H.K.K. Singh, J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is against the judgment and award dated 31.12.1994 passed by the Presiding Officer, Motor Accidents Claims Tribunal, Manipur in M.A.C. Case No. 8 of 1989 thereby awarding a sum of Rs. 1,20,000 with interest at the rate of 12 per cent per annum as compensation to the mother of the deceased P. Vakham who died in a motor accident on 20.10.1988 due to rash and negligent driving of the truck bearing No. MNS 5633.
2. Mr. R.M. Nath, the learned counsel for the appellant insurance company with which the vehicle was insured, has challenged the award passed by the learned Presiding Officer, Motor Accidents Claims Tribunal, Manipur only on the point of liability. According to Mr. Nath the vehicle was a truck bearing No. MNS 5633 and the same was insured with the appellant insurance company for carriage of goods and the deceased was a gratuitous passenger who happened to meet with his death due to accident of the vehicle and as such as per contract of insurance, the insurance company is not liable to pay any compensation for the death of a passenger travelling in a goods carrier vehicle. On the other hand, the learned counsel for the claimant has submitted that the deceased was not a passenger but he was a third party and as such the insurance company is liable to pay the compensation. The deceased P. Vakham died due to rash and negligent driving of the vehicle. In course of the hearing learned counsel has taken me to the judgment of learned Presiding Officer of the Motor Accidents Claims Tribunal and also the evidence, oral and documentary led before the Tribunal.
3. As noted above, there is no challenge on the question of compensation but the challenge is only on the question of liability of the insurance company and as such I am not going to enter into the quantum of compensation as awarded by the learned Presiding Officer of the Tribunal. The only question to be decided is whether the insurance company is liable to pay the compensation under the contract of insurance entered into between the owner of the vehicle and the insurance company.
4. Coming to the facts, as pleaded in the claim petition dated 21.2.1989 which was presented before the Motor Accidents Claims Tribunal, Manipur, it is averred in the claim petition that on 20.10.1988 at about 1.30 p.m. deceased P. Vakham along with some of his friends and relatives left his residence at Phalung Shimtang Village for Ukhrul which is about 4/5 miles from his village. When they had reached Tolloi Lamkhai near the Piggery Farm, a Tata truck bearing No. MNS 5633 which was reserved for carrying sand by one P. Pam-sang came up near the Piggery Farm and the driver of the truck and P. Pamsang who were also travelling in the truck offered to give a lift to the deceased P. Vakham up to Ukhrul. It is also averred that deceased P. Vakham was a contractor/supplier of sand and he was acquainted with the driver and the aforesaid P. Pamsang. But as soon as deceased P. Vakham tried to get inside the said vehicle through the side outlet of the driver, but before he could get inside the said truck, the driver knowingly and with bad intention rashly and negligently drove the said truck at full speed. As a result, P. Vakham fell down from the said truck on the road and he was run over by the rear wheel of the said truck. P. Vakham sustained bleeding injuries on his person and he was immediately rushed to the District Hospital, Ukhrul where he was declared dead at about 8 p.m. of that day. In connection with the said accident a police case being F.I.R. Case No. 98 (10) of 1988 of Ukhrul Police Station was lodged and investigated into. The appellant insurance company in its written statement filed before the Tribunal pleaded that the concerned vehicle is/was not insured with United India Insurance Co. Ltd. Thus the appellant was not a necessary party.
5. At the time of hearing, the Presiding Officer of the Tribunal framed as many as four issues and after appreciation of the evidence on record passed the award as noted above. P. Pamsang who was travelling in the said truck sitting near the driver testified before the Tribunal that while the vehicle was coming loaded with sand from Lamlong Gate, deceased P. Vakham was found standing on the road near a Piggery Farm at Tolloi Lamkhai. He (P. Vakham) raised his hand and shouted to stop the vehicle saying that he would like to go to Ukhrul. Thus, the driver stopped the truck and told the deceased P. Vakham to get into the back of the truck. But the driver started to drive the truck without ascertaining whether P. Vakham had got into the truck or not. The witness heard alarm raised by P. Vakham. Thereafter the vehicle was stopped and the witness found the said P. Vakham lying with bleeding injuries on the road just behind the right rear wheels of the truck. The other witnesses are not much relevant as regards the actual occurrence. All of them are formal witnesses like police officer who investigated the police case, the doctor who conducted the post-mortem examination. No witness has been produced for and on behalf of the driver, owner or insurer. Thus, from the evidence available on records the learned Presiding Officer of the Tribunal came to the finding that the driver did not care to see whether P. Vakham had got into the truck safely or not and the driver failed to exercise the normal care and diligence which an ordinarily cautious driver in similar circumstances could have acted. Thus, the learned Presiding Officer of the Tribunal concluded that the accident took place due to rash and negligent driving of the truck by the driver.
6. It is not disputed that the vehicle is a truck used for carrying of goods and it was insured with the insurance company as a goods carrier. Now, we are to see whether the deceased was a passenger travelling in the goods carrier. If so, whether the insurance company is liable to pay compensation or whether the deceased was a third party.
7. Mr. R.M. Nath, the learned counsel for the appellant relying upon a decision of the Apex Court in the case of Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), submitted that insurer is not liable for the death of owner of goods carried in goods vehicle as goods vehicles cannot be considered as passenger vehicle on basis of stray use for carrying passengers. In this decision, the Hon'ble Supreme Court was considering the liability of the insurance company as per Section 95 of the Motor Vehicles Act, 1939. At para 13 of the judgment, the Hon'ble Apex Court also held that Motor Vehicles Act, 1939 has been replaced by 1988 Act and Section 147 which corresponds to old Section 95 has been substantially altered. Thus, in respect of any case arising after the commencement of the Motor Vehicles Act, 1988, the liability will be determined as per the provisions contained in 1988 Act.
8. In the case of Noorjahan v. Sultan Rajia 1997 ACJ 1 (SC), the Hon'ble Supreme Court held that 'alighting from the vehicle 'mean' while getting down from the vehicle'. Thus if a person is still in the process of boarding or alighting from the vehicle, such person would be entitled to get compensation under the insurance coverage but as a passenger. Here it may be mentioned that the Hon'ble Supreme Court has held that the proviso appended to Section 95(1)(b)(ii) has been omitted in the new Motor Vehicles Act, 1988. Thus, in our present case, the liability has to be ascertained from the provision of Section 147 of the Motor Vehicles Act, 1988.
9. From the evidence as discussed above, it is clear that the vehicle is a truck for carrying of goods and in fact on the date of accident also the truck was carrying sand. When the deceased wanted to get into the truck, the driver stopped the vehicle but before the deceased could enter into the truck the vehicle started again. Thus, the deceased could not board in the vehicle. The learned counsel for the appellant also cited decision of the Orissa High Court in the case of United India Insurance Co. Ltd. v. Susila Panigrahy 1994 ACJ 853 (Orissa), wherein it was held that a person merely making attempt to get into the vehicle but before he could actually board, the vehicle hit him as a result of which he fell down, sustained injuries and died, cannot be construed as a passenger. In the case of Prakash Anand Pednekar v. Sitabi K. Gawas 1996 ACJ 991 (Bombay), it was also held that when a deceased fell down while trying to make entry in crowded bus, cannot be termed as passenger though he only wanted to be a passenger. Thus, in the present case the deceased only wanted to become a passenger and due to rash and negligent act of the driver, the deceased could not become a passenger of the truck. Thus, considering the materials on record and also the relevant provisions of law as alluded in the decisions, I am of the view that the deceased was not a passenger and hence the appellant is liable to pay the entire amount of compensation.
10. For the aforesaid reasons, the appeal stands dismissed. Send down the case record to the Tribunal along with a copy of the judgment.