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Kunhimohammed v. Ahmbdkutty
Factual and Procedural Background
Saheeda, a constable of the Armed Reserve Police, was a passenger in bus KLD 9327 which met with an accident on 24-7-1978 resulting in her death. Three children of Saheeda were travelling with her (one an infant of 70 days) and all three children survived unhurt; her husband (PW.2), who was the checking Inspector of the bus, also survived. The Tribunal found the accident was caused by the rash and negligent driving of the first respondent (the driver), and held the appellant (the second respondent as owner of the bus and employer of the driver) vicariously liable. The respondent-insurer was also held liable under the policy.
The Tribunal assessed the compensation payable by the owner at Rs. 56,800/-, and held that the insurer's liability was limited to Rs. 5,000/- under the policy as interpreted with reference to S. 95(2)(b)(ii) of the Motor Vehicles Act, 1939 (as amended by Act 56 of 1969). The owner/appellant appealed the Tribunal's decision; the present opinion records the High Court's consideration and final disposition of that appeal.
Legal Issues Presented
- Whether Saheeda was a passenger at the time of the accident and, if so, whether her death was caused by the negligence of the driver (a factual-legal issue bearing on liability classification).
- Whether the insurer's liability under S. 95(2)(b) of the Motor Vehicles Act (as amended in 1969 and prior to the 1982 amendment) is limited to Rs. 5,000/- per individual passenger (clause (4)) or whether, in a case with only one victim, the insurer's minimum liability is the overall limit of Rs. 75,000/- under sub‑clause (2) of S. 95(2)(b)(ii).
- How prior judicial decisions (notably Sheikhpura Transport Co. v. N.I.T. Ins. Co. and Motor Owners’ Insurance Co. Ltd. v. J.K. Modi) affect the construction of S. 95(2)(b)(ii) as amended in 1969.
Arguments of the Parties
Appellant's Arguments
- The Tribunal erred in finding that Saheeda was a passenger at the relevant time and that her death was caused by the negligence of the driver.
- If Saheeda was not a passenger at the relevant time, the insurer's liability should not have been limited to Rs. 5,000/- under S. 95(2)(b)(ii); rather, counsel contended liability would be Rs. 50,000/- under S. 95(2)(b)(i) (assuming the relevant sub-clause applied).
- Even if Saheeda was a passenger, counsel contended that the insurer's liability under S. 95(2)(b)(ii) (as amended in 1969 and prior to the 1982 amendment) prescribed an overall liability of Rs. 75,000/- for the vehicle in question, and therefore where there was only one victim the insurer's liability should not be limited to Rs. 5,000/-; he relied on the Supreme Court's observation in Motor Owners’ Insurance Co. Ltd. v. J.K. Modi and certain decisions of the Bombay and Patna High Courts.
- Counsel further submitted that construing the section to cap per-passenger liability at Rs. 5,000/- could result in injustice to the legal representatives of deceased victims.
The opinion does not provide a detailed, adversarial presentation of arguments from the respondent parties beyond the Tribunal's findings and the insurer being held liable under the policy.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sheikhpura Transport Co. v. N.I.T. Ins. Co., (1971) 1 SCC 785 : A.I.R. 1971 S.C. 1624 | Determined that insurer's liability in respect of an individual passenger is the amount stipulated for an individual passenger (e.g., Rs. 4,000/- or Rs. 2,000/- under the pre-1969 provision), not the overall maximum liability for all passengers. | The Court relied on the principle that per-passenger limits control insurer liability; it treated Sheikhpura as establishing that the insurer's liability is the per-individual amount rather than the overall cap, and used that reasoning by analogy to hold that the amended 1969 scheme likewise prescribes a per-passenger limit (here Rs. 5,000/-). |
| Motor Owners’ Insurance Co. Ltd. v. J.K. Modi, (1981) 4 SCC 660 : A.I.R. 1981 S.C. 2059 | Interpreted "any one accident" in sub-s. (2) (clause (a)) to mean that liability should be regarded per victim such that, in clause (a) (goods vehicle context), if only one person was involved, the insurer's liability could be the whole sum (Rs. 50,000/-) rather than a portion. | The Court acknowledged the Motor Owners decision but distinguished it: that decision concerned clause (a) (goods vehicles) where there is no per-individual cap, and therefore its reasoning is not applicable to clause (b) (passenger vehicles). The Court rejected the appellant's attempt to extend Motor Owners' principle to clause (b) and held such an extension would be inconsistent with the language of the amended section. |
| Madras Motor and General Insurance Co. Ltd. v. V.P. Balakrishnan, 1982 A.C.J. 460 (Madras High Court, Div. Bench) | Considered S.95(2) post-1969 amendment and held the Motor Owners decision (relating to clause (a)) did not apply to clause (b). | The Court followed and agreed with that Division Bench view, treating Motor Owners as inapplicable to clause (b) and supporting the construction that clause (4) governs per-passenger liability. |
| New India Assurance Co. Ltd. v. Mahmood Ahmad, 1984 A.C.J. 390 (Allahabad High Court, Div. Bench) | Expressed the view that Motor Owners' decision did not apply to clause (b) and supported the per-passenger limit construction. | The Court noted and agreed with the identical view expressed by that Division Bench. |
| Raghib Nasim v. Naseem Ahmad, 1986 A.C.J. 405 (Allahabad High Court, Div. Bench) | Similar division-bench view supporting per-passenger construction for clause (b). | The present Court cited this decision as one of several Division Bench decisions aligning with the per-passenger interpretation and agreed with it. |
| K.R. Sivagami v. Mahaboob Nisa Bi, 1981 A.C.J. 399 (Madras High Court, Div. Bench) | Division Bench view supporting that Motor Owners is inapplicable to clause (b) and endorsing per-passenger limits. | The present Court referred to and agreed with the reasoning in this Division Bench decision. |
| Sivahari Rama Tiloji v. Kashi Vishnu Agarwadekar, 1985 A.C.J. 494 (Bombay High Court) | One of the High Court decisions taking a contrary view: apparently holding that where there is only one victim the overall limit may apply. | The present Court expressly disagreed with the contrary view taken by the Bombay High Court in this and related decisions, preferring the per-passenger construction. |
| National Insurance Co. Ltd. v. Deepathumma, 1986 A.C.J. 520 (Bombay High Court) | Another Bombay High Court decision taking a contrary view to the per-passenger construction. | The present Court rejected this contrary view. |
| National Ins. Co. Ltd. v. Shanim Ahmad, 1985 A.C.J. 749 (Patna High Court) | Patna High Court decision taking a contrary view to per-passenger limitation. | The present Court disagreed with Patna High Court decisions of similar effect. |
| Oriental Fire & Genl. Ins. Co. Ltd. v. Laxman Mahto, 1985 A.C.J. 775 (Patna High Court) | Patna High Court decision aligned with the contrary view. | The present Court rejected that contrary approach. |
| Tara Pada Roy v. Dwijendra Nath Sen, 1986 A.C.J. 299 (Patna High Court) | Another Patna High Court decision taking the contrary view. | The present Court expressly disagreed with this authority. |
Court's Reasoning and Analysis
The Court's analysis proceeds in two main strands: (A) the factual-appreciation regarding whether Saheeda was a passenger and the cause of death; and (B) the legal construction of S. 95(2)(b)(ii) as amended in 1969 and prior to the 1982 amendment (the principal contested point).
(A) Factual-appreciation
- The Tribunal found on the preponderance of probabilities, based on evidence (notably PW.2, the husband) and disbelieving interested witnesses (the driver and conductor) and an improbable account of another passenger (RW.3), that the bus was being driven rashly and negligently: it refused an overtake, ran over lime shells at speed, struck an electric post and overturned.
- Saheeda was sitting near the open entrance; she and the infant in her arms were thrown off the bus when it dashed against the post and overturned. The baby landed a few feet away and survived; Saheeda was crushed underneath the bus and killed. The Court found no error in the Tribunal's appreciation of evidence and accepted the finding that she was a passenger and her death was caused by the driver's negligence.
- Therefore, the factual basis to class her death as that of a passenger caused by negligent driving stands upheld by the Court.
(B) Legal construction of S. 95(2)(b)(ii)
- The Court reviewed the statutory text of S. 95(2) as it stood before 1969 and as amended in 1969 (and prior to the 1982 amendment). The pre-1969 scheme had both an overall ceiling for passenger liabilities and a separate, lower per-individual cap (e.g., Rs. 20,000 overall and Rs. 4,000 or Rs. 2,000 per individual depending on vehicle registration capacity), a construction adopted by the Supreme Court in Sheikhpura Transport Co.
- Post-1969 the amended provision introduced graduated overall caps depending on the registered capacity (Rs. 50,000 / 75,000 / 1,00,000) while clause (4) provided a per-individual passenger cap (Rs. 10,000 for motor cabs; Rs. 5,000 for other cases) subject to the stated overall caps.
- The appellant relied on Motor Owners (1981), where the Supreme Court interpreted "any one accident" in clause (a) (goods vehicle context) to mean that, where only one victim was involved, the insurer's liability could be the full overall amount (there was no per‑individual cap in clause (a)). The present Court analysed Motor Owners and emphasised that it dealt with clause (a) and therefore did not decide the construction of clause (b) (passenger vehicles) as amended in 1969.
- The Court concluded that applying Motor Owners' reasoning to clause (b) would be artificial and repugnant to the language of the amended section. Specifically, clause (4) of sub‑section (2)(b)(ii) expressly imposes a per-individual limit "subject to the limits aforesaid", which the Court read as clarifying that the per-passenger cap (Rs. 5,000 in the present vehicle category) governs insurer liability for each passenger, while the clauses (1) to (3) set the maximum aggregate liability for all passengers.
- The Court relied on Supreme Court authority in Sheikhpura and on prior Division Bench decisions (Madras, Allahabad) that had applied a like construction to hold per-passenger limits controlling insurer liability. The Court expressly disagreed with several Bombay and Patna High Court decisions that had read the section differently and adopted the appellant's view.
- The Court also addressed the policy consideration that if owners elect to purchase only the minimum statutory insurance cover they take the risk of under-insurance: the owner remains vicariously liable and may have to pay beyond what the insurer will indemnify if he insured only to the statutory minimum.
Holding and Implications
Holding: The Court upheld the Tribunal's findings and legal construction. The appeal was dismissed. The core ruling is emphasized as follows:
DISMISSED
Direct consequences and implications:
- The factual finding that Saheeda was a passenger whose death was caused by the negligent driving of the respondent-driver was upheld.
- The Tribunal's assessment of compensation by the owner in the sum of Rs. 56,800/- stands.
- The Court held that under S. 95(2)(b)(ii) as amended in 1969 (and prior to the 1982 amendment) the insurer's liability in respect of an individual passenger is the amount specified under clause (4) of that provision. For the vehicle category in this case that per-passenger limit is Rs. 5,000/-. The overall limit of Rs. 75,000/- is an aggregate cap and does not enlarge the per-passenger minimum where clause (4) sets a lower per-individual maximum.
- Therefore the insurer's liability is limited to Rs. 5,000/- for this passenger claim; any balance of the compensation assessed against the owner is a liability of the owner (who is vicariously liable), subject to indemnity only to the extent the owner purchased insurance covering that liability.
- The Court expressly disagreed with contrary decisions of certain Bombay and Patna High Courts that had applied Motor Owners (relating to clause (a)) to clause (b). It followed Division Bench authorities (Madras, Allahabad) that had taken the opposite view.
No information outside the provided opinion has been added. The summary reflects only the facts, contentions, authorities cited, reasoning and the final disposition as contained in the provided text.
Kochu Thommen, J.:— Saheeda was a constable of the Armed Reserve Police. She was one of the passengers in the bus KLD 9327 which met with an acoident 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 negligentd riving 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 S. 95(2)(b) (ii) of the Motor Vehicles Act, 1939 (as amended by Act 56 of 1969).
2. The appellant's counsel, Sari. Ravindran contends that the Tribunal erred in finding that Saheeda 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/- under 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 S. 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 Motor Owners’ Insurance Co. Ltd. v. J.K Modi, (1981) 4 SCC 660 : A.I.R 1981 S.C 2059 and certain decisions of the Bombay and Patna High Courts.
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-hand 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 arms 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. 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 RW 3 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 eotranee, 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.
4. 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 under S. 95(2)(b) (ii), but under S. 95(2)(b) (i).
5. We now come to the main argument. Counsel says that S. 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 to 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 S. 95(2)(b)(ii), and not the amount mentioned under clause (4) thereof.
6. We should have thought that the construction of S. 95(2)(b) (ii) was concluded by the decision of the Supreme Court in Sheikhpura Transport Co. v. N.I.T Ins. Co., (1971) 1 SCC 785 : A.I.R 1971 S.C 1624, although that case arose under the provisions as they stood prior to the 1969 amendment. The court stated that the liability of the insurer in respect of each passenger is not the total amount mentioned as the overall liability of the insurer in respect of passengers, but only the amount stipulated in respect of each individual passenger. Counsel for the appellant, however, submits that the provisions before and after the amendment are not pari materia. He further submits that the amended provisions ought to be considered in the light of the principle stated by the Supreme Court in Motor Owners’ Insurance Co. Ltd. v. J.K Modi, (1981) 4 SCC 660 : A.I.R 1981 S.C 2059.
7. We shall first consider the provisions of the Act as they stood before the amendment in 1969. S. 95(2), as it then stood, in so far as it is material, reads:
“95(2) Sudject to the proviso to snb-s: (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)……………………”
8. It was with reference to S. 95(2)(b), as it stood prior to 1969 amendment, Shat the Supreme Court slated in Sheikhpura Transport Co. v. N.I.T Ins. Co., (1971) 1 SCC 785 : A.I.R 1971 S.C 1624 that, in respect of an individual passenger, the insurer's liability was not Rs. 20,000/-, but only Rs. 4,000/- or Rs. 2,000/-, as the case may be, depending on the registered capacity of the vehicle. If the vehicle was registered to carry more than six passengers, and there was only one passenger who was involved in the accident, the liability of the insurer was limited to Rs. 2,000/-. The overall liability of the insurer, irrespective of the number of claimants, was also limited to Rs. 20,000/-. The court stated:
“9. ………Hence the maximum liability imposed under S. 95(2) on the insurer is Rs. 2,000/- per passenger though the total liability may go upto Rs. 20,000/-………”
9. In Motor Owners’ Insurance Co. Ltd. v. J.K Modi, (1981) 4 SCC 660 : A.I.R 1981 S.C 2059, the claim was under S. 95(2)(a), and not under S. 95(2)(b), for it was a goods vehicle. The Supreme Court stated that the expression “anyone accident” under sub-s. (2) meant that there would be as many accidents as there were victims. The court held that, if only one person was involved in the accident, the liability of the insurer under S. 95(2)(a) would still be Rs. 50,000/- and not a portion thereof. The reason for so stating was that in respect of a liability falling under clause (a), which related to goods vehi cle, and death or injuries to employees other than driver, there was no separate limit for the individual employee. The clause only limi ted the total liability of the insurer to Rs. 50,000/- which included the liabilities arising under the Workmen's Compensation Act. The Supreme Court however noticed the distinction between clause (a) and clause (b), and stated that the decision in Sheikhpura Transport Co. v. N.I.T Ins. Co., (1971) 1 SCC 785 : A.I.R 1971 S.C 1624, which related to clause (b), was distinguishable from what was coasidered in Motor Owners Insurance Co. Ltd. J.K Modi, (1981) 4 SCC 660 : A.I.R 1981 S.C 2059. The court stated:
“………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”
10. 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”.
11. 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.
12. We shall now read S. 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-s. (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, aamely.—
(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 fitfy 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 fo 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 parly”.
13. Clauses (1) to (4) of sub-s. (2)(b)(ii) have now been added. Clause (4) referring to the limit of the overall liability of the insurer, says that, subject to that limit, the insurer is liable in respect of each passenger in the sum specified under that clause. Clause (2), which is the provision relevant to the vehicle in question, limits the overall liability of the insurer to Rs. 75,000/-.
14. The insurer's liability for passenger in respect of the vehicle in questson is limited under clause (4) to Rs. 5,000/-.
15. The appellant's counsel however, referring to the observation of the Supreme Court in Motor Owners’ Insurance Co. Ltd. v. J.K Modi, (1981) 4 SCC 660 : A.I.R 1981 S.C 2059 that the case of each victim should be regarded as a separate accident, submits that the reference in clause (4) to an overall limit means that, where there was only one victim, as in the present case, the insurer's liability is not limited to Rs. 5,000/-, but his minimum liability is Rs. 75,000/-. We do not agree. Any such construction would be artificial, totally repugnant to the language of the Section, read grammatically or beneficially, and would therefore be wrong.
16. 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 Supeme Court in Sheikhpura Transport Co. v. N.I.T Ins. Co., (1971) 1 SCC 785 : A.I.R 1971 S.C 1624, the overall liability was specified and so was the liability per individual passenger. Likewise, even after the amendment in 1969, whatever the number of passengers, the liability per passenger did not exceed Rs. 5,000/-. It made no difference even if there was only one victim. But the overall liability was limited to the respective amount under clauses (1) to (3) of sub-s. (2) ‘b) (ii), depending on the registered capacity of the vehicle. The words “subject to the limits aforesaid” appearing in clause (4) of the amended provision only makes that position clearer.
17. This Section was considered by a Division Bench of this Court in Madras Motor and General Insurance Co. Ltd. v. V.P Balakrlshnan, 1982 A.C.J 460. The decision of the Supreme Court in Motor Owners’ Insurance Co. Ltd. v. J.K Modi, (1981) 4 SCC 660 : A.I.R 1981 S.C 2059 was brought to the notice of this Court. Speaking for the Division Bench, Khalid, J., as he then was, stated that that decision of the Supreme Court had no application, for that was a case relating to clause (a), and not clause (b) which was the provision for consideration before the Division Bench. The same is the position in the present case. An identical view has been expressed by a Division Bench, of the Allahabad High Court in New India Assrance Co. Ltd. v. Mahmood Ahmad, 1984 A.C.J 390 and Raghib Nasim v. Naseem Ahmad, 1986 A.C.J 405. So has a Division Bench of the Madras High Court in K.R Sivagami v. Mahaboob Nisa Bi, 1981 A.C.J 399. With respect we agree with the views expressed on the point in those decisions.
18. A contrary view has been expressed by the Bombay and Patna High Courts: Sivahari Rama Tiloji v. Kashi Vishnu Agarwadekar, 1985 A.C.J 494 (Bom.); National Insurance Co. Ltd. v. Deepathumma, 1986 A.C.J 520 (Bom.); National Ins. Co. Ltd. v. Shanim Ahmad, 1985 A.C.J 749 (Patna): Oriental Fire & Genl. Ins. Co. Ltd. v. Laxman Mahto, 1985 A.C.J 775 (Patna); and, Tara Pada Roy v. Dwijendra Nath Sen, 1986 A.C.J 299 (Patna). With the utmost respect, we disagree with that view. Accordingly we hold that the liability of the insurer in respect of an individual passenger is the amount specified under clauses (4) of S. 95(2)(b) (ii), which in respect of the vehicle in question here, is only Rs. 5,000/-.
19. Connsel 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 he 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.
20. We dismiss the appeal with costs.
21. Dismissed.
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