National Insurance Co. Ltd. Vs. Asha Lata Rout and ors.

Decided On : Oct-01-1993

Court : Orissa

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Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
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			'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. The insurer is the appellant challenging the award of the Second Motor Accidents Claims Tribunal granting compensation to the tune of Rs. 75,000/- on the ground that the deceased being a passenger of the vehicle in question, the liability of the insurer is only Rs. 15,000 as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939.</p><p style="text-align: justify;">2. The claimants' case before the Tribunal was that on the date of the accident on 6.8.1987, deceased Maheswar Rout was travelling in the bus bearing registration No. OBC 595 and when the bus dashed against the level crossing and became immobile, seeing an approaching train, the deceased got down and had run away to a distance of fifty feet when the train collided with the bus and the bus overturned and capsized and fell on the deceased as a result of which the deceased died. The claimants had also stated that the deceased was a helper under the Orissa State Electricity Board and was drawing Rs. 1,300/- per month and at the relevant time the age of superannuation of the employee in question was 60 years. The Tribunal on consideration of the materials placed before it came to the conclusion that the driver of the vehicle was grossly negligent and rash. Further, the Tribunal came to the conclusion that the deceased had already got down from the bus and had covered some distance whereupon the train having collided with the bus, the bus got capsized and the deceased came under the bus and ultimately died. So far as the quantum of compensation is concerned, the Tribunal having found that the monthly dependency was Rs. 500/- and applying a multiplier of 15 arrived at a compensation to the tune of Rs. 90,000/- and from that again deducting Rs. 15,000/- as lump sum payment is being made, passed an award to the extent of Rs. 75,000/-. It is against this award the insurer has filed this appeal and claimants have also filed cross-objection.</p><p style="text-align: justify;">3. So far as the appeal is concerned, Mr. M. Sinha for the appellant raises two contentions to assail the award in question:</p><p style="text-align: justify;">(i) The finding of the Tribunal that the deceased had already got down from the bus and then the bus capsized and he died is wholly unbelievable, as the circumstances indicate that no time had, in fact, been left for any of the passengers to get down.</p><p style="text-align: justify;">(ii) Even assuming that the deceased had got down, but he would continue to be a passenger of the bus until the destination of the bus has reached and, therefore, the limited liability of Rs. 15,000/- could have been fastened on the insurer.</p><p style="text-align: justify;">4. So far as the first contention of Mr. Sinha is concerned, though such a stand is taken, yet no evidence has been led to establish that the deceased had got down from the bus in question. On the other hand, relying upon the evidence led by the claimants and on scrutiny of the same, the Tribunal has come to the finding that the deceased had already got down from the bus and, therefore, was no longer a passenger of the bus. Mr. Sinha in the course of his arguments wanted to draw my attention to the F.I.R. which is alleged to have been lodged by the level crossing gatekeeper, but the said gatekeeper has not been examined and, therefore, the F.I.R. is of no assistance and cannot be looked into for any purpose whatsoever. That apart, the gatekeeper might not have noticed the fact as to whether any of the passengers had got down from the bus or not. When on positive evidence led by the claimants, the Tribunal has recorded a finding that the deceased had got down from the bus and thereafter the train collided with the bus and the bus capsized and fell on the deceased and there being absence of any contrary evidence, it is difficult for me to interfere with the said conclusion of the Tribunal. In fact, there is not an iota of material on record to take a different view from the view taken by the Tribunal on this score. Mr. Sinha's first contention, therefore, must be rejected.</p><p style="text-align: justify;">5. So far as the second contention is concerned, the entire argument is based on the limited liability of the insurer in respect of passengers to the extent of Rs. 15,000/-as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act. The word 'passenger' has not been defined in the Act. The common meaning of a passenger is one who takes a journey in a public service vehicle from one place to the other. The expression 'public service vehicle' has, however, been defined in Section 2(25) of the Act to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward. Therefore, a passenger would mean a person who takes a journey in a motor vehicle by paying some fare for his movement. The question that arises for consideration is whether a person will continue to be a passenger even though he has alighted from the vehicle seeing some impending danger. The answer to this question must be in the negative. The expression 'passenger' must mean a person moving in the vehicle by making some payment, but the moment he gets down from the vehicle, he cannot be held to be a passenger particularly in the circumstances indicated in a case where apprehending danger to his life, he gets down from the bus and tries to run away from the impending danger, Mr. Sinha, in the course of his arguments, relies upon two decisions in Commissioner, Jamnagar Municipal Corporation, Jamnagar v. Vijay-kumar Bhagwanji 1990 ACJ 712 (Gujarat) and Makbool Ahmed v. Bhura Lal 1986 ACJ 219 (Rajasthan), in support of his stand. But in those cases this point had not arisen for consideration and what arose for consideration was whether a person who is trying to board a bus can be held to be a passenger. The aforesaid two decisions are of no assistance for coming to the conclusion whether the deceased would be held to be a passenger notwithstanding the fact that he got down from the bus and had moved to some distance, but yet met the fateful death because of bus having capsized on account of collision between the bus and the train. In the facts and circumstances of the present case, as found by the Tribunal, I have no hesitation to come to the conclusion that the deceased no longer remained a passenger so that the insurer can claim a limited liability as contained in Section 95(2)(b)(ii) of the Motor Vehicles Act. The deceased must be held to be a third party and, therefore, the liability of the insurer is unlimited as provided in the policy of insurance which was produced before me. I, therefore, do not find any substance in the arguments of Mr. Sinha that the liability of the insurer would be limited to the extent of Rs. 15,000/-.</p><p style="text-align: justify;">6. Coming to the cross-objection filed by the claimants, admittedly the deceased was 38 years old and was serving as a khalasi under the Orissa State Electricity Board. The age of superannuation being 60 years, he had still 22 years of service. Even accepting the finding of the Tribunal that the monthly dependency was to the extent of Rs. 500/-, the annual dependency would work out at Rs. 6,000/- and, therefore, in 22 years, he would have given to the family Rs. 1,32,000. The award of Rs. 75,000/-, therefore, must be held to be grossly low. In my considered opinion, the just compensation would be Rs. 1,32,000/-. Since the Tribunal has awarded Rs. 75,000/-, the same is enhanced by Rs. 57,000/- (Rupees fifty-seven thousand). The enhanced amount of compensation is also to carry interest at the rate of six per cent per annum from the date of the application till the same is paid.</p><p style="text-align: justify;">7. In the net result, therefore, the appeal is dismissed and the cross-objection is allowed to the extent indicated above. There will be no further order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
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		'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. The insurer is the appellant challenging the award of the Second Motor Accidents Claims Tribunal granting compensation to the tune of Rs. 75,000/- on the ground that the deceased being a passenger of the vehicle in question, the liability of the insurer is only Rs. 15,000 as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939.</p><p style="text-align: justify;">2. The claimants' case before the Tribunal was that on the date of the accident on 6.8.1987, deceased Maheswar Rout was travelling in the bus bearing registration No. OBC 595 and when the bus dashed against the level crossing and became immobile, seeing an approaching train, the deceased got down and had run away to a distance of fifty feet when the train collided with the bus and the bus overturned and capsized and fell on the deceased as a result of which the deceased died. The claimants had also stated that the deceased was a helper under the Orissa State Electricity Board and was drawing Rs. 1,300/- per month and at the relevant time the age of superannuation of the employee in question was 60 years. The Tribunal on consideration of the materials placed before it came to the conclusion that the driver of the vehicle was grossly negligent and rash. Further, the Tribunal came to the conclusion that the deceased had already got down from the bus and had covered some distance whereupon the train having collided with the bus, the bus got capsized and the deceased came under the bus and ultimately died. So far as the quantum of compensation is concerned, the Tribunal having found that the monthly dependency was Rs. 500/- and applying a multiplier of 15 arrived at a compensation to the tune of Rs. 90,000/- and from that again deducting Rs. 15,000/- as lump sum payment is being made, passed an award to the extent of Rs. 75,000/-. It is against this award the insurer has filed this appeal and claimants have also filed cross-objection.</p><p style="text-align: justify;">3. So far as the appeal is concerned, Mr. M. Sinha for the appellant raises two contentions to assail the award in question:</p><p style="text-align: justify;">(i) The finding of the Tribunal that the deceased had already got down from the bus and then the bus capsized and he died is wholly unbelievable, as the circumstances indicate that no time had, in fact, been left for any of the passengers to get down.</p><p style="text-align: justify;">(ii) Even assuming that the deceased had got down, but he would continue to be a passenger of the bus until the destination of the bus has reached and, therefore, the limited liability of Rs. 15,000/- could have been fastened on the insurer.</p><p style="text-align: justify;">4. So far as the first contention of Mr. Sinha is concerned, though such a stand is taken, yet no evidence has been led to establish that the deceased had got down from the bus in question. On the other hand, relying upon the evidence led by the claimants and on scrutiny of the same, the Tribunal has come to the finding that the deceased had already got down from the bus and, therefore, was no longer a passenger of the bus. Mr. Sinha in the course of his arguments wanted to draw my attention to the F.I.R. which is alleged to have been lodged by the level crossing gatekeeper, but the said gatekeeper has not been examined and, therefore, the F.I.R. is of no assistance and cannot be looked into for any purpose whatsoever. That apart, the gatekeeper might not have noticed the fact as to whether any of the passengers had got down from the bus or not. When on positive evidence led by the claimants, the Tribunal has recorded a finding that the deceased had got down from the bus and thereafter the train collided with the bus and the bus capsized and fell on the deceased and there being absence of any contrary evidence, it is difficult for me to interfere with the said conclusion of the Tribunal. In fact, there is not an iota of material on record to take a different view from the view taken by the Tribunal on this score. Mr. Sinha's first contention, therefore, must be rejected.</p><p style="text-align: justify;">5. So far as the second contention is concerned, the entire argument is based on the limited liability of the insurer in respect of passengers to the extent of Rs. 15,000/-as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act. The word 'passenger' has not been defined in the Act. The common meaning of a passenger is one who takes a journey in a public service vehicle from one place to the other. The expression 'public service vehicle' has, however, been defined in Section 2(25) of the Act to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward. Therefore, a passenger would mean a person who takes a journey in a motor vehicle by paying some fare for his movement. The question that arises for consideration is whether a person will continue to be a passenger even though he has alighted from the vehicle seeing some impending danger. The answer to this question must be in the negative. The expression 'passenger' must mean a person moving in the vehicle by making some payment, but the moment he gets down from the vehicle, he cannot be held to be a passenger particularly in the circumstances indicated in a case where apprehending danger to his life, he gets down from the bus and tries to run away from the impending danger, Mr. Sinha, in the course of his arguments, relies upon two decisions in Commissioner, Jamnagar Municipal Corporation, Jamnagar v. Vijay-kumar Bhagwanji 1990 ACJ 712 (Gujarat) and Makbool Ahmed v. Bhura Lal 1986 ACJ 219 (Rajasthan), in support of his stand. But in those cases this point had not arisen for consideration and what arose for consideration was whether a person who is trying to board a bus can be held to be a passenger. The aforesaid two decisions are of no assistance for coming to the conclusion whether the deceased would be held to be a passenger notwithstanding the fact that he got down from the bus and had moved to some distance, but yet met the fateful death because of bus having capsized on account of collision between the bus and the train. In the facts and circumstances of the present case, as found by the Tribunal, I have no hesitation to come to the conclusion that the deceased no longer remained a passenger so that the insurer can claim a limited liability as contained in Section 95(2)(b)(ii) of the Motor Vehicles Act. The deceased must be held to be a third party and, therefore, the liability of the insurer is unlimited as provided in the policy of insurance which was produced before me. I, therefore, do not find any substance in the arguments of Mr. Sinha that the liability of the insurer would be limited to the extent of Rs. 15,000/-.</p><p style="text-align: justify;">6. Coming to the cross-objection filed by the claimants, admittedly the deceased was 38 years old and was serving as a khalasi under the Orissa State Electricity Board. The age of superannuation being 60 years, he had still 22 years of service. Even accepting the finding of the Tribunal that the monthly dependency was to the extent of Rs. 500/-, the annual dependency would work out at Rs. 6,000/- and, therefore, in 22 years, he would have given to the family Rs. 1,32,000. The award of Rs. 75,000/-, therefore, must be held to be grossly low. In my considered opinion, the just compensation would be Rs. 1,32,000/-. Since the Tribunal has awarded Rs. 75,000/-, the same is enhanced by Rs. 57,000/- (Rupees fifty-seven thousand). The enhanced amount of compensation is also to carry interest at the rate of six per cent per annum from the date of the application till the same is paid.</p><p style="text-align: justify;">7. In the net result, therefore, the appeal is dismissed and the cross-objection is allowed to the extent indicated above. There will be no further order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'Judgement' => array(
			'id' => '535290',
			'acts' => '',
			'appealno' => 'M.A. No. 19 of 1991',
			'appellant' => 'National Insurance Co. Ltd.',
			'authreffered' => '',
			'casename' => 'National Insurance Co. Ltd. Vs. Asha Lata Rout and ors.',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
',
			'caseanalysis' => null,
			'casesref' => '(Gujarat) and Makbool Ahmed v. Bhura Lal;',
			'citingcases' => '',
			'counselplain' => 'M. Sinha, Adv.',
			'counseldef' => 'R.N. Mohanty, Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1993-10-01',
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			'judge' => 'G.B. Patnaik, J.',
			'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. The insurer is the appellant challenging the award of the Second Motor Accidents Claims Tribunal granting compensation to the tune of Rs. 75,000/- on the ground that the deceased being a passenger of the vehicle in question, the liability of the insurer is only Rs. 15,000 as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939.</p><p style="text-align: justify;">2. The claimants' case before the Tribunal was that on the date of the accident on 6.8.1987, deceased Maheswar Rout was travelling in the bus bearing registration No. OBC 595 and when the bus dashed against the level crossing and became immobile, seeing an approaching train, the deceased got down and had run away to a distance of fifty feet when the train collided with the bus and the bus overturned and capsized and fell on the deceased as a result of which the deceased died. The claimants had also stated that the deceased was a helper under the Orissa State Electricity Board and was drawing Rs. 1,300/- per month and at the relevant time the age of superannuation of the employee in question was 60 years. The Tribunal on consideration of the materials placed before it came to the conclusion that the driver of the vehicle was grossly negligent and rash. Further, the Tribunal came to the conclusion that the deceased had already got down from the bus and had covered some distance whereupon the train having collided with the bus, the bus got capsized and the deceased came under the bus and ultimately died. So far as the quantum of compensation is concerned, the Tribunal having found that the monthly dependency was Rs. 500/- and applying a multiplier of 15 arrived at a compensation to the tune of Rs. 90,000/- and from that again deducting Rs. 15,000/- as lump sum payment is being made, passed an award to the extent of Rs. 75,000/-. It is against this award the insurer has filed this appeal and claimants have also filed cross-objection.</p><p style="text-align: justify;">3. So far as the appeal is concerned, Mr. M. Sinha for the appellant raises two contentions to assail the award in question:</p><p style="text-align: justify;">(i) The finding of the Tribunal that the deceased had already got down from the bus and then the bus capsized and he died is wholly unbelievable, as the circumstances indicate that no time had, in fact, been left for any of the passengers to get down.</p><p style="text-align: justify;">(ii) Even assuming that the deceased had got down, but he would continue to be a passenger of the bus until the destination of the bus has reached and, therefore, the limited liability of Rs. 15,000/- could have been fastened on the insurer.</p><p style="text-align: justify;">4. So far as the first contention of Mr. Sinha is concerned, though such a stand is taken, yet no evidence has been led to establish that the deceased had got down from the bus in question. On the other hand, relying upon the evidence led by the claimants and on scrutiny of the same, the Tribunal has come to the finding that the deceased had already got down from the bus and, therefore, was no longer a passenger of the bus. Mr. Sinha in the course of his arguments wanted to draw my attention to the F.I.R. which is alleged to have been lodged by the level crossing gatekeeper, but the said gatekeeper has not been examined and, therefore, the F.I.R. is of no assistance and cannot be looked into for any purpose whatsoever. That apart, the gatekeeper might not have noticed the fact as to whether any of the passengers had got down from the bus or not. When on positive evidence led by the claimants, the Tribunal has recorded a finding that the deceased had got down from the bus and thereafter the train collided with the bus and the bus capsized and fell on the deceased and there being absence of any contrary evidence, it is difficult for me to interfere with the said conclusion of the Tribunal. In fact, there is not an iota of material on record to take a different view from the view taken by the Tribunal on this score. Mr. Sinha's first contention, therefore, must be rejected.</p><p style="text-align: justify;">5. So far as the second contention is concerned, the entire argument is based on the limited liability of the insurer in respect of passengers to the extent of Rs. 15,000/-as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act. The word 'passenger' has not been defined in the Act. The common meaning of a passenger is one who takes a journey in a public service vehicle from one place to the other. The expression 'public service vehicle' has, however, been defined in Section 2(25) of the Act to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward. Therefore, a passenger would mean a person who takes a journey in a motor vehicle by paying some fare for his movement. The question that arises for consideration is whether a person will continue to be a passenger even though he has alighted from the vehicle seeing some impending danger. The answer to this question must be in the negative. The expression 'passenger' must mean a person moving in the vehicle by making some payment, but the moment he gets down from the vehicle, he cannot be held to be a passenger particularly in the circumstances indicated in a case where apprehending danger to his life, he gets down from the bus and tries to run away from the impending danger, Mr. Sinha, in the course of his arguments, relies upon two decisions in Commissioner, Jamnagar Municipal Corporation, Jamnagar v. Vijay-kumar Bhagwanji 1990 ACJ 712 (Gujarat) and Makbool Ahmed v. Bhura Lal 1986 ACJ 219 (Rajasthan), in support of his stand. But in those cases this point had not arisen for consideration and what arose for consideration was whether a person who is trying to board a bus can be held to be a passenger. The aforesaid two decisions are of no assistance for coming to the conclusion whether the deceased would be held to be a passenger notwithstanding the fact that he got down from the bus and had moved to some distance, but yet met the fateful death because of bus having capsized on account of collision between the bus and the train. In the facts and circumstances of the present case, as found by the Tribunal, I have no hesitation to come to the conclusion that the deceased no longer remained a passenger so that the insurer can claim a limited liability as contained in Section 95(2)(b)(ii) of the Motor Vehicles Act. The deceased must be held to be a third party and, therefore, the liability of the insurer is unlimited as provided in the policy of insurance which was produced before me. I, therefore, do not find any substance in the arguments of Mr. Sinha that the liability of the insurer would be limited to the extent of Rs. 15,000/-.</p><p style="text-align: justify;">6. Coming to the cross-objection filed by the claimants, admittedly the deceased was 38 years old and was serving as a khalasi under the Orissa State Electricity Board. The age of superannuation being 60 years, he had still 22 years of service. Even accepting the finding of the Tribunal that the monthly dependency was to the extent of Rs. 500/-, the annual dependency would work out at Rs. 6,000/- and, therefore, in 22 years, he would have given to the family Rs. 1,32,000. The award of Rs. 75,000/-, therefore, must be held to be grossly low. In my considered opinion, the just compensation would be Rs. 1,32,000/-. Since the Tribunal has awarded Rs. 75,000/-, the same is enhanced by Rs. 57,000/- (Rupees fifty-seven thousand). The enhanced amount of compensation is also to carry interest at the rate of six per cent per annum from the date of the application till the same is paid.</p><p style="text-align: justify;">7. In the net result, therefore, the appeal is dismissed and the cross-objection is allowed to the extent indicated above. There will be no further order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'National Insurance Co. Ltd. Vs. Asha Lata Rout and ors.',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
',
		'caseanalysis' => null,
		'casesref' => '(Gujarat) and Makbool Ahmed v. Bhura Lal;',
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		'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. The insurer is the appellant challenging the award of the Second Motor Accidents Claims Tribunal granting compensation to the tune of Rs. 75,000/- on the ground that the deceased being a passenger of the vehicle in question, the liability of the insurer is only Rs. 15,000 as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939.</p><p style="text-align: justify;">2. The claimants' case before the Tribunal was that on the date of the accident on 6.8.1987, deceased Maheswar Rout was travelling in the bus bearing registration No. OBC 595 and when the bus dashed against the level crossing and became immobile, seeing an approaching train, the deceased got down and had run away to a distance of fifty feet when the train collided with the bus and the bus overturned and capsized and fell on the deceased as a result of which the deceased died. The claimants had also stated that the deceased was a helper under the Orissa State Electricity Board and was drawing Rs. 1,300/- per month and at the relevant time the age of superannuation of the employee in question was 60 years. The Tribunal on consideration of the materials placed before it came to the conclusion that the driver of the vehicle was grossly negligent and rash. Further, the Tribunal came to the conclusion that the deceased had already got down from the bus and had covered some distance whereupon the train having collided with the bus, the bus got capsized and the deceased came under the bus and ultimately died. So far as the quantum of compensation is concerned, the Tribunal having found that the monthly dependency was Rs. 500/- and applying a multiplier of 15 arrived at a compensation to the tune of Rs. 90,000/- and from that again deducting Rs. 15,000/- as lump sum payment is being made, passed an award to the extent of Rs. 75,000/-. It is against this award the insurer has filed this appeal and claimants have also filed cross-objection.</p><p style="text-align: justify;">3. So far as the appeal is concerned, Mr. M. Sinha for the appellant raises two contentions to assail the award in question:</p><p style="text-align: justify;">(i) The finding of the Tribunal that the deceased had already got down from the bus and then the bus capsized and he died is wholly unbelievable, as the circumstances indicate that no time had, in fact, been left for any of the passengers to get down.</p><p style="text-align: justify;">(ii) Even assuming that the deceased had got down, but he would continue to be a passenger of the bus until the destination of the bus has reached and, therefore, the limited liability of Rs. 15,000/- could have been fastened on the insurer.</p><p style="text-align: justify;">4. So far as the first contention of Mr. Sinha is concerned, though such a stand is taken, yet no evidence has been led to establish that the deceased had got down from the bus in question. On the other hand, relying upon the evidence led by the claimants and on scrutiny of the same, the Tribunal has come to the finding that the deceased had already got down from the bus and, therefore, was no longer a passenger of the bus. Mr. Sinha in the course of his arguments wanted to draw my attention to the F.I.R. which is alleged to have been lodged by the level crossing gatekeeper, but the said gatekeeper has not been examined and, therefore, the F.I.R. is of no assistance and cannot be looked into for any purpose whatsoever. That apart, the gatekeeper might not have noticed the fact as to whether any of the passengers had got down from the bus or not. When on positive evidence led by the claimants, the Tribunal has recorded a finding that the deceased had got down from the bus and thereafter the train collided with the bus and the bus capsized and fell on the deceased and there being absence of any contrary evidence, it is difficult for me to interfere with the said conclusion of the Tribunal. In fact, there is not an iota of material on record to take a different view from the view taken by the Tribunal on this score. Mr. Sinha's first contention, therefore, must be rejected.</p><p style="text-align: justify;">5. So far as the second contention is concerned, the entire argument is based on the limited liability of the insurer in respect of passengers to the extent of Rs. 15,000/-as provided in Section 95(2)(b)(ii) of the Motor Vehicles Act. The word 'passenger' has not been defined in the Act. The common meaning of a passenger is one who takes a journey in a public service vehicle from one place to the other. The expression 'public service vehicle' has, however, been defined in Section 2(25) of the Act to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward. Therefore, a passenger would mean a person who takes a journey in a motor vehicle by paying some fare for his movement. The question that arises for consideration is whether a person will continue to be a passenger even though he has alighted from the vehicle seeing some impending danger. The answer to this question must be in the negative. The expression 'passenger' must mean a person moving in the vehicle by making some payment, but the moment he gets down from the vehicle, he cannot be held to be a passenger particularly in the circumstances indicated in a case where apprehending danger to his life, he gets down from the bus and tries to run away from the impending danger, Mr. Sinha, in the course of his arguments, relies upon two decisions in Commissioner, Jamnagar Municipal Corporation, Jamnagar v. Vijay-kumar Bhagwanji 1990 ACJ 712 (Gujarat) and Makbool Ahmed v. Bhura Lal 1986 ACJ 219 (Rajasthan), in support of his stand. But in those cases this point had not arisen for consideration and what arose for consideration was whether a person who is trying to board a bus can be held to be a passenger. The aforesaid two decisions are of no assistance for coming to the conclusion whether the deceased would be held to be a passenger notwithstanding the fact that he got down from the bus and had moved to some distance, but yet met the fateful death because of bus having capsized on account of collision between the bus and the train. In the facts and circumstances of the present case, as found by the Tribunal, I have no hesitation to come to the conclusion that the deceased no longer remained a passenger so that the insurer can claim a limited liability as contained in Section 95(2)(b)(ii) of the Motor Vehicles Act. The deceased must be held to be a third party and, therefore, the liability of the insurer is unlimited as provided in the policy of insurance which was produced before me. I, therefore, do not find any substance in the arguments of Mr. Sinha that the liability of the insurer would be limited to the extent of Rs. 15,000/-.</p><p style="text-align: justify;">6. Coming to the cross-objection filed by the claimants, admittedly the deceased was 38 years old and was serving as a khalasi under the Orissa State Electricity Board. The age of superannuation being 60 years, he had still 22 years of service. Even accepting the finding of the Tribunal that the monthly dependency was to the extent of Rs. 500/-, the annual dependency would work out at Rs. 6,000/- and, therefore, in 22 years, he would have given to the family Rs. 1,32,000. The award of Rs. 75,000/-, therefore, must be held to be grossly low. In my considered opinion, the just compensation would be Rs. 1,32,000/-. Since the Tribunal has awarded Rs. 75,000/-, the same is enhanced by Rs. 57,000/- (Rupees fifty-seven thousand). The enhanced amount of compensation is also to carry interest at the rate of six per cent per annum from the date of the application till the same is paid.</p><p style="text-align: justify;">7. In the net result, therefore, the appeal is dismissed and the cross-objection is allowed to the extent indicated above. There will be no further order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 2(25

PERSON: G.B. Patnaik, J.1, Maheswar Rout, M. Sinha, Sinha, Sinha, Sinha, Sinha, Jamnagar, Makbool Ahmed, Bhura Lal, Rajasthan, Sinha

EVENT: the Second Motor Accidents Claims Tribunal

CARDINAL: 15,000, 1939.2, 6.8.1987, 595, 500/-, 15, 15,000/-, two, one, two, 712, two, 15,000/-.6, 1,32,000, fifty-seven

ORG: the Motor Vehicles Act, Tribunal, the Orissa State Electricity Board, Tribunal, Tribunal, Tribunal, Tribunal, Tribunal, Tribunal, Tribunal, the Motor Vehicles Act, Jamnagar Municipal Corporation, Tribunal, the Motor Vehicles Act, the Orissa State Electricity Board, Tribunal, Tribunal

QUANTITY: fifty feet

DATE: 1,300/- per month, 60 years, monthly, 1990, 1986, 38 years old, 60 years, 22 years, monthly, 22 years

GPE: question:(i, F.I.R., F.I.R.

ORDINAL: first, first, second, third

NORP: Bhagwanji, Gujarat

PRODUCT: 219

MONEY: six per cent