JUDGMENT :

1. The appellants/original claimants, aggrieved by the judgment and award date 22.8.2017 passed by the Motor Accident Claims Tribunal, Nilanga in MACP N0. 7 of 2012, approaches this Court under section 173 of the Motor Vehicles Act.

2. Mr. Gastgar learned advocate appearing for the appellants submits that the present appeal is filed aggrieved by the assessment of the compensation made by the Tribunal. He would submit that the claimants had raised the claim for compensation of Rs.38,95,000/- under section 166 of Motor Vehicles Act before the Tribunal. However, the award is passed for Rs.6,12,000/- along with interest at the rate of 6% p/a. He would further submit that the deceased was running the hotel. His earning ought to have been considered at least Rs.6,000 per month on notional basis. He would further submit that nothing has been granted towards future prospects. The deceased was in age group of 32 to 35 years and his family was dependent on him. As such the award is grossly inadequate.

3. Mr. Kanade learned advocate appearing for the respondent No. 4 would submit that the Tribunal has rightly considered notional income of the deceased to the tune of Rs.3,000 p.m for want of income proof. He would submit that the accident took place in the year 2012. Therefore, the minimum wages as prescribed that time are considered as basis to determine the notional income. He would further submit that in absence of the evidence regarding income, addition towards future prospects would not be permissible. Therefore, he supports the award under challenge.

4. Respondent nos.2 and 3 though served, failed to cause appearance.

5. Heard the learned advocates appearing for the respective parties. With their able assistance record is perused.

6. Apparently, the deceased was travelling on motorcycle bearing registration no.MH-24/X-5679 as a pillion rider. Respondent no.3 Umesh @ Umakant was the owner/driver of the said motorcycle. It was dashed by the auto-rickshaw bearing registration no.MH-24/J-2058. The claimants have pleaded negligence against the rider of the motorcycle as well as driver of the auto-rickshaw. The Tribunal, on appreciation of evidence on record, concluded that the accident occurred due to fault on the part of both the drivers and their contribution in the cause of the accident is considered in the equal proportion. It appears that while passing the final Award, liability is fixed in equal proportion against respondent nos.1 and 2 at one hand respondent no.3 and 4 on the other hand. It is trite that in case of composite negligence, all the respondents are jointly and severally liable to pay the compensation. Although the Tribunal has apportioned the contribution of both the drivers in the cause of accident, liability ought to have been fixed by applying the principles of composite negligence. The Supreme Court of India in the matter of Khenyei Vs. New India Assurance Company Limited and others reported in (2015) 9 Supreme Court Cases 273 observed thus :-

“22. What emerges from the aforesaid discussion is as follows :

22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2 In the case of composite negligence, apportionment of compensation between two tortfeasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3 In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of