NATIONAL INSURANCE COMPANY LIMITED Vs. V K SUNDARAVALLI

JUDGEMENT

(1.) THE insurance company, against which the Motor Accidents Claims Tribunal, has passed an award, has filed the present appeal contending that the deceased was a passenger at the time of the accident and that the Tribunal erred in holding him not to be a passenger and consequently placing the entire liability on it. Facts briefly are: on May 3, 1980, the deceased, V. K. Krishnan, who is the husband of the first respondent and the father of respondents Nos. 2 and 3, was travelling in a bus, bearing Registration No. TNY 1029, belonging to the fourth respondent and insured with the appellant. When the bus stopped at Srinivasanagar bus stop, the deceased, who was to get down at that bus stop, was descending down the steps. Before he could rest his foot on the ground, the driver of the bus moved the vehicle in a rash and negligent manner, as a result of which the deceased was thrown out and sustained serious injuries, to which he succumbed later in the hospital. Respondents Nos. 1 to 3 filed O. P. No. 92 of 1982 before the Motor Accidents Claims Tribunal V Additional Subordinate Judge, Tiruchirapalli, claiming a total compensation of Rs. 75, 000. Respondents Nos. 5 and 6 are respectively the father and mother of the deceased, who were also entitled to compensation. THE fourth respondent resisted the claim alleging that the accident was not due to the rashness or negligence of his driver, but that it was the deceased who tried to get into the running bus, slipped and was killed. THE claim was excessive. THE appellant also contested the claim more or less on similar grounds. Before the Tribunal, the first respondent examined herself as PW-1 and examined one Mani, an eye witness to the occurrence as PW-2 and also examined one Srinivasan, a co-employee of the deceased as PW-3. Exhibit P-1, the pay register, was marked on their side. On behalf of the appellant and the fourth respondent, Dhanapal, the conductor of the bus was examined as RW-1. No documents were filed on their behalf.THE Tribunal, on the above evidence, held that, whether the deceased was trying to board the bus or whether he was alighting from the bus at the time of the accident, the accident was due to the rash and negligent act of the driver of the bus in moving the vehicle. Compensation was assessed at Rs. 45, 000 and the Tribunal observing that there was no evidence to show that the deceased was a passenger and that, therefore, the deceased was only a third party, made the appellant liable to pay the entire amount. Aggrieved with the latter finding, the insurance company has filed this appeal. THE only contention that was urged before me by Thiru K. Ranganathan, learned counsel for the appellant, was that the deceased, even according to the claim petition, was shown as a passenger in the bus and was alighting from the bus at the time of the accident and should, therefore, have been treated as a passenger to whom the liability of the insurer was limited. Learned counsel placed reliance upon certain decisions of this court in support of this proposition. Thiru R. Balachander, learned counsel for respondents Nos. 1 to 3, contended that the Tribunal rightly held the deceased not to be a passenger and the above findings had to be upheld. Learned counsel also placed reliance upon certain decisions of this court in support of his proposition. THE first question that arises for consideration is whether the deceased, who was getting down from the bus at the time of the accident is to be treated as a passenger or as a third party " This court, through several of its decisions, has held that one who is getting into a bus is not a passenger and has to be treated only as a third party. A Bench of this court consisting of Ramanujam and Nainar Sundaram JJ. in Damodaran v. Santhanam (Order in A. A. O. No. 658 of 1979 dated 28-7-1981) has held that the deceased, who was actually trying to get into a moving bus and was pushed down and run over, cannot be construed as a passenger in the bus and is only a third party to it. THE court observed :