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10. The Tribunal, after a careful scrutiny of the evidence held that the accident had taken place and Mustaq Ahmed died on account of the rash and negligent driving of the bus by its driver and conductor. There are no cogent and convincing reasons to take a view different from that taken by the Tribunal The first contention of Mr. Parekh, therefore, fails.

Re: 2 -- Whether the deceased was a passenger :--

11. The argument addressed by Mr. Parekh has two limbs. The first limb of the argument is that Mustaq Ahmed was wrongly taken as a passenger by the Tribunal. The second limb of the argument is that even if Mustaq Ahmed is taken to be a passenger, he was only a gratuitous passenger. In both the cases whether Mustaq Ahmed is not taken to be a passenger or is taken to be a gratuitous passenger, the insurer is liable to pay compensation up to the extent of Rs. 50,000/-as per provisions of Section 95(2)(b)(i) of the Act. The argument is ingenuous and shrewd.

17. Pertaining to the second limb of the argument, it was strenuously contended by Mr. Parekh that if Mustaq Ahmed is taken to be a passenger, he was only a gratuitous passenger because he had not paid the bus fare. If he was taken to be a gratuitous passenger, the entire amount of compensation (if not above Rs. 50,000/-) should be paid by the insurer. Reliance in support of the contention was placed on Assam Corporation v. Binu Rani AIR 1975 Gauh 3 and Mrs. Hira Devi v. Mrs. Bhaba Kantidas, AIR 1977 Gauh 31 (FB). In these two cases, the injured or the deceased were travelling in a private jeep or a private car, to whom lifts were given by the drivers or the owners of the jeep or die car. The insurer was held liable to pay compensation up to the extent of Rs. 50,000/-.

18. The clinching question here in the instant case is whether Mustaq Ahmed should be taken to be a gratuitous passenger. The word 'gratuitous' has not been used in the Act and hence we find no definition of it there in the, Act. In the Webster's Third New International Dictionary, "gratuitous" means "given freely or without recompense; granted without pay or without claim or merit; costing the recipient or participant nothing; FREE; not involving a return benefit, compensation or consideration opposed to onerous; not called for by the circumstances; adopted or asserted without good ground."

19. The word "gratuitous" implies that somebody is obliging the other. In the case of a gratuitous passenger in a motor vehicle, the gratuitous passenger is he who has been given a free lift by the owner or driver of the motor vehicle. The free lift may be due to a variety of reasons e.g. friendship, directions from the above, relationship, etc. In a case of taking a passenger gratuitously there is always an element of obligation on the person so carried free of fare.

20. In the instant case, it was not alleged nor proved by the opposite parties that Mustaq Ahmad was to be given a free lift in the bus. Mustaq Ahmed was not in a position to purchase the ticket before boarding the bus. There was no booking-office at the stoppage where Mustaq Ahmed was going to board the bus. The matter has already been discussed earlier. The evidence of the opposite parties shows that the conductor was issuing tickets to the passengers in the bus. Mustaq Ahmed would have, therefore, purchased 'the ticket like other passengers in the running bus. I am, therefore, unable to accept the contention of Mr. Parekh that Mustaq Ahmad should be taken to be a gratuitous passenger in the bus. Since Mustaq Ahmed was not a gratuitous passenger, the view expressed by the Gauhati High Court in the two decisions (AIR 1975 Gauh 3 and AIR 1977 Gauh 31 (FB) (supra), relied upon by Mr. Parekh, render no help to him.