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Judgment
Amitava Lala, J.—Let the supplementary affidavit filed on behalf of the appellant be kept with the record.
This is an appeal of the insurance company challenging the judgement and order dated 23rd February, 2008 passed by the concerned Motor Accidents Claims Tribunal, Shahjahanpur. The contention of the learned Counsel appearing for the appellant-insurance company is that UP. State Road Transport Corporation (hereinafter in short called as the ''Corporation''), which was using the vehicle, is to be fastened with the liability but not the insurance company.
He has relied upon two judgements of the Supreme Court reported in 1998 (1) T.A.C. 42 (S.C.) (Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and Ors.), which has also been considered in 1 (2008) ACC 143 (SC) (National Insurance Co. Ltd. v. Deepa Devi and Ors.). Relying upon paragraph-16 of the particular judgement of Kailash Nath Kothari (supra) he contended that in view of the interpretation of the Supreme Court the term ''owner'' has a greater meaning, which includes the person concerned under whose actual possession and control the vehicle was used and the accident was caused. Therefore, the Corporation is liable to pay the compensation but not the insurance company. However, according to us, the case is to be considered in its proper perspective.
For example, if there is a condition of contract between the owner and hirer disowning the hirer or the owner then who has been disowned, he will be excluded from the liability. It appears to us that in this case the owner has disowned the Corporation, being hirer hereunder. Therefore, by virtue of the disowning clause, liability shifts back to the owner. The vicarious liability is lying upon the owner. The insurance company herein is indemnifier of the owner. Under the order impugned the insurance company has been made liable to pay the compensation without considering the cause of right of its recovery, if any, from the owner.
Therefore, in disposing of the appeal at the stage of admission itself we direct the tribunal concerned to consider the right of recovery, if any, of the insurance company in respect of the awarded sum, provided appropriate application is made in the selfsame proceeding and notice plus adequate opportunity of hearing is given to all contesting parties. However, under no circumstances, the payment of compensation to the claimant-sufferer should be stalled.
Accordingly, the appeal is disposed of, however, without imposing any cost.
Incidentally, the appellant-insurance company prayed that the statutory deposit of Rs. 25,000/- made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimants, however, such prayer is allowed.