A person getting down from a bus is not a passenger and the liability of the insurer is unlimited.

Padmini Jesudurai, J.

1. The owner of a bus, against whom and his insurer the Motor Accidents Claims Tribunal has passed an award apportioning the liability as between them, has filed the present appeal contending that the deceased was not a passenger at the time of the accident and that, therefore, the liability of his insurer is unlimited and also contending that the quantum of compensation awarded is excessive. The claimants (respondent Nos. 1 to 3) have preferred cross-objections on the ground that the compensation awarded is grossly inadequate.

2. Facts briefly are: On 5.3.1980 the deceased Jayaraman, who is the husband of the first respondent and the father of the second respondent and the son of the third respondent, was travelling in a passenger bus bearing registration No. MDJ 3092 belonging to the appellant and insured with the fifth respondent. The bus was driven by the driver, the fourth respondent. The deceased who had boarded the bus at Alangayam was due for Chekkumedu. When the bus stopped at the bus-stop at Chekkumedu, the deceased got down from the bus and before he could safely land on the ground, the fourth respondent started the bus, as a result of which the deceased fell down and was run over by the rear wheel of the vehicle. Since the accident was due to the rash and negligent act of the fourth respondent in starting the bus before the deceased had safely alighted from the bus, respondent Nos. 1 to 3 filed MAC.O.P. No. 17 of 1981 under Section 110-A of the Motor Vehicles Act (hereinafter referred to as 'the Act') before the Motor Accidents Claims Tribunal (Subordinate Judge) Tiruppattur, North Arcot District, claiming a total compensation of Rs. 50,000/-.

3. The appellant resisted the claim contending that the deceased was drunk and before the bus could be brought to a halt, the deceased jumped out of the bus and was overrun and that the accident was due only to the negligence of the deceased. The claim was also excessive. The fourth respondent, the driver, also took the same stand. The fifth respondent, the insurance company, also contended that the accident was not due to the rash and negligent driving of the bus by the fourth respondent and further contended that at any rate, its liability was limited only to Rs. 5,000/- in view of the fact that the deceased was a passenger at the time of the accident.

4. Before the Tribunal, on behalf of respondent Nos. 1 to 3, the first respondent examined herself as PW 1 and examined one Mutha Gounder, an eye-witness to the occurrence, as PW 2. Exhs. A-1 to A-6 were marked on their side. On behalf of the appellant and respondent Nos. 4 and 5, the fourth respondent driver was examined as RW 1 and the policy of insurance was marked as Exh. B-1.

5. On the above material, the Tribunal held that the accident was due only to the rash and negligent act of the fourth respondent in moving the bus, assessed the compensation at Rs. 30,000/- and observing that the deceased was a passenger at the time of the accident and under Section 95 (2) (b) (ii) (4) of the Act the insurance company was liable only to the extent of Rs. 5,000/-, passed an award for a sum of Rs. 30,000/-, directing the fifth respondent to pay a sum of Rs. 5,000/- and directing the appellant to pay the balance of Rs. 25,000/-. Aggrieved with the findings of the Tribunal and the ultimate award, the owner of the vehicle has filed the present appeal. Respondent Nos. 1 to 3 have filed cross-objections for enhancement of the compensation.

6. Mrs. Radha Gopalan, learned counsel for the appellant, made the following two submissions:

(1) The deceased was not a passenger at the time of the accident and was only a third party and consequently the liability of the insurer was unlimited;

(2) The quantum of compensation awarded was too high.

7. Per contra, Mr. K.S. Narasimhan, learned counsel for the fifth respondent, contended that the deceased was a passenger at the time of the accident and the Tribunal had rightly limited