JUDGMENT

Shrikant D. Kulkarni, J. - Feeling aggrieved and dissatisfied by the impugned judgment and award passed in M.A.C.P. No. 518 of 2001 by the Member, Motor Accidents Claims Tribunal at Jalgaon, the appellant / New India Assurance Company Limited has preferred this appeal by taking aid of Section 173 of the Motor Vehicles Act, 1988.

2. On 10.06.2001 at about 10.00 a.m., Dangalrao along with his wife Mangalabai (since deceased) were proceeding to Parola on a motorcycle No. MH-19/K-2141. One truck no. MP-23/DA-3105 came from opposite direction driven a rash and negligent manner and gave dash to the motorcycle driven by Dangalrao. Dangalrao and his wife Mangalabai sustained serious injuries in the accident and died due to serious injuries.

3. Children and mother-in-law of late Mangalabai had filed claim petition for compensation before the Motor Accidents Claims Tribunal at Jalgaon and sought compensation of Rs.4,00,000/-under Section 166 of the Motor Vehicles Act, 1988.

4. The Member, M.A.C.T. after considering the facts and evidence on record was pleased to allow the claim partly and directed the owner / respondent no.1 and The New India Assurance Company Ltd. / respondent no.2 to pay jointly and severally a sum of Rs.3,17,935/- with interest thereon at the rate of 9% per annum from the date of institution of claim as compensation inclusive of NFL amount.

5. The appellant / The New India Assurance Company Ltd. has challenged the impugned judgment and award mainly on two grounds; (i) it is a case of composite negligence and the tribunal has not considered this aspect, (ii) apportionment of compensation, proportionate to extent of negligence of each of the joint tortfeasors, not made. The multiplayer applied in this case as 17 is incorrect having regard to the age of the deceased in the age group of 31 to 35.

6. Heard Mr. M.R. Deshmukh, learned counsel for the appellant / The New India Assurance Company Ltd. Respondent nos. 1 to 4 though duly served, remained absent. The claim petition stands dismissed against respondent no.5 / owner of the vehicle in view of the order passed by the Registrar (Judicial) of this Court dated 21.10.2008.

7. Mr. M.R. Deshmukh, learned counsel for the appellant vehemently submitted that the husband of the deceased was driving the motorcycle. The deceased Mangalabai (wife) was on the pillion seat. Both of them died in the accident occurred on 10.06.2001 on National Highway no.6 in the area of Musli shivar. He submitted that it was a head collusion between motorcycle and turck. The accident took place on the center of the road. The husband of the deceased was equally responsible for the accident. He was driving his motorcycle in a rash and negligent manner resulting into an accident. It is a case of composite negligence and the tribunal has not considered the aspect of composite negligence. The tribunal has not determined the apportionment of compensation proportionate to the extent of tortfeasors. The findings recorded by the tribunal are defective in the eye of law.

8. Mr. M.R. Deshmukh, learned counsel for the appellant has placed his reliance on following citations in support of his argument.

(i) Khenyei Vs. New India Assurance Company Limited and others reported in (2015) 4 SCC (Civil) 532.

(ii) T.O. Anthony Vs. Karvarnan and others reported in (2008) 3 SCC (Cri.) 738.

(iii) Rambhau S/o Awadut Gawai and others Vs. Shivlal S/o shankarlal Belsare and others reported in 2021(2) Mh.L.J. 637.

(iv) Anita W/o Arun Memane Vs. Maharashtra State Road Transport Corporation, Ahmednagar and others reported in 2021 (2) Mh.L.J. 396

9. Mr. Deshmukh, further pointed out that the age of the deceased was 32 years as per postmortem report. As per the decision in Sarla Vermas case reported in (2009) 6 SCC 121, the multiplayer of 16 ought to have been applied while calculating the compensation. The tribunal has applied the multiplayer of 17, which is incorrect and the same needs to be corrected at the hands of the appellate cou