The liability of an insurance company under Section 95(2) of the Motor Vehicles Act is not limited to Rs. 5,000 per passenger, but is subject to the overall limit prescribed for passenger vehicles of various capacities.

( 1 ) A question of comparatively some importance has been raised in this appeal under Section 110d of the Motor Vehicles Act. Following an accident between Bus No. UPZ 8963 in which the deceased, Km. Saulat Nigar, was travelling on May 3, 1974, and truck No. WVK 9261 at kanpur Mahgaon Road, a claim petition was filed which was allowed and a compensation of Rs. 15,000 was awarded against the insurance company.

( 2 ) THE insurance company has presented this appeal and Sri A. K. Banerji, learned counsel for the appellant, has urged three points. Firstly, he has urged that the liability of the appellant was merely to reimburse the insured and no primary liability could be fastened on it. As the award does not make the owner of the vehicle liable under no circumstances, that liability could be fixed on the insurer. He also urged that having recorded a finding that both the truck and the bus driver were responsible for causing the accident, the entire amount of compensation could not be made payable by the appellant, being the insurer of the bus. Lastly, he relies upon the provisions of Section 95 (2) and urges that the total liability in any one accident cannot exceed Rs. 5,000 per passenger and, therefore, the appellant cannot be made liable for the entire amount awarded.

( 3 ) AS far as the first point is concerned, that need not detain us for long. It is true that the liability primarily is of the owner of the vehicle in such cases but under the contract of insurance, the insurer becomes liable for indemnifying the owner to the extent of the liability undertaken by it in view of Section 95 (2)and Section 96, M. V. Act, 1939.

( 4 ) UNDER 0. 41, r. 33, CPC, which undoubtedly is applicable to appeals under Section 110d of the Act, the court has power to grant such relief as ought to have been granted by the court below. Merely on account of the fact, therefore, that no award had been given against the owner, the insurance company cannot escape its liability. It is only a mistake in the form of the award which can always be corrected by the appellate court. In view of this, the award passed by the court below should be read as one against the owner of the vehicle and also the appellant-insurance company subject, of course, to what may be decided on the remaining points involved in this appeal.

( 5 ) COMING now to the second point, the Claims Tribunal has recorded a clear finding that the driver of the bus alone was rash and negligent in driving the bus and that there was no negligence on the part of the truck driver. The learned counsel has not been able to show to me anything that this finding by the Tribunal was, in any way, wrong. The portion of the road where the accident took place was under repair and the bus driver had been repeatedly warned earlier also by the passengers in the bus not to drive rashly and negligently merely because he wanted to pick up a marriage party at 1 p. m. that day from Allahabad. Despite these warnings, he did not become careful and took the vehicle to the middle of the road on which the truck was coming from the other side resulting in a head-on collision whereafter the bus swerved to its left and hit against a tree. I have no reason to take a different view in the matter and the findings recorded by the Claims Tribunal on this point are, therefore, confirmed.

( 6 ) COMING to the crucial point that arises in this appeal, learned counsel for the appellant has submitted that in view of the provisions contained in Section 95 (2) (b) of the Act, the upper limit of liability of an insurer is Rs. 5,000 in any one accident involving a vehicle carrying passengers. Section 95, M. V. Act, 1939, deals with the requirement of insurance and also prescribes the limits of insurers liability thereunder. Sub-section (1) lays down that a policy of insurance ought to be issued by an authorised insurer to the extent of liability prescribed by Sub-section (2) in respect of death of, or bodily injury to