JUDGMENT
S. Venkataraman, J.
1. Though this matter came up for admission by consent of both sides the matter is treated as admitted and heard on merits.
2. The point that arises for consideration in this appeal is as to whether a person who is travelling in a bus gets down at an intermediary stop to make some purchase and is knocked down by the same bus when he is still outside should be treated as a passenger of the bus or a third party for the purpose of determining the liability of the insurer.
3. It is now not disputed that one Siddaraj, son of respondents-1 and 2, was travelling in the bus belonging to 4th respondent on 23.10.89 from Kadukothanahalli to Mandya. When the bus stopped at Sabbanahalli Siddaraju got down and went to purchase cigarette. When he was returning towards the bus on the left side of the road the bus suddenly started and it went and knocked down Siddaraju who was killed at the spot. On the claim made by respondents-1 and 2 the Tribunal has awarded a compensation of Rs. 73,000/-.
4. The appellant insurer of the bus had contended that its liability was restricted to Rs. 15,000/- under the terms of the policy as the deceased was a passenger in the bus. However the Tribunal has made the appellant jointly and severally liable along with respondents-3 and 4 for the entire compensation.
5. Sri B.C. Seetharama Rao, learned counsel for the appellant, strenuously contended that the deceased was a passenger in the bus, that at the time of the accident he had still not reached his destination, that a passenger continues to be a passenger till he reaches his destination and that the relationship between the passenger and the transporter does not come to an end merely because the passenger gets down at an intermediary stop. According to him for the purpose of determining the liability of the insurer the deceased must be treated as a passenger of the bus and in that event the liability as per the terms of the policy would only be Rs. 15,000/-.
6. The learned counsel for the respondents-1 and 2, Smt. Ratnamala, however contended that as the deceased was outside the bus when he was knocked down he must be treated as a third party and the Tribunal has rightly made the insurer liable for the entire compensation.
7. Sri B.C. Seetharama Rao, relying on the decision of this Court in NATIONAL INSURANCE CO. LTD. vs. BALAWWA, ILR 1993 KAR 1845 contended that just as in that case it is held that if during the period during which an employee is attending to work goes to answer the calls of nature, it cannot be said that he was out of employment during that short period and that he must be deemed to be on employment even during that period, in the present case also if a passenger who has still not reached the destination leaves the bus for some purpose at an intermediary stop he must be held to continue to be a passenger. The law applicable to a case of an employer and an employee for the purpose of determining the liability under the Workmen’s Compensation Act would not be apposite to determine the point at issue. Section 147(1) (a) and (b) which lays down the requirements of policies reads as hereunder:
“Section 147(1): …..a policy which — (a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third a party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:”
(rest of provisions not quoted as unnecessary)
The above provision shows that what the insurer is required to insure is against the liability which may be incurred by death or bodily injury to any person of third party or passenger of a public service vehicle caused by or arising out of use of the vehicle in a public place. For the purpose of determining whether a person who dies or sustains injuries in an accident was a third party or a passenger what is required to be considered is not the relationship between that person and the transporter but his status at the time of the accident, i.e., whether at the time of the accident he was a passenger in the vehicle or a third party. The ordinary meaning of the word “passenger” is one who travels in a vehicle or other conveyance. Rule 3(k) of Karnataka Motor Vehicles Rules 1963 defines passenger as any person travelling in a public service vehicle other than the driver or the conductor or an employee of the permit-holder while on duty. Though the expression “third party” is not defined it is obvious that one who is not a passenger in the vehicle would be a third party. To decide whether a person is a passenger or a third party, what is to be seen is whether that person was travelling in that vehicle at the time of the accident or whether he was outside the vehicle.
8. There was some controversy on the question as to whether a person who is in the process of aligthing from the vehicle when the accident takes place could be construed to be a passenger or a third party. This question has been set at rest by a Division Bench ruling of this Court in ORIENTAL GENERAL INSURANCE CO. vs. RUKMINI BAI, . In that judgment this Court has observed that under Section 95(1) of the Motor Vehicles Act, 1939, every insurance policy is bound to cover risk in respect of death or bodily injury to persons being carried in or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which the claim arises. While holding that a person who was alighting from the bus at the time of the accident must be held to be a passenger, and as pointed out that if really the claimant had already alighted from the bus and thereafter the accident had occurred the contention that the claimant had ceased to be a passenger would have been unexceptionable. This judgment also shows that it is only if the deceased or the injured was travelling or was alighting from the bus at the time of the accident he or she must be treated to be a passenger and if he or she had already alighted at the time of the accident or was outside the vehicle, then he or she cannot be considered to be a passenger. The fact that the deceased had not reached the destination or that he had got down at the intermediary stop would not be relevant to find out whether he was a passenger or a third party at the time of the accident.
9. In SOUTHERN MOTORS, MADURAI v. C. SIVA JOTHIAMMAL AND OTHERS., the deceased got down from a bus to give way to those getting down at bus stop. The conductor of the bus blew the whistle before the deceased could re-enter the bus. The deceased while attempting to board the moving bus fell and sustained injuries resulting in his death. The question arose as to whether the deceased must be treated as a passenger at the time of the accident. The Madras High Court held that the deceased could not be said to have been a passenger at the time of the accident as he had not secured entrance to the bus.
10. The learned counsel for the appellant relied on a passage in the decision in VENKATASWAMY MOTOR SERVICE vs. C.K. CHINNASWAMY AND ORS., 1993 A.C.J. 1 to contend that the relationship of passenger and carrier continues till the passenger reaches his destination. In that case the question that arose for consideration was as to whether a person who was in the process of alighting from the bus at the time of the accident must be taken to be passenger. To consider this point several previous decisions have been referred to and at page 16, with reference to an earlier decision, it is observed that the rule is that the relationship of passenger and carrier when established does not terminate until the passenger has reached his destination, alighted from the train and at a reasonable time in which to leave the place where passengers are discharged. But the court has after considering the previous authorities and the relevant provisions of law has held as hereunder:
“….The expression ‘passenger’ ultimately refers to one, who travels either in a bus or a vehicle or a ship or a train. This expression means one who travels and nothing else. When the relationship of a carrier and a passenger begins with reference to the vehicle concerned must be found varying from fact to fact and case to case. A person rushing to a vehicle and attempting to board when in fact it had started moving given in the circumstances of the case, we found, not to be a passenger. One who has not entered the vehicle is obviously not a passenger. One who has alighted from the vehicle is also not a passenger. But a passenger alighting from a vehicle may still be a passenger until he had reasonable opportunity to reach a place of safety, meaning thereby that he was away from the vehicle.”
Even the above decision would show that if at the time of the accident the person had alighted from the vehicle he would not be a passenger.
11. In PANDIT RAM SAROOP AND ANR. vs. BALBIR SINGH AND ORS., 1988 A.C.J. 500, the deceased who was a passenger was killed when he was getting down from the vehicle on account of the fact that the vehicle was moved negligently. It was contended that he must be deemed to be a passenger for the purpose of restricting the liability of the insurer. The deceased could not get down at his destination as the vehicle was not stopped there and he was getting down at next stop. The Delhi High Court held that the character of the deceased as passenger came to an end at the destination stop and that he cannot be considered to be a passenger when he was getting down from the vehicle. In that case the question as to whether a person who had got down at an intermediary stage before reaching the destination and who was outside the vehicle when the accident took place can be considered to be a passenger or a third party had not arisen for consideration. As such that decision cannot be of much help to the appellant.
12. Lastly, the learned counsel for the appellant relied on the decision in ORIENTAL INSURANCE CO. LTD. vs. MARTIN KANDUNA AND ANR., 1995 A.C.J. 522 in support of his contention. In that case a passenger had got down from the bus for a short while to attend call of nature and he was hit by the bus while he was attending the call of nature. The Orissa High Court has held that merely because at the relevant time the claimant was not physically inside the bus it did not make him a non-passenger and that he continued to be a passenger of the offending bus from the place of its start till its destination.
13. In NATIONAL INSURANCE CO. LTD. vs. ASHALATA ROUT AND ORS., 1994 A.C.J. 1137 the deceased who was a passenger in the bus, which had got stuck at a level crossing, on seeing an approaching train got down from the bus and had run away some fifty feet. At that time the train collided with the bus and the bus capsized and fell on the deceased resulting in his death. It was contended on behalf of the insurer of the bus that the deceased would continue to be a passenger until destination of the bus was reached and that the liability of the insurer was limited. The Orissa High Court has negatived that contention and has held that when the deceased had got down from the bus it is difficult to interfere with the finding of the Tribunal that he was no longer a passenger of the bus. This decision of the same High Court has not been referred to in MARTIN KANDUNA’s. With respect I am unable to agree with the view taken in MARTIN KANDUNA’s case .
14. After careful consideration of the contentions urged by the learned counsel for the appellant and the relevant legal provisions and the authorities on the question it is not possible to hold that the deceased was a passenger at the time of the accident and that as such the appellant’s liability is limited to Rs. 15,000/-. On the facts of the case the deceased must be held to be a third party at the time of the accident and the Tribunal has rightly fastened the entire liability on the appellant.
15. In the result this appeal fails and the same is dismissed with costs. Advocate’s fee Rs. 1,000/-.