Judgment :- (Appeal against the order dated 31.3.2003 made in M.C.O.P.No.803 of 1998 on the file of Motor Accident Claims Tribunal (II Additional District Judge (in charge)), Erode.) P.D. Dinakaran, J. The appeal is directed against the order dated 31.3.2003 made in M.C.O.P.No.803 of 1998 on the file of Motor Accident Claims Tribunal (II Additional District Judge (in charge)), Erode. 2. The first respondent is the wife, respondents 2 to 4 are children of the victim. Respondents 5 to 9 are the legal representatives of one Ponnammal, mother of the victim. The tenth respondent is the owner of the car which was insured with the appellant herein, eleventh respondent is the driver of the car, twelfth respondent is the owner of the lorry, thirteenth respondent is the driver of the lorry and fourteenth respondent is the insurer of the lorry. 3.1. The brief facts of the case which led to the appellant filing the above appeal are as under: On 12.12.1995, one Kasi Viswanathan, Ravichandran and his mother were returning to Erode from Chennai in an Ambassador car bearing registration No.TCS 727. While they were proceeding in the Salem-Ulundurpet Road, near Kumaramangalam Ayyanar Temple, the eleventh respondent herein, who was driving the car belonging to tenth respondent herein and insured with the appellant, dashed against a lorry bearing registration No.KA01 2199, which was parked on the left side, due to which, Kasi Viswanathan died on the spot and Ravichandran and his mother sustained injuries. 3.2. Contending that respondents 11 and 13 herein, who are the drivers of the car and lorry respectively, were responsible for the accident that had taken place, the claimants have filed a petition claiming a compensation of Rs.99,62,400/- with interest and costs. 3.3. The appellant/insurance company, who is the insurer of the car belonging to the tenth respondent and driven by the eleventh respondent, had stated in the counter that the eleventh respondent/driver of the car was not responsible for the accident that had taken place, but it was only due to the negligent act of the thirteenth respondent/driver of the lorry in not switching on the rear red signal light while parking the lorry and therefore, respondents 12 to 14 were liable to pay the compensation. 3.4. 3.4. The fourteenth respondent/insurance company, with which the lorry in question was insured, in its counter, denying the allegation that the thirteenth respondent/driver of the lorry was negligent in parking the vehicle without switching on the rear red signal light, stated that the eleventh respondent/driver of the car drove the vehicle in rash and negligent manner and dashed against the lorry. That apart, the eleventh respondent/driver of the car had accepted the charge framed against in the charge sheet and got convicted and therefore, respondents 10, 11 and the appellant alone were responsible to pay compensation and respondents 12 to 14 were unnecessary parties to the petition for compensation. 3.5. The appellant herein also filed an additional counter affidavit stating that as the fifth respondent in the claim petition, who is the mother of the victim, died, her legal representatives, who are respondents 5 to 9 herein, were not entitled to any compensation as they were not depending either on the victim or his mother. 3.6. The Tribunal, based on the petition, counter and additional counter, framed the following issues: (i) Whether the accident had taken place due to the rash and negligent driving of the eleventh respondent or due to the act of the thirteenth respondent/driver of the lorry in parking the lorry without switching on the rear red signal light? and (ii) Whether the claimants are entitled to compensation as prayed for? 3.7. During the trial, the first respondent/wife of the victim was examined as PW1, one Viswanathan was examined as PW2 and the eleventh respondent/driver of the car was examined as RW1; and exhibits P1 to P21 were marked, of which, P1 is a copy of the FIR, P2 is a copy of the charge sheet, P3 is a copy of the rough sketch, P4 is a copy of the report of the Motor Vehicle Inspector, P5 is a Post Mortem report, P8 is the car receipt and exhibits R1 and R2, viz. copy of the order in MCOP Nos.124 of 1997 and 500 of 1997 respectively. 3.8. copy of the order in MCOP Nos.124 of 1997 and 500 of 1997 respectively. 3.8. Appreciating the evidence and the materials placed on record, the Tribunal, with regard to the first issue, held that the eleventh respondent/driver of the car alone was responsible for the accident, as he had stated in his evidence that due to the flash of the lorry which came in the opposite direction, he could not see the lorry parked without switching on the rear red signal light and therefore, dashed against the lorry. 3.9. With regard to the second issue, the Tribunal, based on the evidence of the first respondent/wife, held that respondents 5 to 9 were also entitled to compensation, which was objected to by the appellant. That apart, taking into consideration that there was no evidence to prove that the victim, who was aged about 39 years at the time of accident, was earning a sum of Rs.40,000/- per month from his textile and printing business, as stated by the first respondent/wife, the Tribunal fixed the income of the victim as Rs.12,000/- per month and after deducting 1/3rd towards personal expenses and thereafter, adopting the multiplier of 16, fixed the loss of income as Rs.15,36,400/- and awarded Rs.4,000/- towards conveyance, Rs.5,000/- towards funeral expenses, Rs.10,000/- to the first respondent/wife and Rs.5,000/- each to respondents 2 to 4/children and mother of the victim, towards pain and suffering, thus fixed the compensation at Rs.15,75,000/- to be paid by respondents 10, 11 and the appellant. 4.1. The learned counsel appearing for the appellant/insurance company assails the award on the ground of composite negligence. Elaborating his contention as to the composite negligence, he contends that the thirteenth respondent/driver of the lorry had parked the vehicle without switching on the rear red signal light and had he switched on the said light, the eleventh respondent/driver of the car would have averted the accident. 4.2. Further more, it is contended that the Tribunal has grossly erred in fixing the negligence on the eleventh respondent/driver of the car relying on the judgment in criminal cases, which were marked as exhibits R1 and R2, without taking into consideration the relevant facts and evidence on record with respect to the composite negligence committed by the thirteenth respondent/driver of the lorry. 4.3. 4.3. It is also argued that the Tribunal committed an error in fixing the liability on the eleventh respondent, without appreciating the evidence of the eleventh respondent, especially when there is no independent eye witness or any contra evidence let on behalf of the fourteenth respondent/insurer of the lorry. 4.4. With regard to the challenge made as to the quantum, it is contended that the Tribunal erred in fixing the income of the deceased at Rs.12,000/- per month, in the absence of any evidence to prove the income of the victim, who is not even an income tax assessee. 5.1. Per contra, learned counsel for the respondents/ claimants, inviting our attention to the reasons that weighed the Tribunal, contends that the question of composite negligence does not arise, as, when the headlight of the car is more brighter to see the lorry parked without switching on the rear red signal light, the driver of the car, who had the lost opportunity, could have averted the accident, placing reliance on the decision of the Apex Court in THE MUNICIPAL CORPORATION OF GREATER BOMBAY v. SHRI LAXMAN IYER AND ANOTHER ( 2004(2) LW 1 5). 5.2. With respect to the quantum, the learned counsel contends that even though the income was claimed at Rs.40,000/- per month, the Tribunal has arrived at the income of the deceased as Rs.12,000/- from the textile and printing business, which cannot be said to be excessive. 6. We have given our careful consideration to the submissions of both sides. 7.1. The law as to the composite negligence is well settled. Negligence is omission of duty caused either by an omission to do something which a reasonable man would do or obligated to do or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of a degree of care, as is required in particular circumstances. Therefore, contributory negligence, much less composite negligence has to be tested under the facts and circumstances of each case. 7.2. It is true, in a case of contributory negligence, the Courts have the power to apportion the loss between the parties as seems just and equitable. Therefore, contributory negligence, much less composite negligence has to be tested under the facts and circumstances of each case. 7.2. It is true, in a case of contributory negligence, the Courts have the power to apportion the loss between the parties as seems just and equitable. But, in a case of composite negligence, applying the doctrine of last opportunity, the Apex Court in THE MUNICIPAL CORPORATION OF GREATER BOMBAY v. SHRI LAXMAN IYER AND ANOTHER ( 2004(2) LW 1 ) held in detail as under: "The plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance “negligence” is categorized as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other’s negligence. Whichever party could have avoided the consequence of the other’s negligence would be liable for the accident. If a person’s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charles worth on Negligence, 3rd Edn., para 328.) It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn., p.361.)" 7.3. It is, thus, the Apex Court has ruled out whether a person is injured or died without any negligence on his part, but, as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. But, it is a case of composite negligence. 7.4. In this context, the Apex Court, in the case cited supra, applied the principle of doctrine of last opportunity. The doctrine of last opportunity, as referred to in the above decision, is said to have emanated from the principle enunciated in DAVIES v. MANN (1842 (10) M&W 546). A rule that when both parties are careless, the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, according to Lord Denning, composite negligence much less doctrine of last opportunity is not a principle of law, but a test of causation. 7.5. The Apex Court has further held that the sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party's negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence. 7.6. In the instant case, assuming the thirteenth respondent/driver of the lorry had not switched on the rear red signal light, since the accident had taken place at the early hours, viz. 1.00 am, the eleventh respondent, who had the last opportunity, could have prevented the accident, as it is quite logical that the headlight of the car, being driven by the eleventh respondent, is more brighter than the rear red signal light of the lorry, to see the vehicle parked. 1.00 am, the eleventh respondent, who had the last opportunity, could have prevented the accident, as it is quite logical that the headlight of the car, being driven by the eleventh respondent, is more brighter than the rear red signal light of the lorry, to see the vehicle parked. It is true that there was a failure on the part of the thirteenth respondent/driver of lorry, which, in our considered opinion, is not a matter while applying the test of causation. Therefore, we are satisfied that the eleventh respondent/driver of the car had dashed against the lorry, failing to apply the test of causation as a last opportunity to avoid the accident. Therefore, we reject the contention of the learned counsel for the appellant that the tribunal has failed to apply the principle of composite negligence. 8. With respect to quantum, even though the first respondent/wife had deposed that the deceased was running a textile shop and printing industry, acting as a President and Secretary of a Society and doing real estate business and was earning Rs.40,000/- per month, no documentary evidence was produced to prove that the deceased was earning the said amount. In the circumstances, we are of the considered opinion that the Tribunal had rightly arrived at the income of the deceased at Rs.12,000/- per month, which cannot be said to be either excessive or arbitrary. 9. Taking note of the fact that the accident had taken place in the year 1995 and there are three minors who have to be educated and any further delay in disbursing the compensation would have a bearing on their future education, the major respondents/claimants are permitted to withdraw their entire share. The appeal is dismissed. No costs.