Uvaraja vs Parvathi Ammal and Others

Shanmukham, J.—The owner of the vehicle, who was the 1st Respondent in claim petition No. 347 of 1979 before the Motor Accident

Claims Tribunal, Cuddalore, is the Appellant in this appeal. Respondent Nos. 1 to 4 herein came forward with the said petition claiming

compensation at Rs. 50,000/- because of the deceased meeting with his death in the bus accident at about 3:40 p.m. on 1st July, 1979. The

Tribunal held that the Respondent Nos. 1 to 4 will normally be entitled to a compensation of Rs. 34,600/- but as it found that the deceased was

also responsible for the accident, fixed the quantum at Rs. 17,300/- (50% of Rs. 34,600/-). At the same time, the Tribunal limited the liability of

the insurance company the 5th Respondent herein in the sum of Rs. 5,000/- on its interpretation of Section 95(2)(b)(ii) and (4) of the Motor

Vehicles Act.

In this appeal, two points are taken by the learned Counsel for the Appellant. One is directed against the quantum that was fixed as

compensation payable to the claimants, while the other is that the Claims Tribunal erred in limiting the insurance company''s liability in the sum of

Rs. 5,000/-.

As regards the first contention, I am unable to find any error in the Claims Tribunal fixing the compensation at Rs. 34,600/-. The learned Judge

fixed the age of the deceased at 47 years on the basis of Exh. A3 and the expectancy of his life as 65 years. It also found that the deceased was

earning about Rsv 1,000/- as cashewnut commission merchant as is borne out from the payment of sales tax at Rs. 250/- per month. Besides,

there is the evidence of PW 1 in this connection. After allowing certain sums for his maintenance, the court found that he should be in a position to

spare Rs. 150/- per month. It is on that basis, the court below arrived at Rs. 32,400/-. As the 1st Respondent lost consortium of her husband, the

Claims Tribunal fixed the compensation at Rs. 5,400/-. Thus, I find the amount fixed by the court below is unassailable and is based on the

evidence before it. Thus, the first point fails.

As regards the second point, I must straightway point out that the facts are on all fours with those found in a decision rendered by a Division

Bench of this Court in CM. A. No. 558 of 1979 dated 28th July, 1981. In this case, the finding is that the deceased was about to get into the

moving bus, but then before he could get into the bus, he slipped down due to rush and ultimately got under the wheel and met with his death. It is

now relevant to notice the facts in the unreported case referred to above. The deceased was not a passenger in the bus and there was a scramble

between the persons who were waiting for the bus at the bus stand and it is at that scramble, the deceased fell down and was run over by the bus.

On the said facts, the Bench held:

Therefore, we can safely say that a person attempting to get into the bus but who did not succeed in getting entry into the bus, cannot be taken to

be a passenger in the bus.

If that is so, in the instant case, the deceased cannot be said to be a passenger in the bus. Unless the deceased was a passenger, the insurance

company cannot call to its aid Section 95(2)(b)(ii) and (4) of the Motor Vehicles Act. Then, the insurance company is alone liable to pay the entire

claim.

Accordingly, the appeal succeeds in part, in that the decree passed by the Claims Tribunal will be modified by directing the 5th Respondent

insurance company to pay the compensation and the decree passed against the Appellant is set aside. No order as to costs.

It is now brought to my notice that pending the appeal, the Appellant was directed to deposit Rs. 6,000/- and that after such deposit,

Respondent Nos. 1 to 4 had withdrawn the said sum of Rs. 6,000/-. Now that the Appellant has succeeded, he is bound to claim restitution. The

expedient way by which the Appellant can claim restitution is to direct the 5th Respondent insurance company to pay Rs. 6,000/- directly to the

Appellant and to deposit or pay the balance to Respondent Nos. 1 to 4 (claimants). If any money has been deposited by the insurance company,

pending the appeal, certainly, it is entitled to adjust the same.