A person who is trying to board a bus that is already in motion is not a passenger.

KAMAT, J.:- Sitabai R. Gawas, respondent No.1, succeeded in Claim Petition No.4/87 filed by her before the Motor Accident Claims Tribunal, Panaji, by getting an Award dated 31st December, 1991, in her favour. That award directed that she be paid a sum of Rs. 85,000/- as and by way of compensation in respect of the death caused to her husband in a vehicular accident in which mini bus bearing registration No. GDS-2272 was involved, which belonged to the present appellant and was insured with the third respondent.

2. The Tribunal in the impugned award held that out of the amount of compensation awarded, the liability of the third respondent-insurer, is limited to Rs. 15,000/- only, that being the limit of the liability per passenger in an accident, in terms of Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939, and the remaining amount is directed to be paid by the present appellant/owner and respondent No.2, the driver.

3. The appellant/owner of the minibus challenges the impugned Award restricted to one challenge that the deceased husband of respondent No.1 was not a passenger and therefore not covered under Section 95(2)(b)(ii) and it is a pure case of involvement of third party risk and being so, the entire liability under the insurance policy is that of the third respondent.

4. If the deceased husband Raghunath Vishnu Gawas is held to be a passenger at the time when the accident occurred as a result of which he died, indeed the liability of the third respondent, insurer, is Rs. 15,000/-, but if it is held that the deceased Raghunath was not a passenger, then the liability of the present appellant and his insurer would be that of a third party, in which case the impugned award which directs appellant/ owner to pay a sum of Rs. 70,000/- will not be sustainable.

5. The story in the claim petition was that the deceased Raghunath Gawas was waiting at the bus stop at Porno Tinto at Anjuna Bardez, Goa, at about 8.30 hours. The passenger minibus bearing registration No. GDS-2272 came at the bus stop which was already over crowded. Raghunath tried to board the minibus, but as in the meantime the bus was put in motion, he fell down on the ground, resulting in severe injuries and in the rear wheel of the bus dashed against him. Raghunath, if appears, died soon after he was removed to the Hospital on the same day.

6. In support of the claim application, large number of witnesses were examined, but it may not be necessary to look the evidence of all those witnesses, regard being had to the controversy in the present appeal.

7. Mr. Lotlikar learned counsel for the appellant/owner, says that the deceased Raghunath had not boarded the minibus and even before he entered the bus he had a fall. He therefore says that by no stretch of imagination Raghunath could be held to be a passenger within the provisions of the Motor Vehicles Act, or, for that matter, come within the definition of a passenger. According to him, at the most deceased Raghunath could be called an intending passenger, but the intending passenger does not become a passenger unless he gets into the bus. He therefore says that the Tribunal was in error in not looking into this aspect of the matter.

8. He contended that mere boarding of a bus would not make one a passenger unless the person who boarded the bus has purchased a ticket by which the contract comes into being between him and the owner of the transport. He now contends that even when a person enters a vehicle and who is yet to purchase a ticket can also be said to be a passenger as long as he is within the precincts of the vehicle as by that time he becomes a passenger for the purpose of intended journey. It is on the basis of the above, he asserts, that when the deceased Raghunath had not even entered the minibus when the accident arose, by no stretch of imagination he could be held to be a passenger.

9. He has relied upon certain authorities to which a reference may be made. In the decision of 'M/s. Thoznilalar Tra