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. 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 the tribunal on this issue which reads thus: “Qua the question of rashness and negligence, as attributed to opponent no.01 by claimants herein, opponent no.02 has averred in its written statement that the S.T. Bus never dashed with the motorcycle, rather the said S.T. Bus dashed with a buffalo and the alleged accident herein did not occur. When the said averments of opponent no.02 is kept in juxtaposition with the written statement of opponent no.01, it appears that both the opponents have averred a different version of the alleged accident. Perusal of written statement of opponent no.01 reveals that he had admitted to have driven the S.T. Bus on the fateful day and have also admitted the factum of collision of S.T. Bus with motorcycle, but the rashness and negligence for commission of said accident was attributed by opponent no.01 upon the driver of motorcycle, therefore, it can be conveniently Inferred that opponent no.01, who was an eye-witness to the accident, being the alleged tort-feasor to the said act has admitted the factum of the accident of S.T. Bus with motorcycle, but when the opponent no.01 steps into the witness, he takes a "U-turn" and starts deposing beyond his pleadings, which was in consonance with version of opponent no.02, as stated in its written statement that accident of S.T. Bus occurred with a buffalo due to which the side light of S.T. Bus broke and the alleged accident never occurred. It is a well settled law that the fact once admitted by one of the party to lis, party admitting the fact cannot be allowed to derail from the said admission and further, party cannot be permitted to depose beyond his pleadings. As opponent no.01 has admitted the factum of accident between S.T. Bus and motorcycle in his written statement, therefore, the subsequent stand taken by opponent no.01 qua the accident of S.T. Bus with buffalo and no accident of S.T. Bus with motorcycle cannot be considered by this Tribunal, as in considered view of this Tribunal the said Improvement made by opponent no.01 is purely misconceived and an after- thought to defeat the present petition, In-fact perusal of panchnama of S.T. Bus reveals that no blood marks or pieces of flesh of bovine origin was found to be sticking on the front portion of S.T. Bus. Further, a buffalo which generally weighs 600 Kgs. to 800 Kgs., if would have collided with the S.T. Bus then the said S.T. Bus would have surely sustained heavy damage, therefore, this Tribunal is of considered view that the conduct of opponent no.01 speaks for itself. Further, a buffalo which generally weighs 600 Kgs. to 800 Kgs., if would have collided with the S.T. Bus then the said S.T. Bus would have surely sustained heavy damage, therefore, this Tribunal is of considered view that the conduct of opponent no.01 speaks for itself. Further, perusal of statement of conductor of S.T. Bus, who was discharging her duties on the S.T. Bus at the time of accident at Exh.37 which was recorded by police in above-mentioned FIR makes the factum abundantly clear that opponent no.01 has initially attempted to come up with the version that the S.T. Bus collided with buffalo, but police after investigation have chargesheeted opponent no.01 for causing death of deceased in the accident arisen due to collision of S.T. Bus with motorcycle. Opponents have also tried to persuade the Tribunal with the factum that opponent no.01 has been acquitted in the criminal case, but mere acquittal of opponent no.01 in the criminal case arisen due to accident herein cannot be the sole ground to throw the petition of claimants in vein, as Tribunal is not bound by the observations made by the criminal court, same being following the principle of proving the case beyond the shadow of reasonable doubt, whereas, Tribunal has to consider the evidence under the umbrella of preponderance of probabilities. As it is an admitted fact on part of opponent no.01 that his self-driven S.T. Bus met with an accident with motorcycle, conduct of opponent no.01 post commission of accident herein is also of relevance here, as after the accident, opponent no.01 opted to flee from the said place. A man of ordinary prudence would have come to the rescue of the person who would have met with the accident, but opponent no.01 in a negligent manner kept on driving the S.T. Bus to and fro to depot, as if nothing happened. In given facts and peculiar circumstances discussed herein above, this Tribunal finds the present case to be a fit case to draw adverse inference against opponent no.01 qua his sole negligence in commission of offense in which deceased has lost his valuable life. Therefore, I decide Issue No.01 accordingly in affirmative and hold that driver of S.T. Bus bearing registration no.GJ-18-Y- 7708, i.e., opponent no.01 is exclusively liable for commission of accident herein while using the said motor vehicle, i.e., S.T. Bus. Therefore, I decide Issue No.01 accordingly in affirmative and hold that driver of S.T. Bus bearing registration no.GJ-18-Y- 7708, i.e., opponent no.01 is exclusively liable for commission of accident herein while using the said motor vehicle, i.e., S.T. Bus. Opponent no.02 was the Corporation and owner of said. vehicle on the date of accident, i.e., dated 27.11.2016, which is evident from copy of Registration Certificate of said S.T. Bus at Exh.39, therefore, claimants herein are entitled to get compensation amount from opponent nos.01 & 02, jointly and severally.” 8. The appeal of the ST Corporation is filed on two different grounds. The GSRTC has come out with the case that tribunal ought to have decided the inter se negligence of the driver of the motorcycle and ST Bus. Again what is discerned that the appeal is on different colour than the pleading filed by the GSRTC. The appeal is continuous proceedings and GSRTC cannot change the stand already taken and takes different ground. Be that as it may, undisputedly, the deceased was pillion rider and accident took place between the motorcycle and ST Bus. There are two wrong doers viz., the driver of the ST Bus and motorcycle; but the deceased has not contributed any negligence causing road accident to the driver of motorcycle and therefore even if the driver of the motorcycle is considered, the deceased who was pillion seated cannot be held vicariously liable for the contributory negligence of the driver of the motorcycle. The issue has been recently addressed by the Hon’ble Apex Court in case of Sushma Versus Nitin Ganapati Rangole [2024 (0) AIR(SC) 4627] wherein in paragraph 19 it has been observed as under: “19. It is clear from the ratio of the above judgment that the contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers so as to reduce the compensation awarded to the passengers or their legal heirs as the case may be.” 9. The terms negligence has been thoroughly discussed and explained by the Apex Court in case of T.O.Anthony Versus Karvarnan [ 2008 (3) SCC 748 ] wherein in paragraph 6 and 7 it has been observed as under: “6. 'Composite negligence' refers to the negligence on the part of two or more persons. The terms negligence has been thoroughly discussed and explained by the Apex Court in case of T.O.Anthony Versus Karvarnan [ 2008 (3) SCC 748 ] wherein in paragraph 6 and 7 it has been observed as under: “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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. 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 wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer 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 of 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. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.” 10. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.” 10. In Khenyei (supra), the Hon’ble Apex Court has put the issue to the rest by observing in paragraph 12 as under: “12. A Full Bench of Madhya Pradesh High Court in Smt. Sushila Bhadoriya & Ors. V. M.P. State Road Transport Corpn. & Anr. [ 2005 (1) MPLJ 372 ] has also laid down that in case of composite negligence, the liability is joint and several and it is open to implead the driver, owner and the insurer one of the vehicles to recover the whole amount from one of the joint tort feasors. As to apportionment also, it has been observed that both the vehicles will be jointly and severally liable to pay the compensation. Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two as it is difficult to determine the apportionment in the absence of the drivers of both the vehicles appearing in the witness box. Therefore, there cannot be apportionment of the claim between the joint tort feasors. The relevant portion of decision of Full Bench is extracted hereunder : "When injury is caused as a result of negligence of two joint tort-feasors, claimant is not required to lay his nger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the Court to distinguish the act of each joint tort-feasor, liability can be fastened on both the tort-feasors jointly and in case only one of the joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sucient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact nature of negligence by both the joint tort-feasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the compensation. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the compensation. On the same principle, in the case of joint tort- feasors where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There can not be apportionment of claim of each tort- feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim.” 11. In view of the above even if the driver of the motorcycle is found to be negligent in causing the road accident, the amount of compensation cannot be reduced to the extent of negligence of the driver of motorcycle which is receivable by the kith and kin of the deceased. 12. For the foregoing reasons, I do not find any merit and substance in the appeal. Accordingly, the appeal is dismissed upholding the impugned judgment and award passed by the tribunal. The entire amount lying with the tribunal or invested in the FDR be disbursed to the claimants as per final order passed by the tribunal. R & P be sent back.