( 1 ) THIS is an appeal by insured-owner of the vehicle from the judgement and award dated 1-2-1994, delivered by Sri k. Rajashekhar, ii additional district judge/member, motor accidents claims tribunal-iii, d. k. , mangalore, in m. v. c. case No. 468 of 1988, whereby the tribunal has awarded the claimants respondents a sum of Rs. 64,000/- as total compensation less Rs. 15,000/- award received from respondent 3 in the claim petition namely from united India insurance company.

( 2 ) THE tribunal, to be in brief, held as under: that, the motor accident was due to negligence of the driver-respondent 1 of the vehicle as also contributory negligence of the deceased balakrishna, which, had taken place on 25-3-1988 and on account of which balakrishna had died of the injuries suffered by him. The tribunal after having recorded about the negligence and contributory negligence further held that the liability of the insurance company has been limited to the extent of Rs. 15,000/- and the insurance company was liable to pay Rs. 15,000/- only and not more, while the balance of Rs. 49,000/-, the tribunal found and held, to be recoverable from respondent 2-the owner of the bus.

( 3 ) FEELING aggriwied from the judgement and award of the tribunal, the owner of the bus has filed this appeal. No cross-objections or cross-appeal has been filed in respect of quantum of compensation awarded nor with reference to the finding on issues 1 and 2 i. e. , question of negligence and contributory negligence. The appeal filed by the owner raises one question of law namely the extent of liability of the insurance company or that of the owner of the bus. The question is whether the liability of insurance company-respondent 3 in the memo of appeal has rightly been held to be limited to the extent of Rs. 15,000/ or that finding is incorrect.

( 4 ) I have heard the learned counsel for the appellant Sri a. s. vishwanath and Sri m. Showriraju, learned counsel for the insurance company-respondent 3. None has appeared on behalf of respondents 1 and 2 i. e. , the claimant and the driver.

( 5 ) SRI a. s. vishwanath, learned counsel for the appellant, contended before me that in the present case if this court comes to the conclusion that the deceased was a passenger and not a person other than a passenger, then his appeal may fail. Learned counsel submitted that the evidence on record reveals that the deceased was not a passenger at the time the occurance did take place. Learned counsel in this connection made a reference to the depositions of p. w. 1 and p. w. 2 as well as to the statement of d. w. 1 and placed before me which I will quote hereafter. He submitted that the evidence of these witnesses clearly reveals that the finding recorded by the tribunal to the effect that the deceased was a passenger and the liability of the insurance company was limited to the tune of rs. 15,000/- only is incorrect on facts and in law. In support of his contention on the point of law, the learned counsel made reference to the provisions of Section 95 (1) and sub-section (2) (b) (ii) thereof the motor vehicles ACT 1939, which is analogous to the sub-section (1) (b) (ii) of Section 147 of Motor Vehicles Act, 1988. Learned counsel for the appellant also made a reference to the division bench decision of the Bombay High Court in the case of Prakash Anand Pednekar v Smt. Sitabai R. Gawas and others and to the decision of Orissa High Court in the case of United India Insurance Company Limited v Smt. Susila Panigrahy and others and contended that so long as a person has not entered or mounted into a bus he cannot be termed to be a passenger. Learned counsel contended that the deceased has not even mounted on the bus an entered into the bus and he was on the road, so he could not be taken to be a passenger and as such liability of the insurance company in such a case was unlimited in terms of the policy itself.

( 6 ) SRI sowriraju, learned counsel for respondent 3, origi