K.P. Jyothindranath, J.

This appeal is filed by the Oriental Insurance Company Ltd. aggrieved by the award dated 10.5.2012 in O.P.(MV).No.783 of 2003 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The appellant was the fifth respondent before the Tribunal.

2. The facts, relevant for consideration of this appeal, are as follows:-

A motor vehicle accident occurred on 17.11.2002 at about 3.30 a.m. on Indira Gandhi Road in Wellington Island. The vehicles involved are a Maruthi Car bearing Reg.No.KL-07-M-8701 and a Tipper lorry bearing Reg.No.KL-23-9068. In the said accident, the driver of the car as well as the passenger therein sustained fatal injuries and succumbed to the same. The wife and children of deceased Govind G. Nair who was the passenger therein filed O.P. (MV).No.783 of 2003 before the Tribunal. The claimants arrayed the driver, owner and insurer of the lorry as well as the owner and insurer of the car as the respondents therein. The Tribunal passed an award for a total sum of Rs. 16,82,000/- and it was directed to deposit the amount by the fifth respondent, insurance company. Aggrieved by the said award, this appeal is filed by the fifth respondent-insurance company.

3. When the appeal came up for hearing, Adv. Sri. Mathew Jacob, the learned senior counsel appearing for the appellant insurance company made the following submissions:-

The driver, owner and insurer of the lorry as well as the owner and insurer of the Maruthi car were arrayed as respondents in the claim petition. It is also submitted that, from the opening paragraph of the impugned award, it can be seen that the case of the claimants was that the accident was the result of rash and negligent driving of the second respondent. But, without considering the said aspect, the award was passed. It is also the submission that as per paragraph 9 of the award, the Tribunal appears to have come to a conclusion that it is a case of composite negligence. Paragraph 9 of the award is as follows:-

"From the above discussion it is clear that R1 to R3 and R4 and R5 are jointly and severally liable for the compensation. Therefore the insurer of Maruthi car has to deposit 50% each of the compensation within 30 days from the date of receipt of the award."

Thus, there is a clear cut finding to the effect that all the respondents are jointly and severally liable followed by a specific direction to the insurer of the Maruthi car to deposit only 50% of the award. Contrary to the said finding, in the operative portion, a direction is given to deposit the whole amount by the appellant-insurance company. It is also the submission of the learned senior counsel that, even though the Tribunal found that the income of the deceased is Rs. 12,000/- per month, no amount is seen deducted towards income tax. The submission is that even though Rs. 12,000/- was his actual income, the income available for carrying home will be only the amount available after deducting the income tax. It is also submitted before us that the accident occurred in the year 2002. As per the materials available before the Tribunal, it can be seen that the driver of the car has consumed alcohol. The said fact is evident from Ext.A7 postmortem certificate. It is the submission of the learned senior counsel that when a person entered the vehicle knowing well that the driver had consumed alcohol, then it will be a case where the principle of volunti non fit injuria comes to play. It is the submission that when the deceased voluntarily assumed such a risk, it is to be taken that he knew that by entering into and travelling in a vehicle driven by a person who consumed alcohol, he was exposing himself to danger, appreciated it and voluntarily undertook such a risk and therefore, being a person consented to such an act complained of must bear the loss arising out of such act to which he consented. In the circumstances, in view of the aforesaid principle, the appellants being the legal heirs of such a pe