S.K. Kulshrestha, J.
1. This Letters Patent Appeal has been filed against the order dated 22.8.1986 passed by the learned single Judge of this Court in Misc. Appeal No. 105 of 1982.
2. The respondent Nos. 1 to 4 herein had filed an application under Section 110-A of the Motor Vehicles Act, 1939 in the court of M.A.C.T., Balaghat claiming a sum of Rs. 1,10,800/- on account of the death of the husband Muniram, of respondent No. 1 and father of respondent Nos. 2, 3 and 4 in an accident on 7.3.1979 out of the use of the motor vehicle, viz., a bus bearing registration No. MPJ 8626 of the ownership of respondent No. 5, Shastri Brothers driven by Sharda Prasad, the respondent No. 6. The learned Motor Accidents Claims Tribunal had awarded a total compensation of Rs. 10,000/- which was recoverable jointly and severally from the respondent Nos. 5 and 6 and the appellant insurance company. Against the said award dated 12.12.1981 of M.A.C.T. Balaghat, in Motor Accident Claims Case No. 2 of 1980 the appellant insurance company had preferred an appeal (Misc. Appeal No. 105 of 1982) while the owner of the bus Shastri Brothers had filed M.A. No. 116 of 1982. Respondent Nos. 1 to 4 had filed cross-objection seeking enhancement of the amount awarded by the Claims Tribunal.
3. The learned single Judge disposed of the said two appeals and the cross objection by common order dated 22.8.1986 and while dismissing the appeals, allowed the cross-objection and enhanced the compensation awarded by the M.A.C.T. from Rs. 10,000/- to Rs. 40,000/- to be recoverable jointly and severally from the insurance company, owner and the driver. In the said order, the learned single Judge negatived the contention of the insurance company that the liability of the company was limited to a sum of Rs. 5,000/- under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939 in relation to individual passenger in respect of the class of vehicle involved in the accident. The learned single Judge also held that provisions of Section 95(2) of the Act are subject to the terms of the policy. Hence, this appeal under Clause 10 of the Letters Patent.
4. During the hearing of the appeal, the learned Counsel Ms. Tripti Kholia, appearing for the appellant insurance company confined her submissions to the limit of the liability of the insurance company under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939, in relation to each individual passenger. The counsel for the respondent made submissions in support of the impugned order.
5. While there is no denying the fact that it is open to the insurance company to charge extra premium to cover the risk in excess of its statutory liability, we find that neither in the claim application nor in the written statement filed jointly by the owner and the driver, any plea has been raised to indicate that in relation to the vehicle in question, any extra risk had been covered by the insurance company. Though we disapprove the failure of the insurance company to produce the policy in question, yet in the absence of any plea as aforesaid, it is not possible to saddle the insurance company with any liability in excess of its statutory obligations. In fixing the liability, the learned single Judge has mainly relied upon the decision of the Supreme Court in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 507 (SC), and holding that the insurance company was liable to the maximum limit of its liability in relation to any one accident. We are afraid that in view of the decision of the Supreme Court in M.K. Kunhimohammed v. P.A. Ahmedkutty 1987 ACJ 872 (SC), we cannot subscribe to the said view expressed by the learned single Judge. In the said decision, their Lordships while considering the provisions of statutory limit of the liability of the insurance company have held in paras 8 and 9 as follows:
(8) These observations were quoted with approval by this Court in the course of its judgment in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 507 (SC) and while doing so the court observed that the above observations were still languishing in the cold storage of pious wishes. Immediately after the decision in the Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi (supra), Parliament took steps to amend Sub-clause (ii) of Clause (b) of Section 95(2) of the Act by Act 47 of 1982. After the said amendment Sub-clause (ii) of Clause (b) of Section 95(2) of the Act reads thus:
95(2) (b). Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,-
xxx xxx xxx(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger....
(9) As the law stands today the insurer is liable to pay up to Rs. 15,000/- in respect of death of any passenger or any injury caused to him. In the statement of Objects and Reasons attached to the Bill which ultimately became Act 47 of 1982 it was stated that the limit with respect to an insurer's liability to a passenger involved in an accident in a public service vehicle was being fixed at Rs. 15,000/-.
After the above amendment, which was intended to increase the liability of the insurer, instead of Rs. 10,000/- in the case of each individual passenger where the vehicle was a motor cab and Rs. 5,000/- for each individual passenger in other cases which were the limits in force immediately prior to the said amendment the liability in respect of an individual passenger is now raised to Rs. 15,000/-. This clearly demonstrates that Parliament never intended that the aggregate liability of the insurer mentioned in Sub-clause (1)(2) and (3) of Section 95(2)(b)(ii) of the Act would be the liability of the insurer even when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by Sub-clause (4) of Section 95(2)(b)(ii) of the Act.
6. From the above, it is clear even from the subsequent legislative intent that the limit of liability in relation to individual passenger at the relevant time was restricted to a sum of Rs. 5,000/- for the class of vehicle involved in the accident, and not to the maximum liability of the insurance company in relation to each accident.
7. In this view of the matter, we find that the learned single Judge was not right in holding that the insurance company was also liable to pay the sum in excess of the limit of its liability under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939, i.e., Rs. 5,000/- in case of each individual passenger.
8. In the result, this appeal is partly allowed and while upholding the compensation awarded by the learned Judge and the interest granted thereon, the order is modified to the extent that the liability of the appellant insurance company would be though joint and several with the owner and the driver but restricted to a sum of Rs. 5,000/- with interest thereon and the costs awarded against the non-applicants. If the appellant has paid or deposited any amount in excess of its limit of statutory liability, the appellant shall be free to recover the same in accordance with law from the respondent owner and the driver of the vehicle in question. In the facts and circumstances of the case, we leave the parties to bear their own costs of this appeal.