S.B. Majage, J.
1. In this appeal, the N.E.K.R.T.C., appellant, has challenged the correctness of the judgment and award dated 12.4.2001 passed by the M.A.C.T. III at Bellary.
2. It was vehemently argued for the appellant that the Tribunal has committed an error in holding contributory negligence on the part of the driver of the appellant to the extent of 25 per cent when the evidence on record clearly establishes that the driver of the bus did not contribute to any extent for the accident and it was the driver of the lorry, who alone was responsible for the accident. It was further argued that at any rate, since the claimant-respondent No. 1 had kept his hand on the sill of the window, he could be held to have contributed for the accident and not the driver of the bus. On the other hand, for claimant-respondent No. 1, it was submitted that the claimant cannot be held responsible nor he could be said to have contributed for the accident, as held by this court in the decisions relied on by him in support of the impugned judgment and award. Similarly, the learned counsel for insurance company, respondent No. 3, supported the impugned award. Perused the records carefully.
3. The only point that arises for consideration is:
Whether the driver of the bus had contributed for the accident or not and, if not, whether the claimant had contributed for the accident or the driver of the lorry alone was responsible for the accident?
4. In the claim petition, it is the case of the claimant that the driver of the lorry alone was responsible for the accident. Nowhere he pleaded that the driver of the bus was also responsible or contributed for the accident. Of course, the insurance company had taken a stand that the driver of the bus was responsible for the accident and not the driver of the lorry. Be that as it may, no issue was framed regarding contributory negligence of the driver of the bus or of the claimant. That apart, owner and driver of the lorry could have been examined in the case to show that the driver of the lorry alone was not responsible for the accident. Added to that, the driver of the lorry has pleaded guilty in the criminal case filed against him for the accident in question and paid fine of Rs. 1,700 in C.C. No. 191 of 1998. It is also on record that it was the driver of the bus, who has lodged the complaint regarding the accident alleging that the driver of the lorry was responsible for the accident (and not he). Further, the parts at which the damage was found to the bus and lorry immediately after the accident makes it clear that it was the driver of the lorry who alone had caused the accident. In view of the above, learned counsel for the appellant tried to distinguish the Division Bench decisions of this court in the case of G.R. Shetty v. Unnikrishna Nair 1981 ACJ 293 (Karnataka) and in the case of Rama Bai v. H. Mukunda Kamath 1986 ACJ 561 (Karnataka).
5. It is true that in the said two decisions relied on for the claimant, this court has held that when a passenger, travelling in the bus sitting by the side of window, puts his hand on the sill of window and sustains injuries in an accident caused by another vehicle, the passenger cannot be said to have contributed for the accident and the responsibility will be only between the driver of the bus and driver of the other vehicle only. In order to find out whether the claimant could be said to have contributed for the accident, it requires to be noted 'what is meant by contributory negligence'? In the topic on negligence by Charlesworth and Percy in their book On Negligence, 7th Edn. it is observed thus:
As has been explained already in Chapter I, negligence ordinarily means breach of a legal duty to take care, but when used in the expression 'contributory negligence' it does not mean breach of any duty at all. It means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes, at least partially 'the author of his own wrong'.
The difference in the meaning of 'negligence', when applied to a plaintiff, on the one hand, and to a defendant, on the other, is pointed out by Lord Simon, where he said: 'When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued and all that is necessary to establish such a defence is to prove... that the injured party did not in his own interest take reasonable care of himself and has contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiffs claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full'.
6. That apart in the case of two vehicles grazing each other, the Supreme Court of British Columbia, Canada, has held as under in the case of Beaudry v. Kiess 1968 ACJ 34 (SC, Br. Columbia, Canada):
If as a result of two vehicles dashing against each other a third party sustains the accident, it will not be a case of contributory negligence, but, it would be a case of composite negligence.
7. Thus, it is well settled that in the case of two vehicles grazing each other, the question of contributory negligence of the claimant-injured travelling in the bus does not arise.
8. In the case of Manjula Devi Bhuta v. Manjusri Raha 1968 ACJ 1 (MP) Madhya Pradesh High Court has held thus:
Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as 'injury by composite negligence'.
9. Thus, where a person is injured without any negligence on his part but as a combined effect of the negligence of two other persons, it is not a case of contributory negligence but is a case of composite negligence. The question of contributory negligence would arise where the plaintiff by his own conduct also had contributed to the negligence. But, if the claimant is injured as a result of the negligence of two wrongdoers B and C, it is a case of composite negligence but not a case of contributory negligence. In composite negligence, wrongdoers are other than the injured or the deceased person and he does not contribute to the events leading to the accident which results in injuries or even death.
10. In view of the above and the Division Bench decisions of this court, the claimant cannot be said to have contributed for the accident in any manner.
11. So far as the driver of the bus is concerned, as noted already, the driver of the lorry, not only pleaded guilty but paid the fine as well. It is also the case of the driver of the bus that in spite of taking the bus towards left side, the lorry came at great speed, caused accident by coming from opposite direction. Further, as rightly pointed out by the learned counsel for the appellant, the parts at which both the vehicles were found damaged in the accident make it clear that the driver of the lorry alone was responsible for the accident and not the driver of the bus. In spite of taking the bus towards left side, the lorry came from opposite direction and caused accident. So, in the facts and circumstances, the driver of the bus cannot be held responsible even to the extent of 25 per cent. However, only on the ground that the driver was expected to see in the side mirror whether the passenger travelling in the bus has kept his hands on the sill of the window and expected to warn such passenger and as he has not warned the claimant, the bus driver was found at fault for the accident. So, having regard to the facts and circumstances of the case, besides material on record, the driver of the bus cannot be said to have contributed to the accident. In the above view, the appeal requires to be allowed.
12. In the result, the appeal is allowed setting aside the impugned judgment and award so far as they relate to fixing the liability of the appellant to the extent of 25 per cent holding that the owner, driver and insurer of the lorry only are answerable to the claim of the claimant concerned and held that insurance company has to pay the entire compensation to the claimant and not the appellant. Accordingly, impugned judgment and award stand modified.
In the circumstances, parties to bear their respective costs.