Both owner and Insurance Company held liable to make payment of claim.

RAMANUJAM, J.:- As these two appeals arise out of the same award passed by the Motor Accidents Claims Tribunal Cuddalore in the same claim petition arising out of an accident, they are dealt with together.

2. On 6-5-1974 at about 4-30 a.m. an Ambassador tourist taxi bearing registration No. MSL 8304, belonging to the appellant in C.M.A. No. 247 of 1977, and insured with the appellant in C.M.A. No. 367 of 1977, dashed against a stationary lorry near Ulundurpet railway gate. The said accident resulted in the death of three persons and injury to four persons who travelled in the taxi. On the basis that the accident was due to the rash and negligent driving of the taxi by its driver, the claim petitions had been filed by the dependents of the deceased as

also the insured before the Motor Accidents Claims Tribunal.

3. One of the persons who died in the accident, is one Abdul Rahman. His widow and two minor sons had claimed a sum of Rs. 1,00,000, as compensation in C.P. No. 109 of 1974. We are not now concerned with the claim put forward by the dependents of the other deceased and insured. We are concerned in these appeals only with reference to the claim made by the dependents of the said Abdul Rahman.

4. The claim was resisted by the owner of the taxi as well as the insurer with whom the taxi has been insured. They were respondents 1 and 2 in the claim petition. Their case was that the taxi was authorised to carry only five passengers, but, the driver unauthorisedly carried two more passengers and that as the taxi which was authorised to carry only five passengers, carried seven passengers, the accident can be taken to be due to the negligence of the driver. They also contended that the amount claimed as compensation was exhorbitant. In the face of the above rival contentions, the Tribunal framed the following two points for consideration :-

1. Whether the accident was due to the rash and negligent driving of the vehicle MSL 8304?

2. Whether the claimants are entitled to get compensation and if so to what amount ?

The Tribunal after considering the evidence adduced by the parties in this case and also the parties in the other claim petitions, held that the accident was due to the rash and negligent driving of the taxi driver, and that there is a vicarious liability on the part of the owner of the taxi and also the insurer to meet the claim put forward by the claimants.

5. On the question of compensation the Tribunal held that deceased was earning an average income of Rs. 350/-per month and adopting 28 years purchase as the basis, fixed the compensation at Rs. 1,20,960. But taking into account that the lump sum payment was to be made, it quantified the compensation at Rs. 50,000. As against the said award, the owner of the taxi has filed C.M.A. No. 247 of 1977 and the insurer has filed C.M.A. No. 367 of 1977. The claimants not satisfied with the award of compensation of Rs. 50,000 have filed cross objections in both the above appeals.

6. Learned counsel for the appellants in C.M.A. No. 247 of 1977, contends that on the facts of this case, it could clearly be seen that the diver of the tourist taxi has acted outside his authority in taking two more passengers than the permitted capacity and as the accident had occurred while he was carrying an unauthorised load of seven passengers as against the permitted load of five passengers, the owner of the taxi who had not authorised the taxi driver to take in more passengers than the permitted capacity, cannot be held liable.

7. Learned counsel for the appellants in C.M.A. No. 367 of 1977, contends that whatever be the liability of the owner of the taxi, the liability of the insurer is limited to Rs. 50,000, in respect of one accident and with reference to each passenger, the liability is limited to Rs. 10,000, and that in this case, the Tribunal had erred in awarding a sum of Rs. 37,000, to the claimants in C. P. No. 109 of 1974, in utter disregard of the provisions in Section 95 (2)(b) (ii)