JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. S.K. Goswami, learned counsel for appellant and Mr. R. Goswami, learned counsel for respondent no.1. 2. This appeal has been filed against the award of MACT, Kamrup (M) dated 21.2.2013 in MAC case no.627/2008. 3. Sri Mridul Kalita, the husband of the appellant no.1 and father of the appellant no.2, was on his way home from his office on motorcycle(AS-01/B-9943) and near Chutiakarigaon when a motorcycle (AS-03/C-4390) knocked his bike and as a result he fell on the road when a pick-up van(AS-03/E-7162) ran over him injuring him severely and he was taken to Jorhat Civil Hospital where he died later. 4. Appellants filed a claim petition before MACT, Kamrup(M), which was registered as above, claiming compensation for the death of their husband and father in a vehicular accident. They impleaded the owner, driver and insurer of the pick-up van but did not impleade the other motorcyclist. 5. The deceased was an employee of Public Works Department at Jorhat drawing a salary of Rs 9,995/- per month and the claimants are his wife and son who are his dependants. 6. Tribunal issued notice to the owner, driver and insurer of the pickup van. The owner-cum-driver of the van did not contest the case by filing WS but later gave evidence. 7. The insurer of the van contested the case by filing written statement, contending inter alia that the accident took place due to a head-on-collision of the two motorcycles and the pickup van was not involved in the accident and that the claimants should have impleaded both motorcyclists but this is not done and that its liability is subject to fulfilling the terms and conditions of the policy, etc. 8. Tribunal framed the following issues upon the pleadings: (1) Whether the victim, Late Mridul Kalita, died as a result of the injuries sustained by him in the alleged road accident dated 18.05.07 involving vehicle no.AS3/E-7162 and whether the said accident took place due to rash and negligent driving of the owner of the offending vehicle? (2) Whether the claimant is entitled to receive any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? 9. Claimant no.1 examined herself as witness and produced documents and the insurer examined the owner-cum-driver of the pickup van as DW2. 10. (2) Whether the claimant is entitled to receive any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? 9. Claimant no.1 examined herself as witness and produced documents and the insurer examined the owner-cum-driver of the pickup van as DW2. 10. In her evidence the claimant no.1 stated that while her husband was coming to his house from office on a motorcycle and was near Chutiakari he was knocked by a motorcycle falling him on the road when a pickup van coming in a rash and negligent manner ran over his husband and he died on the same day in the result and that she did not see the accident. She lodged an FIR with the Jorhat police against the drivers of the pickup van and the other motorcycle based on which Jorhat PS case no.281/2007 u/s 279/304(A)/427 of the IPC came to be registered and filed certified copies of the post-mortem report, FIR, her husband's salary certificate etc before the Tribunal. 11. The driver-cum-owner of the pickup van, DW2, stated in his evidence that he was driving the van when the deceased Mridul Kalita driving parallel tried to overtake the van when a motorcycle coming from the frontal collided head-on with the motorcycle driven by the deceased and the deceased fell on the road and the other motorcyclist Uday Gogoi was flown into a paddy field injuring them severely when he stopped the van and the deceased was taken to a nearby hospital. In cross-examination, DW stated that his van ran over the deceased. 12. In cross-examination, DW stated that his van ran over the deceased. 12. The Tribunal observed that in fact there was a head-on collision of the two motorcycles for which the deceased fell on the road when a pickup van coming behind the motorcycle of the deceased ran over him and held that only 25 per cent fault can be attributed to the pickup van, 50 per cent to the deceased and 25 per cent to the other motorcyclist and as the motorcyclist of the other bike is not impleaded and only the insurer of the pickup van is impleaded, fixed liability of the insurer at 25 per cent of total compensation of Rs 14,44,976/- which comes to Rs 3,61,250/- with 6 per cent per annum interest to be paid to the claimants and gave direction how some amount to be made fixed deposit in the names of the wife and mother of the deceased. Hence this appeal solely contending that the findings of the Tribunal is bad in law inasmuch as it did not appreciate the entire matter. 13. Learned counsel for appellants Mr SK Goswami, referring to the evidence of claimant, submitted that there is a head-on collision of the two motorcycles along with the pickup van and therefore it is a case of composite negligence and so the claimants can choose either of the vehicles to file their claim petition and in absence of proper evidence in favour of the offending vehicle fixing liability of 25 per cent is improper. He referred to the decisions of the Apex Court in Kumari Kiran v. Sajjan Singh and Others, (2015) 1 SCC 539 and Khenyei v. New India Assurance Co Ltd, (2015) 9 SCC 273 to say that in case of composite negligence the claimant is entitled to sue both or any of the tortfeasors and recover the entire amount of compensation as liability of joint or several. In case of composite negligence apportionment of compensation between the tortfeasors vis-a-vis the claimant is not permissible and can opt either of the tortfeasors to recover compensation. 14. Applying the analogy of the said case laws to this case it is held that the claim can be satisfied by the vehicle that was sued before the Tribunal. As it is a composite negligence there cannot be any apportionment as held by the Tribunal. 15. 14. Applying the analogy of the said case laws to this case it is held that the claim can be satisfied by the vehicle that was sued before the Tribunal. As it is a composite negligence there cannot be any apportionment as held by the Tribunal. 15. Learned counsel for appellants referred to the decision of the Apex court in Nishant Singh and ors. v. Oriental Insurance Co Ltd in Civil Appeal no.10145/2016 to contend that the driver of pickup van which was coming behind the bike did not keep safe distance from the vehicle going ahead of him and hence is fully liable for the accident as he could have controlled his vehicle had he taken proper precaution to avert the accident. He submitted that liability of the owner of pickup van is to the fullest extent and he cannot be exonerated from the accident by making him liable to the extent of 25 per cent only. He referred to the FIR and charge-sheet to say that it is a case of purely composite negligence 16. The substance of argument of learned counsel for appellants is that it is not a case of contributory negligence so to make such apportionment by the Tribunal and as held above in case of composite negligence there cannot be any apportionment of compensation. 17. Learned counsel for the insurer Mr R Goswami refuting the submissions of learned counsel for appellants submitted that it is not a case of purely composite negligence but a mixed case of composite and contributory negligence and it reflects so in the evidence on record and the documents such as GD entry, FIR, charge-sheet etc. He prayed to consider the fact that while the deceased was overtaking the van the other motorcycle coming from the front hit him for which he fell on the road and the other motorcyclist flew into a paddy field when the van suddenly ran over the deceased. 18. The evidence of DW2 and the claimant reveals that the accident took place all of a sudden and the bike driven by the deceased was really collided with the other bike which was coming from the front side and hence liability cannot be attributed exclusively to the driver of the pickup van. The incident happened when the deceased suddenly overtook the pickup van. The incident happened when the deceased suddenly overtook the pickup van. Due to suddenness the van could not handle the situation and hit the deceased who was already lying on the road. The owner of the van denied the accident to have been occurred due to his fault. The evidence of DW2 does have a substance. The FIR filed by the brother of deceased also did not mention involvement of the van and did indicate that the motorcycle of deceased is collided with the other motorcycle but charge-sheet is filed against both bikes and so the latter's complicity cannot be brushed aside at all. However, the claimants have the option to choose either of the tortfeasors to be impleaded in the claim petition. 19. Taking into account all above and the documentary evidence and the assessment it can be held that the deceased also has to be attributed to some contributory negligence towards the accident. From the circumstances it can be held that liability of the pickup van can be extended to 60 percent. Accordingly the insurer of the pickup van is directed to bear 60 per cent liability of the pickup van. 20. As regards the compensation there is no dispute over the salary, multipliers etc, and in terms of the decision in Prannay Shetty vs. National Insurance Co Ltd, (2017) AIR SC 5157 the claimants are entitled to Rs 70,000/- for funeral expenses and loss of estate and consortium. Thus, Rs 14,94,976/- compensation is now payable to the claimants. Accordingly the insurer will pay 60 per cent of the total compensation of Rs 8,96,985.60/- (Rupees eight lakh, ninety-six thousand, nine hundred, eighty-five, and sixty paise only) with 6 per cent interest as indicated in the award to the claimants and to be deposited with the registry within six weeks from today after deducting the amount already deposited with the registry and the claimants will withdraw the amount on due identification by the engaged counsel. 21. Accordingly the appeal is partly allowed. Send down the LCR.