Kamat, J.:— Sitabai R. Gawas, respondent No. 1, succeeded in Claim Petition No. 4/87 filed by her before the Motor Accident Claims Tribunal, Panaji, by getting an Award dated 31st December, 1991, in her favour. That award directed that she be paid a sum of Rs. 85,000/- as and by way of compensation in respect of the death caused to her husband in a vehicular accident in which mini bus bearing registration No. GDS—2272 was involved, which belonged to the present appellant and was insured with the third respondent.

2. The Tribunal in the impugned award held that out of the amount of compensation awarded, the liability of the third respondent-insurer, is limited to Rs. 15,000/- only, that being the limit of the liability per passenger in an accident, in terms of Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939, and the remaining amount is directed to be paid by the present appellant/owner and respondent No. 2, the driver.

3. The appellant/owner of the minibus challenges the impugned Award restricted to one challenge that the deceased husband of respondent No. 1 was not a passenger and therefore not covered under Section 95(2)(b)(ii) and it is a pure case of involvement of third party risk and being so, the entire liability under the insurance policy is that of the third respondent.

4. If the deceased husband Raghunath Vishnu Gawas is held to be a passenger at the time when the accident occurred as a result of which he died, indeed the liability of the third respondent, insurer, is Rs. 15,000/-, but if it is held that the deceased Raghunath was not a passenger, then the liability of the present appellant and his insurer would be that of a third party, in which case the impugned award which directs appellant/owner to pay a sum of Rs. 70,000/- will not be sustainable.

5. The story in the claim petition was that the deceased Raghunath Gawas was waiting at the bus stop at Porno Tinto at Anjuna Bardez, Goa, at about 8.30 hours. The passenger minibus bearing registration No. GDS—2272 came at the bus stop which was already over crowded. Raghunath tried to board the minibus, but as in the meantime the bus was put in motion, he fell down on the ground, resulting in severe injuries and in the rear wheel of the bus dashed against him. Raghunath, it appears, died soon after he was removed to the Hospital on the same day.

6. In support of the claim application, large number of witnesses were examined, but it may not be necessary to look the evidence of all those witneses, regard being had to the controversy in the present appeal.

7. Mr. Lotlikar learned counsel for the appellant/owner, says that the deceased Raghunath had not boarded the minibus and even before he entered the bus he had a fall. He therefore says that by no stretch of imagination Raghunath could be held to be a passenger within the provisions of the Motor Vehicles Act, or, for that matter, come within the definition of a passenger. According to him, at the most deceased Raghunath could be called an intending passenger, but the intending passenger does not become a passenger unless he gets into the bus. He therefore says that the Tribunal was in error in not looking into this aspect of the matter.

8. He contended that mere boarding of a bus would not make one a passenger unless the person who boarded the bus has purchased a ticket by which the contract comes into being between him and the owner of the transport. He now contends that even when a person enters a vehicle and who is yet to purchase a ticket can also be said to be a passenger as long as he is within the precincts of the vehicle as by that time he becomes a passenger for the purpose of intended journey. It is on the basis of the above, he asserts, that when the deceased Raghunath had not even entered the minibus when the accident arose, by no stretch of imagination he could be held to be a passenger.

9. He has relied upon certain authorities to which a reference may be made. In the decision of ‘Thoznilalar Transport Company Valliammal’ reported in (1989) 2 ACC 242, a learned single Judge of the Madras High Court was called upon to consider whether a person who while trying to get into the bus fell down and was run over by the rear wheel, as a result of the bus being put in motion, was or not a passenger, held that such person cannot be held to be one and, therefore, the limit of laibility per passenger is not applicable.

In fact, the facts in the case were that the deceased Jayaraman had got into a passenger bus at Alangayam due for Chekkumedu. When the bus stopped at the bus-stop at Chekkumedu the deceased got down from the bus and before the could safely land on the ground, the driver started the bus as result of which Jayaraman had fallen down and was run over by the rear wheel.

10. In this decision, several authorities were considered and referred to. In ‘Damodaram v. Santhanam’ an unreported decision in AAO No. 559 of 1979 dated 28th July, 1981, a Division Bench of the Madras High Court had taken a view that the one who suffers an accident while boarding a bus is not a passenger and is a third party.

Another Bench in the decision of ‘Southern Motors, Madurai v. C. Sivajothiammal’ 1982 Acc CJ (supp) 85 had taken the view that the deceased who was bound from Usilampatti to Colony, after tavelling in the bus from Usilampatti to Bathalagundu had got down from the bus to give way to other passengers to get down and after the passengers got down had attempted to get into the bus which suddenly started moving as a result of which he fell down and got killed, was held to be not a passenger. It was so held on the ground that the deceased had not secured entry into the bus for the further journey from Bathalagundu to Palani.

11. Another single Judge of the Madras High Court had also taken a similar view that when then deceased was about to get into the moving bus and had slipped and fell down in that process he was not a passenger and Section 95(2)(b)(ii) and (4) of the Motor Vehicles Act was not available to the Insurance Company (vide 1986 Acc CJ 506).

Similar view was taken by another single Judge in another case on same facts.

12. Mr. Lotlikar then relied upon an unreported judgment of a Division Bench of this Court to which one of us was a party (Kamat, J.), recently decided on July 27, 1994, in the decision of Oriental Insurance Co. Ltd. v. Edward D'Cruz Rodrigues (First Appeal No. 94/88) that when a lady traveller while alighting had already put her one foot on the ground and suffered accident as a result of the bus being put into motion is not a passenger, on the basis that her journey had come to an end at that bus-stop and, therefore, held that the insurers in that case are liable to pay compensation for that lady traveller as a third party liability.

13. In ‘Pandit Ram Saroop v. Balbir Singh’ reported in (1987) 2 ACC 358, a learned single Judge of the Delhi High Court held that for complying with the provisions of Section 92(2)(b)(ii) and (4), it must be shown that the deceased was a passenger at the time when the accident took place. The facts in the case were that the deceased had boarded the bus at the General Store Bus Stop and his destination point was the Bus Stop at Ordinance Depot, Shakurbasti, Delhi. He had purchased the ticket for the said journey. The bus did not stop at Ordinance Depot Bus Stop and the bus went on ahead and when the deceased was trying to get down, the bus started, as a result of which the deceased fell down and there rear wheel of the bus ran over him and killed him. The learned single Judge held that the deceased was a passenger by virtue of a contract and upon payment of the bus fare since his destination was Ordinance Depot, Shakurbasi, he would have got down at the bus-stop if the bus had stopped there, but from the evidence it was found that the bus did not stop at the bus-stop and therefore he could not remain as a passenger once the bus had gone beyond the Ordinance Depot, Shakurbasti bus-stop.

14. As against these contentions Mr. M.P Mulgaokar, learned counsel for the third respondent/insurer says that once a traveller tried to board a bus and even when he meets with an accident as a result of the bus being put in motion, he is yet a passenger. In support he places reliance on the following authorities:

In the decision of ‘Mangilal Kale v. Madhya Pradesh State Road Transport Corporation’ reported in 1988 Acc CJ 460: (AIR 1988 Madh Pra 109), a learned single Judge of the Madhya Pradesh High Court held that the deceased Bohjraj was intendeding to travel as a passenger in the Guna-Ujjain passenger bus. The bus was stationary at the Bus Stand in between the route. Bhojraj had his luggage loaded on the top of the bus and in order to check that luggage he climbed up the ladder affixed to the rear portion of the bus and when he was ascending, the ladder gave way. Deceased fell down on the ground, sustaining serious injuries which utliamtely resulted in his death. The question arose whether deceased Bhojraj was passenger when the bus was stationary and this was answered in the affirmative on the basis that the accident had arisen out of use of the motor, vehicle.

In our view this decision does not help respondent No. 3 insurer, because the question in the decision was whether the accident sustained by Bhojraj when the bus was stationary at the bus-stop by the fall from the ladder was a result of the accident arising out of use of the vehicle and not for the proposition whether he was a passenger when he was getting into the bus or alighting from the bus.

15. The next authority cited by Mr. Mulgaokar is a Division Bench judgment in ‘Gobinda Prosad Mukherjee v. Sujit Bhowmick’ reported in AIR 1978 Cal 109. The question indeed was regarding the limits of liability of the insurer on the determination of the question as to who is a passenger. The facts were that a young student after school hours tried to board a private bus but before he could board the bus it started moving on the singal of the conductor. The student lost his balance, fell down and the rear wheel of the bus rolled over his right leg. He sustained severe injuries on his right leg and left thigh and other parts of the body. The Division Bench held that student was a passenger and therefore covered within the limit of the passenger li ability.

16. It must be seen that the Division Bench decision in AIR 1978 Cal 109 was considered by the Division Bench of this Court in the unreported decision in First Appeal No. 94/88 decided on 27th July, 1994 and it was observed in paragraph 19 that what is decided therein is applicable to the facts of that case. In fact the decision itself says that even if that student was not to be considered as a passenger even then he will be covered under Section 92(b)(ii). We iterate that decision must be restricted to the facts of that case alone.

17. Coming back to the facts of the present case, it must be seen that respondent No. 1 Sitabai, was not present when the accident arose and in which her husband Raghunath died. About the accident three eye-witnesses were produced on behalf of the respondent No. 1 original claimant.

Kanak Parab, Cl. W. 3 says that he and the deceased Raghunath Vishnu Gawas were waiting at the bus-stop at Porno Tinto, Anjuna. The bus came and stopped near the bus-stop at about 8.30 p.m to 8.45 p.m and it was found to be fully crowded. He say that he managed to hold the bus, but when the deceased tried to get in the said bus, the bus started moving and in the process the deceased fell from the bus dashed against the wheel of the vehicle, sustaining injuries which caused his death.

Khusali Shriodakr, Cl. W. 4, says that he was nearby the bus-stop and the deceased was the last person to board the vehicle and when he was just climbing the bus the driver put the venicle in motion. As a result, the deceased fell out from the bus. The bus thereafter stoped at a distance of 20 meters away from the stop and lastly Balkrishna Gauns, Cl. W. 5, says that he was on his motor cycle behind the bus on the relevant date and when Raghunath was just claimbing the bus, the bus was put in motion by the driver even before Raghunath entered the bus. As a result thereof the deceased fell out from the bus near the rear wheel of the vehicle.

18. The irresistible conclusion from the evidence of the above three witnesses is that the deceased Raghunath had not even got into the bus. The bus itself was overcrowded and when he was trying to make entry into the bus the bus was put in motion as result of which he had a fall which finally proved to be fatal.

19. The medical evidence rendered by Dr. Reddy, who is Professor of Forensic Medicine and who conducted post-mortem examination on the body of Raghunath says that he had eight external injuries and the cause of death was due to haemorrhage and shock as a result of pelvic injury caused by blunt force and impact of hard surface.

20. Upon gathering the above evidence it is clear that the deceased Raghunath had not even entered the bus. He therefore could not be a passenger. Though he wanted to be a passenger, in that minibus that stage had not arrived. Had he got into the bus in that event he would have been a passenger but from the evidence on record it is clear that he had not even entered the minibus and therefore he cannot be termed a passenger. In this view of the matter the third respondent, insurer, cannot claim the benefit of Section 95(2)(b)(ii) so as to limit its liability as a passenger liability to Rs. 15,000/-. The compensation otherwise awarded in a sum of Rs. 85,000/- does not seem to be fair. Although the Tribunal after assessing the compensation in an amount of Rs. 84,000, based on the principle of dependency slashed the same to Rs. 75,000/-, on the ground that lump sum award is being made in her favour of and thereafter otherwise added funeral expenses to the tune of Rs. 3,000/ and another Rs. 7,000/- on account of mental agony, pain and suffering, in our view the same need not be disturbed though deduction compensation on the basis of lump sum awarded is not acceptable. In our view the present appeal must therefore succeed.

21. Appeal succeeds. The direction in the impugned award that liability of the respondent No. 3 is limited to Rs. 15,000/- is quashed and set aside. The compensation of Rs. 85,000/- in favour of the first respondent is maintained as also costs of Rs. 1,000/-. The The same is directed to be paid by the appellant, respondent No. 2 and respondent No. 3 jointly and severally. “No fault liability” compensation paid in an amount of Rupees 15,000/- is to be adjusted. Therefore will be no order as to costs.

Appeal allowed.