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1996 DIGILAW 510 (KER)

New India Assurance Co. Ltd. v. Santhamma

1996-11-29

K.A.MOHAMMED SHAFI, K.G.BALAKRISHNAN

body1996
Judgment :- K.G. Balakrishnan, J. The fourth respondent New India Assurance Company in M.V.O.P.No. 2347/85 is the appellant. The claim petition was filed by the legal heirs of one Appukkuttan Nair who died in a motor accident which took place at 9.45 P.M.. on 25.9.1979. Appukuttan Nair was an employee of United Electrical Industries and on the date of the incident he was travelling in a bus No. KLQ 3095. When the bus reached near Madan Nada, Appukuttan Nair wanted to alight from the bus. The bus was stopped and he got down from the bus and while so the conductor gave the double bell and the bus suddenly moved forward. Appukuttan Nair who was lying on the road was run over by the rear wheel of the bus. He was immediately removed to the District Hospital, Quilon where he was treated there till he succumbed to injuries on 14.12.79. Petitioners in the MVOP claimed Rs. 1,13,019.46 as compensation. The Tribunal passed an award for 83,500/- with interest thereon. Out of the compensation, Rs. 50,000/- was ordered to be paid by the appellant Insurance Company and the balance amount of Rs. 33,500/- was directed to be recovered from respondents 1,2 and 3 in the MVOP, who are respectively the driver, conductor and owner of the bus. 2. The appellant contends that the deceased Appukkuttan Nair was a passenger in the bus and as per the then existing provision of the Motor Vehicles Act viz., S.95(2)(b)(ii) read with sub clause (4) of the Act the liability of the Insurance Company is only to the extent of Rs. 5,000/-. This contention was raised before the Court below, but the learned Tribunal rejected this contention and held that in view of the decision in Motor Owners Insurance Co, Ltd. v. Jadavji Keshavji Modi and Ors. (1981 AIR(SC) 2059) the liability of the Insurance Company is to the extent of Rs. 50,000/-. This finding of the Tribunal is challenged by the appellant. 3. We heard counsel for the appellant, counsel for respondents and also counsel for owner of the bus which had involved in the accident. 4. Going by S.95(2)(b)(ii) of the Motor Vehicles Act if the deceased Appukuttan Nair was a passenger at the time of the accident and the liability of the Insurance Company is only to the extent of Rs. We heard counsel for the appellant, counsel for respondents and also counsel for owner of the bus which had involved in the accident. 4. Going by S.95(2)(b)(ii) of the Motor Vehicles Act if the deceased Appukuttan Nair was a passenger at the time of the accident and the liability of the Insurance Company is only to the extent of Rs. 5,000/-, AIR 1981 SC 2059 has no application in the present case. The learned Tribunal wrongly applied the above decision to fix the liability of the Insurance Company. 5. As per the impugned award the Insurance Company has been directed to pay Rs. 50,000/-. Counsel for the claimants contended that the award of the Tribunal should be sustained on other grounds. According to the claimants, Appukuttan Nair was not a passenger at the time of the accident, though he travelled in that bus. It was contended by claimants that Appukuttan Nair wanted to alight from the bus at Madan Nada and in fact alighted from the bus and before he could safely move to a distance away from the bus, the bus moved forward and his legs were run over by the bus and he sustained fatal injuries. Therefore, it is contended that Appukuttan Nair sustained injuries while he was on the road and he ceased to have any physical connection with the bus and thus ceased to be a passenger of the bus. This plea is to be considered in the light of certain decisions on the point. 6. In the decision in New India Assurance Co. Ltd. v. Annakutty (1992 (2) KLT 727) a similar question arose but the facts are slightly different. The facts borne out from Para. 5 of the judgment are to the following effect: "Deceased Kuruvilla was attempting to get down from the bus. But the conductor of the bus gave double bell negligently. The bus moved suddenly. Kuruvilla was thrown away on the road and the wheel of the bus ran over his body and head, as a result of which the skull was broken and he died instantaneously". (Emphasis supplied) From the facts, it is clear that the deceased was thrown away from the bus and the wheel of the bus happened to be run over his body and head. It was in this background the Division Bench held that the deceased Kuruvilla did not cease to be a passenger. (Emphasis supplied) From the facts, it is clear that the deceased was thrown away from the bus and the wheel of the bus happened to be run over his body and head. It was in this background the Division Bench held that the deceased Kuruvilla did not cease to be a passenger. The Court held: "Any person who performs the journey in the bus will be a passenger. He will continue to be a passenger even at the time of alighting from the bus, if his physical contact with the bus still remains. The ordinary connotation of the word "passenger' cannot be restricted or limited to only those persons who travel in the vehicle either by remaining seated in the seating accommodation provided or by standing in the vehicles where travel by standing is specifically permitted." (Emphasis supplied) 1. In the decision reported in Venkataswami Motor Service v. C.K. Chinnaswamy and Ors. (1989 Act.371) a single Bench of the Madras High Court observed as follows : "A lady passenger was alighting from the front exit of the bus and her one foot was on the footboard and other on the road when the conductor gave whistle and the driver moved the bus. She was knocked down and dragged along by the body of the bus and sustained fatal injuries". The Court held that the lady was a passenger and she continued to be a passenger at the time of the accident. 8. In the decision reported in Kunhimohammed v. Ahmedkutty (1987 (1) KLT 165) a Division Bench of this Court observed that the passenger continued to be a passenger even though she was thrown away. It was a case where one lady was travelling with her three children in a bus. One of them was an infant of 70 days. The bus dashed against an electric post and because of the impact of the collision the smaller baby was thrown off from the bus and the mother fell underneath the bus. The Division Bench consisting of one of us (Balakrishnan, J.) held that in the absence of any evidence to show that she had voluntarily left the bus, she is deemed to be a passenger. 9. In another case reported in New India Assurance Co. Ltd. v. Sree Devi (1989 (2) KLT Short Note 80) deceased was held to be a passenger. 9. In another case reported in New India Assurance Co. Ltd. v. Sree Devi (1989 (2) KLT Short Note 80) deceased was held to be a passenger. The deceased and the first respondent were travelling in a scooter. The deceased was the pillion rider and because of the negligent driving of the first respondent, the deceased was thrown off from the scooter and he was run over and it resulted in grievous injury to him and he later succumbed to the injuries in the hospital. In that case also the Division Bench held that the pillion rider was a passenger. 10. In all the cases where the court held that the injured/ deceased was a passenger on the basis that either he had physical contact with the motor vehicle at the time of the accident or was thrown off and sustained injuries. If the passenger had voluntarily got down from the bus and in the process of alighting from the vehicle had sustained some injuries, then also it could be said that he continued to be a passenger. If the passenger was involuntarily thrown out from the vehicle, he will continue to be a passenger as he had no intention to get down from the vehicle. But if the passenger voluntarily alighted from the bus and touched the ground and ceased to have any physical contact with the bus, it cannot be said that he continued to be a passenger. In the instant case, Ext. Al is a contemporaneous document prepared by the police which shows that the second respondent driver moved the vehicle forward and the bus ran over the left leg of the deceased who was laying on the road at that time. PW. 2 was travelling along with the deceased in the bus, deposed that both of them got down from the bus and from the evidence it is clear that the deceased Appukuttan Nair had ceased to have any physical contract with the bus while he was lying on the road the bus ran over him. Therefore, we are unable to hold that he was a passenger at the time he sustained injuries and all the decisions cited above were rendered in the background of different set of facts. The deceased Appukuttan Nair happened to sustain fatal injuries as he could not move to safe distance from the bus. Therefore, we are unable to hold that he was a passenger at the time he sustained injuries and all the decisions cited above were rendered in the background of different set of facts. The deceased Appukuttan Nair happened to sustain fatal injuries as he could not move to safe distance from the bus. Till he alighted from the bus, he did not sustain any injury. 11. Even though the Tribunal directed the Insurance Company to pay Rs. 50,000/- on the basis of the wrong application of the Supreme Court decision, we are inclined to sustain that order for a different reason that the deceased Appukuttan Nair was not a passenger in the strict sense of the term. As he was a third party as against the offending vehicle by virtue of S.95(2) of the Act the liability of the Insurance Company is upto Rs. 50,000/-. 'Therefore, the direction of the Tribunal does not call for any interference. . The appeal is therefore, dismissed.