Kochu Thommen
1. Saheeda was a constable of the Armed Reserve Police, She was one of the passengers in a bus KLD 9327 which met with an accident on July 24, 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 the Act 56 of 1969).
2. The appellant's counsel, Shri 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 not being 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 Section 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 Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059; [1982] 52 Comp Cas 454 and certain decisions of the Bombay and Patna High Courts.
3. From the totality of the 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 July 24, 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.
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 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 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 under Section 95(2)(b)(ii), but under 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 overallliability 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 Section 95(2)(b)(ii), and not the amount mentioned under Sub-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 Sheikkupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd., AIR 1971 SC 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 in 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. Jadavji Keshavji Modi, AIR 1981 SC 2059 ; [1982] 52 Comp Cas 454.
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 theproviso 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 ; '
9. It was with reference to Section 95(2)(b), as it stood prior to 1969 amendment, that the Supreme Court stated in Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd., AIR 1971 SC 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 (p. 1627):
' ......Hence, the maximum liability imposed under Section 95(2) on
the insurer is Rs. 2,000 per passenger though the total liability may go up to Rs. 20,000. '
10. In Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059; [1982] 52 Comp Cas 454, the claim was under Section 95(2)(a), and not under Section 95(2)(b), for it was a goods vehicle. The Supreme Court stated that the expression ' any one accident' under Sub-section (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 Section 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 a goods vehicle, and death or injuries to employees other than driver, there was no separate limit for the individual employee. The clause only limited 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 Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd., AIR 1971 SC 1624, which related to Clause (b), was distinguishable from what was considered in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059 ; [1982] 52 Comp Cas 454. The court stated (at page 468 of 52 Comp Cas):
' 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.'
11. The court, however, observed (at page 468):
' Different considerations may arise under Clause (b), as amended by Act 56 of 1969, but we do not propose to make any observations on that aspect of the matter, since it does not directly arise before us.'
12. 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.
13. 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.'
14. Sub-clauses (1) to (4) of Sub-section (2)(b)(ii) have now been added. Sub-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. Sub-clause (2), which is the provision relevant to the vehicle in question, limits the overall liability of the insurer to Rs. 75,000.
15. The insurer's liability per passenger in respect of the vehicle in question is limited under Sub-clause (4) to Rs. 5,000. The appellant's counsel, however, referring to the observation of the Supreme Court in Motor Owners' Insurance Co. Ltd. v. Jadavji KeshavjiModi, AIR 1981 SC 2059 ; [1982] 52 Comp Cas 454, that the case of each victim should be regarded as a separate accident, submits that the reference in Sub-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 Supreme Court in Sheikhupura Transport Co. Ltd, v. Northern India Transporters Insurance Co. Ltd., AIR 1971 SC 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 sub-clauses (1) to (3) of Sub-section (2)(b)(ii), depending on the registered capacity of the vehicle. The words ' subject to the limits aforesaid ' appearing in Sub-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 InsuranceCo. Lid, v. V. P. Balakrishnan [1982] ACJ 460. The decision of the Supreme Court in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059 ; [1982] 52 Comp Cas 454, 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 Assurance Co. Ltd. v. Mahmood Ahmed [1984] ACJ 390 ; [1986] 59 Comp Cas 291 and Raghib Nasim v. Naseem Ahmad [1986] ACJ 405 (All). So has a Division Bench of the Madras High Court in K.R. Sivagami v. Mahaboob Nisa Bi [1981] ACJ 399. With respect, we agree with the views expressed on the point in these decisions.
18. A contrary view has been expressed by the Bombay and Patna High Courts: Shivahari Rama Tiloji v. Kashi Vishnu Agarwadekar, [1985] ACJ 494; [1986] 60 Comp Cas 682 (Bom), National Insurance Co. Ltd. v. Deepathumma alias Beebi [1986] ACJ 520; [1987] 61 Comp Cas 537 (Bom), National Insurance Co. Ltd. v. Shanim Ahmad [1985] ACJ 749; [1987] 62Comp Cas 811 (Pat), Oriental Fire and General Insurance Co. Ltd. v. Laxman Mahto [1985] ACJ 775; [1987] 62 Comp Cas 881 (Pat) and Tara Pada Roy v. Dwijendra Nath Sen [1986] ACJ 299 (Pat). With the utmost respect, we disagree with that view.
19. Accordingly, we hold that the liability of the insurer in respect of an individual passenger is the amount specified under Sub-clause (4) of Section 95(2)(b)(ii), which in respect of the vehicle in question here, is only Rs. 5,000.
20. 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 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.
21. We dismiss the appeal with costs.