IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.136 of 2010 National Insurance Co. Ltd., Through Its Divisional Manager, Shanti Market, Gaya, P.O- Gaya, District- Gaya ( Insurer Of Bus No. BR-15P- 0342). (Opposite Party No.-1) ………….. Appellant Versus 1. Shatrughan Singh, S/O Late Mathura Singh, R/O Village- Bairka, P.S- Atri, District- Gaya (Applicant)……….. Respondent 2. Haridwar Singh, S/O Kuldeep Singh, R/O Mohalla- Gudar, Pandey Lane, P.S. And P.O - Buniyadganj, District- Gaya. ( Owner Of Bus No. BR-15P-0342). (Opposite Party No. 2)…………… Respondent 3. Ganga Devi, W/O Late Dhananjay Singh (Deceased) R/O Village - Bairka , P.S- Atri, District- Gaya. (Opposite Party No. 3)………….. Respondent 4. Sahodari Devi W/O Shatrughan Singh, (M/O Deceased), R/O Village- Baira, P.S - Atri, District- Gaya. (Opposite Party No. 4) ……………… Respondent ---------------------------------- 6 20.09.2011 Heard Sri Prakash Kumar, learned counsel for the appellant and Sri Kumar Dhirendra Pratap Singh, learned counsel appearing on behalf of Respondent Nos. 1 & 4. Despite valid service of notice other respondents have not appeared. 2. The present appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988; against the judgment dated 23.11.2009 and award dated 03.12.2009 passed by the learned Additional District Judge 3rd -cum-Motor Accident Claim Tribunal, Gaya (hereinafter referred to as the ‘Claim Tribunal’) in M.A.C. Case No. 15 of 2009/62 of 2002. By the said order, learned Claim Tribunal has directed the appellant i.e. insurer of the offending vehicle/the bus having registration no. BR-15P-0342 to pay remaining compensation amount of Rs. 1,29,500/-. During the trial, Rs. 50,000/- was already paid by the appellant to the claimant as 2 interim compensation under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘M.V. Act’). 3. Short fact of the case is that, on 07.07.2001, one Dhananjay Singh, son of Respondent No. 1, was traveling on a bus bearing registration no. BR-15P-0342, and when the bus at about 9.15 A.M. reached near High School Tetua, Village – Tetua, P.S. – Atri in the district of Gaya, it dashed with an another bus having registration no. BRB-1585, and subsequently, the bus on which the deceased was traveling turtled. In the said accident, number of passengers died who were traveling in the bus i.e. BR-15P-0342. Thereafter, an FIR vide Atri P.S. Case No. 83 of 2001 was registered on the same day against the driver of both the vehicles. In the said accident, Dhananjay Singh also died. Subsequently, claim petition was filed due to death of Dhananjay Singh by the claimants which was numbered as Motor Accident Claim Case No. 15 of 2009 / 62 of 2002, and finally, after hearing the parties and considering the evidence on record, the learned Claim Tribunal has directed the appellant to pay the compensation amount as indicated above. 4. Since in the present case the appellant has only prayed that the compensation amount was required to be equally paid by the insurers of both the vehicles, the court is of the opinion that no purpose would be served in discussing the merit and facts of the case in detail. 5. Sri Prakash Kumar, learned counsel for the appellant, has submitted that in the accident drivers of both the vehicles were 3 negligent and rash, and as such, in the FIR drivers of both the buses were made accused, and subsequently, during investigation also both the drivers were found responsible, and as such, charge sheet was submitted against the drivers of both the vehicles. It was submitted that since the drivers of both the vehicles were responsible in rash and negligent driving, the claimants were required to implead insurer of the another bus i.e. bus no. BRB- 1585. However, the claimants to the reasons best known to them have not impleaded them as party in the claim petition. Similarly, the learned Claim Tribunal has also not appreciated the fact that in such cases insurers of both the vehicles were required to pay compensation amount in equal share, but directed only the appellant to pay the same. 6. It was argued that it was a case of contributory liability, and as such, the learned Tribunal has committed serious error in directing the appellant of the present case to pay the entire compensation amount. 7. Sri Kumar Dhirendra Pratap Singh, learned counsel for the claimant has vigorously opposed the prayer of the appellant. It was submitted that it was not a case of contributory liability; but it was a case of composite negligence since there is no allegation or material on record to show that the deceased was in any way negligent or rash. The deceased was a simple passenger of the bus and in the occurrence it is true that initially two vehicles had dashed with each other but facts remain that it was the driver of the bus on 4 which the deceased was traveling mainly responsible for the accident. 8. Learned counsel for the Respondent has further argued that in case of composite negligence choice is on the claimant to claim compensation either jointly or severally. In support of his argument, learned counsel for the Respondent has referred to a judgment of the Hon’ble Apex Court reported in 2008(2) AIR SCW 2045 (T.O. Antony Vs Karvarnan & Ors.). He has specifically referred paragraph no. 6 of the judgment. For just decision in the matter it would be appropriate to quote paragraph no. 6, which is as follows: “6. „Composite negligence‟ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.” 5 9. In view of the law laid down by the Hon’ble Apex Court, there is no ambiguity that the present case was under the category of composite negligence, and accordingly, the claim cannot be doubted or faulted on the ground that why the claimants had preferred to file the claim case only against the present appellant who was insurer of the bus on which the deceased was traveling. In view of the ratio decided in T.O. Antony Case (Supra), the court is of the opinion that the impugned judgment and award on this ground may not be interfered with. 10. Learned counsel for the appellant has submitted that at least liberty may be granted to the appellant to take appropriate steps for realizing part of the compensation amount from the owner/insurer of the another bus i.e BRB-1585 which had collided with the present offending bus i.e. BR-15P-0342. There is no reason to refuse the prayer of learned counsel for the appellant. If so advised, the appellant may take appropriate steps against the owner/insurer of the bus bearing registration no. BRB-1585. At the same time, it is necessary to direct the appellant to pay the compensation amount in terms of the judgment and award of the learned Claim Tribunal within a period of two months from the date of receipt/production of a copy of this order. 11. With above observation and direction, the appeal stands dismissed. Praful ( Rakesh Kumar, J.)