Liability of insurer to pay the entire amount of compensation.

RAMANUJAM J. :- This appeal arises out of an award passed by the Motor Accidents Claims Tribunal in M.A.C.O.P. No.84 of 1976, granting a sum of Rs. 23,000 as compensation to the claimants in the said O.P. in respect of a fatal accident that took place at Bathalagundu at about 8.30 a. m. on 10-4-1976, in which one Gurusami died.

2. On 10-4-1976 at about 8-30 a.m. a bus belonging to Messrs. Southern Roadways, the appellant herein, was leaving Kaliamman Koil bus stop on its way to Palani. At that point of time, the deceased Guruswami in his attempt to get into the bus is said to have fallen down from the moving bus. As a result of the fall from the moving bus, he sustained leg injuries to which he succumbed later. On the basis that the said accident was due to the rash and negligent conduct of the conductor and the driver of the bus, the wife, the three children of the deceased and his mother filed a claim petition u/s.110A, Motor Vehicles Act, claiming a total compensation of Rs. 25,000.

3. In the said claim petition, M/s. Southern Roadways alleged to be the owner of the bus and the insurance company with which the bus has been insured, the conductor of the bus and the driver of the bus have respectively been cited as respondents 1 to 4. Respondents 3 and 4, the driver and the conductor of the bus which was involved in the accident remained ex parte and the claim petition was contested mainly by the owner of the bus and the insurance company. Their main defence was that the deceased Gurusami did not travel at all in the bus in question, that in any event, as the deceased had attempted to get into the bus after the bus had started to move from the bus stop, he should be taken to be exclusively responsible for the accident in question, and that there was no question of any rash and negligent driving of the bus by the driver, nor the conductor was rash and negligent in giving the whistle for the bus to move. They also contended that, in any event, the compensation claimed was excessive. The insurer, respondent 2 before the Tribunal in the claim petition, also took up a further plea that, in any event, its liability should be restricted to Rs. 5000, as the deceased was a passenger in the bus.

4. On these rival contentions, the following two points were taken up for consideration by the Tribunal-

1. Whether the death of the deceased Gurusami took place on account of the rash and negligent conduct of the driver and the conductor of the bus? and

2. If so, whether the petitioners are entitled to compensation and to what extent? After analysing the evidence in detail, the Tribunal on the first question held that the rashness and negligence on the part of the driver and the conductor of the bus had been established and, therefore, the owner and the insurer of the vehicle cannot escape their liability for the accident in question. On the question of quantum of compensation the Tribunal held that a sum of Rs. 23000 is payable as compensation, out of which the liability of the insurer is to be restricted to Rs. 5000, in accordance with the provisions of Sec.95(2)(b) M.V. Act.

5. Aggrieved against the award of the Tribunal, Messrs. Southern Motors, the owner of the bus, which was involved in the accident, has filed this appeal challenging the finding of the Tribunal that the driver and the conductor of the bus were rash and negligent and it is that rashness and negligence which was responsible for the accident.

6. According to the learned counsel for the appellant, the Tribunal is in error in holding that the conductor of the bus prevented the deceased. Gurusami, from entering into the bus and pushed him down as alleged by the claimants, overlooking the fact that in the first information report given by the elder brother of the deceased, who was examined as P.W.2, no reference has been made to the conduct of the conductor pushing down the deceased Guruswami while he was entering the bus at the bus stop. It is seen that the Tribunal acceptin