NEW INDIA ASSURANCE COMPANY LTD Vs. MAHBOOB ALI

JUDGEMENT

(1.) AMITAVA Lala, J. Let the supplementary affidavit filed on behalf of the appellant be kept with the record.

(2.) THIS is an appeal of the insurance company challenging the judgment 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 U. P. State Road Transport Corporation (here inafter 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 judgments of the Supreme Court reported in 1998 (1) T. A. C. 42 (S. C.) (Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and others), which has also been considered in 2008 (1) ACCD 143 (SC) (National Insurance Co. Ltd. v. Deepa Devi and others ). Relying upon paragraph-16 of the particular judgment 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 per son 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.

(3.) INCIDENTALLY, the appellant-insurance company prayed that the statutory deposit of Rs. 25. 000/- made before this Court for preferring this appeal be remit ted back to the concerned Motor Accident 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. .