Deepak Gupta, J.
1. This appeal under Section 173 of the Motor Vehicles Act is directed against the award of the Motor Accident Claims Tribunal, Solan in MAC Petition No. 24-S/2 of 2001, decided on 25.3.2001.
2. A short but interesting question arises for decision in this appeal. The question which arises is whether a person who is in the process of getting on to the vehicle should be termed as a passenger or a third party? The law is well settled that the Insurance Company cannot be held liable to pay compensation to the passengers being carried in a goods carriage. However, it is liable as far as third parly is concerned.
3. The facts necessary for decision of the case are that claimant Surinder Kumar filed a petition for grant of compensation under Section 166 of the Motor Vehicles Act. In this petition, it was alleged that on 20.2.2000, when he was in the process of boarding a truck No. HP-11-2000, the driver of the truck suddenly drove the truck without caring to see whether the petitioner boarded the truck or not. As result of the jerk, the petitioner fell down and his left arm was crushed.
4. In para 24 of the claim petition, it was averred as follows:..On the fateful date, the petitioner was standing by the side of the road and he had to take the lift in the truck. When the truck No. HP-11-2000 reached the petitioner on seeing the signal of the petitioner, the respondent No. 2 stopped the truck and when the petitioner was in the process of boarding the truck the respondent No. 2 drove the truck all of a sudden without caring to see that the petitioner had boarded the truck and had come inside the truck and due to jerk and negligent act and driving, the petitioner fell on the road and his left arm was crushed.... .
5. The owner and driver in their reply took the following defences:
9. That contents of para 10 as represented are wrong, hence denied, the petitioner has no concern with truck No. HP 11-2000, when the truck was going on uphill side, the petitioner without any notice etc. or without any right tried to climb running truck and in this process fell down. The petitioner had no business to board the truck. The petitioner has concocted a false story that when he was trying to board the truck, the same was driven all of sudden, the real facts are that he tried to climb up a running truck.
17...The petitioner was not seen by respondent No. 2 standing on the road, nor he gave any signal to the respondent No. 2 for the purpose of taking lift. The petitioner had no right to take lift in the truck, it is emphatically denied that on receiving signal respondent No. 2 stopped the truck and when the petitioner was in process of boarding the truck he drove the truck all of a sudden without caring to find out that whether the petitioner has boarded the truck order, as alleged. The real facts are that the truck was going uphill side, the petitioner without any notice of signal tried to board the truck, which was in running condition and in this process fell down. The accident has occurred due to negligence and fault of the petitioner. The petitioner cannot take benefit of his own wrong, the respondent No. 2 only came to know about the accident when heard noise, earlier he had not noticed the petitioner standing on the road or in process of running and trying to get on the truck.
6. The learned Tribunal on the basis of the evidence led before it came to the conclusion that the accident occurred due to the negligent driving of the truck driver and further held that the claimant-petitioner was entitled to Rs. 1,72,000/-. According to the Tribunal since the claimant-petitioner was a passenger in the vehicle in view of the judgment of the apex Court in New India Assurance Co. Ltd. v. Asha Rani and Ors. : AIR2003SC607 , the Insurance Company was not liable since the claimant admittedly a gratuitous passenger. This finding of the Tribunal has been challenged in this appeal and it is contended that the injured cannot be said to be a passenger.
7. I have heard Shri Harish Behal learned Counsel for the appellant. Shri C.B. Singh learned Counsel for the claimant-petitioner, Shri Ashwani Sharma, learned Counsel for the Oriental Insurance Company and Shri B.K. Malhotra, learned Counsel for the driver of the vehicle.
8. Mr. Harish Behal contends firstly that there is no negligence on the part of the driver of the truck. He further contends that admittedly the injured had not got on to the truck. According to him, the injured should have proved the fact that he had been allowed to hoard the truck by the driver of the truck. He submits that in the absence of any such evidence, it is apparent that no permission was granted to the injured to board the truck and therefore, he was not a passenger in the truck.
9. On the other hand Mr. C.B. Singh learned Counsel for the claimant contends that the accident occurred due to the negligence of the driver of the truck. As far as the Insurance Company is concerned. Shri Ashwani Sharma contends that since the claimant had admittedly boarded the truck and this could not have been done without the permission of the driver, he was a gratuitous passenger and hence the Insurance Company has rightly been exonerated.
10. To appreciate the rival contentions of the parties, it would be relevant to discuss some of the evidence led in this behalf. According to the claimant-petitioner he had gone to Darlaghat to look for some work and one Sanjay Sharma was with him. At Darlaghat Chowk, he gave a signal to truck No. HP 11-2000. The truck stopped. When he was just getting on to the truck, the truck driver started the truck. Sanjay Sharma was still out side the truck. In cross-examination, he has denied the suggestion that he tried to board the moving truck and therefore, the accident occurred. He has also stated that he had in fact placed his bag on the seat of the truck and was getting on to the truck. PW Sanjay Kumar has supported the claimant-petitioner. According to him when claimant Surinder Kumar was in the process of boarding the truck, the truck driver started the truck. In cross-examination, he has denied the suggestion that the claimant had not given any signal to the driver to stop the truck. He further volunteered that in fact the claimant had stepped on to the truck. The driver of the truck did not enter into the witness box.
11. Shri Harish Behal states that neither the claimant nor his witness Sanjeev Kumar has stated that the driver permitted the injured to climb on to the truck. He, therefore, contends that it cannot be presumed that the driver had permitted them to travel in the truck. According to Shri Behal, the claimant cannot be said to be a passenger in the truck. He at best was a third party. Merely the fact that he was trying to get on to the truck would not be sufficient to hold that he is a passenger. He, therefore, submits that the Insurance Company is liable. In support of its contention, Shri Behal has relied upon a number of decisions. However, it is not necessary to refer all these decisions which are from different High Courts, since the Apex Court in Noorjahan v. Sultan Rajia alias Thaju and Ors. : (1997)1SCC6 , in para I has held as follows:
6. It will be proper here to extract the relevant pail 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 be a policy which-
(a) xxx xxx xxx xxx
(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 to any 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) xxx xxx xxx xxx
(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) xxx xxx xxx xxx
The High Court rightly interpreted the proviso (ii) extracted above to mean that the liability in respect of death of 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 passeneers 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 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 or reward. But as in the present ease, 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.
7. It is clear that 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. 10,000/-.
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 of 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 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.'
12. The judgment of the apex Court has been delivered in the context of Section 95(1) of the Motor Vehicles Act, 1939 wherein the question was with regard to liability of the Insurance Company in respect of persons being carried in a bus for hire and reward and the legislature by a specific intendment included persons alighting or mounting in the class of passengers. However, a bare reading of the judgment of the apex Court makes it absolutely clear that if a person mounting or alighting from the vehicle had not been included specifically under the statute they would not have been covered in the definition of passenger. It is thus clear that persons mounting or alighting especially when there is lack of evidence to show that they were permitted to mount the vehicle by the owner or the driver or any other authorized person, would not be deemed to be a passenger.
13. In the present case, no doubt the driver has not stepped into the witness box. However, neither the claimant nor his witness has stated that the driver had permitted them to board the vehicle. According to the claimant as well as his witness, a signal was given to stop. The vehicle was stopped and when the claimant was getting on to the vehicle, the same was started resulting in the fall of the claimant. Not even a word has been stated that the driver had permitted the claimant to climb on the vehicle. Furthermore, the claimant was with his witness Sanjay Sharma. If both had to travel in the truck and the driver had permitted both to do so, then at least one of them would have been inside the truck and it would be the second person who would be getting on to the vehicle. Therefore, it appears that the driver had not consented to the claimant in boarding the truck. Hence, the claimant cannot be said to be a passenger in the truck. However, the act of the driver in starting the vehicle while the claimant was in the process of mounting the vehicle is definitely a negligent act.
14. In view of the above discussion, I hold that the deceased was not a passenger in a goods vehicle and was like a third party and therefore, the Insurance Company is liable to pay the amount. The appellant and respondents 1 and 2 are jointly and severally liable to pay the amount of compensation as assessed by the learned Tribunal. Since the vehicle was admittedly insured with the Oriental Insurance Company, it is held liable to pay the entire amount of compensation. The Insurance Company is directed to deposit the awarded amount in the Registry of this Court within 12 weeks from today.
The appeal is disposed of in the aforesaid terms. No orders as to costs.