Kochu Thommen, J.@mdashSaheeda was a constable of the Armed Reserve Police. She was one of the passengers in the bus KLD 9327 which met with an accident on 24-7-1978 resulting in Saheeda''s death. Three of her children were travelling with her in that bus. One of them was an infant of 70 days. She was carrying it in her arms. All the three children escaped unhurt. So did her husband, PW 2, who was the checking Inspector of the bus and who happened to be in the bus at the time of the accident. The Tribunal found that the accident occurred on account of the rash and negligent driving of the first respondent, in respect of which the appellant (second respondent) as the owner of the bus and employer of the driver was held vicariously liable. The respondent-insurer was also held liable in terms of the policy. The Tribunal determined the compensation payable by the owner in the sum of Rs. 56,800/-. The Tribunal further held that the liability of the insurer to indemnify the owner was limited to Rs. 5,000/- as the policy specifically limited the insurer''s liability to the minimum requirements of Section 95 (2) (b) (ii) of the Motor Vehicles Act, 1939 (as amended by Act 56 of 1969).
2. The appellant''s counsel, Shri Ravindran contends that the Tribunal erred in finding that Sdheeda was a passenger at the relevant time, and that her death was caused on account of the negligence of the driver. Assuming that she died on account of the negligent driving, counsel contends, Saheeda being not a passenger at the relevant time, the liability of the insurer was not limited to Rs. 5,000/-, as found by the Tribunal, but to Rs. 50,000/- u/s 95(2) (b) (i). His third contention is that, even assuming Saheeda was a passenger at the relevant time, the liability of the insurer in terms of Section 95(2)(b)(ii) is not limited to Rs. 5,000/- but to Rs. 75,000/-. He relies on the observation of the Supreme Court in
3. From the totality of evidence, the Tribunal found that the accident occurred on account of the rash and negligent driving of the respondent-driver. The bus was proceeding towards Malappuram at about 4.45 p m. on 24-7-1978 It was being chased by another bus. The appellant''s bus refused to let the other bus overtake. At high speed the appellant''s bus ran over a heap of lime shells on the right-band side of the road apparently trying to block the other bus from overtaking. The appellant''s bus then dashed against an electric post and overturned to its left. Saheeda was sitting in the seat near the open entrance. She and the baby in her armi were thrown off the bus, and the bus fell over her. She was caught underneath the bus, crushed and killed. The baby fell a few feet off the bus, and thus escaped unhurt.
4. The learned Judge found these facts on the basis of the testimony of PW 2, her husband, as well as on appreciation of the totality of evidence. The testimony of RWs. 1 and 2, the driver and conductor, was disbelieved by the Tribunal for the reason that they were interested persons. The testimony of RW 3, who was a passenger in the bus, was also disbelieved by the Tribunal, for the reason that it was highly improbable. RW 3 said that, as the bus was about to overturn, the passengers were warned by the conductor, RW 2, not to get out of the bus. Despite the warning, Saheeda walked out of the bus with her baby. If the bus overturned in the circumstances narrated by the witnesses, it was most unlikely that RW3 would have in that crisis noticed the movements of Saheeda. Nor was it likely that there would have been sufficient time for the conductor to warn the passengers not to get out. Saheeda was sitting near the open entrance, and she was in all probability thrown off the bus while it dashed against the electric post and overturned. The impact of the collision was sufficient to throw off any passenger when the entrance was open. The fact that the baby was thrown a few feet away from the bus while Saheeda fell underneath the bus indicated that she lost hold of the baby owing to the impact, and it was flung off the bus.
5. We see no error in the appreciation of the evidence by the Tribunal. The preponderance of probabilities indicated that the only reasonable inference which could be drawn from the basic facts was the one which the Tribunal did. In the absence of any acceptable evidence to indicate that Saheeda was not a passenger at the relevant time, in the sense that she had voluntarily left the bus, we see no substance in the contention that the liability of the insurer did not fall u/s 95(2)(b)(ii), but Section 95(2)(b)(i).
6. We now come to the main argument. Counsel says that Section 95(2)(b)(ii), as it stood at the relevant time subsequent to the amendment of 1969 and prior to the amendment of 1982, prescribed an overall liability of Rs. 75,000/- in respect of each accident and there was no justification in limiting the insurer''s liability of Rs. 5,000/- as the Tribunal did. Emphasising the fact that the compensation prescribed under the Act is in respect of "any one accident", the total amount mentioned under the relevant provision in respect of a passenger, counsel says, is what is mentioned under Clause (2) of Section 95(2)(b)(ii), and not the amount mentioned under Clause (4) thereof.
7. We should have thought that the construction of Section 95(2)(b)(ii) was concluded by the decision of the Supreme Court in
8. We shall first consider the provisions of the Act as they stood before the amendment in 1969. Section 95(2), as it then stood, in so far as it is material, reads:
95(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:
(a) where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all....
(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver;
(c).....
It was with reference to Section 95(2)(b), as it stood prior to 1969 amendment that the Supreme Court stated in
9. ...Hence the maximum liability imposed u/s 95(2) on the insurer is Rs 2,000/- per passenger though the total liability may go upto Rs. 20,000/-... .
9. In
...In view of the limit on the insurer''s liability in respect of each passenger, the argument on the construction of the words "any one accident" had no relevance and was therefore neither made nor considered by the Court... .
The court however observed:
... Different considerations may arise under Clause (b), as amended by Act 56 of 1969, but as we do not propose to make any observations on that aspect of the matter, since it does not directly arise before us.
10. Accordingly the construction of the provisions, as they stood at the relevant time, i.e., between the amendments of 1969 and 1982, was left open by the Supreme Court. No subsequent decision of the Supreme Court has been brought to our notice considering those provisions.
11. We shall now read Section 95(2), as it stood subsequent to the amendment of 1969 and prior to the amendment of 1982.
95 (2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely--
(a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen''s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to employees (other than the driver) not exceeding six in number, being carried in the vehicle;
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,--
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers--
(1) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers;
(2) a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers;
(3) a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and
(4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case;
(c) save as provided in Clause (d) where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damage to any property of a third party.
Clauses (1) to (4) of Sub-section (2) (b) (ii) have now been added. Clause (4) referring to the limit of the overall liability of the insurer, says that, sub-sect to that limit, the insurer is liable in respect of each passenger in the sum jpecified under that clause. Clause (2), which is the provision relevant to the vehicle in question, limits the overall liability of the insurer to Rs. 75000/-.
12. The insurer''s liability for passenger in respect of the vehicle in question is limited under Clause (4) to Rs. 5,000/.-
13. The appellant''s counsel however, referring to the observation of the Supreme Court in
14. In the first place, the Section as amended in 1969 makes no difference in principle in regard to the liability of the insurer. The difference lies only in the measure of that liability. Under the earlier provision, as construed by the Supreme Court in
15. This Section was considered by a Division Bench of this Court in Madras Motor and General Insurance Co. Ltd. v. V.P. Balakrishnan 1982 ACJ 460. The decision of the Supreme Court in
16. A contrary view has been expressed by the Bombay and Patna High Courts: Sivahari Rama Tiloji v. Kashi Vishnu Agarwadekar, 1985 ACJ 494 National Insurance Co. Ltd. v. Deepathumma, 1986 ACJ 520 National Ins. Co. Ltd. v. Shanim Ahmad, 1985 ACJ 749 ; Oriental Fire & Genl. Ins. Co. Ltd v. Laxman Mahto, 1985 ACJ 775 ; and Tara Pada Roy v. Dwijendra Nath Sen, 1986 ACJ 299 . With the utmost respect, we disagree with that view.
17. Accordingly we hold that the liability of the insurer in respect of an individual passenger is the amount specified under Clauses (4) of Section 95 (2) (b) (ii), which in respect of the vehicle in question here, is only Rs. 5000/-.
18. Counsel for the appellant submits that the construction which we have put on the Section is apt to result in injustice from the point of view of the legal representatives of the deceased. We do not agree. The owner of the bus is vicariously liable for the fault of his employee. Where the negligence is found, the owner has to pay compensation. He has either to pay it out of his own pocket, when be is his own insurer, i.e, when he is not covered by insurance, or he is entitled to be indemnified if his liability is covered by insurance If he chooses to save premium by not insuring beyond what is strictly required under the statute, he takes the risk and remains his own insurer, as he has done, for any liability in excess of the statutory limit. Insured or not, the legal representatives look to him for compensation.
19. We dismiss the appeal with costs.
