Insurance company's liability under the Motor Vehicles Act for passenger injuries is subject to statutory minimums and not limited to individual caps per passenger.

1. A question of comparatively some importance has been raised in this appeal under S.110 - D, Motor Vehicles Act . Following an accident between Bus No. UPZ 8963 in which the deceased Km. Saulat Nigar was travelling on 3-5-1974 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 Co.

2. The Insurance Co. has presented this appeal and Sri A.K. Banerji, learned counsel for the appellant has urged three points. Firstly, he has urged that 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 provisions of S. 95 (2) and urges that the total liability in any one accident cannot exceed Rupees 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 S.95 (2) and S.96, Motor Vehicles Act .

4. Under O.41, R.33 C.P.C. which undoubtedly is applicable to appeals eider S.110 - D 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 Co. cannot escape its liability. It is only a mistake in the form of the award which can always corrected by the appellate court. In view of this the award passed by the curt below should be read as one against the owner of the vehicle and also the appellant - Insurance Co. 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 as 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 as 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 in the middle of the road on which the truck as coming from the other side resulting a head - long 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 S.95 (2) (b) of the Act the upper limit of an liability of insurer is Rs. 5000/- in any one accident involving a vehicle carrying passengers. S.95 Motor Vehicles Act , de