Heard Mr. S Dutta, learned senior counsel for the appellant. Also heard Mr. BK Purkayastha and RK Bhatra, learned counsel appearing for respondent No.3. None appeared for respondent Nos.1 and 2.

2. This appeal under Section 173 of the Motor Vehicle Act, 1988, has been filed challenging the judgment and award dated 21.01.2011 passed by learned Member, Motor Accident Claims Tribunal in MAC Case No.70/2009.

3. The undisputed facts which may be relevant for disposal of this appeal are that one Kamal Pawe died in a vehicular accident involving a truck and a motor cycle bearing registration Nos.AS-07-4817 and AS-07-5593 respectively. The offending vehicles were insured with the appellant and respondent No.3, respectively. The Legal representative of the deceased approached the MACT, Lakhimpur and the learned Tribunal after holding an enquiry and on appreciation of evidence, passed an award of Rs.3,13,500/-. The learned tribunal held, that the deceased also contributed to the accident and liability on the part of the deceased and other offending vehicle has been apportioned at 75%:25%.

4. Learned senior counsel Mr. Dutta submits that by drawing an inference from the mere fact that