JUDGMENT : B.B. Mangalmurti, J. Instant Miscellaneous Appeal has been filed against the judgment/award dated 21.02.2015 passed by Shri Manoj Prasad, the then Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No.37 of 2006 by which the claim application filed by the claimants has been allowed and the opposite party no.3-Oriental Insurance Company Ltd, appellant herein was directed to pay 80% of the total compensation amount, which after calculation comes to Rs.7,88,400/- with 9% per annum interest from the date of admission till the date of payment to the claimants in their joint names within one month from the date of the order after deducting the payment made under Section 140 of the M.V. Act, failing which they shall have to pay 12% interest. 2. The short facts of the case is that on 06.12.2005 at about 1 p.m. near Lowadih Chowk, the deceased Pramod Kumar Makan was going by tempo bearing registration no.BR-14D-7915 and at that time a truck bearing registration no.BR-14G-9588 driven rashly and negligently by its driver dashed the tempo on the left side of the road. The impact of the accident was that all the occupants sustained grievous injuries and some of them were referred to RMCH, Bariatu, Ranchi where Pramod Kumar Makan died in course of treatment. His Post-mortem examination was conducted there. It is claimed that the deceased was earning from business Rs.18,000/- per month. 3. Learned counsel for the appellant submitted that there was head on collision between Tata 407 Truck bearing registration no.BR-14G-9588 and Auto Rickshow bearing registration no.BR-14D-7915 so there was contributory negligence on part of both drivers and as such apportionment of compensation should be 50-50%. Learned counsel further submitted that the claimants have failed to establish the occupation of deceased and learned Tribunal exorbitantly taking into account the income of deceased awarded compensation on the higher side. She further submitted that learned Tribunal arbitrary and illegally held that the claimants are entitled for a total compensation of Rs.9,85,500/- along with interest @ 9% per annum from the date of admission under Section 166 i.e. 18.06.2010 till realization within one month from the receiving the copy of judgment. She further submitted that learned Tribunal arbitrary and illegally held that the claimants are entitled for a total compensation of Rs.9,85,500/- along with interest @ 9% per annum from the date of admission under Section 166 i.e. 18.06.2010 till realization within one month from the receiving the copy of judgment. Learned counsel also submitted that if the Court directs this appellant to comply the impugned judgment then right to recovery be given to this appellant from the owner of said tempo as the tempo was not insured and it is violation of norms and laws held by Hon’ble Apex Court in the cases of Municipal Corporation of Greater Bombay Versus Laxman Iyer and Another reported in (2003) 8 SCC 731 , Renuka Devi H. & Others Versus Bangalore Metropolitan Transport Corporation & Others reported in (2008) 17 SCC 56 and National Insurance Company Ltd. Versus Yohannan & Others reported in AIR 1998 Ker 37 . Learned counsel for the appellant submitted that Municipal Corporation of Greater Bombay (supra) the Court has held that :- “It is now well settled that in the case of contributory negligence, Court 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.” In the case of Reunka Devi H. & Others (supra) it was held :- “In the present case, admittedly the High Court had in fact come to the conclusion that the appellant had also contributed to the negligence and therefore, the compensation was reduced to 50%. Learned counsel for the appellant also submitted that in view of Hon’ble Supreme Court decision relating to National Insurance Company Limited Versus Pranay Sethi & Others reported in (2017) 16 SCC 680 , the award on conventional head are much higher and is inconsistence with above decision as the Tribunal has awarded Rs.2,25,000/- although it should have been total Rs.70,000/- only. The award needs modification on this account also. 4. Learned counsel for the respondent/claimant submitted that the case relates to composite negligence where the injuries have been caused to the deceased by combined wrongful act. The award needs modification on this account also. 4. Learned counsel for the respondent/claimant submitted that the case relates to composite negligence where the injuries have been caused to the deceased by combined wrongful act. He submitted that the Hon’ble Supreme Court in the case of Khenyei Versus New India Assurance Company Limited & Others reported in (2015) 9 SCC 273 held as under :- “There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. However, in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. In such case, the 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.” He also relied on the same decision of The Municipal Corporation of Greater Bombay (supra) and submitted that the Court has power to apportion the loss between the parties in case of contributory negligence, but in present case there is no contributory negligence on the part of the victim so the question of apportionment does not arise. Learned counsel further submitted that the case of National Insurance Company Ltd. Versus Yohannan & Others (supra) relied on by the appellant is already overruled, and apportionment has been held impermissible in various judgment passed by the Hon’ble Court. Thus, the Insurance Company in exercise of power enshrined under Order XL I Rule 33 of the Code of Civil Procedure may be directed to pay the entire 100% of the awarded compensation amount with liberty to recover the same from the owner. 5. Thus, the Insurance Company in exercise of power enshrined under Order XL I Rule 33 of the Code of Civil Procedure may be directed to pay the entire 100% of the awarded compensation amount with liberty to recover the same from the owner. 5. Considering the above submission of the parties and on perusal of the papers attached with this appeal, it appears that the Tribunal after discussion has held that the case of composite negligence is made out as the F.I.R. was against the both drivers and after investigation the police submitted charge sheet against the driver of tempo on the ground of negligence in driving the vehicle. The Hon’ble Supreme Court in Civil Appeal No.8879 of 2015 in the case of Kamlesh & Others Versus Attar Singh & Others decided on 27th October, 2015 held that : “It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint “tort-feasors”, thus, liable to make payment of compensation.” The Tribunal also on consideration of entire materials on record apportioned the liability between the truck and the tempo in the ratio of 80:20 with direction that owner/insurer of the truck will be liable to pay 80% of the claim amount while owner of the tempo will be liable to pay only 20% of the claim amount. The Tribunal has based this finding following a decision of Hon’ble Jharkhand High Court reported in the case of reported in 2010 Vol.4 TAC 660. On the point of income, the Tribunal has rightly held the income of deceased as Rs.60,000/- basing on the income tax assessment of deceased as income from his business(Exhibit 3), and deducted 25% or 1/4th towards personal expenses making annual dependency to the Rs.45,000/- and applied the multiplier of 13 came to the quantum to Rs.5,85,000/-. It appears that the Tribunal has awarded 30% enhancement towards future prospect as the deceased was in the age group of 40-50 years, as well as awarded Rs.25,000/- towards funeral expenses and Rs.1,00,000/- for loss of estate and consortium and further Rs.1,00,000/- for loss of care and guardianship to the minor children and Rs.5,85,000/-+ 30% enhancement Rs.1,75,500/-+Rs.25,000/- funeral expenses+Rs.1,00,000/- loss of estate and Rs.1,00,000/- loss of care and guardianship and came to total quantum of Rs.9,85,500/-. Applying the ratio of National Insurance Company Limited Versus Pranay Sethi & Others (supra), addition towards the future prospect of deceased who are in the age group of 40-50 years would be 25%. The Tribunal has also awarded much on conventional head which should have been restricted to Rs.15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses, totaling Rs.70,000/-. Therefore, the Tribunal has erred in awarding more on these above accounts. The Tribunal has calculated the quantum keeping the income of deceased at Rs.60,000/- with deduction of 25% towards personal expenses which came out to Rs.45,000/- per year and on applying multiplier of 13 it came to Rs.5,85,000/-. The further calculation made by the Tribunal is modified by addition of 25% towards future prospect i.e. Rs.1,46,250/- with further addition on conventional heads Rs.70,000/-, therefore, the total quantum being Rs.5,85,000/- + Rs.1,46,250/- + Rs.70,000/- = Rs.8,01,250/-. The Tribunal has directed for apportionment of the payment in the ratio of 80:20 which is left undisturbed. The interest rate of 9% per annum is reduced to 5% in view of the peculiar situation facing the country due to Covid-19. From the order dated 2nd May, 2017, it appears that appellant-Insurance Company has deposited Rs.6,50,000/- in the Court below as part payment and the same was ordered to be disbursed to the respondent/claimant with undertaking, besides any payment made under Section 140 of the M.V. Act, therefore, the parties will be at liberty to pay or realize or adjust the amount as the case may be in view of the above modification. 6. With this modification in the total quantum of award, instant miscellaneous appeal is allowed with above modification in award dated 21.02.2015 passed by Shri Manoj Prasad, the then Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No.37 of 2006. 7. The Insurance Company is allowed to withdraw the statutory amount. 8. Let a copy of this order be transmitted to the Court concerned for information and the needful.