The driver and conductor of a motor vehicle have a duty of care towards passengers, even if they have not yet purchased a ticket. If a passenger is injured as a result of the negligence of the driver or conductor, the passenger is entitled to compensation.

R.D. Shukla, J.

1. The appeal is directed against the judgment and award dated 29.6.1991 of IVth Additional Claims Tribunal, Indore, passed in Claim Case No. 304/87, whereby while holding the claimant-respondent for contributory negligence an amount of Rs. 2,500/- has been awarded as compensation. This appeal has been filed for enhancement of the same.

2. The brief history of the ease is that on the date of accident i.e. on 5.11.1987 the claimant was trying to travel by Bus No. CIH 7865, respondent No. 2 was the driver of the vehicle. The bus started and went out of the Motor Stand, but it was stopped at the request of the claimant as he was without ticket and other co-passengers including his wife and children were trying to get the ticket in the Motor Stand. The bus was stopped. Thereafter while the applicant (appellant) was getting down, bus started immediately. The appellant fell down and sustained injury in his right leg. The right toe was also injured and damaged. He, thereafter, filed a claim petition for recovery of Rs. 37,135/-.

The non-applicants respondents denied the claim and pleaded that the claimant was wholly responsible for the injury he sustained as he was an unauthorised traveller and went out of the motor vehicle after it had started.

Learned Tribunal has held the claimant partially responsible for the accident and looking to the principle of contributory negligence has awarded Rs. 2,000/- as general damages and Rs. 500/- as expenses for treatment and special diets during treatment. This appeal has been filed by the claimant for enhancement.

3. The contention of the learned Counsel for the appellant is that it was the duty of the driver to have waited till the passenger get down and if the vehicle was started all of a sudden it will be deemed that the driver was negligent. It has further been submitted that the compensation is wholly on the lower side and the loss of pay and earning of the claimant has not been taken into consideration.

As against it learned Counsel for the respondent has submitted that the claimant was virtually a tresspasser and he got down after the vehicle had left the motor stand.

4. I have examined the evidence adduced by the claimant. No evidence has been adduced by the non-applicants-respondents. Claimant appearing as PW 2 has stated that he boarded the bus and asked his co-passengers to obtain ticket, but before other co-passengers could come and bring the ticket motor bus started and left the bus stand. Thereafter, he requested the conductor to stop the vehicle so that he may get down. The vehicle was stopped, but before the claimant could get down safely motor bus started. He, therefore, fail down and sustained injuries on the right medial ankle and it was bleeding profusedly. The size of injury was 5" x 1". This fact of injury has been proved by Dr. Solanki, P.W. 4.

5. Normally passengers are required to board in or board down the motor bus on the Motor Stand itself, but if a passenger boards in with an expectation that some other co-passenger will bring ticket and thereafter if the vehicle starts or moves and is stopped at his request for affording him an opportunity to get down, it would be the duty of the conductor and driver to see that the person so boarded gets down safely. It appears learned Tribunal has treated him to be a tresspasser. That is not the case, because every motor bus operator invites by keeping the bus in Motor Stand. Through an open invitation to the passenger to board in and in that situation if a person boards in the vehicle with an expectation of getting ticket through some other passenger he cannot be treated as trespasser. Thus, in the opinion of this Court the finding of the Tribunal that the claimant contributed to the accident appears to be erroneous and that cannot be accepted. This may not be out of place to mention it here that the respondent MPSRTC has not produced driver and conductor to rebute the contention of the claimant. This further goes