IMPORTANT POINT
Passengers are not vicariously liable for a driver's negligence; compensation cannot be reduced based on the driver's fault in a composite negligence scenario.

JUDGMENT :

Being aggrieved and dissatisfied with the judgment and award dated 17-10-2022 passed by the M.A.C.T. (Aux.) cum 5th Addl. Dist. And Sessions Judge, Bharuch in M.A.C.P. No. 496 of 2016, the appellant – GSRTC has preferred this appeal under Section 173 of the MV Act.

2. The short facts of the case are that on the said fateful day, the deceased was sitting as pillion rider on a motorcycle bearing registration No.GJ-16-BD-3276 (in short “Motorcycle”) driven at a moderate speed by his friend Rohan, and while they were going from Kondh to G.I.D.C., Anleshwar, for their job, at that time, opponent no.01 herein, while driving S.T. Bus bearing registration no.GJ-18-Y-7708 (in short “S.T. Bus”) at a very high speed, in a rash and negligent manner, came on the wrong side and also lost control over the steering of said S.T. Bus, due to which the said S.T. Bus dashed with the motorcycle resulting into sustaining of serious injuries by deceased along with the driver of motorcycle, followed with their death.

3. Thereafter, the claim petition was filed by the claimants seeking compensation of Rs.25,00,000/- from the opponents and the tribunal concerned after full-fledged trial and considering the oral and documentary evidence has passed award holding the opponents no.1 and 2 jointly and severally liable and to pay a sum of Rs.15,26,345/- with simple interest @ 9% from the date of filing of the petition till its realization.

4. Heard learned advocates appearing for the respective parties.

5. Learned Advocate Mr.Karia for the appellant – GSRTC would argue that accident took place between the motorcycle bearing No.GJ-16- BD-3276 which was driven by one Mr.Rohan while he was going from Kondh to GIDC for the job and he dashed with the ST Bus by the driver of the ST Bus bearing Registration No.GJ-18-Y-7708. He would further submit that deceased was pillion driver and the tribunal was expected to decide the issue of inter se negligence between the driver of motorcycle as well as the driver of ST Bus and in turn the ST Bus may recover the amount of compensation from the driver of motorcycle. He would submit that the amount which is paid for negligence of the driver of motorcycle and thus the tribunal has committed serious error. By making this submissions, he would submit to allow this appeal.

6. On the other hand learned Advocate Mr.Bhalodi appearing for the opponent would submit that deceased was pillion seated in the motorcycle and therefore issue of negligence would be composite negligence for the kith and kin of the deceased and they have election and choice that from which wrong doer to seek the compensation. He would submit that in the present case, the kith and kin of the deceased have chosen to file the claim petition under Section 166 of the MV Act against the driver of the ST Bus and GSRTC and since the driver of motorcycle and owner / insured is not joined in the matter, the question of deciding inter se negligence would not come in fray for a decision. He would submit that issue has been rest to put in case of Khenyei Versus New India Assurance Company Limited [2015 (9) SCC 273].

6.1 By making above submissions, he would submit to dismiss this appeal.

7. I have heard the learned advocates appearing for respective parties and examined the R & P. On perusal of the written statement filed before the tribunal by the GSRTC, it appears that the contradictory stand has been taken by the driver of the GSRTC. The driver of the ST Bus has admitted the road accident of bus having dashed with the motorcycle. However, GSRTC has taken different view and pleaded that the ST Bus dashed with the buffalo; but never dashed with the motorcycle. The driver of the ST Bus entered into the witness box and speak differently like written statement filed by the GSRTC and gave deposition in contrast to the written statement. It is settled law that evidence in contrast of pleading cannot be admitted and believed. At this juncture, let me refer to the finding of t