S.M. Rai And Co. And Ors. vs New India Assurance Company And ...
1993 Latest Caselaw 671 Del

JUDGMENT

P.K. Bahri, J.

1. This appeal is directed against the award of the Motor Accidents Claims Tribunal dated January 30, 1981 by which he awarded compensation of Rs. 80,000/- in favor of the heirs of the deceased in proportion mentioned in the award and granted interest of 6% per annum from December 6, 1973 till realisation but the award limited the liability of respondent No. 3, M/s. New India Assurance Company to the extent of Rs. 5,000/-.

2. The owner of the vehicle i.e. M/s. S.M. Rai & Company has come up in appeal against the said award on the short ground that the liability of the Insurance Company was not limited and the Tribunal went wrong in holding that the liability of the Insurance Company is limited inasmuch as the deceased, Des Raj, was a passenger in the bus at the time the fatal injuries were caused to him due to negligent driving of the bus by the driver of the bus.

3. The question which has been argued before me by learned Counsel for the appellant is that the evidence on record unmistakably showed that in fact the deceased had ceased to be a passenger and thus, the liability of the Insurance Company was unlimited. He has also argued that the Insurance Company had not produced any record to prove that in fact the liability of the Insurance Company in such like case was limited, as was set up in the written statement by the Insurance Company. He has also argued that, in fact, it is the Insurance Company which has fought the claim of the claimants on behalf of the appellants as well inasmuch as the same Counsel, Sh. S.K. Paul, who represented the Insurance Company had appeared for the owner as well as the driver of the vehicle.

4. The first question to be decided is whether the deceased had ceased to be a passenger at the time the accident occurred which resulted in fatal injuries to the deceased. PW-1 had made a statement on oath before the Tribunal that on the day of accident i.e. October, 10, 1973, at about 10.30 a.m., he Along with Des Raj who was his maternal uncle had boarded the mini bus No. DLP 4762 for New Delhi Railway Station for going to Lajpat Nagar and the bus had reached the destination and the bus had been stopped by the conductor where he had alighted from the bus and his uncle namely Des Raj was in the process of getting down when the bus suddenly started and his uncle fell down and was crushed under the bus.

5. The learned Counsel for the appellant has argued that the contract entered into between Sh. Des Raj and the owner of the bus came to be terminated as soon as the bus reached the destination and the deceased was in the process of alighting from the bus and thus, he ceased to be a passenger in the bus. He has referred to a number of judgments having similar facts where it has been held that as soon as the passenger is in the process of alighting from the bus at the point of destination, he ceases to be a passenger.

6. The first judgment referred by him is M/s. Thoznilalar Transport Co. v. Valliammal and Ors. 1989 (II) A.C.C. 242. In the said case, the deceased was traveling in a vehicle from Alangayam to Chekkumedu. The bus had reached the destination and the deceased was in the process of getting down. It was held that the deceased was not traveling in the bus when the accident occurred and had ceased to be a passenger. Hence, the liability of the Insurance Company was unlimited. It appears that the Insurance Policy also contemplated the liability of the Insurance Company to be limited to Rs. 5,000/- in case the accident had occurred at the time the persons affected by the accident were passengers in the vehicle.

7. On similar facts, same ratio was laid down by the Madras High Court in case of A. Subramani v. Mani 1989 (II) A.C.C. 253.

8. A Single Bench of this High Court in The New India Assurance Co. Ltd. v. Smt. Savitri Devi and Ors. 1991 (I) A.C.C. 303 also held similarly that if the accident occurs at the time the passenger is in the process of alighting from the vehicle at the destination, the said person ceases to be a passenger and the liability of the Insurance Company becomes unlimited.

9. In Pandit Ram Saroop v. Balbir Singh 1987 (II) A.C.C. 358, the case decided by another Single Bench of this Court, the facts were that the deceased had entered the bus and taken a ticket for going to Ordnance Depot, Shakur Basti from General Store bus stop. The bus, instead of stopping at the destination, had proceeded further and the accident had. occurred causing injuries to the deceased. It was held that the deceased ceased to be a passenger as soon as the bus had reached the destination and mere fact that the deceased had not alighted from the bus would not mean that he continued to be a passenger when the bus, after reaching the destination, had proceeded further.

10. Similarly, in the present case, the evidence on record clearly proved that the deceased was in the process of alighting at the destination when the bus suddenly started which resulted in fatal injuries to the deceased. Thus, it has to be held that the deceased had ceased to be a passenger in this bus at the time the accident took place.

11. RW-1, the only witness examined on behalf of the Insurance Company, had stated on oath that the vehicle in question was insured at the time of the accident but the carbon copy of the Insurance Policy was no longer traceable on the record of the Insurance Company and other record of the Insurance Company also became unavailable as being misplaced due to shifting of the record from one office to another office. But he categorically deposed that as per usual terms of the policy, the liability of the Insurance Company was limited to Rs. 5,000/- viz. to the passenger and to a maximum of Rs. 50,000/- per accident meaning thereby the liability of the Insurance Company was unlimited if the injury was not to the passenger but to a third party. The owner of the vehicle has not produced the original Insurance Policy and has, as a matter of fact, not appeared in the witness box.

12. Keeping in view the testimony of RW-1, which cannot now be disowned by the Insurance Company, it is evident that the Insurance Policy was unlimited in its liability as far as Insurance Company is concerned if the injury was caused to the third party. Its liability could be limited only if the injury was to the passenger. I have already given the finding that Des Raj, deceased, had ceased to be a passenger and thus, the liability of the Insurance Company has to be unlimited in the present case.

13. In Kela Devi v. Ram Chand and Ors. 1985 (II) A.C.C. 50, a Single Bench of this Court has held that where the Insurance Company has taken the liability on itself to contest the claim on behalf of all the respondents, the liability, if the award is given against the respondents, would be of the Insurance Company. Be as it may, in the present case, as already mentioned by me above, even if it is to be held that Insurance Company has not contested the case on behalf of the appellant, even then, in view of the testimony of RW-1, the official of the Insurance Company, the liability of the Insurance Company has to be treated as unlimited.

14. The Counsel for the claimants has, on the other hand, argued that the interest levied in the award @ 6% per annum is much less and should be enhanced to 12%. The claimants have not come in appeal. They were satisfied with the award given by the Tribunal and thus, the question of enhancing the interest does not arise.

15. I allow the appeal only to the extent that the liability of the Insurance Company is held to be unlimited. The Insurance Company is directed to deposit the balance amount of the award in the High Court within two months and if the amount is not so deposited, the Insurance Company shall pay interest @ 12% per annum after the expiry of two months till realisation. If the amount is so deposited, if shall be released to the claimants. Parties are left to bear their own costs.