JUDGMENT AND ORDER : 1. Heard Mr. S.K. Dutta, learned counsel appearing for the claimant-appellants as well as Mr. P. Gautam, learned counsel appearing for the respondent No. 2, Oriental Insurance Company Ltd. Despite due notice from this court none appears for the respondent No. 1 when the matter was taken up for hearing. 2. By means of this appeal under Section 173 of the Motor Vehicles Act, the judgment and award dated 23.12.2013 delivered in T.S. (MAC) No. 271 of 2009 by the Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala has been called in question. 3. The foremost ground of objection as advanced by Mr. S.K. Dutta, learned counsel appearing for the claimant-appellants can be cataloged as under: (i) Severance of the liability and direction to the respondent No. 2 to pay only 50% of the total award is entirely erroneous and misconceived. (ii) The consortium and the loss of estate as granted to the claimants are not only inadequate but entirely unreasonable. That apart the monthly income of the deceased as assessed by the tribunal is without any evidence. The claimants asserted that the deceased used to earn Rs. 3,900/- per month whereas the tribunal has determined his monthly income at Rs. 3000/-. 4. Mr. Dutta, learned counsel appearing for the appellants has relied on a decision of the apex court in Khenyei vs. New India Assurance Co. Ltd. and Others, 2015 ACJ 1441 . In that report, the apex court has dilated over the composite negligence, liability of the Joint tortfeasors and apportion of inter se liability. The apex court has held by enunciating the law in this regard as follows: "18. This court in Challa Bharathamma, 2004 ACJ 2094 (SC) and Nanjappan, 2004 ACJ 721 (SC), has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and the right to recover the same was given to the insurer in the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination for the Tribunal and the issue has been decided in favour of the insurer. The same analogy can be applied to the instant cases as the liability of the joint tortfeasor is joint and several. The same analogy can be applied to the instant cases as the liability of the joint tortfeasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle trailer-truck, which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailer-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tortfeasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law. What emerges from the aforesaid discussion is as follows: (i) 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 tortfeasors is joint and several. (ii) 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. (iii) 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 tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/Tribunal in main case, one joint tortfeasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. (iv) It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award." 5. Mr. Dutta, learned counsel having placed reliance on the passages reproduced above has submitted that in case of composite negligence, the claimant is entitled to sue all or any of the Joint tortfeasors as according to the apex court, the liability of the Joint tortfeasors is joint and several also. It has been further asserted by him that in case of composite negligence, apportionment of the compensation between two tortfeasors is not permissible. The claimants can recover at their option the whole damage from any of them. Mr. Dutta, learned counsel having referred to the finding of the tribunal has submitted that the finding is entirely against the law as decided by the apex court. The Tribunal has observed as under: "On perusal of the pleadings of the parties I find that it is admitted by the O.P. No. 1 that he was the owner of the (Auto rickshaw) No. TR-02-2931 at that relevant date and time of the accident and at the same time it has also been established that the accident took place due to the rash and negligent driving of both the offending vehicles i.e. TR-02-2931 and another Auto rickshaw vehicle number of which is not known by the claimants. On perusal of the documents submitted by the O.P. No. 1 under Ext-A series available in the case record I find that the copy of insurance policy No. 2009/1757, of the vehicle bearing No. TR-02-2931 (Auto rickshaw) shows that the Auto was duly insured with the Oriental Insurance Company Limited covering the period from 30.10.2008 to 29.10.2009 and the fact is not disputed in this case and as such the O.P. No. 2, being the insurer of O.P. No. 1 is liable to indemnify the O.P. owner No. 1 for the loss due to such accident. So, I find that the O.P. No. 2 the Oriental Insurance Company Limited is to pay the half of the compensation as awarded in favour of the petitioner. So, I find that the O.P. No. 2 the Oriental Insurance Company Limited is to pay the half of the compensation as awarded in favour of the petitioner. Thus, this issue No. 2 is also decided in favour of the petitioner." In view of the said finding, the respondent No. 2 has been directed to pay only 50% of the total award, not the whole amount. 6. Further Mr. Dutta, learned counsel has relied on a decision of the apex court in Asha Verman and Others vs. Maharaj Singh and Others, 2015 ACJ 1286 for referring the following passages: "15. We are of the considered view that the courts below have erred in the calculation of loss of dependency by wrongly ascertaining the income of the deceased at the time of his death. It is clear that the deceased at the time of his death was working in the operation theatre as a technician in the permanent post at the hospital and was earning Rs. 4,617 per month (rounded off to Rs. 4,600). On applying the principles as laid down in the case of Sarla Verma, 2009 ACJ 1298 (SC), 50 per cent of the salary must be added to the income of the deceased for future prospects of income,which comes to Rs. 6,900 per month, i.e. Rs. 82,800 per annum. Deducting 1/4th for personal expenses and applying the appropriate multiplier taking into consideration the age of the deceased at the time of his death as per Sarla Verma (supra), the total loss od dependency comes to Rs. 9,93,600 [(Rs. 82,800 - 1/4) x 16]. 17. Further, the High Court has erred in awarding only Rs. 5,000 each towards loss to estate, funeral expenses and loss of consortium. We award Rs. 1,00,000 towards loss to estate according to the principles laid down in the case of Kalpanaraj vs. Tamil Nadu State Trans. Corporation, 2014 ACJ 1388 (SC), Rs. 25,000 towards funeral expenses and Rs. 1,00,000 towards loss of consortium as per the principles laid down by this court in the case of Rajesh vs. Rajbir Singh, 2013 ACJ 1403 (SC). 18. Further, we award Rs. 1,00,000 each to the appellant children towards loss of love and affection due to the loss of their father (deceased) as per the decision of this court in the case of Jiju Kuruvila vs. Kunjujamma Mohan, 2013 ACJ 2141 (SC). Further, a sum of Rs. 18. Further, we award Rs. 1,00,000 each to the appellant children towards loss of love and affection due to the loss of their father (deceased) as per the decision of this court in the case of Jiju Kuruvila vs. Kunjujamma Mohan, 2013 ACJ 2141 (SC). Further, a sum of Rs. 50,000 is awarded to each of the appellant parents towards loss of love and affection of their deceased son as per the principles laid down by this court in the case of M. Mansoor vs. United India Insurance Co. Ltd. 2013 ACJ 1403 (SC). 19. Further, the High Court has erred in awarding an interest at the rate of 8 per cent per annum only, instead of 9 per cent per annum on the compensation amount as per the principles laid by this court in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC). We, accordingly, award an interest at the rate of 9 per cent per annum on the compensation amount." 7. Mr. Dutta, learned counsel having referred the impugned award has submitted that the monthly income of the deceased has been assessed at Rs. 3000/-. Loss of future prospect has been added at 30%. While giving the other nonpecuniary damages, Rs. 50,000/- has only given as consortium and Rs. 5000/- for funeral expenses. Mr. Dutta, learned counsel has continued to submit that this is a complete defiance to the principle laid down by the apex court in Asha Verman (supra). 8. From the other side Mr. P. Gautam, learned counsel appearing for the respondent No. 2 has submitted that the determinants in the form of loss of love and affection, loss of consortium or loss of extent are not fixed, these are variables in the context of a particular case. He has made an extreme submission if various decisions of the Supreme Court are studied, it would be apparent that in different decisions of the apex court, different sums were awarded on those heads. As such, he has urged to maintain the assessment as made by the tribunal. 9. He has made an extreme submission if various decisions of the Supreme Court are studied, it would be apparent that in different decisions of the apex court, different sums were awarded on those heads. As such, he has urged to maintain the assessment as made by the tribunal. 9. Having appreciated the records as well as the submission of the learned counsel appearing for the parties, this court finds that there is no dispute in respect of the accident that occurred on 07.01.2009 between two Auto rickshaws leaving one person namely Mangal Dey with fatal injuries and finally, the said victim died succumbing to his injuries. Mangal Dey was the husband of the claimant-appellant No. 1 and other claimant- appellants are the children of the deceased and the claimant-appellant No. 1. At the time of death, the petitioner was 39 years old and he was a day labourer. Since there is no dispute in this regards, this court would straightway consider the grounds of objection as raised by the appellants. In view of Khenyei (supra) the finding of the tribunal that one tortfeasors cannot be liable to pay the entire sum when the damages has ascertained against the composite negligence in an accident. As such, the respondent No. 2 is liable to pay the entire award to the claimant appellants. Whether the non-pecuniary damage has been properly determined or not, this court may observe that still there exists a lot of unresolved issues, but in the recent judgment in Asha Verman (supra) the apex court has observed on which according to this court is a guidelines to be followed by the tribunal. In view of that the appellant No. 1 is entitled to Rs. 1,00,000/- as loss of consortium. Three children namely appellant No. 2, Sri Rajkumar Dey, the appellant No. 3, Sri Gobinda Dey and the appellant No. 4 Kumari Rupna Dey, the appellant No. 5, Sri Ananda Dey are also entitled to have Rs. 1,00,000/- each for loss consortium and love and affection. Even the appellant No. 1 would be entitled to get to the extent of Rs. 1,00,000/- for loss of estate. 10. This court however is not inclined to alter the determination as to the monthly income at Rs. 3000/-. Thus, the award shall be as under: Basic award shall remain unaltered, meaning, loss of dependency Rs. Even the appellant No. 1 would be entitled to get to the extent of Rs. 1,00,000/- for loss of estate. 10. This court however is not inclined to alter the determination as to the monthly income at Rs. 3000/-. Thus, the award shall be as under: Basic award shall remain unaltered, meaning, loss of dependency Rs. 5,26,500/- added to that, loss of consortium to the claimant appellant No. 1 - Rs. 1,00,000, loss of love and affection for each of the claimant appellant Nos. 2, 3, 4 and 5 at Rs. 1,00,000 and on account of loss of estate another Rs. 1,00,000 for the claimant-respondent No. 1. 11. Thus, the total compensation comes to Rs. 11,26,500/-. The said amount shall carry interest @ 9% from the date of filing the claim petition i.e. 23.06.2009 till realization. However, this court would interfere with the penal interest as awarded @ 12% p.a. It has been observed on numerous occasions, no authority has been extended under Section 171 of the Motor Vehicles Act to award penal interest of any form. Accordingly, the direction as to payment of the penal interest @ 12% p.a. stands set aside. 12. The assessed award shall be paid within a period of two months from today in the tribunal by the respondent No. 2, on deducting the amount, if any, has already been paid by them. It is further observed that the loss of estate and the loss of consortium are specific to the claimant-appellant No. 1. She would get that amount in addition to her share from the compensation. The amount that has been given as loss of love and affection at Rs. 1,00,000 to the claimant appellants No. 2, 3, 4 and 5, those are also specific to them and hence those paid separately leaving the compensation as generally awarded. The rest of the amount shall be disbursed in equal share to the claimant-appellants by the tribunal. But the amount of the claimant-appellants No. 2, 3, 4 and 5 shall be kept in a fixed deposit till they attained the majority. However the claimant-appellant No. 1 would be entitled to receive the interest from those fixed deposit on quarterly basis. The deposits are to be made in a Nationalized Bank at the choice of the claimant-appellant o. 1 for the above purpose. 13. In the result, this appeal stands partly allowed. 14. Draw the award accordingly. However the claimant-appellant No. 1 would be entitled to receive the interest from those fixed deposit on quarterly basis. The deposits are to be made in a Nationalized Bank at the choice of the claimant-appellant o. 1 for the above purpose. 13. In the result, this appeal stands partly allowed. 14. Draw the award accordingly. There shall be no order as to costs.