The liability of an insurance company under Section 95(2)(b)(ii)(4) of the Motor Vehicles Act is limited to Rs. 5,000 for each individual passenger, regardless of the policy limit.

1. - These two appeals have been filed against the award of the Accidents Claims Tribunal, Jaipur, in Accident Claims Case No. 11 of 1977. The accident took place on September 16, 1972. Kumari Sneh Lata was travelling in bus No. RRL 8548 and was coming to Jaipur from Veer Hanuman Samod village. Bus No. RRL 8548 was being driven by Surajnarain, driver. In the south of Chemu village at a distance of one mile, another bus No. RRL 3804 which was being driven by Tarachand, driver, collided with bus No. RRL 8548. Bus No. RRL 8548 after the accident struck a telephone pole. Kumari Sneh Lata who was travelling in bus No. 8548 was injured and her right hand was completely cut and she fell down on the ground.

2. A claim for Rs. 1,31,000 was made by Sneh Lata. Bus No RRL 8548 and No. RRL 3804, both are insured with M/s. Anand Insurance Co., Jaipur, a unit of M/s. New India Insurance Co. separately.

3. The Tribunal, after recording of the evidence, came to the conclusion that Sneh Lata's right hand was cut in this accident and at the time of the accident, Kumari Sneh Lata's hand was outside and on account of the impact of the accident, it was struck and cut. The Tribunal came to the conclusion that the driver of bus No. RRL 8548 was driving the bus rashly and negligently and Sneh Lata was not asked to keep her hand inside, if it was outside or, her hand was projecting outside the window.

4. After holding the driver of bus No. RRL 8548 responsible and liable due to negligence and rashness, the Tribunal then considered the case of bus No. RRL 3804. The Tribunal came to the conclusion that both the buses in the middle of the road dashed against each other from the sides as they passed closely. The Tribunal then observed that although Sneh Lata had not alleged any negligence of the bus driver (No. RRL 3804) from the defence it is established that the two buses dashed from the sides by crossing each other and, in that process, the hand was cut.

5. The Tribunal observed that it was the duty of the driver of bus No. RRL 3804 to keep the vehicle at such a distance from the vehicle coming from the opposite direction so that they can safely cross each other at some distance without any risk to the passengers. In this connection, reliance was placed on the decision of the Madhya Pradesh High Court in Sushma Mitra v. M. P. State Road Transport Corporation [1974] ACJ 87 ; AIR 1974 Madhya Pradesh 68 , In this judgment, their Lordships observed that normally, when buses are plied and the passengers sitting inside the buses go on a long journey, they are bound to rest their elbows on the window-sill and this must be taken into account by any driver of a vehicle for the purpose of negotiating his vehicle in motion so as to avoid risk to the passengers. If this precaution is not taken, it would be tantamount to negligence. Relying on this doctrine enunciated by the Madhya Pradesh High Court, the Tribunal observed that the drivers are guilty of composite and contributory negligence.

6. However, while fixing the liability, the Tribunal observed that the liability of the driver of bus No. RRL 8548 is two-thirds and one-third for bus No. RRL 3804. Shri Mehta, appearing for the appellant, Suraj Narain, has argued, firstly, that the finding of negligence and rashness is not justified, so far as bus No. RRL 8548 is concerned.

7. I have carefully perused the evidence in this respect. It appears that the Tribunal has placed reliance rightly on the evidence of Sneh Lata, Kailashnarain and Ramkishore, in holding that the driver of bus No. RRL 3804 was driving with a high speed and was guilty of rashness. Shri Mehta emphasised that both the driver and conductor stated that they asked Sneh Lata to get her elbow inside the bus but she did not pay any heed to their directions and request. This part of the statement has been rightly disbelieved by the Tribunal.

8. The second point, which is much more important and which has been argued by Shri Mehta, is that in view of