JUDGMENT G. N. Ray, J: This appeal is directed against Order dated 29th July, 1981 paned by the Motor Accident Claims Tribunal, Hooghly In Motor Accident Claim Case No. 21 of 1977. National Insurance Company Limited, an objector to the said claim case, is the appellant in the instant appeal and the said claim was initiated at the instance of the claimant petitioner respondent Sm Tarak Bala Das and the respondent No 2, Sri Debabrata Saha, was also impleaded as one of the objectors in the said claim case. 2. The calc of the claimant respondent No. 1 is inter alia that Naba Kumar Das and his brother reached the bus stop of route No.8 near the junction of Rukeshpur Road and Asam Road for boarding a bus of route No 8. When the bus of the said route WGB 2163 reached the said crossing the said Naba Kumar Des put his feet on the front footboard of the bus to get inside the said bus, but the bus suddenly started moving at a great speed and in a negligent manner As a result, the said Naba Kumar Das immediately Cell down on the road and was run over by the said bus. The said Naba Kumar Das died instantaneously due to rash and neg1igeot driving of the said vehicle. The objector being the mother of the said deceased had claimed a compensation of Rs. 1 lakh as general and special damages and also interest and costs. It is the case of the said objector that Naba Kumar Das had a very good physique and sound heath and he was a bachelor and at the relevant time he had been earning monthly Income of Rs. 500/- The occupation of the deceased was stated to be cultivation and agricultural farming supervision and seasonal agricultural business in onion, jute, potato etc. The objector No. 1 who is the respondent No.2 in the instant appeal was the owner of the said vehicle and he filed a written objection inter alia disputing the claim of the claimant petitioner. A separate written objection was also filed by objector No 2 viz the appellant Insurance Company and the claim was also disputed by toe Said objector. It was contended by the objectors that the victim had died due to his own laches and negligence and the vehicle was not driven in a negligent manner. A separate written objection was also filed by objector No 2 viz the appellant Insurance Company and the claim was also disputed by toe Said objector. It was contended by the objectors that the victim had died due to his own laches and negligence and the vehicle was not driven in a negligent manner. It was contended that the victim had sufficient opportunity to board the bus but instead of boarding the bus in a proper manner the victim in a negligent manner attempted to get into the moving bus through its front gate and without giving any prior indication of boarding the bus. The victim having lost his grip over the rod of the said bus, fell down on the road and was thus run over. The alleged income of the victim was also disputed. It appears that P.W. 2, Renupada Das, an eye-witness was examined on behalf of the claimant petitioner The said Renupada Das has deposed to the effect that ho had seen the accident and the deceased was run over by the bus because the bus started moving in a negligent manner just when Naba Kumar Das was about to board the bus and place his feet to the footboard. The said witness categorically denied the suggestion that the death was due to any negligenee on the part of the victim and he has stated that such death was due to the fault of the driver of the bus. 3. The learned Judge has relied on the evidence of this witness and accepted the case of the claimant petitioner that the said accident was due to rash and negligent driving of the said vehicle it may be noted in this connection that the evidence of the said eye-witness was also corroborated by the evidence of the brother of the deceased who was also present at the time of the accident. The learned Judge also came to the finding that the victim was 26 years' old at the time or his .death and he possessed a good health. He also accepted the case of the claimant petitioner that before his death, he was ill business and he used to earn Rs 400/- per month. The learned Judge also came to the finding that the victim was 26 years' old at the time or his .death and he possessed a good health. He also accepted the case of the claimant petitioner that before his death, he was ill business and he used to earn Rs 400/- per month. The learned Judge was of the view that the victim was expected to live for another 32 years if he had not died due to the said accident and he had assessed a sum of Rs 40,000/- as just and proper compensation on account or monetary loss and the mental agony suffered by the claimant petitioner. The learned Judge was of the view that the objector no 2 viz. the appellant, National Insurance Company Limited with whom the said vehicle was insured was liable to pay the said sum of Rs. 40,000/- Accordingly, the learned Judge directed to the said Insurance Company to pay Rs. 40,000/- to the claimant petitioner with in a month from the date. 4. Being aggrieved by the said order passed by the learned Judge in the said claim case, National Insurance Company Limited has preferred the instant appeal. 5. Mr. Chowdhury, the learned counsel appearing for the appellant has contended that the said vehicle was a stage carriage and the maximum pay able on account of any single passenger travelling in the said stage carriage was limited to Rs 5,000/- under s. 95(2) of the Motor Vehicles Act, and as such the learned Judge bad no jurisdiction to pass an award of Rs. 40,000/-against the Insurance Company Mr. Chowdhury has contended that normally the quantum of compensation cannot be challenged by the Insurance Company in an appeal but where the quantum or compensation is against the provisions of the Statute. the validity of such quantum of compensation can be effectively challenged by the Insurance company In this connection Mr. Chowdhury has referred to a decision of the Andhra Pradesh High Court in the case of M. Vengamma & ors v. K Durarasula reported in AIR 1978 Andhra Pradesh, 90 It has been held in the said decision that if due to the statutory provision of the Motor Vehicles Act an insurer is required to pay compensation to a third party a sum more than the sum assured, the Insurer is entitled to recover additional sum from the person insured Mr. Chowdhury has contended that, to the third party the Insurance Company's liability is limited up to the maximum limit prescribed under the Act and vis a vis the insurer the liability is limited to the extent of the sum Insured in the policy of the insurer. He has, therefore, submitted that on the face of the statutory limit of Rs. 5000/- payable on account of the accident caused to anyone individual passenger, the Motor Accident Claims Tribunal had no jurisdiction to award the said sum of Rs. 40,000/- against the Insurer Company Mr. Chowdhury has also referred to a Full Bench decision of the Madhya Pradesh High Court made in the case of Mangilal v. Parsuram reported in 1972 Vol 42 Company Cases, 102. It has been held in the said decision that a claimant is entitled to recover sum to the extent of statutory limit from the insurer and the insurer cannot escape liability under the policy on the breach of any term of the contract on the part of the insured. Mr. Chowdhury has also referred to a decision of the Allahabad High Court made in the case of Noor Mohammad & anr. v. Phoola Rani & ors reported In 1984 ACJ 580 =AIR 1984 Allahabad 317. It has been held in the said decision that liability of the Insurance Company is limited to maximum of Rs 5,000/- for death or bodily injury caused to any one passenger. It Is true that the amount of compensation could be even less then Rs. 5000/- for each of the person suffering bodily injury. In some cases where large number of persons had received injuries and compensation being limited by Statute the limit is to be shared by all. Mr. Chowdhury in his fairness has also drawn the attention of the Court to the decision of the single Judge of the Allahabad High Court made in the case of New India Assurance Co Ltd. v. Mohammad Ahmed reported in AIR 1984 Allahabad 183 In the said decision it was held that the maximum liability on account of an accident of a passenger of passenger bus may be Rs. 50,000/- but such view of the single Judge of the Allahabad High Court was not followed. In another decision of a single Bench of the Allahabad High Court subsequently made in the case of Jyoti Prosad Dixit v. Sm Bitan Devi & MS. 50,000/- but such view of the single Judge of the Allahabad High Court was not followed. In another decision of a single Bench of the Allahabad High Court subsequently made in the case of Jyoti Prosad Dixit v. Sm Bitan Devi & MS. reported in AIR 1985 Allahabad 32. In Jyoti Prasad Dixit's case it has been held that In view of the decision of the Supreme Court in the case of Sheikhupura Transport Company Ltd and Northem India Transporters Association reported in 1971 ACJ 206= AIR 1971 SC 1624 , an award for any single individual suffering injury by a passenger bus cannot exceed the maximum statutory liability for a single passenger. Mr. Chowdhury has also in his fairness referred to a decision of the Patna High Court made in the case of National Insurance Company Ltd. v. Chhunnu Ram & anr reported in AIR 1984 Patna 1. The Patna High Court in the said case has relied on the decision of the Supreme Court made in the case of Motor Owners' Insurance Co Ltd. v. Jadavji Keshavi Modi reported in AIR 1981 SC 2059 and has held in the said decision that meaning of the expression 'anyone accident' in s. 95(2) has been construed by the Supreme Court and it has been held that in the context of purpose of the Act it signifies us many of the accidents as Dumber of persons Injured in an accident Patna High Court has held that since the Supreme Court has defined the me lining of 'anyone accident' appearing in s. 95(2) of the Motor Vehicles Act in the said Motor Owners’ Insurance Company's case, the decision made in the Seikhupura Transport Company’s case ( AIR 1971 SC 1624 ) since relied on by Allahabad High Court should not be followed and accordingly on the authority of the decision of the Supreme Court in Motor Owners' Insurance Co. Ltd s case, the liability of the Insurance Company for any individual passenger may exceed Rs 5,000/-. Mr. Chowdhury has also referred to a bench decision of the Madras High Court made in the case of K. R. Sivagami v. Mahaboob Nisa Bi reported in 1981 ACJ 399 Section 95(2)(b)(ii)(4) has been taken into consideration and it has been held that the liability on account of an accident caused to any individual passenger is limited by Rs 5,000/-. Mr. Mr. Chowdhury has further submitted that the Supreme Court In the case of Motor Owners' Insurance Company Ltd's case has also indicated that consideration of the maximum compensation payable In case of accident caused to any Individual passenger of a bus will be different from the consideration to be made in the case of accident caused to any individual by a motor truck He has submitted that In Motor Owner/Insurance Co.'s case, the Supreme Court had considered the Case of accident made by truck and the upper limit of the liability for each individual In case of accident caused by motor bus is not applicable. In the case of an accident caused by a motor truck In this connection he has referred to paragraph 26 of the decision of the Supreme Court in the said Motor Owners' Insurance Co's case. In the said paragraph, the Supreme Court has referred to earlier decision of the Supreme Court made In the case of Seikhupura Transport Company ( AIR 1971 SC 1624 ) and has observed that different considerations may arise in case of a passenger vehicle because of the maximum limit for each passenger. He has therefore submitted that learned tribunal is wrong in awarding the said compensation of Rs. 40,000 only against the Insurance Company when in fact the statutory upper limit of the Insurance Company for any single passenger of the bus was limited by Rs. 5,000/. at the relevant time. He has, therefore, submitted that the said award should be set aside and the liability of the Insurance Company should be fixed at Rs. 5.000/. Mr. Chowdhury has however submitted that the Insurance Co. does not intend to challenge the finding of the learned Tribunal on merits of the case in view of the provisions of s 95(1)(b)(ii) of the Motor Vehicles Act. 6. Mr. Sen, the learned Counsel appearing for the respondent claimant petitioner had contended that the liability of the insurance company upto statutory limit not being divisible and the owner of the vehicle and the Insurance comp1ny being jointly and severally liable, no apportionment of compensation between the two can be made in the award. For this contention he has referred to a decision of the Supreme Court made the case of Mehta Madan Lal v. National Insurance Co. Ltd reported in AIR 1983 SC 1136 . For this contention he has referred to a decision of the Supreme Court made the case of Mehta Madan Lal v. National Insurance Co. Ltd reported in AIR 1983 SC 1136 . Mr Sen has also contended that the Insurance company Cannot take any defence either before the Tribunal or in the appeal outside the scope and ambit of s. 96(2) of the Motor Vehicles Act In this connection, he has referred to a decision of the Supreme Court made in the case of British India General Insurance Co. Ltd v Captain Itbar Singh and ors reported in AIR 1969 SC 1931. The Supreme Court has held in the said decision that apart from the statute, an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section. (2) of s. 96 of the Motor Vehicles Act, however, gives the Insurer the right to be made a party to the suit and to defend It. Such right is, therefore, created by the statute and Its oontent neoessarily depends on the provisions of the statute, Section 96(2) clearly provides that an Insurer made a defendant to the action is not entitled to take any defence which Is not specified in it. When the grounds of defence have been specified they cannot be added to. The only manner of avoiding liability as provided for In sub-s (2) of s. 96 is through the defence as has been mentioned therein Therefore, when sub-s. (6) talks of avoiding liability in any manner provided in sub-s. (2), It necessarily means that the insurer must be restricted to the defence mentioned in sub-s. (2) It cannot be contended that in enacting sub S. (2) the legislature was contemplating only those defences which were based on the conditions of policy. Mr. Sen has, therefore, submitted that the maximum liability of the Insurance Company being covered by the said award of Rs. 40,000/- the Tribunal below was justified in awarding the said compensation against the insurance company. He has submitted that the appeal court may pass an award of compensation against both the objectors jointly for the said sum of Rs 40.000/- if the Appeal Court feels that in the facts of the case such joint award should have been passed. 40,000/- the Tribunal below was justified in awarding the said compensation against the insurance company. He has submitted that the appeal court may pass an award of compensation against both the objectors jointly for the said sum of Rs 40.000/- if the Appeal Court feels that in the facts of the case such joint award should have been passed. He has, however, submitted that there was no scope for apportionment of compensation in view of the decision of the Supreme Court in Mehta Madan Lal's case ( AIR 1983 SC 1136 ) He has also contended that with regard to the quantum of compensation the Insurance Company is not competent to agitate against such quantum within the scope and ambit of s. 96(2) of the Motor Vehicles Act. In this connection, Mr. Sen has also referred to a bench decision of the Allahabad High Court made in the case of United India Fire and General Insurance Co Ltd. v. Gulab Chandra Gupta reported in AIR 1985 Allahabad 44. In the said decision it has been held that the ground for challenge to a claim by the insurer of the vehicle is limited and confined to the matters which are within the purview of s. 96(2) read with s. 96(6) of the Motor Vehicles Act. The owner of the vehicle invololved in the accident has, however, a very wide field of challenge to the order passed by the Claims Tribunal For the insurer the position is similar in appeal also. It has also been held that even if an award is paned against the insurer exceeding statutory liability, the insurer cannot challenge the quantum in an appeal but may file a suit against the insured for recovery of excess damage. It appears that the Allahabad High Court in the said decision has relied on the decision of the Supreme Court made in British India General Insurance Co. Ltd ( AIR 1959 SC 1331 ). 7. Mr. Chowdhury bas, however, submitted in reply to the said contention of Mr. It appears that the Allahabad High Court in the said decision has relied on the decision of the Supreme Court made in British India General Insurance Co. Ltd ( AIR 1959 SC 1331 ). 7. Mr. Chowdhury bas, however, submitted in reply to the said contention of Mr. Sen that the Insurance Company may not be entitled to challenge the quantum of compensation on merits beyond the scope and ambit of s. 96(2) or the Motor Vehicles Act but if the award or compensation is made contrary to the provisions of the statute by exceeding the maximum statutory limit fixed for any accident caused to an individual passenger of the bus, such award is patently illegal on the face of statute and the Insurance Company cannot be precluded from challenging said illegality not really on the merits of the case but on the score of the violation of the statutory provisions Mr. Chowdhury has also contended that if within the scope of the maximum statutory limit of the liability of insurance company vis a vis a third party an award is passed by the Tribunal, such award can be made jointly the Insurance Company find the owner of the vehicle and in such circumstances there is no occasion for apportioning the respective liability of the Insurance Company and the owner of the vehicle. He has, therefore. submitted that when the upper limit of the liability of the Insurance Company for an Individual passenger of the bus was limited to Rs. 5,000/- at the relevant point of time the Tribunal could pass an award jointly for the said sum both against the Insurance Company and also against the owner of the vehicle but if the Tribunal had assessed just and fair compensation beyond the said maximum liability of the Insurance Company. It should have assessed the compensation to the maximum statutory limit against the insurance company and should have passed an award for the entire amount held to be fair compensation against the owner of the vehicle. Mr. It should have assessed the compensation to the maximum statutory limit against the insurance company and should have passed an award for the entire amount held to be fair compensation against the owner of the vehicle. Mr. Chowdhury has submitted that the Tribunal will be quite competent to pass an award jointly against the Insurance Company and the owner of the vehicle up to the maximum extent of statutory liability of the Insurance Company and if such joint compensation exceeds the sum cove rod by the insurance policy, the insurance company will discharge the liability under the said award to the claimant and in its turn would recover any excess amount not covered by the insurance policy. He has submitted that if the Insurance company is not permitted to challenge the illegal award made in excess of the maximum statutory liability of the Insurance Company then the very provision of the statutory limit of the Insurance Company will be nugatory. 8. After considering the respective contentions made by the learned Counsel appearing for the parties, it appears to us that the Insurance Company’s defence before the learned Motor Accident Claims Tribunal and also in an appeal from the award of such Tribunal is circumscribed by the provisions of s. 96(2) of the Motor Vehicle, Act and it has been pointed out by the Supreme Court in British India General Insurance Company's case ( AIR 1959 SC 1331 ) that the grounds of defence not specified in s. 96(2) cannot be resorted to by way of defence by the Insurance Company in our view, the liability of the owner of a motor vehicle and an insurer vis a vis a third person will be joint and several if the amount awarded is covered under the policy and is within the statutory limit whichever is higher. The amount covered under the policy may be (a) the amount required to be covered under s. 95(2) of the Motor Vehicles Act; (b) less than the amount required to be covered under s. 95(2) of the Act and (c) more than the amount required to be covered under s. 95(2) of the Act Statutory liability is the amount required to be covered under s. 95(2) of the Act as on the date of the accident. It appears to us that apart from s. 96(1) of the Motor Vehicles Act, the Court has no power to pass any decree against the insurer Section 110B the Motor Vehicles Act lays down that the Tribunal while passing the award under the said section "shall specify the amount which shall be paid by the insurer or owner or driver...............or by all or any of them, as the Case may.". The primary liability vis-à-vis a third party is that of an owner or of the driver The owner may be vicariously liable for the tortuous act of the driver when the vehicle is used for owner’s purpose or business at the time of the accident and the vehicle is driven under the authority of the owner. A driver may be independently liable if at the time of accident the vehicle was used not for the business of the owner or for his purpose In this connection, reference may be made to a decision of the Supreme Court made in the case reported in AIR 1966 SC 1969 corresponding to 1966 ACJ 89. The liability of the Insurer to pay compensation under s. 110B of the Act arises as an indemnifier only. The tribunal, in our view, is required to pass an award specifying the amount payable by the insurer and such specification should be made in terms of the provisions contained in s. 96(1) of the Act Person to be indemnified may be the owner or driver under s. 95(1)(b) of the Motor Vehicles Act Section 96(1) of the Act speak, of the person by whom the Insurance policy has been effected covering liability as is required to be covered under s. 95(1)(b). It appears to us that the award of compunction to be passed against any person insured by the policy shall be payable by the insurer to the decree holder to the extent of the sum not exceeding the sum assured and Payable under the policy. It appears to us that the award of compunction to be passed against any person insured by the policy shall be payable by the insurer to the decree holder to the extent of the sum not exceeding the sum assured and Payable under the policy. The "sum assured" may be the amount specified under the Act or under the contractual liability limited by the insurance policy whichever is higher It appears to us that the liability of the insurer is joint and several with the insured to the extent of the "sum assured" and the Court or Tribunal should not pass any award which is more than the "sum assured" as provided for in s. 96(1) of the Motor Vehicles Act. Sect ion 96(1) of the Motor Vehicles Act should be read with reference to sub-ss. (3) and (4) of s. 96 of the Act. In this connection, reference may be made in the decisions of the Supreme Court made In the case of Capt. ltbar Singh reported in AIR 1959 SC 1331 . In paragraph 16 of the said decision it has been observed by the Supreme Court to the effect "secondly, if he (insurer) has been made to pay something which on the contract of the policy he cannot be bound to pay he can under the proviso to sub-s. (3) or under sub s. (4) recover it from the assured." Section 96(3) dealt with unavoidability of liability by an insurer to a third party on account of violation or breach committed by the Insured in respect of the conditions of the policy other than those in s. 96(2)(b) The Insurer may recover the amount paid to the third party from the insured for such violation of non-statutory conditions of the policy and the amount to be recovered from the Insured cannot be more than the "sum assured". Section 96(4) of the Motor Vehicles Act deals with the right of recovery by an insurer from the insured. It provides for that "if the amount which an insurer becomes liable under this section........exceeds the amount for which the Insurer would be liable under the policy........the insurer shall be entitled to recover the excess from that person". It appears to us that Mr. Chowdhury, the learned Counsel appearing for the Insurance Company is justified. It provides for that "if the amount which an insurer becomes liable under this section........exceeds the amount for which the Insurer would be liable under the policy........the insurer shall be entitled to recover the excess from that person". It appears to us that Mr. Chowdhury, the learned Counsel appearing for the Insurance Company is justified. In his submission that the expression amount........" under this section is the "sum assured" required to be covered under s. 95 (2) as on the date of the accident as envisaged in s. 96(1) and when such "sum assured" is in excess of the contractual liability under the policy i. e. the contractual liability is less that the amount required to be covered under s. 95(2) as on the date of the accident. the excess amount, being the difference between the higher statutory liability and the lesser contractual liability may be recovered by the Insurer from the insured in this connection, reference may be made to a decision of the Supreme Court reported in AIR 1982 SC 836 . It also appeal s that both under the proviso to s. 96(2) and s. 96(4) of the Motor Vehicles Act, the right of recovery by an insurer from the insured is confined to the amount with reference to the "sum assured" which will be a joint and several liability and such "sum assured" should be limited to the statutory liability as on the date of the accident or the contractual liability, whichever is higher, and in any case, not exceeding the aforesaid two limits, whichever is applicable. It bas been held by the Supreme Court in the decision reported in AIR 1983 SC 1136 , that so far as the statutory liability is concerned, the amount required to be covered under the Motor vehicles Act being joint and several up to that limit, the Tribunal should specify the amount payable by an insurer under s. 110B of the Act upto that limit. Regarding the contractual liability of an insure which will also be and several of both the insurer and the insured, such liability may be in excess of the statutory liability, or an additional liability covered under the policy, though not required to be covered under the policy, the Court of Tribunal cannot pass an award against an insurer for an amount more than the amount actually so covered under the policy even if the total amount assessed as compensation under s. 110B is more than the amount additionally so covered under the policy. Reference may be made in this connection to the decision of the Supreme Court reported in AIR 1977 SC 1735 . It appears to us that liability of the insurer and the insured appears to be joint and several upto the limit of “sum assured”, unlike in the case of an joint tort feasors, they do not become joint judgment-debtors. Mr. Chowdhury’s contention that though the liability of the owner and the insurer is described as “joint and several” the incident or obligation of contribution as envisaged in paragraphs 2 and 3 of s.43 of the Contract Act is not applicable appears to be reasonable. He has contended that sub-ss. (3) and (4) of s.96 of the Motor Vehicles Act contain special provisions for the insurer and the insured and the said provisions are departure from the general law of contract relating to contribution. Mr. Chowdhury has contended that the position of an insurer is that of a surety as defined under s. 126 of the Contract Act and the liability of the insurer, as a surety, though co-extensive with that of the owner (insured) as the principal debtor, such liability of the insurer is limited to the “sum assured” under the policy, as envisaged in s. 128 of the Contract Act the specifically provided for in s. 96(1) of the Motor Vehicles Act. In our view, there is substance in the said contention of Mr. Chowdhury and we are inclined to accept the same. In our opinion, in terms of S. 110B of the Motor Vehicles Act the Tribunal should specify the amount to be paid by the insurer of the owner of the driver of by all or any of them as the case may be. Chowdhury and we are inclined to accept the same. In our opinion, in terms of S. 110B of the Motor Vehicles Act the Tribunal should specify the amount to be paid by the insurer of the owner of the driver of by all or any of them as the case may be. In specifying the amount to be paid by the insurer only, the Tribunal is bound by the provision of s.96(1) of the Motor Vehicles Act whereby the insurer is deemed to be sole judgment debtor to the extent of the “sum assured” which is to be determined by the Tribunal in specifying the amount to be paid by the insurer. For the aforesaid reasons, reasons, we are of the view that the Insurance Company is not precluded from challenging the legality and validity of the award passed against the insurer if the said award is beyond the “sum assured”. Such challenge is not on the merits of the case but the challenge is confined to illegality of the apparent on the face of the “sum assured.” If a reference is made to the decision of the Supreme Court in the case of Minu B. Meht’s case (1977 ACJ 118), it will appear that the Tribunal in that case did not determine the “sum assured”. The High Court under the aforesaid circumstance, the High Court and the Supreme Court had observed that ht claimants would be at liberty to proceed with against the Insurance Company jointly and severally for recovery of Rs. 1,43,400/- liberty was given to the claimants to proceed against the owner as well as the Insurance Company for recovery of Rs. 1,43,400/- The Supreme Court, as a matter of fact, observed in Minu B. Mehta’s case in paragraph 24 of the judgment to the effect “the expression ‘liability’ which may be incurred by him (insured is) meant as covering any liability arising out of the use of the vehicle. It will thus be seen that the person must be under a liability and that liability alone is covered by the insurance policy.” In paragraph 25 of the said decision, the Supreme Court has observed to the effect “Section 96 of the Act also makes the position clear. It will thus be seen that the person must be under a liability and that liability alone is covered by the insurance policy.” In paragraph 25 of the said decision, the Supreme Court has observed to the effect “Section 96 of the Act also makes the position clear. It provides that when a judgment in respect of such a liability as is required to be covered by a policy is obtained against any person insured by the policy, then the insurer shall pay to the person entitled to the benefit of the decree as if he was a judgment-debtor. The liability is thus limited to the liability as is covered by the policy” In Mehta Madan Lal’s case (AIR 1963 SC 1136), the Supreme Court has held that when the award is less than the maximum liability of the insurer the liability is joint and several and no apportionment should be made. The said decision, therefore, is not and authority for the proposition that even when the sum determined by the Tribunal as just and fair compensation to be awarded to a claimant is beyond the “sum assured”, a joint and several dectee will still to be passed both against the insurer and the insured. In our view. Insurance Company will be entitled to challenge the propriety of the award to the extent that the Insurance Company had been made joint and severally liable for any sum exceeding the sum assured”. Otherwise, the very provisions of the liability of insurer to the extent of the ‘sum assured” will be nugatory. The maximum statutory liability for the insurer in respect of a passenger of a stage carriage but at the relevant time was Rs. 5,000/-. The Supreme Court in Mehta Madan Lal’s case ( AIR 1983 SC 1136 ) has not laid down that if the tribunal determines an amount to be fair and just compensation in a particular case and such amount exceeds the “sum assured” so far as the insurer is concerned, still then the Tribunal is bound to pass a joint award for the entire sum both against the insurer and the insured. In our view, in such circumstances, the Tribunal will be justified in passing an award against the insurer up to the maximum statutory limit or the maximum liability under the Insurance policy itself whichever may be higher and for any sum above such liability, the award should be passed against ht insured and or the owner of the vehicle. There is force in the contention of Mr. Chowdhury that in Motor Owners’ Insurance Company’s case ( AIR 1981 SC 2059 ) the Supreme Court had taken into consideration the liability in case of an accident caused by a truck and not by a stage carriage and in paragraph 26 of the decision reported in AIR 1981 SC 2059 , the Supreme Court has referred to its earlier decision made in Seikhupura Transport Company’s case ( AIR 1971 SC 1624 ) wherein the Supreme Court had taken into consideration the liability arising out of an accident caused by a stage carriage and the Supreme Court has, therefore, pointed out that different considerations may arise in case of a passenger vehicle because of the maximum limit for each passenger. In the aforesaid circumstances, in our view, Mr. Chowdhury is justified in his contention that the award to be passed against the Insurance Company for the accident caused to a passenger of the stage carriage in question, must be limited upto the maximum statutory limit of Rs. 5,000/- (at the relevant time Rs. 5000/- was the maximum limit) or up to the maximum liability covered by the Insurance policy whichever is higher and the owner of the vehicle should suffer and award of Ts. 40, 000/- since found by the learned Tribunal as just and fair compensation in the facts of the case. Accordingly the award is to be amended with reference to the Insurance Policy. 9. As the Insurance Policy was not in the records of the Tribunal. We directed for the production of the said policy by the appellant and such Insurance Policy has been produced before this Court and an inspection of the same has been given to the learned Counsel for the respondents claimants. It appears that under the policy the maximum statutory liability for an individual bus passenger of Rs. 5000/- is also the sum assured. It appears that under the policy the maximum statutory liability for an individual bus passenger of Rs. 5000/- is also the sum assured. Accordingly, we allow this appeal and modify the award to he extent that there will be a joint award against both the objectors, namely, the owner of the vehicle viz objector No. 1 and the present appellant for a sum of Rs. 5,000/- (Rupees five thousand) and there present appellant for a sum of Rs. 35,000/- (Rupees thirty-five thousand) only against objector No. 1, i e owner of the vehicle. 10. It appears that the Insurance Company had already deposited a sum of Rs. 5000/- in the Tribunal pursuant to the order passed by this Court in the instant appeal. The claimants respondents will be entitled to withdraw the said sum, if not already withdrawn, without furnishing any security. There will be no order as to costs. Drawing up of formal decree is dispensed with. Let the copy of the Insurance Policy be kept with the record. Monoranjan Mallick, I agree. Appeal allowed; award modified.