NARASAMMA AND OTHERS Vs. M. SAIBABA AND ANOTHER

JUDGEMENT

(1.) AN interesting point has fallen for decision in this appeal, which basically revolves around the question as to whether the status of a passenger continues if the passenger has indicated an intent to leave the vehicle in which the passenger was travelling and whether the extended principle which has been held applicable in certain cases for certain reasons that the status will hold good to situations where the injury has been caused in the process of alighting, would also cover a case where injury has occurred immediately after the person has alighted. We shall briefly recount the facts giving rise to this controversy. One Hussainappa who was aged approximately 60 years had travelled in a goods vehicle, viz., a truck on the evening of 17.7.1993 and this vehicle stopped near a Mutt at which time Hussainappa got down from the truck in question. There is some slight ambiguity with regard to exactly how the injury was sustained but the wife and minor children who are the claimants before the M.A.C.T. had contended that he had just alighted from the vehicle, that the cleaner was in a hurry as a result of which he did not give Hussainappa sufficient time to get clear of the vehicle and that he signalled to the driver to start off as a result of which the truck virtually moved almost simultaneously and in the course of this action the rear wheels of the truck ran over Hussainappa. P.W. 2 Dubbanna went and informed his family who came to the spot and had Hussainappa removed to the hospital. Both legs were badly crushed as a result of which they were required to be amputated and Hussainappa died. There is little dispute about the fact that the injuries were sustained in the course of the incident and that death was the direct result of these injuries. A claim was preferred before the Tribunal for compensation at which time the owner of the truck took up the contention that this was not the vehicle involved in the incident and the claim as against the owner should be dismissed. The Insurance Company was also represented and in the written statement, the Insurance Company admitted the position that the truck that was alleged to have been involved in the incident was insured by the company. Learned Member of the Tribunal examined the evidence and came to the conclusion that it fell short of establishing that this was the very vehicle which had caused the injuries despite the fact that the police had prosecuted the driver before a Criminal Court and consequently, dismissed the claim. The present appeal assails the correctness of that order.

(2.) AT the hearing, appellants, learned Advocate relied on the evidence of P.W. 2 Dubbanna who claims to be the eye -witness and who was in terms stated that the deceased was in the process of alighting from the vehicle when the cleaner gave the signal to the driver to proceed, that as a result of the movement of the lorry the body of the vehicle came in contact with the deceased and that the wheel ran over his legs and this was how he sustained the injuries. He has given the number of the lorry as 22 -1500. The second piece of evidence on which reliance is placed is, entry in the check -post which does indicate that the truck No. AP 22 -T 1500 had passed through the check -post but in view of the fact that there is slight vagueness with regard to the closure of the entries on the night of 17.7.1993, it was argued on behalf of the owner and the Insurance Company that this entry can even hold good for the following morning. We need to straight -away point out that there is little justification for this view because this is the last entry for 17.7.1993 after which a line has been drawn and even though no timings have been recorded, one would have to assume that this was obviously some time before mid -night of 17.7.1993.

(3.) THE learned Advocate who represents the Insurance Company has in the first instance supported the order passed by the Tribunal, because his submission is that the onus of proof is very strong as far as the fastening of the liability in the first instance is concerned. We do not dispute this principle and taking on from there, the learned Counsel has submitted that on the evidence that is belbre the Court it can never be conclusively established that this was the truck which had caused the injuries. The learned Counsel has proceeded to point out that even assuming the Court was to accept the position that this was the vehicle involved, that the Insurance Company can never be held liable because he points out that on 17.7.1993, having regard to the law that was at that point of time in force if the deceased was a passenger in a goods vehicle then the Insurance Company is totally exonerated from the liability. The second submission on which the real controversy has arisen emanates from the fact that a submission was canvassed that the person who is a passenger under such circumstances and is on the wrong side of the law continues to incur the disqualification until that status has completely been severed, Learned Counsel submitted before us that it is not only while travelling in the vehicle but that the status would continue even in the process of alighting from the vehicle and that if the injury has occurred even in the process of alighting that the disqualification will still hold good. In this regard, our attention was drawn to one of the latest decisions on the point in Ramesh Kumar Vs. National Insurance Co. Ltd. and ors., AIR 2001 SC 3363 , wherein the Supreme Court has reiterated the position under the Motor Vehicles Act, 1939, that a gratuitous passenger including an owner of the goods or his representative travelling in a goods vehicle sustaining injury or death, cannot claim any liability vis -a -vis Insurance Company. That proposition is well settled and there can be no dispute with regard to its correctness.