Pandit Ram Saroop And Another vs Balbir Singh And Others
1989 Latest Caselaw 467 Del

JUDGMENT

S.B. Wad, J.

1. This appeal is filed by the parents of the deceased, Naresh Kumar, who died in a road accident on May 3, 1978. He boarded bus No DLP- 6059 at the general store and was to get down at the Ordnance Depot, Shakurbasti, Delhi. The bus was plying on route No 914 running from Punjab Bagh to Nanglori. At the Ordnance Depot, the bus did not stop but went ahead for about ninety feet. When Naresh Kumar was getting down from the bus, the bus suddenly started moving. Naresh Kumar fell down and the rear wheel of th 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 a halt. He also stated that he took Naresh Kumar to the hospital in the same bus and informed the police station at Punjab Bagh. PW-4, Azad Singh, is a natural witness. He has his tea stall near the bus stop. He has also fully supported the claimant's version. The respondent's version was that Naresh Kumar jumped out of the moving bus and fell down and thus received 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 accidental was caused due to rash and negligent driving of bus No DLP-6059 and that the deceased was killed in the said accident.

3. I was taken through the evidence of the eye witnesses 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 p.m. 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. Counsel for the claimants submitted that the income of the deceased should be taken at Rs 800 per month as found by the Tribunal. 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 that therefore, the evidence about the additional income of Rs 300 from Chandresh Plastic should not be taken into consideration for determining compensation. The strict rules of the Civil Procedure Code and the Evidence Act are not applicable to the proceedings in motor accidents claims cases. When Rajinder Kumar, PW-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 counsel for the claimants that at the time when the claim petition was filed, the father of the deceased did not know the 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 at 9% per annum from the date of the application till the date of payment.

4. 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). 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 counsel for the insurance company cannot be accepted.

5. For complying with 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 for 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, he consideration being payment of the bus fare 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 decease boarded the bus at the "General Stores bus stop" and his destination point was the bus stop at "Ordnance Depot, Shakurbasti". He had purchased the ticket for the said journey. If the bus had stopped at the Ordnance 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 DJP-6059 did not stop at the Ordnance 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 the Ordnance Depot, the status 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 third party liability and hence 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 a number of passengers traveling in a bus may 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 the case of a large number of people receiving injury in the accident. The premium for heavy vehicles is fixed by the insurance company on the basis of the number of passengers to be carried. If, on the principle of third party liability, a large number of injured persons who are traveling as 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 at 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 as well as of the interest on it. The interest on it. The cheques 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.