VERMA, J. - (1.) - This miscellaneous appeal has been filed under Section 110-D of the Motor Vehicles Act, 1939, ('the Act' hereinafter ). The case of respondent Jagdish Prasad is that on 16. 9. 1983 at about 10. 00 a. m. he tried to board the mini-bus RNB 242 on the Jhotwara Road. The driver of the bus gave a race and started the bus, with the result that Jagdish Prasad was thrown down resulting in serious injuries to his person. The bus was owned by Mumtazuddin and the driver of the bus was Kuldeep Singh. The case of the respondent was that due to rash and negligent driving of Kuldeep Singh, the accident took place causing serious injuries to the respondent.
(2.) RESPONDENT Jagdish Prasad filed a claim before the Motor Accident Claims Tribunal, Jaipur, for a sum of Rs. 96,625/ -. It was alleged that the bus was insured by New India Insurance Co. Ltd. , Sansar Chandra Road, Jaipur. It appears that the claim was resisted by New India Assurance Company Ltd. Owner Mumtazuddin appeared but did not file any reply. Driver Kuldeep Singh was dropped by the respondent-claimant before the learned Claims Tribunal. The sole ground of contest on behalf of the Insurance Company was that the petitioner was a passenger and the liability of the Insurance Company was limited to a sum of Rs. 5000/- in accordance with the terms of the Insurance contract which was in accordance with the provisions of Section 95 (2) (b) (ii) (4) of the Motor Vehicles Act. The learned Judge of the Claims Tribunal framed due issue on this aspect and on the basis of the evidence adduced before him, he arrived at a conclusion that since ticket had not been issued to the claimant-respondent, he could not be treated as a passenger of the bus. In this connection, he placed reliance on Ram Swaroop and Others vs. Balbir Singh and Others (l ). Thus, the learned Judge of the Claims Tribunal did not agree with the Insurance Company that respondent-claimant was a passenger of the bus. It, therefore, passed an award for a sum of Rs. 90,000/-payable by Mumtazuddin and New India Assurance Company. However, it added that the liability of the Insurance Company was confined to a sum of Rs. 50,000/- and interest thereupon. The remaining sum of Rs. 40,000/- was held to be payable by the owner alone. Aggrieved, Insurance Company has filed this appeal. Shri S. C. Srivastava, appearing on behalf of the Insurance Company, has urged that the learned Judge of the Claims Tribunal erred in holding that the claimant-respondent was not a passenger in the bus. It is urged that when the claimant-respondent has boarded the bus, he became the passenger even though no ticket had been purchased by him, because it was a public bus and, as such, the liability of the Insurance Company was restricted only to a sum of Rs. 5000/ -.
(3.) LEARNED counsel for claimant-respondent supports the award passed by the learned Judge of the Claims Tribunal and submits that the learned Judge of the Claims Tribunal was right in holding that claimant-respondent was not a passenger and was a third party. It may be stated that Driver Kuldeep Singh and owner Mumtazuddin could not be served in the usual manner and substituted service was effected upon them and they have not cared to put in appearance, and the appeal has been heard in their absence. The short question is whether in facts and circumstances of the case claimant-respondent was a passenger in the mini-bus, or not. ;