KUNHIMOHAMMED Vs. AHMEDKUTTY

JUDGEMENT

(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.) WE see no error in the appreciation of the evidence by the Tribunal. The preponderance of probabilities indicated that the only reasonable inference which could be drawn from the basic facts was the one which the Tribunal did. In the absence of any acceptable evidence to indicate that Saheeda was not a passenger at the relevant time, in the sense that she had voluntarily left the bus, we see no substance in the contention that the liability of the insurer did not fall under S. 95 (2) (b) (ii), but under s. 95 (2) (b) (i ).