JUDGMENT
S.B. Wad, J.
1. This appeal is filed by the parents of deceased Naresh Kumar who died in a road accident on 3-5-1978. He boarded bus No. DLP-6059 at the General Store and was to get down at the Ordinance Depot, Shakurbasti, Delhi. The bus was plying on route No. 914 running from Punjabi Bagh to Nangloi. At the Ordinance Depot the bus did not stop and went ahead about ninety feet. When Naresh Kumar was getting down from the bus, the bus suddenly started. Naresh Kumar fell down and the rear wheel of the bus ran over him. He was taken to the hospital in the same bus by an eye witness, Som Dutt but he died on the way.
2. Som Dutt, in his evidence, has fully supported this version of the accident. He has further stated that after running over the deceased the bus Driver tried to speed away but he Along with Azad Singh, PW-4, intercepted the bus and brought it to halt. He also stated that he took Naresh Kumar to the hospital in the same bus and informed the Police Station at Punjabi Bagh. PW 4, Azad Singh is a natural witness. He has his tea stall near the bus stop. He has also fully supported the claimants version. The respondents’ version was that Naresh Kumar jumped out of the moving bus and fell down and thus received the injuries. They, however, did not produce any evidence to substantiate this version. Even the bus driver was not examined. The Tribunal believed the eye witnesses and held that the accident was caused due to rash and negligent driving by bus No. DLP-6059 and the deceased was-killed in the said accident.
3. I was taken through the evidence of the eye witness and I am satisfied that the finding of the Tribunal is correct. As regards the income of the deceased it was stated in the claim petition that the deceased was working for M/s. Gupta Plastic Works and was getting Rs 500/- PW 2, Som Dutt, however, stated in his evidence that the deceased was earning Rs. 800/- per month and was paying Rs. 500/- per month to his father. Rajinder Kumar, PW 5, who was appearing for Chandresh Plastic has deposed that the deceased was doing the job of dyeing chappals on contract basis for his factory and was being paid Rs. 300/- to Rs. 350/- per month. On this evidence the Tribunal found that the monthly income of the deceased was Rs. 800/-, However, since in the claim petition the income was mentioned at Rs. 500/-the Tribunal accepted only Rs. 500/- as the income of the deceased. The counsel for the claimants submitted that the income of the deceased should be taken at Rs. 800/- per month as found by the Tribunal. The counsel for the Insurance Company, however, objects to it. He has submitted that no evidence can be led beyond the original pleadings of the parties and, therefore, the evidence of the additional income of Rs. 300/- from Chandresh Plastic should not be taken into consideration for determining compensation. The strict rules of C.P.C. and Evidence Act are not applicable to the proceedings in the Motor Accidents Claims case. When Rajinder Kumar, P.W. 5, appeared on behalf of M/s. Chandresh Plastic no objection was raised by the respondents and this witness was in fact cross-examined. The submission of the counsel for the claimants that at the time when the claim petition was filed the father of the deceased did not know as to different places where the job of dyeing chappals was being done by the deceased appears to be a reasonable explanation. I, therefore, hold that the monthly income of the deceased was Rs. 800/-. I have also no hesitation in accepting the evidence that he was contributing Rs. 500/- to the family. The Tribunal was quite right in applying the multiplier of 16. The accident took place in 1978 and both the parents are still alive. The claimants are thus entitled to the compensation of Rs. 96,000/-. They are also entitled to simple interest @ 9% per annum from the date of the application till the date of the payment.
4. The counsel for the Insurance Company has, however, submitted that the liability of the Insurance Company is only limited to Rs. 5,000/-under Section 95(2)(b)(ii)(4). The counsel further states that in view of the judgment of the Supreme Court recently pronounced the liability of the Insurance Company does not exceed Rs. 50,000/-. The submission of the counsel for the Insurance Company cannot be accepted.
5. For complying the provisions of Section 95(2)(b)(ii)(4) it must be shown that the deceased was a passenger at the time when the accident took place. A person is called a passenger when he buys a ticket of the bus from the boarding point to the point of destination and actually travels in the bus. He is a passenger by virtue of a contract between him and the owner of the bus, consideration being payment of the bus fares and obligation on the part of the owner of the bus being to carry the person from the boarding point to the point of destination. In the present case the deceased boarded the bus at the ‘General Stores bus stop’ and his destination point was the bus stop at ‘Ordinance Depot, Shakurbasti’. He had purchased the ticket for the said journey. If the bus would have stopped at the Ordinance Depot bus stop the deceased would have got down and the contract would have come to an end. As soon as he had alighted from the bus and touched the ground, he would not have remained a ‘passenger’. What has happened in the present case is that bus No. DLP-6059 did not stop at the Ordinance Depot bus stop and thus prevented the deceased from getting down at the point of destination. The bus went much ahead and when the deceased was trying to get down the bus started and its rear wheel ran over the deceased and killed him. In these circumstances I am of the opinion that at the bus stop at Ordinance Depot the character of the deceased as a ‘passenger’ came to an end. The theory of the respondents that the deceased jumped out of the bus and suffered injury because of the fall has been rejected by the Tribunal, as no evidence was furnished by the respondents. I, therefore, hold that when the accident was caused and the deceased was run over by the bus he was not a ‘passenger’ of the bus and, therefore, the Insurance Company cannot claim limited liability under Section 95(2)(b)(ii)(4). I have no hesitation in holding that the Insurance Company is liable on the principle of a third party liability and its liability is unlimited in the present case.
6. There is another aspect of the liability under Section 95(2)(b)(ii)(4) which may be noted. The provision of Section 95(2)(b) (ii)(4) is a special provision where number of passengers traveling in a bus suffer injury because of the rash and negligent driving by the vehicle driver, such as hitting against an opposite vehicle or an electrical pole or falling into a ditch. The passengers have no role, whatsoever, in the accident. The concept of accident contemplated by the said sub-section is entirely different from the concept of accident as is commonly understood. In the accident, as is commonly understood, the victim is hit by a motor vehicle without his traveling in the vehicle itself. A special provision had to be made by Section 95(2)(b)(ii)(4) for limiting the liability of the owner of the vehicle in case of large number of people receiving injury in the accident. The premium of the heavy vehicles is fixed by the Insurance Company on the basis of the number of passengers to be carried. If on the principle of a third party liability large number of injured persons who are traveling as a passengers are to be paid the public transport system will be seriously endangered. The accident in the present case is not an accident contemplated by Section 95(2)(b)(ii)(4). However, it is not necessary to record any finding on this question. I have already held that when the deceased was run over he was not a passenger in the bus.
7. For the reasons stated above, the appeal is allowed. The respondent Insurance Company is directed to make the payment of Rs. 96,000/-together with simple interest @ 9% per annum from the date of the application till the date of payment within three months from today. If any amount by way of compensation has been paid the Insurance Company shall be entitled to the credit to the extent of the said amount as well as the interest on it. The cheque should be deposited with the Registrar of this Court within three months from today. The Registrar, after giving due notice to the claimants, will disburse the amount to the claimants.
8. Shri Keshav Dayal, Advocate, has rendered able assistance as the legal aid counsel for the claimants.