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PETITIONER: TMT. NOORJAHAN.

       Vs.

RESPONDENT: TMT. SULTAN RAJIA ALIAS THAJU & OTHERS.

DATE OF JUDGMENT:       05/11/1996

BENCH: S.C. SEN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Ahmadi, CJI      Special leave granted.      Syed Abu  Thakir on  3.8.1982 suffered  injuries  while alighting from  the bus  belonging to the appellant and died on the way to the hospital. The respondent No.1 is the widow and the respondent No.2, the minor son of the deceased while the respondents  3 & 4 are his father & mother respectively. The respondent No.5 was the insurer of the vehicle while the respondent No.6  was the  driver of  the bus at the relevant time. The  respondents 1 to 4 filed a claim for compensation against the  appellant and  the respondents  5  and  6.  The District Judge,  Madurai, acting  as a  Tribunal  under  the Motor Vehicles  Act, 1939,  hereinafter  called  ’the  Act’, awarded compensation  of Rs.92,000/- and held that since the deceased was  a "passenger"  at the time of the accident the liability  of   the  Insurance   Company  was   limited   to Rs.10,000/- only.  The appellant  filed an appeal contending that the  Insurance Company  was liable  to pay  the  entire compensation. The  respondents 1  to 4 also filed an appeal. The High  Court dismissed  both the a also Hence this appeal by special leave.      The sole  question that  arises  for  consideration  is whether the  victim was  a "passenger" within the meaning of Section  95(2)(b)(ii)  of  the  Act.  The  findings  of  the District Judge,  Madurai and that of the High Court are that the victim  fell down from the bus while alighting therefrom due to  the rash and negligent act of the driver in starting the bus before he had got down. Both the Courts rejected the plea of contributory negligence on the part of the deceased. The quantum  of  compensation,  i.e.,  Rs.92,000/-,  is  not chalIenged before us.      The plea  of the Insurance Company is that the deceased was a  passenger in  the bus and therefore its liability was limited to  Rs.10,000/- as  per the provisions of Section 95 of the  Act. The  plea of the appellant on the other hand is that the  victim/deceased was  a ’third party’ and hence the Insurance Company was liable to meet the entire claim.      The High Court, after examining the provisions and case law on  the subject, observed that there was a divergence of

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opinion on  the question  whether  in  a  situation  as  the present one, the deceased could be said  to be a ’passenger’ in the bus. Examining the provisions of Section 95(1) of the Act, the  High Court observed that the liability arising out of an  event   leading  to  injury  or  death  of  a  person alighting  from   a  bus,   as  in  the  present  case,  was necessarily to  be   covered by  the insurance  policy,  the victims of  such accidents  were  passengers  for  whom  the liability of  the Insurance Company at the relevant time was limited to only Rs.10,000/-.      It will  be proper here to extract the relevant part of Section 95(1) of the Act :      "95. Requirements  of policies  and      limits  of  liability.  --  (1)  In      order   to    comply    with    the      requirements  of  this  Chapter,  a      policy  of   insurance  must  he  a      policy which -       (a)  ...    ...   ...       (b) insures the person or classes           of persons specified in the           policy to the extent specified           in sub-section (2) -      (i) against any liability which may      be incurred by him in respect of      the death of or bodily injury to      any  person or damage to any      property of  a third party caused      by or arising  out of the use of      the vehicle in a  public place;      (ii) against the death of or bodily      injury toany  passenger of a public      service  vehicle   caused   by   or      arising  out  of  the  use  of  the      vehicle in a public place,      Provided that a policy shall not be      required       (i)  ...   ...   ...      (ii) except  where the vehicle is a      vehicle  in  which  passengers  are      carried for  hire or  reward or  by      reason of  or  in  pursuance  of  a      contract of  employment,  to  cover      liability in  respect of  the death      of  or  bodily  injury  to  persons      being  carried   in  or   upon   or      entering or  mounting or  alighting      from the vehicle at the time of the      occurrence  of  the  event  out  of      which a claim arises, or      (iii) ...  ...    ..."..      The High Court rightly interpreted the proviso (ii) extracted above  to mean  that the  liability in  respect of death or injury to persons alighting from the vehicle at the time of  the accident  need not  be covered except where the vehicle is a vehicle in which the passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.  In other  words,  where  the  vehicle  is  a vehicle in  which the  passengers are  carried for  hire  or reward or  by  reason  of  or  pursuant  to  a  contract  of employment, giving  rise to  the above liability arising out of an  accident, the  vehicle has necessarily to be covered. It can  be seen  that the proviso is an exception to Section 95(1). As  per sub-section  (b) the  insurance  policy  must insure the  persons specified  in the policy against (i) any

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liability to  person or  property of a third party, and (ii) against death  or personal  injury to  any  passenger  of  a public service  vehicle. The  liability in  respect of those suffering personal  injury while  getting into  or alighting from the  vehicle need  not be covered if the vehicle is not one in which the passengers are carried for hire reward. But as in  the present  case, the  vehicle is  one that  carries passengers for  hire or  reward, the  liability for personal injury or  death caused while getting into or alighting from the vehicle  would be  required to be covered by the policy. In other words, such people who suffer injury or die while alighting from the vehicle are to be covered by the  general rule that  the insurance policy for a public service vehicle should cover  the liability  against the  death of or bodily injury to any passenger of such a vehicle.      It is clear that the legislature intended that such persons, viz., passengers who are in the process of alighting from a public service vehicle, should be covered by the policy of insurance, which requirement is mandatory under Section 95(1)(b)(ii) of the Act. Further, once such persons, viz., those who are entering or alighting from the vehicle are treated as passengers, the limit of liability of the insurance company has to be located in clause (ii) of Section 95(2)(b) of the Act. The limit at the relevant time was Rs.1O,OOO/-.      The High Court has referred to a few decisions of the very same court wherein contradictory views have been expressed.  We do  not consider it necessary to restate those cases  because in our view the language of the statute is clear.  Section 95(1)(b)  makes it clear that a policy of insurance shall  not  be  required  to  cover  liability  in respect of  death or  bodily injury  to persons  boarding or alighting from  a motor  vehicle  but  clause  (ii)  of  the proviso thereto  engrafts an  exception and  says that where the vehicle  is one in which passengers are carried for hire or reward  or by  reason of or in pursuance of a contract of employment, it  shall be  necessary to  cover  liability  in relation to  persons carried  in or  upon such vehicle which would include  cases of  death or bodily injury caused while entering or  mounting or  alighting from  such vehicle.  The words ’alighting  from the vehicle’ are plain and simple and clearly  mean   ’while  getting   down  from  the  vehicle’. Therefore, if  a person  is still in the process of boarding or alighting  from  the  vehicle,  such  person    would  be entitled to  the coverage,  no doubt  within  the  limit  of liability fixed  under the  statute at the relevant point of time. It  must be  remembered that  this  was  a  beneficial provision engrafted  by way  of an  exception to  provide an insurance cover to passengers.      It is interesting to observe that in the new Motor Vehicles Act, 1988, the proviso on which our interpretation rests has been omitted. For our purpose, since the accident took place in 1982, the old Act has to be applied. The appellant, being the owner of the  bus is vicariously liable for the acts of the driver, the respondent No.6 and is liable for the compensation for the death of Syed Abu Thakir. The insurer, the  respondent No.5, is liable only to the extent of Rs.10,000/-. The appeals are accordingly dismissed. No  costs.