JUDGMENT : 1. This appeal is preferred by the original claimant challenging the judgment and award passed by Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 860/1998 on 24/03/2006. 2. Brief facts of the appeal can be stated as follows : Appellant is the widow of the deceased Vishnuji Rajaramji Helonde, who died in vehicular accident, that has occurred on 20/03/1998 near Udasa Shivar on Umrer Road. As per the case of appellant, deceased was returning from his duty on motorcycle bearing no. MH-31-P-1743 along with one Ramchandra Shankarrao Deotale, who was the pillion rider. At about 7:30 p.m. when they were proceeding on the road, they saw that a small piece of tyre was slowly burning in the middle of the road; there was strong smell of tyre burning and also one Truck and Tipper which had already met with a collision and had the accident, were lying in tilted condition in the middle of the road, having covered 3/4th portion of the road. Seeing the fire and the smoke, deceased applied the breaks and took his motorcycle on the side of the road, however as he could not control the same, it collided on the body of the Truck, which was standing stationary. Due to the dash, the deceased sustained injuries. He was taken to the hospital, where he succumbed to the injuries on 31/03/1998. 3. As per the appellant, one of the vehicle which was lying on the road was bearing no. MH-31-M-5005. It was owned by respondent no.1 and was insured with respondent no.2. Hence, she held both respondents liable to pay the compensation on the count that the accident has occurred due to sheer negligence on the part of the driver of the said Truck in keeping the Truck unattended, without taking any precaution. 4. It is the case of the appellant that deceased was drawing the salary of Rs.7,564/-per month in his position as Agricultural Officer and hence having regard to his age, she claimed compensation of Rs.3,65,000/-in total. 5. Respondent no.1 remained absent though duly served with summons. It is the respondent no.2 alone which has resisted the claim petition vide its written statement at Exh.28 contending inter alia that the sole cause of the accident was the rash and negligent driving of the deceased himself. 5. Respondent no.1 remained absent though duly served with summons. It is the respondent no.2 alone which has resisted the claim petition vide its written statement at Exh.28 contending inter alia that the sole cause of the accident was the rash and negligent driving of the deceased himself. Despite the fire of burning tyre and smoke thereof, deceased did not notice the obstacles on the road and straightway dashed on the Truck and Tipper. Therefore as the sole cause of the accident was the rash and negligent driving of the deceased, respondent nos.1 and 2 cannot be held liable to pay the compensation to appellant. It was also submitted that, as the owner and insurance company of the other vehicles were not joined in the petition, petition was bad for nonjoinder of necessary parties also. 6. On these respective pleadings of the parties, the Tribunal framed requisite issues at Exh.29 for its determination. In support of her case, appellant examined herself and also the pillion rider Ramchandra Deotale. No oral evidence was adduced on behalf of the respondents. 7. On appreciation of this evidence led by the appellant, the Tribunal was pleased to hold that it was the case of contributory negligence as the deceased could not control the motorcycle though he saw the fire and smoke from the burning tyre and dashed to the Truck and Tipper. The Tribunal held the contributory negligence of the deceased to the extent of 60% and 40% on the part of the two vehicles, the Truck and the Tipper. As only the owner and insurance company of the Truck was joined as a party, the Tribunal was constrained to reduce the compensation amount accordingly and granted the amount of Rs.53,000/-only to the appellant which was inclusive of NFL amount, with interest at the rate of 7.5% per annum. 8. This judgment of the Tribunal is the subject matter of the present appeal. According to learned counsel for appellant, the Tribunal has not properly appreciated the evidence on record. It is urged that pillion rider of the motorcycle was the best person to depose about the manner in which the accident has occurred. He is also the only eye witness examined in this case and he has categorically stated that the motorcycle was not in speed and it was driven at the speed of 20 to 25 Km/Hr. It is urged that pillion rider of the motorcycle was the best person to depose about the manner in which the accident has occurred. He is also the only eye witness examined in this case and he has categorically stated that the motorcycle was not in speed and it was driven at the speed of 20 to 25 Km/Hr. He has also stated that after seeing the fire, the motorcyclist, turned his motorcycle towards the left side to avoid the accident and to avoid the fire, but as both the vehicles, the Truck and the Tipper were lying in the middle of the road, the accident could not be avoided. According to learned counsel for appellant, considering that it was night time when the accident took place, the necessary precautions should have been taken by the driver of the Truck and the Tipper. Both these vehicles were left unattended on road, which is against the provisions of Motor Vehicles Act and that being the cause of accident, the Tribunal should not have held the deceased responsible for contributory negligence to the extent of 60%. 9. Per contra, learned counsel for respondent no.2 has supported the judgment and finding of the Tribunal by pointing out to the evidence of pillion rider itself, who has deposed that they saw the burning of the tyre and also the smoke; which indicate that sufficient precaution was taken by the driver of the Truck and the Tipper. The very fact that even after seeing the fire, the deceased could not control his motorcycle and he dashed on the Truck and the Tipper, is according to learned counsel for respondent no.2, sufficient to prove that the cause of the accident was the rash and negligent driving of the deceased himself. 10. Thus the first point which arise for my determination in this appeal is the cause of accident. In order to decide whether the finding given by the Tribunal holding the deceased responsible for 60% of the contributory negligence is correct or not, it would be necessary to peruse the evidence of the pillion rider Shri Ramchandra Deotale, who was admittedly the only eye witness to the accident. According to him, while deceased was driving the motorcycle it was around 7:30 p.m. and therefore it was dark at night. According to him, while deceased was driving the motorcycle it was around 7:30 p.m. and therefore it was dark at night. After passing Udasa Bus Stop and heading towards the first bridge, they found that a rubber tyre piece was slowly burning in the middle of the road with very little flame and light and lots of smoke and fumes. Hence two wheeler was turned by the deceased to little left side to avoid the fire. In the middle of the road the tilted Truck and Tipper were lying. In the dark these vehicles were not noticed immediately. As a result by the time the breaks were applied, it was too late and the motorcycle collided with the Truck and went the inside of the Tipper. According to him, the motorcycle, he himself and the deceased were inside the Tipper which was tilted after the collision. 11. Thus, even a cursory glance to his evidence is sufficient to show that there was light of burning tyre . The tyre was kept slowly burning in the night for approaching vehicles to take note of the vehicles lying in the road. Therefore, it can be said that precaution was taken by the drivers of the Truck and Tipper. Deceased and even pillion rider had actually seen that burning tyre and smoke. Therefore deceased has taken his motorcycle to the left side of the road by applying the breaks. In crossexamination also he has admitted that one tyre was burning and the smoke had enveloped the atmosphere. He has further admitted that their motorcycle went inside the portion of the Truck and Tipper. 12. Thus, the evidence of this witness is more than sufficient to show that sufficient precaution of lightening the tyre was taken by the drivers of the stationary vehicles, which were lying there on account of the earlier collision between them. The fact that even after seeing the fire from the burning tyre, deceased could not control his motorcycle and went inside the Tipper along with motorcycle, is more than sufficient to prove the negligence on the part of the deceased. The fact that even after seeing the fire from the burning tyre, deceased could not control his motorcycle and went inside the Tipper along with motorcycle, is more than sufficient to prove the negligence on the part of the deceased. The Tribunal has in para nos.12 and 13 of its judgment, properly and correctly appreciated this entire evidence on record and came to conclusion that without paying any attention towards the obstacle, the deceased proceeded ahead and straight way fell in the trolly portion of the Truck with his vehicle, which denotes the major part of contributory negligence on the part of the deceased, and accordingly rightly held the deceased responsible for 60% of the contributory negligence. 13. The Tribunal has also considered the fact that both the Truck and the Tipper were not removed from the spot of accident and they were lying on the road and considering the provisions of section 122 of the Motor Vehicles Act, it was held that to some extent the drivers of the Truck and the Tipper were also responsible for the accident. The Tribunal has accordingly held them liable for 40% of the contributory negligence. Having regard to the entire evidence on record, this finding of the Tribunal cannot be disturbed as it is based on the evidence adduced before it. 14. As regards the authority relied upon by learned counsel for appellant, that of Shashikala Vs Mohd. and another, AIR 2000 Orissa 52, the facts of the said authority were totally different, as in that case, offending Truck was loaded with protruding bamboos. It was parked on wrong side of the road without parking light during night time. Hence, when deceased, motorcyclist dashed against the same and the bamboos pierced into his neck, it was held that accident can be said to have taken place solely due to negligent act of truck driver. As against it, in the present case, the evidence on record, that of the pillion rider of the motorcycle, itself clearly goes to show that sufficient precaution was taken by the drivers of the Truck and the Tipper by lightening the rubber tyre and keeping it burning in the middle of the road. As against it, in the present case, the evidence on record, that of the pillion rider of the motorcycle, itself clearly goes to show that sufficient precaution was taken by the drivers of the Truck and the Tipper by lightening the rubber tyre and keeping it burning in the middle of the road. Moreover, both the Truck and the Tipper were lying on the road on account of the accident ensued and as observed by the Tribunal, they could not be removed before spot panchnama and also on account of being damaged in the accident. Thus, as the facts of the present case are totally different from the facts of the above cited case, therefore this decision cannot be made applicable to the facts of the present case. 15. In my considered opinion, therefore, finding of the Tribunal of placing 60% contributory negligence on the part of the deceased, cannot be disturbed in this appeal, even on reappreciation on entire evidence on record. 16. This brings me to the quantum of compensation. The Tribunal has considered that at the time of accident deceased was 57 years of age. He was on the verge of retirement and according to evidence of appellant, he could have received the pension of Rs.3,750/-, therefore, his yearly income was considered by the Tribunal to be Rs.45,000/-. 1/3rd of the same was deducted towards his personal expenses and then applying multiplier of 8', the Tribunal has assessed the loss of dependency to Rs.2,40,000/-. As 60% of the contributory negligence on the part of the deceased was held to be proved, the Tribunal considered that appellant can be entitled to recover only 40% of the amount of Rs.2,40,000/-which comes to Rs.96,000/-. The Tribunal has also awarded amount of Rs.10,000/-towards the loss of love and affection and consortium. Thus, total compensation amount, which Tribunal held the appellant entitled was Rs.1,06,000/-. 17. Now this liability of paying Rs.1,06,000/-was equally divided by the Tribunal on the part of two vehicles, the Truck and the Tipper, who were held equally responsible for 40% of the contributory negligence and accordingly appellant is rightly held entitled to receive Rs.53,000/-as compensation from respondent nos.1 and 2. 18. According to learned counsel for appellant, however, the Tribunal should not have divided this amount of Rs.1,06,000/-between the owners of two vehicles, the Truck and the Tipper. 18. According to learned counsel for appellant, however, the Tribunal should not have divided this amount of Rs.1,06,000/-between the owners of two vehicles, the Truck and the Tipper. It is urged that the liability of owners of both the vehicles being joint and several, appellant could sue both or any of joint tortfeasor and appellant can also recover the entire amount of compensation from any one of the joint tortfeasor. To substantiate this submission, learned counsel for appellant has relied upon the judgment of the Hon'ble Apex Court in the case of Khenyei Vs New India Assurance Co. Ltd. and others, AIR 2015 SUPREME COURT 2261. However it has to be stated that the observations made by the Hon'ble Apex Court in this case are in respect of the composite negligence. Needless to state that the composite negligence and contributory negligence are totally different. In case of composite negligence, it is true that the injured or the legal heirs of the deceased, who are third parties can recover the entire amount of compensation from any of the joint tortfeasor. However, in case of contributory negligence, as deceased himself is to some extent held responsible for the contributory negligence in the accident that has occurred, this authority cannot be held applicable. It was necessary for the appellant to join the owner and insurance company of the another vehicle also i.e. Tipper. As it is not joined in the proceeding, appellant can recover only 20% of the total amount of compensation from the respondents, which is correctly assessed by the Tribunal as Rs.53,000/-. 19. The impugned judgment and award of the Tribunal therefore being just, legal and correct and also having the foundation in evidence and legal position, no interference is warranted therein. 20. Appeal, therefore holds no merits, hence stands dismissed, with no order as to costs.