NATIONAL INSURANCE CO LTD Vs. ASHA LATA ROUT

JUDGEMENT

(1.) These two appeals under the Letters Patent are directed against the judgment of a learned single Judge of this court and involve an interesting question 'Who is a passenger?' For the purpose of Motor Vehicles Act, 1939 (in short, the 'old Act').

(2.) A brief reference to factual aspects would suffice. On 6.8.1987 at Kandarpur Level Crossing, a bus bearing registration No. OSC 595 collided against a train. The bus driver tried to pass through the level crossing, broke open the level crossing iron bar, but in the process stopped on the railway track while a goods train was approaching. The train dashed against the bus. There was no time for the passengers/occupants to come out of the bus. The bus was dragged up to some distance and fell into a roadside ditch. Many passengers received personal bodily injuries and some of them succumbed. One Maheswar Rout (hereinafter referred to as 'the deceased') lost his life in the accident. His legal representatives respondent Nos. 1 to 6 in these appeals, filed a claim case, i.e., Misc. Case No. 529 of 1987 for grant of compensation of Rs. 1,40,000 in respect of death of Maheswar. It was their stand that deceased left the bus and was trying to run away apprehending the accident. As per the evidence led, deceased was aged about 45 years and was working as a helper under the Orissa State Electricity Board and was getting a monthly salary of Rs. 1,205. The Second M.A.C.T., Cuttack (in short 'the Tribunal') came to hold that apprehending danger of collision the deceased came out of the bus, and as such was not a passenger and his status being that of a third party the insurer is liable to pay the entire compensation of Rs. 75,000 by way of indemnification. The compensation was quantified by taking the monthly loss of dependency to be Rs. 500 and adopting a multiplier of 15. Oral evidence was led by the claimants to show that the deceased on seeing the approaching train and apprehending collision, got down from the bus and as the bus was hit and dragged, it fell on the deceased who was then in the process of running to safety. Their plea as indicated above was that since the deceased had already got down from the bus, he was no more a passenger and his status was that of a third party. The insurer preferred appeal challenging the award of the Tribunal and the appeal was registered as M.A. No. 19 of 1991. The claimants filed cross-appeal for enhancement of the award. Both the appeal and cross-appeal were heard by the learned single Judge and by order dated 1.10.1993 the insurer's appeal was dismissed, but the cross-appeal was allowed and the compensation was enhanced to Rs. 1,32,000. It was directed that the enhanced amount of Rs. 67,000 shall carry interest at the rate of 6 per cent.

(3.) In the present appeals, the insurer has assailed correctness of the award. It has taken the stand that the fact situation as presented is twisted and manipulated one which varies from the version given in the F.I.R. In order to make easy gain from the insurance company, the facts have been twisted and status of the deceased was pleaded to be a third party. The fact that the bus fell on the deceased makes the story more improbable inasmuch as the bus after being dragged fell into a ditch and not on any pedestrian. It is highly improbable even to conceive that the passengers apprehending danger came out of the bus and Were running away when the bus fell over the deceased and others. Even if the deceased had come out apprehending danger, his status continued to be a passenger so long as he did not reach the destination. The quantum as fixed by learned single Judge has been challenged.