Madras High Court
Sivakumar Transports vs Mani Alias Palaniswamy And Ors. on 10 July, 1989
Equivalent citations: I(1990)ACC146, 1990ACJ836
JUDGMENT V. Ratnam, J.
1. This is an appeal at the instance of the owner of a bus against the award of the Motor Accidents Claims Tribunal (Sub-Court), Coimbatore, in M.C.O.P. No. 110 of 1980. On 2.4.1980 at about 4.15 p.m., the first respondent herein was waiting at the Veerapandi bus-stop and the bus plying on route 32E belonging to the appellant came there, but stopped at a distance of about 40 feet from the bus-stop. Many persons desiring to catch that bus ran towards the same and the first respondent also attempted to get into that bus through the exit in the front portion of the bus. When he had placed one foot on the footboard, the driver started driving the bus, as a result of which the first respondent fell down and sustained some injuries. According to the first respondent, the accident took place only on account of the careless and negligent driving of the bus by the driver. The injuries sustained by the respondent necessitated his taking treatment for about three months between 2.4.1980 and 7.7.1980 and even thereafter. The first respondent did not become all right and continued to suffer from the injuries and had suffered permanent disability as well in that he was unable to walk freely. Claiming that on the average he was earning Rs. 1,300/- a month by executing job works for Lakshmi Machine Works and that he had been deprived of his earnings for the period during which he was unable to work and that he had also undergone pain and suffering and had spent considerable amount for his treatment etc., the first respondent prayed that compensation in a sum of Rs. 30,000/- should be awarded to him.
2. In the counter filed by the third respondent insurance company, which was adopted by the appellant and the second respondent, they contended that the bus was started only after ascertaining whether all the passengers had got out and other passengers had got in and that the first respondent, who was standing outside smoking, suddenly rushed towards the bus and attempted to board it through the exit in the front and, therefore, the accident had occurred only due to the negligence of the first respondent. Contributory negligence was also attributed by them to the first respondent as the cause of the accident. The amount of compensation claimed was also characterised to be excessive. It was also pleaded that the first respondent, as a passenger in the bus, could at best claim only Rs. 5,000/- by way of compensation from the third respondent herein.
3. Before the Tribunal, on behalf of the first respondent, Exhs. A-1 to A-16 were filed and the first respondent and the two doctors who treated him were examined as PWs 1 to 3, while on behalf of the appellant and respondent Nos. 2 and 3, Exhs. B-1 to B-3 were filed and the second respondent gave evidence as RW 1. On a consideration of the oral as well as the documentary evidence, the Tribunal found that the first respondent attempted to board the bus through the front exit and the driver of the bus as well as the first respondent were both negligent and that had caused the accident. Considering the question of compensation, the Tribunal determined the income of the first respondent at Rs. 800/- per mensem and on that footing, it computed the loss of earnings as well as the compensation under the different heads of claim made by the first respondent and fixed the quantum of compensation payable to the first respondent at Rs. 20,000/-. Holding that the first respondent was a passenger in the bus, the Tribunal apportioned the liability between the third respondent and the appellant and directed that the appellant and the third respondent should pay Rs. 15,000/- and Rs. 5,000/- respectively to the first respondent herein. It is the correctness of the apportionment so made and the fastening of liability of Rs. 15,000/- on the appellant, that is questioned in this appeal. The first respondent, in his memorandum of cross-objections, has prayed for an enhancement of the compensation from Rs. 20,000/-to Rs. 30,000/-, as claimed by him.
4. Learned counsel for the appellant contended that the first respondent at the time of the accident was attempting to board the bus, though through the front exit, and was not, at the time when the accident took place a passenger and the restriction of the liability of the insurance company to Rs. 5,000/-as if the first respondent was a passenger in the bus, was erroneous and that the insurance company should have been made liable for the entire amount of compensation on the basis that the first respondent was only a third party and not a passenger. In this connection, learned Counsel strongly relied on the decision in Damodaran v. Santhanam A.A.O. No. 558 of 1979; decided on 28.7.1981; Uvaraja v. Parvathi Ammal 1986 ACJ 506 (Madras) and 1989 TLNJ 31. On the other hand, learned Counsel for the insurance company submitted that the first respondent should be regarded only as a passenger and, therefore, the liability of the insurance company was restricted to Rs. 5,000/- only and that liability had been rightly fastened on it in the award of the Tribunal.
5. In order to precisely ascertain the liability of the insurance company, an answer to the question whether the first respondent was a passenger in the bus or was a third party has to be found. It is in this connection that the evidence of the first respondent examined as PW 1 has to be considered. Even in the course of his chief-examination, he had admitted that he attempted to board the bus through the front entrance (which is normally the exit) and that when he was on the footboard, the conductor gave whistle and the bus started moving and he fell down and sustained the injuries. In his cross-examination, PW 1 accepted that even before he caught hold of the iron rod after placing one foot on the footboard, whistle was given and that he did not shout that the bus should be stopped. In the further course of his cross-examination, he admitted that he was not accustomed to board moving buses and that before the bus moved, he was on the footboard and had caught hold of the iron rod. It is thus seen from the evidence of PW 1 that the accident had taken place at a time when he had attempted to board the bus through the front entrance (exit). The expression 'passenger' normally refers to one who travels either in a bus or a vehicle or a ship and the predominant idea conveyed by the expression 'passenger' is one who travels. It is further seen from the elaborate provisions and the rules under the Motor Vehicles Act that what is contemplated is that a person could be regarded as a passenger, when he travels either by being seated inside the bus in the seats provided for occupation by passengers who travel or by standing, where such passengers are allowed to travel by standing. The entrance and the exit provided in a bus are only for the purpose of securing ingress and egress and they are not meant for travel. Therefore, any person found on the footboard at the time of the accident cannot normally be regarded as a passenger travelling by the vehicle concerned. The attempted entry into the bus through the exit from the footboard could at best be regarded as having been done with a view to begin or commence travel by the bus. A person in the position of the first respondent making an attempt to get into the bus and failing in it cannot be regarded as travelling by the bus as a passenger. In Damodaran v. Santhanam A.A.O. No. 558 of 1979; decided on 28.7.1981, a Division Bench of this court had occasion to consider whether a person attempting to get into a moving bus would be a passenger. The Division Bench held that a person attempting to enter a bus but falling down as a result of the bus being suddenly started before he could enter the bus, cannot be said to be a passenger. To similar effect is the decision in Uvaraja v. Parvathi Ammal 1986 ACJ 506 (Madras), wherein it has been laid down that when a person attempts to get into a moving bus, but before getting into the bus slips down and meets with a fatal accident, the deceased could not be regarded as a passenger in the bus and the insurance company cannot call to its aid Section 95(2)(b)(ii)(4) of the Motor Vehicles Act. In 1989 TLNJ 31, after referring to the earlier decisions, this court laid down that a person attempting to get into the bus or getting down from the bus cannot be treated as a passenger, but only as a third party. Considering the manner in which the accident took place, as could be seen from the evidence of PW 1 referred to earlier, in the light of the principles laid down in the decisions referred to, the first respondent could not be regarded as a passenger in a bus and consequently, the liability of the insurance company cannot be restricted to Rs. 5,000/- as has been done by the Tribunal.
6. That leaves for consideration the memorandum of cross-objections filed by the first respondent. In the course of the award, the Tribunal has referred to the income of the first respondent earned by executing job works for Lakshmi Machine Works at Rs. 800/- per mensem. Learned counsel for the first respondent has not been able to refer to any other oral or documentary evidence to show that the first respondent was in receipt of more income. The loss of earning sustained by the first respondent was between April and August, 1980 and the first respondent will be entitled to Rs. 3,200/-. The evidence shows that the first respondent had incurred considerable expenditure for transport and also for nourishment and hospital charges and towards these, he has claimed only Rs. 5,800/-. Towards compensation for pain and suffering, the first respondent had made a claim for Rs. 5,000/- and considering the evidence of the doctors PWs 2 and 3 as well as the certificates issued by them, it is clearly established that the first respondent should have experienced pain and suffering owing to the sustaining of the injuries in the accident and also during the period of treatment. The first respondent had also made a claim for Rs. 14,000/- for permanent disability. Here again, it is seen from the evidence of PWs 2 and 3 that the entire layer of fat and skin between the left heel and the bone had been lost and that despite the skin grafting done, the first respondent is not in a position to walk as a normal person and that he would experience considerable pain when he attempts to make use of the heels. It is clear from the evidence that the accident had disabled the first respondent from having the normal use of his left foot and as Machinist, the first respondent has necessarily to spend long hours standing and this, according to the evidence of PWs 2 and 3, would cause considerable pain despite all that had been done to restore the left heel of the first respondent. Considering the evidence in relation to the above-said aspects, it cannot be said that the Tribunal had committed any error in quantifying the compensation at Rs. 30,000/-only. A careful consideration of the entire evidence does not establish that more compensation should have been awarded to the first respondent. Indeed, it has to be remembered that the first respondent claimed only Rs. 30,000/- and the entire amount as claimed had been found to be payable to the first respondent. But the Tribunal cut that amount down to Rs. 20,000/- in view of the contributory negligence of the first respondent to the accident. Earlier, it had been seen how the first respondent attempted to board the bus through the exit and sustained injuries in that attempt. The attempted entry into the bus by the first respondent through the exit was by itself irregular and improper and in that sense, he was also partly responsible for the accident as well as the sustaining of the injuries therein and the Tribunal took this into account and deducted a third of the amount of Rs. 30,000/- claimed by the first respondent and proceeded to award Rs. 20,000/- only by way of compensation. No exception can, therefore, be taken to the quantification of the compensation as done by the Tribunal. On the materials available, there is no scope for further enhancement of the compensation. Consequently, while holding that the Tribunal was right in fixing the quantum of compensation payable to the first respondent at Rs. 20,000/-, its direction regarding the apportionment of the liability between the appellant and the third respondent at Rs. 15,000/- and Rs. 5,000/- respectively, cannot be sustained since the first respondent cannot be regarded as a passenger in the bus, but could be treated only as third party. In other words, the liability to pay the entirety of the compensation in a sum of Rs. 20,000/-would be that of the third respondent insurance company and no part of that liability could be fastened on the appellant.
7. In the result, the appeal is allowed and the third respondent insurance company will be liable to pay the entire compensation amount of Rs. 20,000/- awarded to the first respondent and the appellant cannot be saddled with any liability therefor. The memorandum of cross-objections is dismissed.