Pending appeal if to do governed by old or new Act.

Mishra, J.

The third respondent, owner of a Motor vehicle in M.C.O.P.No.14 of 1980 before the Motor Accident claims Tribunal, Coimbatore, and appellant in A.A.O.No.678 of 1981 has preferred this appeal under Clause 15 of the Letters patent of this Court against the award of compensation to the claimants/respondents 1 to 4 herein amounting to Rs.36,000 out of which Rs.5,000 is payable by the Insurer and the balance by the owner/appellant.

2. The claimants who are the husband and minor sons and daughters of the victim Kamalam moved the Tribunal under Sec.110-A of the Motor Vehicles Act, 1939 (since repealed) alleging that Kamalam was travelling in a town bus plying in route No.32-C and bearing Registration No.TNE 6517 along goods shed Road on 17. 1979 at about 7.45 a.m. when the bus approached the bus stop near the junction of Big Bazaar Street, and Goods shed Road, West of St. Michael’s High School, she got down from the bus at that stop, but before she could stabilise herself on the road, the conductor instructed the driver to move the vehicle and accordingly the driver started the bus rashly and negligently with the result that Kamalam was knocked down and dragged along by the body of the bus. In that process, she sustained multiple injuries and succumbed to them in the C.M.C.Hospital. The claimants impleaded the driver, the conductor, the owner of the vehicles and the insurer as party respondents in the proceeding before the tribunal.

3. The driver pleaded in his return that there was no bus stop in the Goods Shed Road near St.Michael’s High School and that Kamalam got down from the running bus and lost her balance due to which she met with the accident which caused her death. The conductor and the owner of the Bus (appellant) adopted the said counter and thus maintained that Kamalam met with the accident entirely on account of her own fault and not on account of any rash or negligent act of the driver or the conductor.

.4. The insurer in a separate counter-affidavit alleged that the driver was plying the bus at a moderate speed from north to south along Goods Shed Road. The victim was one of the passengers travelling in the bus. When the bus approached the junction of the Goods Shed Road and Big Bazaar Street, the driver slowed down the vehicle. At this point of time, despite the warning given by the conductor, the victim jumped out of the bus. Since the bus was still moving, she fell down and sustained injuries, to which injuries, she succumbed later in the day. The insurer maintained that its maximum liability was Rs.5,000 only.

5. The tribunal, on a consideration of the evidence, both oral and documentary, found that the accident took place only on account of the rash and negligent act of the driver and conductor of the bus and that there was no contributory negligence on the part of the victim. It, however, held that the victim did not cease to be a passenger within the meaning of proviso (ii) to sub-sec.(i) of Sec.95 of the Motor Vehicles Act and so the liability of the insurer was restricted to Rs.5,000. The tribunal concluded that the claimants/respondents were entitled to a compensation of Rs.36,000 and awarded compensation accordingly with interest at 6% per annum from the date of the petition.

6. In the appeal against the Tribunal’s awarding compensation, the appellant maintained that it was the insurance company that had to pay the entire amount of compensation that had been awarded by the Tribunal and that the findings of the tribunal with regard to the negligence of the driver and the quantum of compensation were not proper and not sustainable.

7. Swamikkannu, J. who eventually heard the appeal, however, has held that the victim Kamalam was still a passenger within the meaning of Sec.95(2)(b) read with proviso (ii) to sub-sec.(1) thereof and thus the insurer’s liability was limited to the limits under the Act, that there was no force in the contention of the appellant in view of the evidence on