IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.555 of 2008 BRANCH MANAGER, NEW INDIA ASSURNCE COMPANY LTD. ADITYAPUR DIVISION OFFICE, MAIN ROAD, ANAND BHAWAN, ADITYAPUR, JAMSHEDPUR, REPRESENTED THROUGH SRI DIWAKAR BAG, DY. MANAGER, AND CONSTITUTED ATTORNEY OF THE NEW INDIA ASSURANCE COMPANY LTD. HAVING ITS REGIONAL OFFICE AT 6TH AND 7TH FLOOR, B.S.F.C. BUILDING FRAZER ROAD, P.S. – KOTWALI, DISTRICT – PATNA. Versus 1. LILAWATI DEVI, WIFE OF LATE SANTOSH KUMAR, RESIDENT OF VILLAGE GHARWASDIH, P.S. – KACHHAWAN, DISTRICT – ROHTAS, AT PRESENT RESIDING AT WEST MOHAN BIGHA, P.S. – DEHRI-ON-SONE, DISTRICT – ROHTAS. ……….. CLAIMANT ….. RESPONDENT IST PARTY. 2. SANTOSH KUMAR RAI, SON OF YUGAL KISHORE RAI, RESIDENT OF VILLAGE KATHRA, P.S. – CHARPOKHARI, DISTRICT – BHOJPUR, AT PRESENT RESIDING AT RAI MARKET, MAIN ROAD, ADITYAPUR, P.S. AND DISTRICT JAMSHEDPUR, JHARKHAND. OWNER OF THE BUS BEARING ITS REGISTRATION NO. BR- 16P/3002. 3. KASHI NATH SINGH, SON OF RAM BALASH SINGH, RESIDENT JAMUAON, P.S. – PIRO, DISTRICT – BHOJPUR. DRIVER OF THE BUS BEARING ITS REGISTRATION NO. BR 16P/3002. ….. OPPOSITE PARTY NO. 2 ……. RESPONDENT 2ND SET. ----------- For the Appellant :- Mr. Shailendra Kumar, Advocate. For the Respondent No. 1 :- Mr. Bajarangi Lal, Advocate. 11. 15.09.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 10th March, 2008 by which a compensation of Rs.7,72,812/- has been granted 6% interest per annum while the claim case was filed regarding the death of the husband aged 35 years with the monthly income of Rs.7,203/- per - 2 - month. The victim died by the vehicle accident bearing bus no. BR16 P 3002 and it is alleged that while the wife and children of the deceased were sitting on the seat of the bus and deceased was standing near the gate of the bus to see them off, in the mean time the Khalashi of the bus was unloading Kathal bags on the roof of the bus and in the mean time all of a sudden the driver of the aforesaid bus started driving the bus in a rash and negligent manner without blowing horn which resulted into fall of full bags of Kathal on the deceased one after another causing the death of the deceased on the spot and the matter has been adjudicated and after adjudication the compensation was granted. The learned counsel for the appellant contended that the deceased Santosh Kumar was not traveling on the bus and he was not even passenger and Section 165 of the Motor Vehicles Act provids that a person shall be liable to claim compensation if the accident took place to a person arising out of the use of the motor vehicle and hence contended that the accident was not by the dashing of the vehicle to the deceased and hence not come under the - 3 - definition of Section 165 arising out of the use of the Motor Vehicle. It has further been contended that the deceased himself was responsible for the accident and it comes within the ambit of composite negligence and hence the victim was also liable for the accidental death and has placed reliance upon decision reported in 2008 (3) SCC 748 as well as decision reported in 2008 (6) SCC 767. Learned counsel for the respondents further contended that it has well been established in evidence that the victim died out of the use of the vehicle due to fall of the Kathal from the roof of the bus when bags of Kathal was being loaded and driver drove the vehicle and no evidence that the victim has ever contributed and there was neither precaution taken to blow horn by driver of the bus before the bus started. On the respective submission of the parties the question for consideration whether the accident took place arising out of the use of the motor vehicle and whether the victim can be held liable for composite negligence. However, from the facts established in evidence or admitted that the victim was standing at the gate of the bus - 4 - and the driver started driving the bus without blowing any horn and as a result the Kathal in bags being loaded fell upon the deceased who was standing at the bus and hence it is apparent that the accident took place out of the use of the motor vehicle as the driver started the vehicle without a horn and in consequence the Khalasi who was loading Kathal was unaware of the driving the bus the bag of Kathal fell down on the deceased out of which the deceased died and hence apparently the occurrence took place as a consequence of driving of the bus hence it can well be inferred that the accident took place out of the use of the motor vehicle and hence there is no merit in the submission made by the appellant that the accident did not arise out of the use of the vehicle. The next question for consideration is about composite negligence of deceased. The appellant has relied upon decision reported in 2008(3) SCC 748 where a distinction has been drawn by the Supreme Court between the composite and contributory negligence, however, the facts of the case reported in 2008 (3) SCC 748 driver got injured by the head on collision of two buses and the - 5 - Tribunal granted compensation holding that it was a case of composite negligence of drivers of both the vehicles and deducted 50% for the fault of the driver of the vehicle as contributory negligence who was the claimant and in the facts and circumstances, the Supreme Court observed that in an accident involving two or more vehicles when a third party claims damage for the loss of injury, it is said that the compensation is payable in respect of composite negligence of drivers of those two vehicles but in respect of such an accident if the claim is by one of the drivers himself for personal use by the local bus of one of the driver for loss on account of his death or injury then the issue that arose is not of composite negligence of the drivers but about the contributory negligence of the driver concerned and further defined composite negligence as negligence on the part of two or more persons and when a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong doers and in such a case each wrong doer is jointly and severely liable to the injured for payment of the entire damage and the injured - 6 - person has the choice of proceeding against all or any of them for claim and in such a case the injured need not establish the responsibility of accident on each wrong doer separately. Hence, in view of the clear definition the composite negligence is applicable when there are two or more than two wrong doers and in case of composite negligence it is the choice of the victim to choose either. However, under the facts and circumstances of the case there is only one wrong doer the driver or the owner of the bus who is liable there, it is not a case of two or more wrong doers and there is no evidence about the negligence on the part of deceased and hence the principle of composite negligence does not apply. So far the contributory negligence is concerned for the contributory negligence, negligence of the deceased has to be established first and then the extent of the responsibility which has been contributed is to be established. However, there is no evidence to suggest that the victim was negligent or had contributed to the negligence and merely became deceased was standing near the bus is no evidence of negligence and - 7 - the only evidence has come as he was standing near the gate of the bus to see off his wife and children when the vehicle moved in a rash and negligent manner that the Kathal which was being loaded fell down and hence the claimant cannot be held guilty for contributory negligence and hence I do not find any merit in this appeal. Hence, the appeal is dismissed. There is limitation in filing of the appeal. The limitation is condoned for the reasons mentioned in the petition itself. The learned counsel for the appellant, however, contended that Rs.25,000/- has been paid at the time of filing of the appeal and hence may be sent down to the lower court for realizing the amount. Kundan (Gopal Prasad, J.)