SIVAKUMAR TRANSPORTS Vs. MANI ALIAS PALANISWAMY

JUDGEMENT

(1.) THIS is an appeal at the instance of the owner of a bus against the award of the Motor Accidents Claims Tribunal (Sub-Court), Coimbatore, in M.C.O.P. No. 110 of 1980. On 2.4.1980 at about 4.15 p.m., the first respondent herein was waiting at the Veerapandi bus-stop and the bus plying on route 32E belonging to the appellant came there, but stopped at a distance of about 40 feet from the bus-stop. Many persons desiring to catch that bus ran towards the same and the first respondent also attempted to get into that bus through the exit in the front portion of the bus. When he had placed one foot on the footboard, the driver started driving the bus, as a result of which the first respondent fell down and sustained some injuries. According to the first respondent, the accident took place only on account of the careless and negligent driving of the bus by the driver. The injuries sustained by the respondent necessitated his taking treatment for about three months between 2.4.1980 and 7.7.1980 and even thereafter. The first respondent did not become all right and continued to suffer from the injuries and had suffered permanent disability as well in that he was unable to walk freely. Claiming that on the average he was earning Rs. 1,300/- a month by executing job works for Lakshmi Machine Works and that he had been deprived of his earnings for the period during which he was unable to work and that he had also undergone pain and suffering and had spent considerable amount for his treatment etc., the first respondent prayed that compensation in a sum of Rs. 30,000/- should be awarded to him.

(2.) IN the counter filed by the third respondent insurance company, which was adopted by the appellant and the second respondent, they contended that the bus was started only after ascertaining whether all the passengers had got out and other passengers had got in and that the first respondent, who was standing outside smoking, suddenly rushed towards the bus and attempted to board it through the exit in the front and, therefore, the accident had occurred only due to the negligence of the first respondent. Contributory negligence was also attributed by them to the first respondent as the cause of the accident. The amount of compensation claimed was also characterised to be excessive. It was also pleaded that the first respondent, as a passenger in the bus, could at best claim only Rs. 5,000/- by way of compensation from the third respondent herein.

(3.) LEARNED counsel for the appellant contended that the first respondent at the time of the accident was attempting to board the bus, though through the front exit, and was not, at the time when the accident took place a passenger and the restriction of the liability of the insurance company to Rs. 5,000/-as if the first respondent was a passenger in the bus, was erroneous and that the insurance company should have been made liable for the entire amount of compensation on the basis that the first respondent was only a third party and not a passenger. In this connection, learned Counsel strongly relied on the decision in Damodaran v. Santhanam A.A.O. No. 558 of 1979; decided on 28.7.1981; Uvaraja v. Parvathi Ammal 1986 ACJ 506 (Madras) and 1989 TLNJ 31. On the other hand, learned Counsel for the insurance company submitted that the first respondent should be regarded only as a passenger and, therefore, the liability of the insurance company was restricted to Rs. 5,000/- only and that liability had been rightly fastened on it in the award of the Tribunal.