NOORJAHAN Vs. SULTAN RAJIA ALIAS THAJU

JUDGEMENT

(1.) BOTH these appeals arise out of M.A.C. O.P. No. 104 of 1983 on the file of the District Judge, Madurai relating to a motor accident that took place on 3-8-1982 at 9.00 PM near the bus stand of Periakulam, Madurai District, which resulted in the death of one Syed Abulhakir. The wife, child and parents of the abovesaid deceased filed the abovesaid O.P. claiming compensation of Rs. 100,000/- and the Tribunal below held that the driver of the bus was negligent in causing the accident and awarded compensation to the extent of Rs. 92,000/-. The owner of the bus in which the deceased was travelling is the appellant in C.M.A. No. 381 of 1985, while the abovesaid claimants are the appellants in C.M.A. No. 241 of 1990. The said C.M.A. 241 of 1990 has been filed only because the Tribunal below has restricted the liability of the Insurance Company, the 3rd respondent in the O.P. to Rs. 10,000/- out of the abovesaid total compensation of Rs. 92,000/-, on the ground that the deceased was a passenger of the bus and that as per the Motor Vehicles Act, the compensation is limited to the said sum of Rs. 10,000/-. According to the appellants in C.M.A. No. 241 of 1990, this restriction of the insurer's liability to Rs. 10,000/- is not correct since the deceased was not a passenger. Further, in the other appeal C.M.A. No. 381 of 1985 also, the main claim of the owner is that the deceased could not be considered as a ?passenger? under the relevant section of the Motor Vehicles Act and that hence the Tribunal below erred in limiting the insurer's liability to Rs. 10,000/-. On the other hand, the learned counsel for the insurer argued that the deceased was only a ?passenger?

(2.) SO, the main question to be decided in both the appeals is whether the deceased could be considered a ?passenger? within the meaning of the term used in S. 95(2)(b)(ii) of the Motor Vehicles Act (hereinafter referred to as ?the Act?).

(3.) THE learned Counsel for the insurer pointed out that in all the abovesaid cases, there was no discussion in the light of one other important provision, viz., S. 95(1) a proviso (ii), which according to him would clinch the issue. While the main part of S. 95(1)(b)(ii) says ?In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-S. (2) against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.? (emphasis supplied) Proviso (ii) therein says ?provided that a policy shall not be required, except 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, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.? (emphasis supplied) So, according to this Proviso, a policy shall not be required to cover liability in respect of death or injury to persons alighting from the vehicle at the time of the accident ?except where the vehicle is a vehicle in which passengers are carried for hire or reward..? So, it implies that in the above mentioned exceptional case as in the present case, admittedly the policy shall cover the abovesaid liability, that is, even where death or injury results while the person concerned alights from the vehicle at the time of the accident. It should also be noted that while S. 95(1) speaks of what liabilities have to be covered by the insurance policy and what not, S. 95(2) provides for the extent of such liability, where the said liability has to be covered pursuant to S. 95(1). Further S. 95(2) also specifically states that the said sub-S. (2) is subject to the Proviso to sub-S. (1)?. THErefore, while trying to understand the meaning of the term ?passenger? in S. 95(2)(b)(ii) which fixed the abovesaid limit of Rs. 10,000/- at the relevant time, we have to necessarily take into account what is stated in the abovesaid Proviso to sub-S. (1) of S. 95. We have already indicated that as per the; abovesaid Proviso (ii) to the abovesaid S. 95(1) the liability need not be covered in respect of death or injury to persons alighting from the vehicle at the time of the accident except 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 and that the further implication of the abovesaid rule contained in the abovesaid Proviso (ii) is that 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, the abovesaid liability arising when one alights from the vehicle has necessarily to be covered. Only in this last exceptional category, the present case would fall and so the policy shall provide such a liability and where the policy does provide as in the present case, as per S. 95(2)(b)(ii), the limit of the deceased passenger in the present case could be only Rs. 10,000/-. So, in such a situation the term ?passenger? used in S. 95(2)(b)(ii) would also include a person alighting from the vehicle concerned after finishing his journey in the bus. THErefore, with due respect, we hold that the abovesaid judgments of Padmini Jesudurai, J. which are reported in 1990 ACJ 201 and 1990 ACJ 821 and the unreported judgment dated 24-2-1986 of Kader, J. in C.M.A. No. 55 of 1981 are not correct and that the judgment of Swamikannu, J. reported in 1988 ACC 571 and the unreported Judgment of Ratnani, J. dated 3-8-1990 in C.M.A. No. 888 of 1985 are correct. We may make it clear however that we have now expressed our opinion on the other judgments referred to above dealing with cases of death or injury while attempting to get into the vehicle.