NEW INDIA ASSURANCE CO LTD Vs. MAHMOOD AHMED

JUDGEMENT

(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.