occur on account of negligent driving of the bus, rather it occurred on account of negligent driving of the truck. I may observe that when in the claim petition the owner, driver, and insurer were already impleaded as parties being defendants no. 1, 2, and 3, it is not clear as to how it was contended before the learned trial court in para-15 of the reply that they are necessary parties. Then, in evidence Gyan Prakash has been produced by the appellant as N.A.W.1, who has proved the contract between Gopal Lal and the Corporation, being Ex.A- 1, and has admitted in cross examination that the tickets for such buses are issued by the booking office, and enroute also they are issued by the Roadways Booking Counters, and by the conductor, and that the bus owner is paid on the basis of per kilometer run of the bus. 4 Then, a look at Ex.A-1 shows that therein according to para-7 the driver is required to comply with the orders and directions issued by the officers of the Corporation from time to time. Likewise in para-15 it is agreed that the owner would be liable for all claims and compensation in the event of accident, and the Corporation will not be liable. It is also stipulated in this very para that if any court passes a decree for compensation against the Corporation, then the Corporation will be entitled to recover back the amount from the owner from the monthly amount being payable to the owner. Then, according to para- 45 there is an agreement for arbitration also. In these circumstances, in my view, even if the learned trial court were to exonerate the owner and insurer and were to fasten liability on the appellant, then in that event also the appellant would have been entitled, according to para-15 of the agreement, to recover the amount from the owner, while in the present case the liability has been fastened on all the defendants jointly and severely. Obviously, therefore, if the claimants choose to recover from the insurer defendant no. 3, then obviously the appellant's liability would stand satisfied, and it is only in case where the claimants choose to recover the amount from the appellant, in that event, the appellant is entitled to recover the amount from the owner. Thus, the controversy remains only academic, and the award does not 5 require any interference in appeal. The appeal is, therefore, dismissed. ( N P GUPTA ),J. /Sushil/