M.F Saldanha, J.:— An interesting point has fallen for decision in this appeal, which basically revolves around the question as to whether the status of a passenger continues if the passenger has indicated an intent to leave the vehicle in which the passenger was travelling and whether the extended principle which has been held applicable in certain cases for certain reasons that the status will hold good to situations where the injury has been caused in the process of alighting, would also cover a case where injury has occurred immediately after the person has alighted. We shall briefly recount the facts giving rise to this controversy. One Hussainappa who was aged approximately 60 years had travelled in a goods vehicle, viz., a truck on the evening of 17.7.1993 and this vehicle stopped near a Mutt at which time Hussainappa got down from the truck in question. There is some slight ambiguity with regard to exactly how the injury was sustained but the wife and minor children who are the claimants before the M.A.C.T had contended that he had just alighted from the vehicle, that the cleaner was in a hurry as a result of which he did not give Hussainappa sufficient time to get clear of the vehicle and that he signalled to the driver to start off as a result of which the truck virtually moved almost simultaneously and in the course of this action the rear wheels of the truck ran over Hussainappa. PW 2 Dubbanna went and informed his family who came to the spot and had Hussainappa removed to the hospital. Both legs were badly crushed as a result of which they were required to be amputated and Hussainappa died. There is little dispute about the fact that the injuries were sustained in the course of the incident and that death was the direct result of these injuries. A claim was preferred before the Tribunal for compensation at which time the owner of the truck took up the contention that this was not the vehicle involved in the incident and that the claim as against the owner should be dismissed. The insurance company was also represented and in the written statement, the insurance company admitted the position that the truck that was alleged to have been involved in the incident was insured by the company. Learned Member of the Tribunal examined the evidence and came to the conclusion that it fell short of establishing that this was the very vehicle which had caused the injuries despite the fact that the police had prosecuted the driver before a criminal court and consequently, dismissed the claim. The present appeal assails the correctness of that order.

2. At the hearing, appellants' learned advocate relied on the evidence of PW 2 Dubbanna who claims to be the eyewitness and who has in terms stated that the deceased was in the process of alighting from the vehicle when the cleaner gave the signal to the driver to proceed, that as a result of the movement of the lorry the body of the vehicle came in contact with the deceased and that the wheel ran over his legs and this was how he sustained the injuries. He has given the number of the lorry as 22-1500. The second piece of evidence on which reliance is placed is, entry in the check-post which does indicate that the truck No. AP 22-T 1500 had passed through the check-post but in view of the fact that there is slight vagueness with regard to the closure of the entries on the night of 17.7.1993, it was argued on behalf of the owner and the insurance company that this entry can even hold good for the following morning. We need to straightaway point out that there is little justification for this view because this is the last entry for 17.7.1993 after which a line has been drawn and even though no timings have been recorded, one would have to assume that this was obviously sometime before midnight of 17.7.1993

3. Appellants' learned advocate has submitted that as far as the liability of the present vehicle is concerned, that it may be that PW 2 who is an elderly person has given the Figures and not the alphabets but that the court will have to correlate these with the check-post entry and hold that this was the vehicle which had caused the injuries. He has also dealt with the material produced by the owner who has taken up the defence that the lorry was engaged on 17.7.1993 and 18.7.1993 for carrying materials from Gadwal to Raichur, the distance being 50 km. and that the documents from the company, viz., Raichur Solvents Industry would support the view that the vehicle was nowhere near that place when the incident took place. Though we have examined this head of material and we have heard the owner's learned advocate in extenso we are not much impressed by this argument because the point of time when the vehicle reached the destination or left that spot is totally irrelevant for a variety of reasons, the most important being that the vehicle could have even stopped for the night in which case such a situation could arise. We are, therefore, left with the limited evidence that is before us from which the appellants' learned advocate submits that a finding must be recorded that it was the truck bearing No. AP 22-T 1500 that was involved in the accident. On the other hand, as indicated earlier the owner contends that the Tribunal was right in recording the finding that the evidence falls short of this conclusion.

4. The learned advocate who represents the insurance company has in the first instance supported the order passed by the Tribunal, because his submission is that the onus of proof is very strong as far as the fastening of the liability in the first instance is concerned, We do not dispute this principle and taking on from there, the learned counsel has submitted that on the evidence that is before the court it can never be conclusively established that this was the truck which had caused the injuries. The learned counsel has proceeded to point out that even assuming the court were to accept the position that this was the vehicle involved, that the insurance company can never be held liable because he points out that on 17.7.1993, having regard to the law that was at that point of time in force if the deceased was a passenger in a goods vehicle then the insurance company is totally exonerated from the liability.

5. The second submission on which the real controversy has arisen emanates from the fact that a submission was canvassed that the person who is a passenger under such circumstances and is on the wrong side of the law continues to incur the disqualification until that status has completely been severed. Learned counsel submitted before us that it is not only while travelling in the vehicle but that the status would continue even in the process of alighting from the vehicle and that if the injury has occurred even in the process of alighting that the disqualification will still hold good. In this regard, our attention was drawn to one of the latest decisions on the point in Ramesh Kumar v. NationalInsurance Co. Ltd., 2001 ACJ 1565 (SC), wherein the Supreme Court has reiterated the position under the Motor Vehicles Act, 1939, that a gratuitous passenger including an owner of the goods or his representative travelling in a goods vehicle sustaining injury or death, cannot claim any liability vis-a-vis insurance company. That proposition is well settled and there can be no dispute with regard to its correctness.

6. The argument put forward that the status of a passenger continues until the passenger has alighted and that it necessarily includes the process of alighting and immediately thereafter seeks support from the judgments of this court in several instances where injuries have occurred to passengers in the process of alighting from the K.S.R.T.C buses, that the person continues to be a passenger as section 95(5) is not confined only to carriage of a passenger but includes the process of entering or mounting or alighting from the vehicle. Reliance was placed on a Division Bench decision reported in ILR 1992 KAR 2189 in support of the legal proposition that the deceased in this case would come clearly within the definition of the term ‘passenger’ and if a passenger vis-a-vis a goods vehicle incurred a total disqualification in view of the law as it then was in force, that there can be no question of award of any compensation to him. As against this position the argument canvassed by appellants' learned advocate ultimately boils down to the position that in the given set of facts the injury did not occur in the process of alighting but that it took place thereafter and consequently that it could never be argued that the deceased was still a passenger. Also, the learned advocate points out to us that the bus, vis-a-vis the fare paying passengers in a bus or a transport vehicle and gratuitous passengers in goods vehicle will have to be viewed at from a slightly different angle because in the first case it is an extension of a liability whereas in the second case, it is an initiation of a liability and the two concepts are dissimilar.

7. First of all, it is necessary for us to resolve the basic controversy as to whether the truck AP 22-T 1500 was the one which caused the injury in question. We have no hesitation in accepting the evidence of PW 2 Dubbanna and it is significant that though he is an illiterate person he has clearly reproduced the figures which comprise the registration number of the truck. This could not have happened by accident and it is too far-fetched for the court to accept the submission that some other vehicle with identical numbers would have appeared there at that point of time because we have a more clear entry in the check-post that this was the vehicle which had passed and even though the time has not been indicated, it was the last entry for 17.7.1993 and would therefore have been sometime late in the evening or night. Under these circumstances, in our considered view the finding of the Tribunal that this was not the vehicle which caused the injuries in question will have to be set aside.

8. On the most important aspect relating to the liability, we have very carefully and very meticulously re-created the incident in question because the thrust of the argument canvassed on behalf of the owner and the insurance company proceed on the footing that the injuries were sustained in the course of the deceased alighting from the truck. If that position is confirmed on facts, then this court would be obliged to uphold the view that the status of passenger was still in existence. It is only if on facts it can be held that the status had been extinguished or that it had come to an end, that the deceased would be relegated to the position of a third party and the insurance company could be held liable. In this regard, the learned counsel who represents the insurance company has placed strong reliance on the statement of the deceased wherein his version is entirely different to the one that has emerged before this Tribunal and he seeks to make out the case that he had fallen off from the top of the truck and sustained injuries when it started moving. We are not impressed by the contents of that statement and having regard to the general performance of the police in these class of cases but more importantly because that statement taken as a whole does not fit in with the position that the deceased suffered serious injuries because of the wheels of the truck going over his legs.

9. What we have found in the present incident is that the injuries did not take place in the process of alighting as was the case in the reported decision which we have referred to, even though at the point of time when the injury had been sustained by the lady who was alighting from the bus, she had lost physical contact with the bus. What we find very clearly in the present incident is that the deceased was an old man and that he was not the only person getting out of the truck. He was the last of the persons who had alighted and it is fully established that the cleaner had given a signal to the driver to start off without taking the precaution of giving the person who had alighted sufficient time to get clear of the vehicle. It was precisely because of this negligent act that the moment the vehicle moved it hit the deceased who had severed the connection with the vehicle, that he was thrown down and that was how his legs were run over by the rear wheels. In this background, what clearly emerges on facts is that the process of alighting, as far as this case is concerned, had concluded and that the injuries resulted immediately thereafter. We are conscious of the submission canvassed by the learned counsel who represents the insurance company when he contend that if this court has taken the view in several cases including the one referred to by us, that a person alighting from a vehicle continues in the status of a passenger during the process of alighting and that this principle necessarily presupposes that the court will extend the status for a reasonable period of time after the party has left the inside of the vehicle. We need to draw a distinction between those cases and the present one where the process of alighting has concluded, and in our considered view, from the precise and very point of time where the status of a passenger has also ended. If the vehicle has started moving too quickly or if the vehicle has moved in a direction whereby the person who has alighted has no chance of getting out of the way as has happened in the present case, then it is a clear cut case of negligence on the part of the driver of the vehicle. It is for these reasons and in this background that we uphold the submission canvassed on behalf of the appellants that on the peculiar and special facts of the present case negligence of the driver of the truck has been established and furthermore, that even assuming he had travelled as a passenger in a goods vehicle, that had the injuries occurred in the course of that journey or in other words as long as that status continues that he would have been disqualified from the compensation, whereas in the view which this court has taken, that the liability can certainly be enforced.

10. As far as the quantum is concerned, we do not propose to examine that question in any detail because despite the various submissions canvassed on both sides, we find that the evidence under different heads is very minimal and that it does not inspire much confidence. In this background, we are left with no option except to direct that a global compensation in a sum of Rs. 1,50,000, since this was a fatal accident case, should be awarded. The appellant would also be entitled to interest at the rate of 6 per cent per annum from the date of the application until the date of payment. Having regard to the age of the case, and the age of the claimants we do not desire to make any order with regard to the in vestment and we direct that the respondent insurance company shall deposit with the Tribunal within an outer limit of 12 weeks from today the aggregate amount that the claimants would be entitled to receive under this order. On receipt of that amount the Tribunal to disburse the amount in question in the proportion of 25 per cent to each of the 4 claimants and if any of the claimant(s) has passed away then the said amount to be paid to the LRs. of the claimant(s) in question.

11. The appeal accordingly succeeds and stands disposed of.

12. Appeal allowed.