Thoznilalar Transport Company v. Valliammal And Others

The Judgment of the Court was delivered by

Padmini Jesudurai, J.:— The owner of a bus, against whom and his insurer the Motor Accidents Claims Tribunal has passed an award apportioning the liability as between them, has filed the present appeal contending that the deceased was not a passenger at the time of the accident and that, therefore, the liability of his insurer is unlimited and also contending that the quantilm of compensation awarded is excessive. The claimants (respondent Nos. 1 to 3) have preferred cross-objections on the ground that the compensation awarded is grossly inadequate.

2. Facts briefly are: On 5.3.1980 the deceased Jayaraman, who is the husband of the first respondent and the father of the second respondent and the son of the third respondent, was travelling in a passenger bus bearing registration No. MDJ 3092 belonging to the appellant and insured with the fifth respondent. The bus was driven by the driver, the fourth respondent. The deceased who had boarded the bus at Alangayam was due for Chekkumedu. When the bus stopped at the bus-stop at Chekkumedu, the deceased got down from the bus and before he could safely land on the ground, the fourth respondent started the bus, as a result of which the deceased fell down and was run over by the rear wheel of the vehicle. Since the accident was due to the rash and negligent act of the fourth respondent in starting the bus before the deceased had safely alighted from the bus, respondent Nos. 1 to 3 filed M.A.C.O.P No. 17 of 1981 under section 110-A of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) before the Motor Accidents Claims Tribunal (Subordinate Judge) Tiruppattur, North Arcot District, claiming a total compensation of Rs. 50,000/-. The appellant resisted the claim contending that the deceased was drunk and before the bus could be brought to a halt, the deceased jumped out of the bus and was overrun and that the accident was due only to the negligence of the deceased. The claim was also excessive. The fourth respondent, the driver, also took the same stand. The fifth respondent, the insurance company, also contended that the accident was not due to the rash and negligent driving of the bus by the fourth respondent and further contended that at any rate, its liability was limited only to Rs. 5,000/- in view of the fact that the deceased was a passenger at the time of the accident.

3. Before the Tribunal, on behalf of respondent Nos. 1 to 3, the first respondent examined herself as PW 1 and examined one Mutha Gounder, an eye-witness to the occurrence, as PW 2. Exhs. A-1 to A-6 were marked on their side. On behalf of the appellant and respondent Nos. 4 and 5, the fourth respondent driver was examined as RW 1 and the policy of insurance was marked as Exh. B-1.

4. On the above material, the Tribunal held that the accident was due only to the rash and negligent act of the fourth respondent in moving the bus, assessed the compensation at Rs. 30,000/- and observing that the deceased was a passenger at the time of the accident and under section 95(2)(b)(ii)(4) of the Act the insurance company was liable only to the extent of Rs. 5,000/-, passed an award for a sum of Rs. 30,000/-, directing the fifth respondent to pay a sum of Rs. 5,000/- and directing the appellant to pay the balance of Rs. 25,000/-. Aggrieved with the findings of the Tribunal and the ultimate award, the owner of the vehicle has filed the present appeal. Respondent Nos. 1 to 3 have filed cross-objections for enhancement of the compensation.

5. Mrs. Radha Gopalan, learned counsel for the appellant, made the following two submissions:

(1) The deceased was not a passenger at the time of the accident and was only a third party and consequently the liability of the insurer was unlimited;

(2) The quantum of compensation awarded was too high.

6. Per contra, Mr. K.S Narasimhan, learned counsel for the fifth respondent, contended that the deceased was a passenger at the time of the accident and the Tribunal had rightly limited its liability to Rs. 5,000/- and the award therefore had to be sustained.

7. Mr. R.G Annamalai, learned counsel for respondent Nos. 1 to 3, contended that the deceased was not a passenger at the time of the accident but (Sic. was only a third party and) that the quantum of compensation awarded was grossly inadequate.

8. Learned counsel appearing for the parties placed reliance on several decisions in support of their respective contentions. I shall refer to them in the course of the discussion.

CONTENTION NO. 1

9. While the learned counsel for the appellant as well as the learned counsel for respondent Nos. 1 to 3 would contend that the deceased could not be considered a passenger at the time of the accident, the learned counsel appearing for the fifth respondent would contend that the deceased was a passenger. It is on the determination of this issue that the extent of the liability of the fifth respondent would depend.

10. The question as to whether the deceased was a passenger or a third party had not been raised before the Tribunal as an issue, and the Tribunal, therefore, had not gone into that question, but had merely made a passing observation that the deceased was a passenger and that, therefore, under section 95(2)(b)(ii)(4) of the Act, the liability of the insurer was limited only to Rs. 5,000/-.

11. This court, through several of its decisions, has held that one who suffers an accident while boarding a bus, is not a passenger and is only a third party. A Division Bench of this court consisting of Ramanujam and Nainar Sundaram, JJ. in Damodaran v. Santhanam, A.A.O No. 559 of 1979; dated 28.7.1981, held that the deceased, who was actually trying to get into a moving bus, was pushed down and was run over, is not a passenger and is only a third party. The court observed:

“Therefore, we can safely say that a person, attempting to get into the bus but who did not succeed in getting entry into the bus, cannot be taken to be a passenger in the bus.”

12. In Southern Motors, Madurai v. C. Sivajothiammal, 1982 ACJ (Supp) 85 (Madras), a Division Bench of this court consisting of Ramanujam and Sethuraman, JJ. also held that the deceased, who was bound from Usilampatti to Palani, after travelling in the bus from Usilampatti to Bathlagundu, had got down from the bus at Bathlagundu to give way to other persons to get down and after they had got down, had attempted to get into the bus, which had started moving and at that stage had fallen down and was killed, cannot be treated as a passenger, since the deceased had not secured entry into the bus for the further journey from Bathlagundu to Palani. The court observed:

“A person who did not get entry into the bus and failed in his attempt to get into the bus cannot be said to be in any sense a passenger in the bus in the second stage of the journey between Bathlagundu and Palani.”

13. Following this decision, Shanmukham, J., of this court in Uvaraja v. Parvathi Ammal, 1986 ACJ 506 (Madras), held that the deceased, who was about to get into the moving bus and had slipped and fallen down in that process, was not a passenger in the bus and section 95(2)(b)(ii)(4) of the Act was not available to the insurance company. Similarly, Ratnam, J. of this court in New India Assurance Co. Ltd. v. Subramani, C.M.A No. 120 of 1983; dated 8.7.1988, also held that where the deceased was trying to get into the bus and had fallen down and was run over, he could not be treated as a passenger, to restrict the liability of the insurance company.

14. No doubt, all these decisions deal with persons who were attempting to get into the bus and the present case deals with the deceased, who was getting down from the bus. Following the principles laid down by this court in Southern Motors, Madurai v. C. Sivajothiammal, 1982 ACJ (Supp) 85 (Madras), S.A Kader, J., in United India Insurance Co. Ltd. v. A.R Sundari, C.M.A No. 55 of 1981; dated 24.12.1986, held that the deceased in that case, who was alighting from the bus, had set one foot on the ground, when the bus moved and he fell down to be run over by the rear wheels, was not a passenger at the time of the accident Learned Judge held that his case was on a better footing than the case in Southern Motors, Madurai v. C. Sivajothiammal, 1982 ACJ (Supp) 85 (Madras).

15. No doubt learned counsel for the fifth respondent brought to my notice a later judgment rendered by another single Judge of this court in Venkataswami Motor Service v. C.K. Chinnaswamy, 1989 ACJ 371 (Madras), wherein the learned Judge held that the deceased, who was getting down from the bus, was killed since the driver moved the vehicle before he could safely get down, was to be treated as a passenger. Though some of the decisions of this court and some decisions of other courts holding persons getting inside a vehicle as third party, had been placed before the learned Judge, the decision referred to in the preceding paragraph, rendered by S.A Kader, J. in United India Insurance Co. Ltd. v. A.R Sundari, C.M.A No. 55 of 1981; dated 24.12.1986, had not been placed before the learned single Judge. Learned Judge, therefore, without any further discussion observed that the facts and circumstances of the case before him were different from the facts and circumstances of the cases cited before him.

16. The Oxford Universal Dictionary, Third Edition, gives the meaning of the word ‘passenger’ as hereunder:

“‘Passenger’: one who travels in some vessel or vehicle esp. of boardship or in a ferry or passage boat; later applied also to travellers by any public conveyance entry by ferry or contract.”

17. The paramount idea conveyed by the term passenger is that a passenger travels. A passenger, therefore, is one who travels.

18. The Act, as well as the rules framed by the State Government, give an indication regarding the mode by which one could travel in vehicles. Suffice it to refer to the relevant provisions dealing with the mode of travel in public conveyance carrying passengers. In vehicles intended to carry passengers, the permitted mode of travel is, travelling in the seating accommodation provided in the vehicle. Section 70(2)(b) of the Act enables the State Government to make rules relating to the seating arrangements in public service vehicles and protection of passengers against the Weather. Rule 360 of the Tamil Nadu Motor Vehicles Rules, 1940 and the subsequent Rules, prescribe the manner in which seating accommodation is to be provided for the passengers who travel in the vehicle. For each passenger, a reasonably comfortable seating space of not less than thirty-eight centimetres square, measured on straight lines along and at right angles to the front of each seat, with a distance of 135 cm. from the back of the seats on the other side has to be provided. Detailed rules have been framed regarding the alignment of seats in different types of stage carriages, bodybuild of stage carriage and other matters. Travel, therefore, is only by remaining seated in the accommodation provided. Rule 363(2) provides an exception to that mode of travel, wherein the Transport Authority could permit travel by standing, except when the stage carriage is running as express service or running on ghat roads. Total passenger-capacity of each vehicle is fixed with reference to the seating accommodation available within the body of the bus. Similarly, the number of passengers who could be permitted to travel by standing is also fixed with reference to the space available in the bus. For passengers who are permitted to travel by standing, grab rails are being provided to ensure safe travel.

19. Rule 368 provides that in every public service vehicle, other than a motor cab, there shall be, on the left side of the vehicle, an entrance in the rear or rear overhang and an exit in the front, each having a width of not less than 53 cm. and of sufficient height. Rule 370 regulates the measurement of steps in the entrance and exit passage in the bus. The top of the tread of the lowest step should not be more than 45 cm. or less than 25 cm. above the ground when the vehicle (Sic.) and the steps should not be less than 23 cm. wide and should be with non-slip treads.

20. A combined reading of these provisions clearly shows that one could travel in a passenger vehicle only in two ways, viz., either by remaining seated in the sitting accommodation provided or by standing, in vehicles where travel by standing is specially permitted. The steps that are provided in the vehicle for the purpose of entry or exit, are used for entry and exit. They are not used for travel. When, therefore, one is actually using the passage for entry or exit, at that point of time, one is not travelling. He is either entering or leaving the vehicle—not travelling in the vehicle. Such a person, therefore, cannot be considered a passenger. He is using the entry passage for the purpose of commencing or continuing his travel and he is using the exit passage for the purpose of getting down from the vehicle, either after completing the travel or for any other reason. It therefore follows that one who is either getting into the vehicle or is getting down from the vehicle, cannot be said to travel at that point of time. Such a person is not a passenger. The Act, as well as the Rules, do not permit of any other interpretation.

21. The deceased in this case had been travelling in the vehicle from Alangayam to Chekkumedu. The bus had stopped at Chekkumedu and the deceased was getting down. The deceased was not travelling when the accident occurred. The deceased is not a passenger and is only a third party. The liability of the fifth respondent in the case of third party risks is unlimited. The Tribunal has erroneously apportioned liability as between the appellant and the fifth respondent on the ground that the deceased was a passenger at the time of the accident. The fifth respondent, therefore, becomes liable to pay the entire claim.

CONTENTION NO. 2

22. Regarding the quantum of compensation, the Tribunal has taken the monthly income of the deceased as Rs. 300/- and has adopted a multiplier of 10 and has deducted 1/6th for lump sum payment and has arrived at the figure Rs. 30,000/-, The grievance of the learned counsel for the respondent Nos. 1 to 3 is that the Tribunal had failed to take into account the income which the deceased was deriving from his landed property and that the multiplier adopted is too low and a separate amount ought to have been awarded to the first respondent, the widow, for loss of consortium. The Tribunal has taken Rs. 300/- as the monthly income of the deceased. This figure has been arrived at, after taking into consideration the entire evidence and I do not see any reason to hold that the deceased could have earned more. The Tribunal, however, has failed to deduct a reasonable sum that would have been incurred for the living expenses of the deceased. Such a deduction has to be made. The age of the deceased was 42. The Tribunal has adopted a multiplier of 10, which, I feel, is too low. Being one engaged in agriculture, the deceased is bound to work so long as physically he is able to work. A multiplier of 15 would be a reasonable multiplier. The monthly income of the deceased is taken as Rs. 300/- and a sum of Rs. 50/- is deducted for the living expenses of the deceased. The balance of Rs. 250/- p.m yields an annual income of Rs. 3,000/-. Adopting a multiplier of 15, the total loss to the estate of the deceased is Rs. 45,000/-, out of which a sum of Rs. 5,000/- is deducted towards lump sum payment and for uncertainties of life. The sum of Rs. 40,000/- would be a just compensation. The Tribunal has ordered that its award of Rs. 30,000/- is to be shared equally by the first respondent, the widow, the second respondent, the son and third respondent, the mother. However, in view of the fact that the third respondent, the mother, who was aged 50 at the time of the accident, would have received benefit from her son's earnings only to the extent of her life, the mother's share needs no enhancement. The enhanced compensation could be apportioned between the first respondent, widow, who was then aged only 38 and the second respondent, son, was then aged only 20. In the result, an award is passed in favour of respondent Nos. 1 to 3 for a sum of Rs. 40,000/- payable by the fifth respondent, the insurance company. Respondent Nos. 1 to 3 will share as follows: the 1st respondent will take Rs. 16,000/-, the 2nd respondent Rs. 14,000/- and the 3rd respondent Rs. 10,000/- with interest at 9 per cent per annum on this enhanced amount of Rs. 10,000/- payable from the date of the filing of the claim petition, i.e, 20.11.1980 till the date of deposit. The appeal and the cross-objections are allowed to the extent indicated above. No costs.

23. Appeal allowed.