Satyeshwar Roy, J.:— Out of one bus accident, two claims were preferred under section 110-A of the Motor Vehicles Act (‘the Act’) one by Subhas Chandra Prajapati for the injuries sustained by him which was registered as M.J.C 145 of 1974 and the other by the legal representatives of the deceased Ram Briksha Mahto which was registered as M.J.C 133 of 1974, Both the cases were heard together and were disposed of by one judgment. Two appeals were filed by the opposite party of those two claim cases. Miscellaneous Appeal No. 12 of 1978(R) which arose out of M.J.C No. 145 of 1974 was dismissed on 11.3.83 This appeal is confined to the award given in M.J.C No. 133 of 1974 for the death of Ram Briksha Mahto.

2. According to the respondents-claimants, mini bus No. BHN 5454 was going from Dhurwa to Ranchi and Ram Briksha was travelling in the same. The bus met with a serious accident near Hino crossing due to rash and negligent driving by the driver. Ram Briksha died at the spot. The respondents filed an application under section 110-A of the Act for compensation of Rs. 75,000/-. The Tribunal allowed the claim and ordered that it shall be payable by the insurance company, the appellant, with interest from the date of the order till realisation at the rate of 6% per annum. The appellant has challenged the quantum of compensation awarded. According to the appellant since the evidence was that Ram Briksha was drawing a salary of Rs. 426/- per month at the time of his death, the amount awarded was exhorbitant because the multiplier used was imaginary. The award was liable to be reduced to less than Rs. 50,000/-. Moreover, the amount awarded by the Tribunal was in excess of the statutory limit and is liable to be reduced to the amount payable under law.

3. On behalf of the respondents a preliminary objection was raised with regard to the maintainability of the appeal in view of section 96(2) of the Act. It was also contended that on merit no case had been made out for any interference with the award.

4. Mr. Lal learned counsel appearing on behalf of the respondents, submitted that the insurance company is entitled to defend the action on any of the grounds mentioned in section 96(2) of the Act and as none of the grounds entitled the insurance company to challenge the quantum, the insurance company could not have defended the action on that ground either before the Tribunal or in this court in appeal. In support of his contention, Mr. Lal referred to a number of decisions of different High Courts.

5. Mr. Banerjee, learned counsel appearing on behalf of the appellant, submitted that there was no legal bar for the insurance company to challenge the quantum. He also urged that even if there be any such bar, it shall not apply if compensation is awarded beyond the maximum limit provided under section 95(2) of the Act and the insurer is made to pay it. In support of his last contention, Mr. Banerjee relied in Howrah Insurance Co. Ltd. v. Yukti Nath Jha, 1974 ACJ 18 (Patna).

6. With regard to the maintainability of the appeal section 96(2) of the Act is relevant which provides that the insurer to whom notice of any proceeding is given shall be entitled to be made party thereto and to defend the action on any of the grounds mentioned therein.

7. As far back as in 1959, the Supreme Court in British India General Insurance Co. v. Itbar Singh, 1958-65 ACJ 1 (SC), interpreted that sub-section and held:

“To start with it is necessary to remember that apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section (2) of section 96, however, gives him the right to be made a party to the suit and to defend it. The right, therefore, is created by statute and its content necessarily depends on the provisions of the statute. The question then really is, what are the defences that sub-section (2) makes available to an insurer?”

8. The Supreme Court, after noticing different clauses of sub-section (2), held that:

“An insurer made a defendant to the action is not entitled to take any defence which is not specified in it.”

9. The law so laid down by the Supreme Court was consistently followed by it in its subsequent decisions. The decisions of High Courts cited by Mr. Lal on this point are based on that decision or some other decision of the Supreme Court to the same effect. I, therefore, did not think it necessary to refer to the decisions of the High Courts.

10. That being the clear legal position we are to decide whether that decision must be interpreted to mean that even if the liability of the insurer is fixed at an amount higher than that provided in section 95, he cannot challenge it. Precisely that was what Mr. Lal contended. Mr. Banerjee urged that in Captain Itbar Singh's case, 1958-65 ACJ 1 (SC), the Supreme Court did not lay down that proposition of law as contended by Mr. Lal. Mr. Banerjee drew our attention to a decision of a learned single Judge in Howrah Insurance Co. Ltd. v. Yukti Nath Jha1974 ACJ 18 (Patna), in support of his contention.

11. The question that arises then: can it be said that there is no difference between an insurer who admits his liability but challenges the quantum and the insurer who altogether denies his liability? By way of illustration if in a proceeding the insurer accepts his liability but contends that his liability will be a particular amount, if Mr. Lal's contention is correct, the Tribunal or appellate court will not allow him to raise that question. A fortiori that defence then will not be available even in a case where compensation is awarded on the basis of no evidence or in excess of the statutory limit. In my opinion, that is not the legal position. What section 96(2) lays down are the grounds on which an insurer may contend that he has no liability at all. Challenging the amount claimed or awarded is not the same thing as denying the liability altogether. Similar point was raised in Hindustan General Insurance Society Ltd. v. Daya Nath Jha, (1970) 40 Comp Cases 796. It was observed that an insurer may escape liability if he proves one or other of the grounds mentioned in section 96(2), but that does not deter the insurer from asking the court or the Tribunal not to pass a decree or an award for the exhorbitant amount to which the claimant is not entitled in law. This decision was followed by the learned single Judge in Yukti Nath Jha's case, 1974 ACJ 18 (Patna). I, therefore, hold that the appellant is entitled to challenge the quantum of compensation allowed by the Tribunal.

12. Mr. Banerjee submitted that the statutory limit of compensation payable for the death of Ram Briksha was Rs. 5,000/- as provided in section 95(2)(b)(ii)(4). In National Insurance Co. Ltd. v. Shanim Ahmad, 1985 ACJ 749 (Patna), it was held that:

“In our opinion there is no substance in this submission. When the legislature made provision for payment of compensation to passengers with specific reference to carrying capacity of vehicle, recourse cannot be taken to clause (4), if it is not a motor cab or vehicle other than those specified in clauses (1), (2) and (3).”

13. There is no substance in this submission of Mr. Banerjee.

14. Mr. Banerjee next urged that since there was no evidence about the carrying capacity of the vehicle involved in the accident, the compensation of Rs. 75,000/- could not have been awarded. Alternatively, he urged that even if it was accepted, as urged by Mr. Lal, that the vehicle was registered to carry not more than 30 passengers, since the statutory compensation payable was Rs. 50,000/- the amount, if awarded, in excess of it must be paid by the owner of the vehicle and the appellant cannot be saddled with that liability.

15. In the case before the Tribunal, the respondent-claimants stated that the bus in question was a mini bus. It was not specified either in the application or during the course of trial what was the maximum carrying capacity of the vehicle. Mr. Lal submitted that the vehicle was registered to carry not more than 30 passengers and according to him this was taken into consideration by the Tribunal. Mr. Banerjee conceded that the Tribunal proceeded on this footing that the vehicle was registered not to carry more than 30 passengers. He, however, contended that in absence of any evidence the Tribunal could not have proceeded on this footing. Admittedly, the vehicle was insured with the appellant and the policy of the insurance was with the owner and the duplicate and other records regarding this were with the appellant. It was not possible for the respondent-claimants to produce the policy of insurance or any connected paper. Neither the appellant nor the owner chose to produce the insurance policy. What was the capacity of the vehicle was within the special knowledge of the appellant. I am of the opinion that in such cases inference may be drawn that if the policy of insurance would have been produced, it would have supported the case of the claimants. It must be held that the vehicle was registered to carry not more than 30 passengers.

16. Mr. Banerjee submitted that on the basis of the evidence led by the respondents, the Tribunal could not have awarded Rs. 75,000/-, as compensation. In support of his submission, Mr. Banerjee relied on the evidence led by the respondent-claimants.

17. According to the claim application Ram Briksha was the Headmaster of Senior Basic School, Balanlong and at the time of his death he was drawing a salary of Rs. 438/- per month. Further, from the evidence it appeared that Ram Briksha was 40 years old at the time of his death. The Tribunal held that Ram Briksha would have put in service for 70 years more and that out of his salary he was spending Rs. 75/- per month on himself. On the basis of these figures, the Tribunal calculated the amount of compensation as Rs. 84,000/-, but as the respondent-claimants had claimed Rs. 75,000/- that was allowed.

18. In Gobald Motor Service Ltd. v. R.M.K Veluswami, 1958-65 ACJ 179 (SC), it was held that:

“In calculating the pecuniary loss to the dependents many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the dependents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture.”

19. The law so laid down still holds the field. I have already noticed that Ram Briksha was a teacher in Senior Basic School. No evidence was led about the age of his superannuation. But as Ram Briksha was a government servant, he would have superannuated at the age of 58 years. Ram Briksha would have continued in service for 18 years more. We have to take into consideration the uncertainty of life 1, therefore, hold that Ram Briksha would have continued in service for 15 years more. Again, since the amount would have to be paid in lump sum, there should be deduction of 10% from the total amount. As noticed earlier, the Tribunal held that out of the salary Ram Briksha was spending Rs. 75/- per month on himself. I find no reason to interfere with this finding. The reasonable compensation that the respondents would be entitled to in this case would be Rs. 56,000/- and odd, which is rounded off to Rs. 56,000/-. I hold that the respondents were entitled to a compensation of Rs. 56,000/- for the death of Ram Briksha. The statutory liability of the appellant was Rs. 50,000/-. Normally, order should have been for payment of the whole amount by the appellant with liberty to it to recover 6,000/- from the owner of the vehicle. But in this case, in my opinion, that cannot be done. It appears from the record that the owner of the vehicle was made respondent No. 10 in the appeal. On 30th June, 1982 a Bench of this court allowed three weeks time to the appellant to take steps for substituted service of notice on him. It was also ordered that failing which appeal as against respondent No. 10 would stand dismissed without further reference to a Bench. Because that order was not complied with, name of respondent No. 10 was expunged from the appeal. It will thus appear that because of the negligence of the appellant. The owner of the vehicle was not before the court when the matter was heard. No liability, therefore, can be fastened on him. In the circumstances, it is ordered that the appellant shall pay to the respondent-claimants Rs. 56,000/-. In the result, the appeal is dismissed with modification of the compensation awarded by the Tribunal. It is ordered that the appellant shall pay Rs. 56,000/- to the respondent-claimants with interest at the rate of 6% per annum from the date of award of the Tribunal till the realisation.

Abhiram Singh, J.:— I agree.