Kulkarni, J.:— These twenty appeals by the Oriental Fire & General Insurance Company Limited are directed against the common judgment and awards dated 19-1-1982 passed by the Member, Motor Accidents Claims Tribunal, Mandya, in Miscellaneous (MVC) Cases Nos. 2 to 21 of 1980, on his file, allowing them and awarding different amounts of compensation in each case and holding all the respondents, including the present appellant/insurance Company, liable.

2. The omnibus bearing Registration No. MER 2790, belonging to respondent-1 before the Tribunal, was hired by 13 adults and 7 children for making a pilgrimage to various places like Udupi, Dharmasthala and other places. After finishing the pilgrimage, they were returning to Bangalore by about 10.30 p.m of 19/20-7-1979. Respondent-2 before the Tribunal was driving the said omnibus. According to the claimants, he was driving the said omnibus in a rash and negligent manner and at a terrific speed. While the omnibus left the road, the driver, respondent-2, before the Tribunal, appears to have jumped out of the omnibus and saved himself. But all the 20 persons who were travelling in the said omnibus died on account of the omnibus plunging into the pond or well.

3. Respondent 1 and 2 before the Tribunal contended that a lorry was going ahead of the omnibus; that the driver, respondent-2 before the Tribunal, gave a signal to that lorry driver to give way and that the driver of the lorry gave a signal to respondent-2 before the Tribunal to over-take. According to respondent-2 before the Tribunal, at that time, another lorry came from the opposite direction suddenly. According to him, in order to avoid the said lorry, he tried to take the omnibus to the right side and suddenly applied the brakes. While doing so, the omnibus hit against a guard-stone which was not visible and as a result of it the accelerator automatically got raised and the pedal was jammed. Thus, the omnibus went out of the control of respondent-2 before the Tribunal and he was thrown out of the omnibus and the bus fell into the pond or well which was not visible. They further contended that the said omnibus was not taken for hire or reward but it was given only out of friendship. According to them, 20 persons were travelling in the omnibus as friends of respondent-1 before the Tribunal. According to them, no hire or reward was charged to anyone of these 20 persons.

4. The Insurance Company, respondent-3 before the Tribunal, claimed that the said 20 persons were travelling in the omnibus having hired the same. It was contended that since the omnibus was a private vehicle, the Insurance Company was not liable to indemnify the owner. Alternatively, the Insurance Company contended that even if it was liable, the liability was limited to Rs. 5,000/- per passenger.

5. The Tribunal, after circumspection and appreciation of the evidence, concluded that the omnibus had been hired by these 20 persons after paying an advance of Rs. 1,000/- to the owner and after fixing the mileage at Re. 1.10 P. per kilometer. On an interpretation of Sections 95 and 96 of the Motor Vehicles Act and also Exhibit D-1, the Tribunal held that the Insurance Company was liable to indemnify the owner even though the omnibus had been taken on hire by these 20 passengers. The Tribunal also came to the conclusion that the liability of the Insurance Company was unlimited. Thus, the Tribunal allowed all the petitions and awarded various amounts of compensation to the claimants in all these 20 cases holding all the three respondents before the Tribunal, including the Insurance Company, liable.

6. Respondent-3 before the Tribunal, the Insurance Company, being aggrieved by the said common judgment and awards, has come up with these 20 miscellaneous first appeals.

7. It is no doubt true that the Insurance Company cannot question the finding recorded by the Tribunal that the accident in question took place due to rash and negligent driving of the omnibus by its driver. It cannot even question the quantum of compensation. As a matter of fact, the material on record would go to show that it was due to sheer rashness and negligence on the part of the driver of the omnibus in question that the accident in question took place resulting in the death of 20 innocent persons who were returning after doing the pilgrimage.

8. PW 18 Shri Mahadevan, the Circle Inspector of Police, had rushed to the spot at about 2.00 A.M on 20-7-1979 after receiving information about the accident. He has stated that the omnibus in question was found inside the well which was to the south of the road; that the road was running east-west; that there is a slight curve in the middle; that the omnibus had completely submerged in water; that there were kerb-stones fixed to the south of the southern road margin; that two kerb-stones on the southern side had been uprooted and broken; that the distance between the said kerb-stones and the well was 90 feet; that there were dragmarks from the place where the kerb-stones had broken, upto the well measuring 89 feet and that at the scene of occurrence the width of the cement road was 18 feet and width of road margins on either side was 4 feet. The Mahazar (Exhibit p-12) was drawn by PW 18. Exhibit P-13 is the certified copy of the rough sketch prepared by PW 18. The said oral and documentary evidence is not seriously challenged.

9. Thus, it becomes clear that the omnibus, after leaving the road, hit against the road-side kerb-stones and uprooted them, went 90 feet further and then plunged into the well. These circumstances attract the principle of res ipsa loquitor. They speak the rashness and negligence on the part of the driver of the omnibus.

10. DW 3 Pyare Jan, respondent-2 before the Tribunal, who was the driver of the omnibus in question, stated that the omnibus hit the guard-stones fixed on the right side of the road, i.e, the southern side of the road and, thereafter, the omnibus went ahead and plunged into the well water. He has stated that when he was driving the omnibus near Boodanur, a lorry was going ahead of his omnibus; that when he asked for side in order to over-take that lorry, the lorry driver gave him the signal to over-take; that he took his van by the side of that lorry to over-take it; that at that time, another lorry came from the opposite direction; that the lorry which was going ahead of his van came to the centre of the road as another lorry was coming from the opposite direction; that there was no place for him to take his omnibus to the left side; that as such, he took the omnibus to his right side; that at that time the omnibus hit against the guard-stones and as a result of which the accelerator got raised and the pedal was jammed; that the door suddenly opened and he fell down and that omnibus thereafter proceeded ahead and fell into water. He himself went to the Police Station at Mandya and gave his complaint Exhibit P-11. That complaint is proved by the evidence of PW 14 P.M Narasimha Hotra, Sub-Inspector of Police.

11. In Exhibit P-11, Respondent-2 before the Tribunal has stated that when he tried to over-take the lorry which was going ahead of him that lorry driver did not give him side at all. Further, in the report, he has not mentioned about any lorry coming from the opposite direction. Therefore, the version given by him in the report is that when he tried to over-take the lorry which was going ahead of his omnibus, that lorry driver did not give him side and that when he tried to slow down the omnibus, the brakes did not apply and apprehending that it would hit, he took the omnibus to the right side. Therefore, the version given by him before the Tribunal and the version narrated by him in his complaint run contrary to each other. In his examination-in-chief, DW-3 Pyare Jan, Respondent-2 before the Tribunal, has not stated anything about the failure of brakes. He has stared that in the course of his cross-examination that even before the omnibus hit the guard-stones, the brakes had failed. The theory of failure of brakes now referred to by him does not fit in with the story given by him in his examination-in-chief or in his written statement or in his complaint.

12. Motor Vehicles Inspector PW 19 Sari R.V Venkatesh has clearly stated that the brakes were in order. Therefore, the story of Respondent-2 has been rightly rejected by the Tribunal.

13. Therefore, the Tribunal, in our opinion, after discussing the evidence in detail on this point, has rightly come to the conclusion that the unhappy accident took place due to rash and negligent driving of the omnibus in question by its driver, Respondent-2 before the Tribunal.

14. Then, the next question is whether the omnibus in question had been taken on hire by the 20 persons who met with the watery grave.

15. PW 13 Paravasu is related to some of the passengers, viz., Ramadas, Thammanna Setty, Jagannath, Rangaswamy, Mahadesh, Hamsaveni and Venkatalakshmi, who all died in the accident. It appears that the passengers wanted to go on a pilgrimage to Dharmasthala, Udupi, Mangalore and other places. According to PW 13, the said 20 persons contacted and requested him to engage a tempo for them as they wanted to go on a pilgrimage. PW 13 stated that he enquired with PW 12 Doreraj who is his friend and who is living near his house. PW-12; Doreraj is a mechanic who is running a Workshop. According to PW 13, PW 12 took him to Sunitha Travels saying that be knew Hector and that they could make enquiries there. According to him, Mr. Hector told him that he had no vehicle of his own and that he would contact SRS Tourist and secure a vehicle. According to PWs. 12 and 13, they were taken to the office of SRS Tourist. According to them, the Manager told them that he would send a vehicle along with respondent-2 before the Tribunal. According to them, the Manager of SRS Tourist told them that they should pay the charges at Re. 1.10 p., per kilometer, & ‘Batta’ of Rs. 25/- to the driver. These terms were agreed to by PW 13. According to PW 13, an advance of Rs. 1,000/- was paid to the Manager of SRS Tourist. According to him, on the next morning, the omnibus bearing Registration No. MER 2790 was brought by respondent-2 before the Tribunal and the unfortunate pilgrims left in that vehicle on the 17th morning.

16. PW 20 Hector D' Souza has been declared hostile. He does not support PWs. 12 and 13. Therefore, the very basis of the evidence of PWs. 12 and 13 becomes slippery and unacceptable. The Manager of SRS Tourist has not been examined. No receipt for having paid any amount to the Manager of SRS Tourist has been produced. When a large amount of money was paid, it is rather difficult to belive that no receipt had been taken by PWs. 12 or 13 or by anyone of the pilgrims. SRS Tourist is a vast organization and they have to account for every pie they receive. Therefore, non-production of the receipt makes the evidence of PW 12 and PW 13 highly suspect and unreasonable.

17. There is nothing to hold that Respondent-1 before the Tribunal is not in any way connected with SRS Tourist. Further, respondent-2 has stated in his complaint Exhibit P-11 that he was working under one Rajashekhar as a driver of tempo bearing Registration No. MER 2790 and his job was to take the tourists wherever they wanted to go. According to him, he took the tourist party consisting of 13 adults and 7 children to Belur and other places. Thus, from his evidence, it becomes clear that Manager of SRS Tourist sent the omnibus along with respondent-2 before the Tribunal to take pilgrims to various pilgrim centres. He has admitted in his evidence that the Manager of SRS Tourist told him that the pilgrims were his friends and that he should take them in the omnibus to various pilgrim centres as required by them. Therefore, in view of this admission, the evidence of PWs. 12 and 13 that the omnibus was taken on hire, does not appear to be correct. Therefore, in our opinion, the Tribunal has committed an error in holding that the omnibus had been taken on hire by the pilgrims.

18. The above discussion would go to show that the pilgrims were travelling in the omnibus in question as friends of the owner of the omnibus itself without paying any hire or reward.

19. Shri B.V Acharya, learned Counsel for the appellant/Insurance Company tried to support the conclusion of the Tribunal on this point. He also urged that finding had not been questioned by the claimants or the owner.

20. Shri Acharya referred us to Order XLI Rule 22 of the Code of Civil Procedure.

21. Order XLI Rule 22 of the Code of Civil Procedure reads:

“(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

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Therefore, it becomes clear that the respondent can support the decree not only on the grounds mentioned by the trial Court but also on some other ground available to him from the material on record. It is not necessary for him to file cross-objection. If the matter had been decided against the claimants, there would have been some substance in the contention of Shri Acharya.

22. The finding of the Tribunal is that the Insurance Company is liable to pay the compensation. The reasons given might be slippery and unacceptable. It is not the reasoning that gives a right to question the finding. It is the ultimate conclusion that will have to be questioned. If the conclusion is in favour of the claimants, they need not controvert the reasons given by Tribunal for arriving at that conclusion. They are not required to file cross-objections questioning the reasons given by the Tribunal for arriving at that conclusion. Though no cross objections might have been filed by the claimants or the owners, it cannot be said that the reasons given by the Tribunal for arriving at a particular conclusion cannot be questioned by them at all. Therefore, the argument of Shri Acharya in this connection is rejected.

23. As already stated above and concluded by us, the omnibus had been lent by its owner to 20 unfortunate pilgrims for making a pilgrimage to various pilgrim centres. The said omnibus had not been taken on any hire or for reward.

24. Shri B.V Acharya, learned Counsel for the appellant/Insurance Company, referred us to the proviso to sub-section (1) of Section 95 of the Motor Vehicles Act. It reads thus:

“Provided that a policy shall not be required—

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee—

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets in the vehicle, or

(c) if it is a goods vehicle, being carried in the vehicle, or

(ii) except 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, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or

(iii) to cover any contractual liability.”

25. Shri B.V Acharya, learned Counsel for the appellant/Insurance Company, pointedly drew our attention to part (ii) of the proviso. But, in the instant cases, we have already concluded that 20 people had not taken the omnibus on hire or reward and they were travelling only as friends of the owner. According to him, the law did not require the Insurance Company to cover such risks. But the statute requires these minimum coverages. It does not prevent the Insurance Company from entering into contract undertaking higher and wider liability. Therefore, the Insurance Company can inter into contract and undertake to indemnify the owner regarding the said liabilities also. These statutory requirements will not make the insurance policy ineffective if the insurance Company has undertaken to cover wider and higher liability and other risks also.

26. It is laid down in Bomanji Rustomji Ginwala v. Ibrahim Vali Master,1 thus:

….“It is well settled that by its contract with the insured, the insurance company can cover a wider risk because ‘Act liability’ is the minimum liability which cannot be got over by the insurance Company. But there is nothing in the Act which can restrict the insurance company from extending limits of its liability by a contract with the insured. In the case of Gujarat Mineral Development Corporation Ltd. v. Varjubhai Lallubhai (1979 ACJ 186 (Guj.)) a Division Bench of this Court consisting of P.D Desai and M.K Shah, JJ. considered this very question. P.D Desai, J., observed in that connection as under:

‘When in any particular policy the insurer undertakes a wider coverage than the minimum act liability, it is that liability which he has undertaken to satisfy under the contract of policy, which is now crystallised in the statutory indemnity both in Section 95(5) and in the duty to satisfy the judgment for that liability under Section 96(1). Therefore, even in respect of the liability arising out of such wider coverage, it would be open to the third party to proceed against the insurance company under Section 96(1) for the satisfaction of the award.’

The same view is taken by another Division Bench consisting of S.H Sheth and M.K Shah, JJ. in the case of United India Fire and General Insurance Co. v. Meenaxiben (20 GLR 158) wherein S.H Sheth, J., speaking for the Division Bench observed:

‘If the insurance company insures a vehicle for a higher amount than the limit prescribed by the statute, it always does so for the benefit of the insured. Therefore, if an insured is held liable to pay to the claimants more than the statutory limit prescribed by Section 95 of the Motor Vehicles Act, the insurance company is liable to make good the additional liability within the overall limit of its contractual liability. Merely because the insurance company voluntarily entered into a contract of insurance for a higher amount than the statutory limit prescribed for such an insurance, it cannot claim with impunity that even though the insurance was for a higher amount, its liability was limited only to what the statute prescribed for the vehicle in question.,”

Therefore, if the Insurance Company has undertaken a wider liability for coverage in terms of the contract, it would be liable to indemnify the owner.

27. Then, Shri B.V Acharya, learned Counsel for the appellant/Insurance Company, drew our attention to Section 96(2)(b)(i) of the Motor Vehicles Act which states that a private vehicle cannot be used for hire or reward and the Insurance Company is not bound to indemnify the owner if a private vehicle is hired out. But, as already concluded by us, the omnibus in question had not been hired by the pilgrims at all. It had been lent by the owner for his friends. Therefore, this clause cannot be of any help to Shri Acharya.

28. The Special Endorsement I.M.T 13(a), marked as ‘Exhibit D-1(a)’ forms part of the Insurance Policy Exhibit D-1. It reads thus:

“In consideration of an additional premium of Rs……..and notwithstanding anything to the contrary contained in Section II1(c) but subject otherwise to the terms, exceptions, conditions and limitations of this policy the company will indemnify the insured against liability at law for compensation (including Law Costs of any claimant) for death of or bodily injury to any person other than a person excluded under section II1(b) being parried in or upon or entering or mounting or alighting from the Motor Vehicle but such indemnity is limited to the sum of Rs……..in respect of any one person and subject to the aforesaid limit in respect of any one person to Rs.…….in respect of any number of claims in connection with the Motor Vehicle arising out of one cause.”

The figures arising immediately after the words ‘premium of Rs.’ are blank. Even the portion ‘the sum of Rs.’ arising immediately after the words ‘but such indemnity is limited to’ is also blank. The portion relating to the limit is also found blank.

29. Shri B.V Acharya, learned Counsel appearing for the appellant/insurance Company, submitted that the omnibus in question was required to carry only 15 passengers and that only premium of Rs. 90/- to cover 15 passengers had been recovered. It also becomes clear from the policy that only Rs. 90/- have been collected in order to cover the risk of 15 passengers.

30. Shri Acharya drew our attention to the Tariff. It is no doubt true that the Commercial Vehicles Tariff, to be found on 1-12-1973, states that the premium to cover the risk of any one passenger or total amount of compensation to the tune of Rs. 50,000/- is ‘Rs. 6/-’. It is no doubt true that the said Tariff states that if the unlimited liability is to be undertaken, the existing premium of Rs. 15/- per seat should be maintained.

31. Shri Acharya submitted that only Rs. 6/- per passenger had been recovered and, as such, the liability of the Insurance Company was limited to only Rs. 5,000/- per passenger. He stated that the omission to fill in the gaps was only a clerical mistake.

32. When the columns in the Insurance policy were left blank, Gujarat High Court, in Bomanji Rustomji Ginwala's Case, referred to supra, has stated thus;

“28. In view of the aforesaid legal position, the terms of the insurance policy will have to be scrutinised. At Ex. 100 is found the insurance policy in question and Ex. 97 is a copy thereof. In the said policy, the limits of liability of the insurance company have been provided for. Mr. Amin pointed out to me that in that column, limits of the amount of insurance company's liability under Section II(1)(i) is mentioned at Rs. 50,000/- while limit of liability under section 11(1)(ii) is found to have been kept blank. The insurance policy Ex. 100 has to be read subject to the attached clause C.V Clause C.V forming part of the policy shows section II as bearing the heading ‘Liability to Third Parties’. Section II(1) of clause C.V so far as relevant for our purpose reads as under:

(1) Subject to the limits of liability the company will indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of;

(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle).

(ii) damage to property caused by the use including the loading and/or unloading of the vehicle.

29. The limit of liability as prescribed by the policy, Ex. 100 when read with the aforesaid clause 11(1)(i) and (ii) of clause C.V clearly shows that the company's liability for meeting the claims of third parties on account of death or bodily injuries is limited to Rs. 50,000/-, but so far as its liability to answer the claim of third parties for damage to property caused by the use of the motor vehicle is concerned, the column opposite to the said limit—clause is kept blank.

30. Mr. Amin's contention was that a clear inference which arises therefrom is that the company wanted to limit its liability regarding the claims arising out of the damage to third party's property, to ‘Act liability’ only. It is not possible to raise the said inference as Mr. Amin wanted me to do. The very fact that company has expressly limited its liability for meeting the claims of the third parties in case of personal injuries, to Rs. 50,000/- and the further fact that it has not so restricted its liability so far as claims arising out of damage to property of third parties will clearly lead to the conclusion that so far as latter type of claims are concerned, the company's liability was intended to be kept unlimited. It is trite to say that if the company wanted to limit its liability in respect of claims arising out of the damage to property of third parties to Act liability only, the company would have expressly stated so in the blank column opposite printed particulars regarding the nature of damage to property as found in the policy. May be it was an error on the part of the insurance company or it may be that by some inadvertent mistake, the concerned officers of the company while issuing the policy, forgot to mention the limit on the company's liability regarding claims arising out of damage to property of third parties, because of use of the motor vehicle. But if there is any such error or omission, the benefit thereof could go to the insured and the claimant rather than to the insurance company. It must thank itself for the negligence of its concerned clerks and/or officers who issued the policy in question to the insured. However, it is impossible to presume from the blank column of company's liability that the company wanted to insert an endorsement restricting its liability to ‘Act liability’ so far as its limit of liability under Section II(1)(ii) was concerned. It would be a wild conjecture not based on any evidence. The company must thank itself for not being precise or accurate………………..”

(emphasis supplied)

33. Therefore, when the Insurance Company has left the said columns blank even in the Insurance policy (Exhibit D-1), it is not open to the Insurance Company to contend that its statutory liability is limited to Rs. 5,000/- only per passenger. Merely because the statute restricts the liability to Rs. 5,000/- per passenger, the Insurance Company cannot with impunity contend that its liability should be limited to Rs. 5,000/-, even though blanks are to be found in Endorsement No. IMT 13(a). As a matter of fact, the columns have been left blank in Endorsement No. IMT 13(a). It only follows that the Insurance Company wanted that its liability should be taken as unlimited. The view taken by us is in consonance with the view taken by the Gujarat High Court.

34. Our High Court also appears to have taken the same view earlier in Miscellaneous First Appeals Nos. 341 to 345 of 1979, disposed of on 8-8-19802. It might be true that the Tariff Rules have not been referred to in the said appeals. But, what is the effect of keeping the columns blank has been dealt with in the said appeals.

35. Shri B.V Acharya, learned Counsel appearing for the appellant/insurance Company, referred us to a Division Bench decision of this Court in United India Fire & General Insurance Company v. Azeerunnisa.3 Therein, what this Court has laid down is that the rates fixed by the Tariff Advisory Committee under Section 64 UC of the Insurance Act will become statutory and binding on all insurers to the extent mentioned in the Section.

36. We have already said that the Tariff Rules are statutory Rules, which are binding on the Insurance Company and that they cannot be ignored. But, it notwithstanding the said Tariff Rules, the Insurance Company has left the columns blank in Endorsement No. IMT 13(a), it cannot contend with impunity that as mentioned in the Tariff Rules or the Statute, the liability of the Insurance Company is only Rs. 5,000/- per passenger. Therefore, the said ruling, in our opinion, will not be of much assistance to Mr. Acharya.

37. So far as the quantums are concerned, it is not open for the Insurance Company to question the same and it has been rightly not questioned by the Insurance Company. However, we may observe that the amounts of compensation appear to be very low.

38. In the result, all the appeals are dismissed. No costs in all these appeals.