The central legal point established in the judgment is the interpretation of the term 'passenger' under the Motor Vehicles Act and the determination of the extent of liability of the Insurance Company in cases of motor accidents.

K.G. Balakrishnan, J.

The fourth respondent New India Assurance Company in M.V.O.P.No. 2347/85 is the appellant. The claim petition was filed by the legal heirs of one Appukkuttan Nair who died in a motor accident which took place at 9.45 P.M.. on 25.9.1979. Appukuttan Nair was an employee of United Electrical Industries and on the date of the incident he was travelling in a bus No. KLQ 3095. When the bus reached near Madan Nada, Appukuttan Nair wanted to alight from the bus. The bus was stopped and he got down from the bus and while so the conductor gave the double bell and the bus suddenly moved forward. Appukuttan Nair who was lying on the road was run over by the rear wheel of the bus. He was immediately removed to the District Hospital, Quilon where he was treated there till he succumbed to injuries on 14.12.79. Petitioners in the MVOP claimed Rs. 1,13,019.46 as compensation. The Tribunal passed an award for 83,500/- with interest thereon. Out of the compensation, Rs. 50,000/- was ordered to be paid by the appellant Insurance Company and the balance amount of Rs. 33,500/- was directed to be recovered from respondents 1,2 and 3 in the MVOP, who are respectively the driver, conductor and owner of the bus.

2. The appellant contends that the deceased Appukkuttan Nair was a passenger in the bus and as per the then existing provision of the Motor Vehicles Act viz., S.95(2)(b)(ii) read with sub clause (4) of the Act the liability of the Insurance Company is only to the extent of Rs. 5,000/-. This contention was raised before the Court below, but the learned Tribunal rejected this contention and held that in view of the decision in Motor Owners Insurance Co, Ltd. v. Jadavji Keshavji Modi and Ors. (1981 AIR(SC) 2059) the liability of the Insurance Company is to the extent of Rs. 50,000/-. This finding of the Tribunal is challenged by the appellant.

3. We heard counsel for the appellant, counsel for respondents and also counsel for owner of the bus which had involved in the accident.

4. Going by S.95(2)(b)(ii) of the Motor Vehicles Act if the deceased Appukuttan Nair was a passenger at the time of the accident and the liability of the Insurance Company is only to the extent of Rs. 5,000/-, AIR 1981 SC 2059 has no application in the present case. The learned Tribunal wrongly applied the above decision to fix the liability of the Insurance Company.

5. As per the impugned award the Insurance Company has been directed to pay Rs. 50,000/-. Counsel for the claimants contended that the award of the Tribunal should be sustained on other grounds. According to the claimants, Appukuttan Nair was not a passenger at the time of the accident, though he travelled in that bus. It was contended by claimants that Appukuttan Nair wanted to alight from the bus at Madan Nada and in fact alighted from the bus and before he could safely move to a distance away from the bus, the bus moved forward and his legs were run over by the bus and he sustained fatal injuries. Therefore, it is contended that Appukuttan Nair sustained injuries while he was on the road and he ceased to have any physical connection with the bus and thus ceased to be a passenger of the bus. This plea is to be considered in the light of certain decisions on the point.

6. In the decision in New India Assurance Co. Ltd. v. Annakutty (1992 (2) KLT 727) a similar question arose but the facts are slightly different. The facts borne out from Para. 5 of the judgment are to the following effect:

"Deceased Kuruvilla was attempting to get down from the bus. But the conductor of the bus gave double bell negligently. The bus moved suddenly. Kuruvilla was thrown away on the road and the wheel of the bus ran over his body and head, as a result of which the skull was broken and he died instantaneously". (Emphasis supplied)

From the facts, it is clear that the deceased was thrown away from the bus and the wheel of the bus happened to be run over his body and head. It was in this background the Divis