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2005 Supreme(AP) 450
Andhra Pradesh High Court
Judges : Deepak Gupta
SANJEEV GAUTAM - Appellant
Versus
SURINDER KUMAR - Respondent
Decided On : 05/18/2005
F. A. O. 260 Of 2003
A person in the process of getting on to a vehicle cannot be termed as a passenger unless permitted by the driver or any authorized person. In such a case, the person is considered a third party, and the insurance company is liable to pay compensation.
Headnote:
MOTOR VEHICLES ACT - SECTION 95(1)(B) - PASSENGER - THIRD PARTY - LIABILITY OF INSURANCE COMPANY - A person in the process of getting on to a vehicle cannot be termed as a passenger unless permitted by the driver or any authorized person. In such a case, the person is considered a third party, and the insurance company is liable to pay compensation.
Fact of the Case:
The claimant, Surinder Kumar, was injured when he fell from a truck while trying to board it. He filed a petition for compensation under Section 166 of the Motor Vehicles Act, claiming that the accident occurred due to the negligent driving of the truck driver. The insurance company denied liability, arguing that the claimant was not a passenger in the vehicle.
Finding of the Court:
The court held that the claimant was not a passenger in the truck since there was no evidence to show that the driver had permitted him to board the vehicle. The court found that the driver's act of starting the vehicle while the claimant was in the process of mounting it was a negligent act.
Issues: Whether the claimant was a passenger in the truck.
Ratio Decidendi: The court relied on the judgment of the Supreme Court in Noorjahan v. Sultan Rajia alias Thaju and others, which held that persons mounting or alighting from a vehicle, especially when there is a lack of evidence to show that they were permitted to mount the vehicle by the owner, driver, or any other authorized person, would not be deemed to be a passenger.
Final Decision: The court held that the claimant was not a passenger in the truck and was like a third party. Therefore, the insurance company was liable to pay the amount of compensation assessed by the learned Tribunal.
( 1 ) THIS appeal under Section 173 of the Motor vehicles Act is directed against the award of the Motor Accident Claims Tribunal, Solan in M. A. C. Petitionno. 24-S/2 of 2001,decided on 25th March, 2001.
( 2 ) A short but interesting question arises for decision in this appeal. The question which arises is whether a person who is in the process of getting on to the vehicle should be termed as a passenger or a third party? the law is well settled that the Insurance company cannot be held liable to pay compensation to the passengers being carried in a goods carriage. However, it is liable as far as third party is concerned.
( 3 ) THE facts necessary for decision of the case are that claimant Surinder Kumar filed a petition for grant of compensation under section 166 of the Motor Vehicles Act. In this petition, it was alleged that on 20th February, 2000, when he was in the process of boarding a truck No. HP-11-2000, the driver of the truck suddenly drove the truck without caring to see whether the petitioner boarded the truck or not. As result of the jerk, the petitioner fell down and his left arm was crushed.
( 4 ) IN para 24 of the claim petition, it was averred as follows;
". . . On the fateful date, the petitioner was standing by the side of the road and he had to take the lift in the truck. When the truck No. HP-11-2000 reached the petitioner on seeing the signal of the petitioner, the respondent No. 2 stopped the truck and when the petitioner was in the process of boarding the truck the respondent No. 2 drove the truck all of a sudden without caring to see that the petitioner had boarded the truck and had come inside the truck and due to jerk and negligent act and driving, the petitioner fell on the road and his left arm was crushed. . . . . "
( 5 ) THE owner and driver in their reply took the following defences;
"9. That contents of para 10 as represented are wrong, hence denied, the petitioner has no concern with truck no. HP 11-2000, when the truck was going on uphill side, the petitioner without any notice etc. or without any right tried to climb running truck and in this process fell down. The petitioner had no business to board the truck. The petitioner has concocted a false story that when he was trying to board the truck, the same was driven all of sudden, the real facts are that he tried to climb up a running truck.
17. . . . . The petitioner was not seen by respondent No. 2 standing on the road, nor he gave any signal to the respondent no. 2 for the purpose of taking lift. The petitioner had no right to take lift in the truck, it is emphatically denied that on receiving signal respondent No. 2 stopped the truck and when the petitioner was in process of boarding the truck he drove the truck all of a sudden without caring to find out that whether the petitioner has boarded the truck order, as alleged. The real facts are that the truck was going uphill side, the petitioner without any notice of signal tried to board the truck, which was in running condition and in this process fell down. The accident has occurred due to negligence and fault of the petitioner. The petitioner cannot take benefit of his own wrong, the respondent No. 2 only came to know about the accident when heard noise, earlier he had not noticed the petitioner standing on the road or in process of running and trying to get on the truck. "
( 6 ) THE learned Tribunal on the basis of the evidence led before it came to the conclusion that the accident occurred due to the negligent driving of the truck driver and further held that the claimant-petitioner was entitled to rs. 1,72,000/ -. According to the Tribunal since the claimant-petitioner was a passenger in the vehicle in view of the judgment of the apex Court in New India Assurance Co. Ltd. Asha Raniand others, the Insurance Company was not liable since the claimant admittedly a gratuitous passenger. This finding of the tribunal has been challenged in this appeal and it is cont
