JUDGMENT
A. Abdul Hadi, J.
1. Both these appeals arise out of M.A.C.O.P. No. 104 of 1983 on the file of the District Judge, Madurai, relating to a motor accident that took place on 3.8.1982 at 9.00 p.m. near the bus stand of Periakulam, Madurai District, which resulted in the death of one Syed Abuthakir. The wife, child and parents of the abovesaid deceased filed the abovesaid O.P. claiming compensation of Rs. 1,00,000/- and the Tribunal below held that the driver of the bus was negligent in causing the accident and awarded compensation to the extent of Rs. 92,000/-. The owner of the bus in which the deceased was travelling is the appellant in C.M.A. No. 381 of 1985, while the abovesaid claimants are the appellants in C.M.A. No. 241 of 1990. The said C.M.A. No. 241 of 1990 has been filed only because the learned Tribunal below has restricted the liability of the insurance company, the 3rd respondent in the O.P. to Rs. 10,000/- out of the abovesaid total compensation of Rs. 92,000/-, on the ground that the deceased was a passenger of the bus and that as per the Motor Vehicles Act, the compensation is limited to the said sum of Rs. 10,000/-. According to the appellants in C.M.A. No. 241 of 1990, this restriction of the insurer’s liability to Rs. 10,000/- is not correct since the deceased was not a passenger. Further, in the other appeal C.M.A. No. 381 of 1985 also, the main claim of the owner is that the deceased could not be considered as a ‘passenger’ under the relevant section of the Motor Vehicles Act and that hence the Tribunal below erred in limiting the insurer’s liability to Rs. 10,000/-. On the other hand, the learned counsel for the insurer argued that the deceased was only a ‘passenger’.
2. So, the main question to be decided in both the appeals is whether the deceased could be considered a ‘passenger’ within the meaning of the term used in Section 95(2)(b)(ii) of the Motor Vehicles Act (hereinafter referred to as ‘the Act’).
3. On the above aspect, the plea in the claim petition is as follows:
The driver stopped the bus on the eastern side of the bridge near the Periakulam Bus Stand to enable the passengers to get down. Many passengers got down from the bus. The deceased was the last one to get down from the bus. While the deceased was getting down from the bus, the driver of the vehicle by driving the bus so rashly and negligently caused the deceased passenger to fall down from the bus and the vehicle ran over the deceased passenger and caused his death.
To this, the owner of the bus filed her counter as follows:
At about 9.05 p.m. the bus was passing the Motor Vehicles Inspector Office at Periakulam and nearing bus stand. The driver was driving the vehicle in a 15 km. slow speed. At that time the deceased tried to get down from the bus, the conductor warned him not to get down while the bus was moving and there was no bus stop on that place. But in spite of the warnings of the conductor, the deceased jumped from the bus to the road. Immediately the driver stopped the vehicle on hearing the conductor’s sound. The driver and conductor got down from the bus and they had seen the said passenger lying on the road.
(Emphasis supplied)
On the other hand, the evidence given by RW 1, the conductor of the bus, is different from the abovesaid defence plea of the owner of the bus. He deposed even in the chief-examination as follows:
(Omitted as in vernacular)
From this it is clear that the deceased did not attempt to get down from the bus while the bus was proceeding at 15 km. speed. But he got down only after the bus stopped after it reached Periakulam. Further, in the abovesaid defence plea and in the evidence given by the conductor, the deceased was described as a passenger of the bus. The evidence of PW 2, who deposed that he was also travelling in the said bus just before the accident, is as follows:
(Omitted as in vernacular)
4. As against the abovesaid factual position we have to examine Section 95 of the Act to decide whether the insurer’s liability could be restricted to Rs. 10,000/-in the present case as the Tribunal below has bund. Section 95(2)(b)(ii) of the Act as it ;food on the date of the accident ran as bllows:
(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely-
(a) xxx xxx xxx
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment,-
(i) xxx xxx xxx
(ii) in respect of passengers, a limit of ten thousand rupees for each individual passenger;
(Emphasis supplied)
So, it is in this context we have to see whether the deceased was a ‘passenger’ within the meaning of that term in the abovesaid Section 95(2)(b)(ii). If he comes under the said term under the said provision, then, no doubt, the insurer could be fastened with liability only to the extent of Rs. 10,000/-. The term “passenger” is no doubt not defined under the said Act.
4-A. But, we find that a Division Bench of this court consisting of Ramanujam and Nainar Sundaram, JJ., in an unreported decision in Damodanm v. Santhanam A.A.O. No. 559 of 1979; decided on 28.7.1981, held that the deceased, who was actually trying to get into a moving bus, was pushed down and was run over, was not a passenger and was only a third party. Then in Southern Motors, Madurai v. C. Sivajothiammal 1982 ACJ (Supp) 85 (Madras), another Division Bench of this court consisting of Ramanujam and Sethuraman, JJ., held that the deceased who was travelling in a bus, got down from the bus at an intermediate stop to give way to other persons to get down and after they got down, had attempted to get into the bus, which had started moving and at that stage had fallen down and was killed, could not be treated as a passenger, since the deceased had not secured entry into the bus for the further journey. Then, in Uvaraja v. Parvathi Ammal 1986 ACJ 506 (Madras), Shanmukham, J. of this court held that the deceased who was about to get into the moving bus had slipped and fallen down in that process, was not a passenger in the bus. Similarly, Ratnam, J. of this court in an unreported decision in New India Assurance Co. Ltd. v. Subramani C.M.A. No. 120 of 1983; decided on 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. These decisions dealt with cases of persons attempting to get into the bus.
(Emphasis supplied)
4-B. But Kader, J. of this court in an unreported decision in United India Insurance Co. Ltd. v. A.R. Sundari C.M.A. No. 55 of 1981; decided on 24.12.1986, held that the deceased who was alighting from the bus, had set one foot on the ground, when the bus moved, and fell down to be run over by the rear wheels, was not a passenger at the time of the accident. On the other hand, Swamikkannu, J. of this court in Venkataswami Motor Service v. C.K. Chinnaswamy 1989 ACJ 371 (Madras), held that the deceased who was getting down from the bus and got killed since the driver moved the vehicle then, was to be treated as a passenger. However, Padmini Jesudurai, J. of this court who considered all these decisions, in two different decisions, decided on the same day, viz., 13.1.1989 in Thoznilalar Transport Co. v. Valliammal 1990 ACJ 201 (Madras) and National Insurance Co. Ltd. v. V.K. Sundaravali 1990 ACJ 821 (Madras), preferred to follow Kader, J.’s decision in a case where the person got killed while getting down from the bus and held that the said person was not a passenger. In fact Padmini Jesudurai, J. has held in both those cases that whether it is a case of one who is getting into the bus or getting down from the bus, he is not a passenger and has to be treated as a third party. The learned Judge referred to the relevant rules in the Tamil Nadu Motor Vehicles Rules, 1940 and observed that “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 the vehicle, where a travel by standing is specially permitted. The steps that are provided in the vehicle for the purpose of entry or exit are for entry and exit. They are not meant for travel. When, therefore, one is actually using the passage for entry or exit, at that point of time one is not travelling…such a person is not a passenger.”
(Emphasis supplied)
5. Further, Ratnam, J. himself has held in an unreported decision in Safe Service Ltd., Salem v. Papathi C.M.A. No. 888 of 1983; decided on 3.8.1990, that the deceased who got killed while attempting to get down from the bus since the conductor blew the whistle and the driver started driving the bus at that time, could be “regarded only as a passenger in the bus”.
6. Thus, so far as the cases where injury or death has resulted while attempting to get into the bus are concerned, uniformly this court has held that the person concerned would be a passenger. But, so far as the cases where injury or death has resulted while the person concerned attempts to get down from the bus, after his journey is over, are concerned, there seems to be difference of opinion. The Division Bench cases above referred to deal with only the former category. There is no Division Bench decision of this court so far in respect of the latter category. Without expressing any opinion on the former category, we propose to give our view in the present case which deals with the abovesaid latter category.
7. The learned counsel for the insurer pointed out that in all the abovesaid cases, there was no discussion in the light of one other important provision, viz., Section 95(1)(a) proviso (ii), which, according to him, would clinch the issue. While the main part of Section 95(1)(b)(ii) says “in order to comply with the requirements of this Chapter, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) 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.”
(Emphasis supplied)
Proviso (ii) therein says “provided that a policy shall not be required, except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.”
(Emphasis supplied)
So, according to this proviso, a policy shall not be required to cover liability in respect of death or injury to persons alighting from the vehicle at the time of the accident “except where the vehicle is a vehicle in which passengers are carried for hire or reward…” So, it implies that in the above-mentioned exceptional case as in the present case, admittedly the policy shall cover the abovesaid liability, that is, even where the death or injury results while the person concerned alights from the vehicle at the time of the accident. It should also be noted that while Section 95(1) speaks of what liabilities have to be covered by the insurance policy and what not, Section 95(2) provides for the extent of such liability, where the said liability has to be covered pursuant to Section 95(1). Further, Section 95(2) also specifically states that the said Sub-section (2) is subject to the proviso to Sub-section (1)”. Therefore, while trying to understand the meaning of the term ‘passenger’ in Section 95(2)(b)(ii) which fixed the abovesaid limit of Rs. 10,000/- at the relevant time, we have to necessarily take into account what is stated in the abovesaid proviso to Sub-section (1) of Section 95. ‘We have already indicated that as per the abovesaid proviso (ii) to the abovesaid Section 95(1) the liability need not be covered in respect of death or injury to persons alighting from the vehicle at the time of the accident except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment and that the further implication of the abovesaid rule contained in the abovesaid proviso (ii) is that where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, the abovesaid liability arising when one alights from the vehicle has necessarily to be covered. Only in this last exceptional category the present case would fall and so the policy shall provide such a liability and where the policy does provide as in the present case, as per Section 95(2)(b)(ii), the limit of the deceased passenger in the present case could be only Rs. 10,000. So, in such a situation the term ‘passenger’ used in Section 95(2)(ii) would also include a person alighting from the vehicle concerned after finishing his journey in the bus. Therefore, with due respect, we hold that the abovesaid judgments of Padmini Jesudurai, J. which are reported in the cases of Thoznilalar Transport Company v. Valliammal 1990 ACJ 201 (Madras) and National Insurance Co. Ltd. v. V.K. Sundaravali 1990 ACJ 821 (Madras) and the unreported judgment of Kader, J. in United India Insurance Co. Ltd. v. A.R. Sundari C.M.A. No. 55 of 1981; decided on 24.12.1986, are not correct and that the judgment of Swamikkannu, J. in Venkataswami Motor Service v. C.K. Chinnaswamy 1989 ACJ 371 (Madras) and the unreported judgment of Ratnam, J. in Safe Service Ltd., Salem v. Papathi C.M.A. No. 888 of 1985; decided on 3.8.1990, are correct. We may make it clear, however, that we have not expressed our opinion on the other judgments referred to above dealing with cases of death or injury while attempting to get into the vehicle.
(Emphasis supplied)
8. We may also add that in the light of the above referred to relevant provisions of Section 95(1) proviso, what is contained in the Tamil Nadu Motor Vehicles Rules, 1940, relied on by Padmini Jesudurai, J. in her above referred to two judgments will not have any application or greater weight in interpreting the word ‘passenger’ found in Section 95(2).
9. Further, we may also point out that as against the evidence given by RW 2, the employee of the insurer, that as per Exh. B-l, the insurance policy, the maximum liability for a passenger in the bus was Rs. 10,000/- there was no cross-examination at all by the owner or the claimants. They have not even suggested that the deceased was not a passenger in the bus.
10. No doubt in C.M.A. No. 381 of 1985 certain other points were also argued, that is, other than the abovesaid ground that the deceased was not a passenger. One point is about the contributory negligence. But the said point has no substance absolutely in the light of the abovesaid plea and evidence extracted. The other point urged was regarding the quantum of compensation awarded on two different heads. One is Rs. 48,000/- on the ground of loss of earning capacity and Rs. 44,000/- on the ground of loss of life expectancy. The learned counsel argued that both the heads could not be clubbed. But, we find that the Tribunal, after arriving at the income of the deceased at Rs. 1,000/- per month, found that out of this Rs. 650/- would have been contributed to the family by the deceased. Then it adopted the multiplier of only 15, even though the age of the deceased was only 27 and then it arrived at the figure of Rs. 1,17,000/- and after making certain deductions it arrived at the abovesaid figure of Rs. 92,000/-. But, we find that the multiplier adopted at 15 is too low taking into account the age of the deceased. The multiplier should have been much more and, therefore, there is no reason to disturb the figure arrived at as compensation awardable to the claimants.
11. In the result, both the appeals are dismissed. No costs. Appeals dismissed.