ORDER This is an appeal preferred under Section 173 of the Motor Vehicles Act 1988 by the appellant/National Insurance Company against an Award dated 25th June 2004 in Claim Case No. 15/2003 recorded by the Motor Accidents Claims Tribunal Bhind (M.P.) granting thereby an amount of Rs. 3,67,000/- against respondent No. 6, owner and the appellant-National Insurance company on the principles of joint and several liability, while exonerating at the same time, the owner and New India Insurance Company, respondent No. 7 and 8, respectively of the another offending truck bearing No. MP09-KA/5583 from liability of payment of award amount to the claimants of deceased-cleaner of the same truck. 2. Facts, in short, just for the decision of this case are that on 6th August 2003 in midnight, Lalaram deceased-cleaner of the truck No. MP09-KA 5583 owned by Kalyan Chand Jain, non-applicant/respondent No. 7 and insured with New Insurance company, respondent No. 8 was going to destination. When the truck reached near Byora district Rajgarh M.P., another truck No. HR 38C 5655 dashed against it, as a result, the cleaner Lalaram including driver of both the trucks, namely Naresh Rathore of truck No. MP09-KA 5583 and Iqbal Khan of truck No. HR 38C 5655 died on the spot. The F.I.R. of the incident was lodged. Since both the accused-drivers of the trucks involved in accident died, the final report was sanctioned by the criminal court. 3. While submitting claim petition, it was pleaded by the claimants that deceased Lalaram, at the time of accident was running 24 years. He was healthy person and earning Rs. 3,000/- p.m. He left behind him his wife, two children and parents who were totally dependents on his income. In these circumstances, the claimants claimed an amount of Rs. 19,93,000/- by way of compensation from respondents, i.e., owners and Insurance companies of the trucks involved in accident. After hearing the parties and considering the evidence on record, the learned tribunal awarded a sum of Rs. 3,67,000/- to the claimants against the owner and Insurance company of the opposite truck involved in accident while exonerating the owner and Insurance Company of the truck in which the deceased was going. Against this finding of exoneration, other Insurance Company has come up in this appeal. 4. 3,67,000/- to the claimants against the owner and Insurance company of the opposite truck involved in accident while exonerating the owner and Insurance Company of the truck in which the deceased was going. Against this finding of exoneration, other Insurance Company has come up in this appeal. 4. It is contended by the learned counsel for the appellant that the accident was the result of the composite negligence of both the drivers of the trucks involved in accident, hence, the owners of both vehicles by way of vicarious liability and the Insurance companies insuring both the trucks were liable to indemnify the liability of the insured-owners. It is, therefore, stated that the tribunal has erred in exonerating the owner and Insurance company related to the truck involved in accident which was driven by another deceased-driver namely, Naresh as he was equally responsible in causing the accident. Hence, the insurance company of another truck bearing No. MP09-KA/5583 ought to have been held liable to indemnify the liability of the insured/owner to the extent of the negligence of his driver in causing accident for satisfying the award under appeal. It is, thus, prayed that by allowing the appeal, the award for payment of the amount by the Insurance company which insured the truck No. HR 38C/5655 involved in accident may be set aside and instead the owner of Truck No. MP09-KA/5583 and the Insurance Company which insured the truck may be directed to indemnify the amount of compensation to the heirs of deceased cleaner. 5. Per contra, learned counsel appearing on behalf of respondent No. 8- New India Insurance company vehemently opposed the contention of the appellant and contended that the accident between the two trucks happened in peek hours in night and except Mahesh, no statement of eyewitness is on record of the learned tribunal. Further, no site-plan prepared by the Investigating Officer is on record which may indicate the negligence of the wrong doer/driver of the trucks involved in accident. It is pointed out that from the evidence of aforesaid witness Mahesh, it is gathered that the wrong doer of accident was alone Iqbal Khan, driver of the opposite vehicle, i.e., truck No. HR 38C 5655, as just before the incident in peek hours of night, he used the flash lights towards the driver of the truck coming from opposite side, as a consequence, the unfortunate accident took place. Hence, considering the evidence on record, the learned tribunal has rightly come to fix the liability of the driver of the opposite vehicle, i.e., truck No. HR 38 C 5655. It is, therefore, prayed that the impugned Award does not suffer from any infirmity and the appeal in the light of the evidence available on record is liable to be dismissed. 6. Heard the learned counsel for the parties. Also perused the record of the tribunal and the law applicable to the case at hand. 7. The question for consideration in this appeal is whether the alleged accident was a result of contributory negligence of driver of truck No MP09-KA/5583 and in that situation the insurance company of that truck is liable to be exonerated and/or whether both the trucks were responsible for causing accident and both drivers of the trucks involved in accident are liable equally so both drivers, owners and insurance companies are jointly and severally liable to pay the award amounts to the heirs of deceased? 8. Mahesh (AW-2) deposed that he and deceased Lalaram were working as cleaners on the truck owned by Kalyan Chand Jain and on a fateful night at about 2 a.m., he with Lalaram was preceding towards Bombay. The truck was driven by driver Naresh. The accident occurred near Byora town towards Indore. In the accident, Lalaram died on the spot. In cross-examination, the witness admitted that the accident was result of head on collusion of both the trucks involved in accident. 9. During cross-examination on behalf of respondent No. 7- Kalyan Chand Jain, owner of truck No. MP09-KA/5583, Mahesh (AW-2) admitted that the driver of truck coming from opposite direction caused the accident by rash and negligent driving. He also admitted that the driver of truck coming from opposite side used the beam light towards his truck driver. Thereafter, the driver of the truck in which he was travelling took the vehicle below road side. In accident, he was injured. He stated that after accident he lodged the F.I.R. at concerning Police Station. In the F.I.R. (Ex. P/1-C), he narrated that his truck was hit from front side by another truck driven by driver Iqbal Khan. Ramlal/Lalaram and Naresh were injured in accident and driver Iqbal Khan also died in the accident. In accident, he was injured. He stated that after accident he lodged the F.I.R. at concerning Police Station. In the F.I.R. (Ex. P/1-C), he narrated that his truck was hit from front side by another truck driven by driver Iqbal Khan. Ramlal/Lalaram and Naresh were injured in accident and driver Iqbal Khan also died in the accident. It is further apparent from the record that no spot-map prepared during investigation by the I.O. was filed or proved before the tribunal in support of the version of this sole eyewitness to the incident. 10. Now, in the light of the legal aspect involved in the case, this court is now going to examine the difference of composite and contributory or sole negligence on the basis of the principles laid down by Hon. Apex Court in the case of T.O. Anthony Vs. Kavaran and others ( 2008 ACJ 1165 ). In the case of T.O. Anthony (supra), the Hon. Apex Court, while considering the composite or contributory negligence, observed as follows: - “6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.” 11. Prior to above, in the case of Municipal Corpn. of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731 , at page 737, it was further held: - “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. 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. 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. It is a case of what has been styled by Pollock as injury by composite negligence. 12. Thus, from the factual aspects of this case, as mentioned above, it is proved that driver-deceased Naresh of Truck No. MP. 09 KA 5583 and driver Iqbal Khan of truck HR 38 C 5655 were responsible for head on collusion of both the trucks. The percentage of negligence may be differing but both the drivers were responsible for accident by rash and negligent driving. The accident may be avoided if the vehicle was driven with care and due diligence. In a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Obviously, the truck involved in accident was driven by driver Naresh and he may be responsible for contributory/composite negligence for causing such accident. In a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Obviously, the truck involved in accident was driven by driver Naresh and he may be responsible for contributory/composite negligence for causing such accident. Hence, on vicarious liability, the owner of both trucks as above were also responsible for payment of award amount to the claimants/dependents of deceased Lalaram and both the Insurance companies, i.e., the National Insurance Company (appellant herein) has to indemnify the liability of the insured/owner of Truck No. HR 38C 5655 and New India Assurance Company (respondent No. 8), the insurer of truck No. MP09-KA/5583 has to indemnify the liability to satisfy the award amount payable on behalf of insured truck above. 13. On coming to next issue regarding quantum of compensation as awarded by the learned tribunal, it seems that the award was passed on lower side. Considering the material on record. Rs. 20,000/- for love and affection to son and daughter of deceased, Rs. 20,000/- for assistance in old age to parents of the deceased, Rs. 15,000/- in addition to the amount awarded as Rs. 5000/- by tribunal for consortium to wife of deceased, Rs. 10,000/- for transportation of dead body from spot of accident to village for funeral rites of deceased and Rs. 10,000/- for funeral rites of deceased, total amount of Rs. 75,000/- in addition to the amount of Rs. 3,67,000/- is enhanced and awarded to the claimants of the deceased with interest of 7% p.m. which shall be payable from the date of appeal by the Insurance companies of the trucks involved in accident in the ratio of 50:50, i.e. Rs. 2,21,000/-. 14. Hence, in the light of the evidence and the principles of law discussed above, the finding of the learned tribunal that the appellant-National Insurance Company is liable for the entire compensation amount is liable to be and stands hereby set aside. The said direction is modified. There will be a direction to the appellant-National Insurance Company to satisfy 50% of the award amount, i.e., Rs. 2,21,000/-, (Rs. Two lacs twenty one thousand only) if not already deposited with proportionate costs, within two months from the date of this order. The said direction is modified. There will be a direction to the appellant-National Insurance Company to satisfy 50% of the award amount, i.e., Rs. 2,21,000/-, (Rs. Two lacs twenty one thousand only) if not already deposited with proportionate costs, within two months from the date of this order. The claimants are entitled to realise balance 50% of the award amount with interest and proportionate cost which shall also paid/deposited by the respondents No. 7-owner and No. 8-New India Insurance Company in a joint or several manner, within a period of two months from the date of receipt of this order by them. 15. The appeal is disposed of as above.