The main legal principle established is that the duty of the driver and conductor under S.82 of the Motor Vehicles Act, 1939 includes ensuring the safety of passengers, and that a foot board passenger cannot be held guilty of contributory negligence if there is no space inside the bus and the conductor fails to caution against travel on the foot board.

Bhat,J.

1. Petitioner in M.A.C.No.654 of 1981 of the M.A.C. Tribunal, Tellicherry has filed this appeal challenging the dismissal of the claim petition.

2. Appellant was injured in an accident involving bus K. L. C. 6832 at about 8.30 A.M. on 3-2-1981. His case is that the bus stopped at Koduvally bus stop and he boarded it, the bus moved about hundred yards and when it entered the Koduvally bridge it was driven in such a rash and negligent manner while giving way to another bus coming from the opposite direction that the bus collided with the pillar of the bridge and the appellant who was still on the foot board of the bus was injured. He claimed Rs.75,000/- from the driver, owner and insurer of the vehicle.

3. The driver and owner of the vehicle filed written statement admitting the accident in which appellant sustained injuries. According to them, bus did not stop at Koduvally junction as it had full complement of passengers and as the bus was proceeding slowly appellant in a reckless manner attempted to board the bus and hit against the rear left side of the bus, fell down and was injured. Bus did not dash against pillar of the bridge. The accident was the result of rashness and negligence on the part of the appellant and not of the driver of the bus. Insurer admitted existence of policy and supported the contentions of other respondents.

4. The Tribunal rejected appellant's case for the following reasons: If the accident had taken place as alleged by the appellant, others besides the appellant would have been injured and as a matter of fact P.W.1 was the only person injured. Police referred the case and appellant did not file a protest complaint. Appellant admitted that he attempted to get into the bus at the bus stop but the bus left the stop and he did not run after the bus. He also admitted that he could not get into the bus. In the claim petition it was not averred that the accident took place while giving way to another bus coming from the opposite direction, which is a new story at the stage of evidence. P.W.1 also admitted that the bus and pillar of the bridge were not damaged. P.W.2 who was alleged to be waiting at the bus stop to board a bus going in the opposite direction could not have seen anybody getting into the bus involved in the accident. P.W.3, another independent witness could not be believed because he deposed that P.W.1 had boarded the bus at the junction though P.W.1 himself had admitted that he did not get into the bus. In these circumstances, evidence of the driver examined as RW-1 to the effect that he did not stop the bus at Koduvally bus stop as there was full complement of passengers in the bus and the appellant attempted to board the running bus and hit against the left side of the bus and fell down was acceptable. On this basis Tribunal rejected the contention of the appellant that the accident was the result of rash and negligent driving on the part of the driver of the vehicle and held that it was the result of rashness and negligence on the part of the appellant in boarding a running bus. These findings are seriously challenged by the appellant.

5. In the claim petition it is averred that petitioner was travelling in the bus to attend to work at Chirakkara and when it reached Koduvally bridge, due to rash and negligent driving of the vehicle it collided against the pillar of the bridge and the petitioner was injured. It is true that the claim petition did not mention that the petitioner boarded the bus at Koduvally bus stop or was on the foot board and later the bus gave way to another bus coming from the opposite direction. In the written statement filed by the driver and owner of the bus they stated that the petitioner ran behind the bus with intent to board the bus and While so he hit against the rear side of the bridge and fell down. In other words, stand taken is that he was not even on the foot board. The written statement also did not refer to driver giving way to another bus