The liability of the insurer in respect of an individual passenger is limited to the amount specified under the relevant clause of S.95(2)(b)(ii) of the Motor Vehicles Act.

1. Saheeda 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 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, 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 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, AIR 1981 SC 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 pest 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, RW2, 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