1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 332 OF 2007 The United India Insurance Company Ltd., Through its Divisional Office, Divisional Manager, United India Insurance Company, Osmanpura, Aurangabad .. .. Appellant Versus 1. Smt. Hirabai W/o Ashok Jadhav, Age : 30 Years, Occu. : Household, 2. Ku. Varsha S/o Ashok Jadhav, Age : 09 Years, Occu. : Education, 3. Ku. Sachin D/o Ashok Jadhav, Age : o8 Years, Occu. : Education, 4. Ku. Meena D/o Ashok Jadhav, Age : 05 Years, Occu. : Education, 5. Ku. Pradeep S/o Ashok Jadhav, Age : 03 Years, Occu. : Nil., 6. Smt. Laxmibai W/o Tulshiram Jadhav, Age : 60 Years, Occu. : Household, Respondent No. 1 is the natural Guardian of Respts. No. 2 to 6. All R/o Gadhepimpalgaon, Tq. Vaijapur, Dist. Aurangabad 7. Rajendra G. Joshi, Gramin Rugnalaya, Gangapur, A/p. Tq. Gangapur, Dist. Aurangabad.. .. Respondents 2 Shri S. V. Kulkarni, Advocate for the Appellant. Shri B. N. Patil, Advocate for the Respondent No. 1 to 6 - absent. Shri M. G. Deokate, Advocate for the Respondent No. 7 - absent. CORAM : N. D. DESHPANDE, J. DATE : 24TH NOVEMBER, 2009. ORAL JUDGMENT : 01. Heard Shri Kulkarni, learned Counsel for the appellant. He frankly admitted that, in appeal memo itself he raised question of contributory negligence and, therefore, appellant alone is not liable to pay compensation awarded to the claimants as per the impugned award and, therefore, he did not dispute 50% of the liability in appeal. It is referring to total compensation of Rs. 2,75,800/- as per the award with interest at the rate of 7.5 per cent of learned Member of Motor Accident Claims Tribunal, Aurangabad. The initial claim was of Rs. 4,00,000/- in the claim petition and only Rs. 2,75,800/- was awarded. Thus, the Insurance Company/appellant ought not to have filed an appeal for admitted claim of 50 per cent. No appeal would lie against the admitted claim. As such, at the threshold, appeal stands dismissed to the extent of 50 per cent liability since admitted. Therefore, appeal is heard finally on merits and parties were accordingly put on notice by this Court on earlier date of hearing by order dated 16.11.2009. Now, the dispute is narrow only to the extent of remaining 50 per cent of the liability which the appellant Insurance Company is denying in this appeal stating 3 that it is a case of contributory negligence which was also pleaded in the written statement of the Insurance Company. 02. It is seen that, there is no application by either of the parties for joining the motorcyclist and its Insurance Company as party respondents before the learned Tribunal. It is their case that accident involved two vehicles. In order to substantiate claim of contributory negligence or defence of contributory negligence, present Insurance Company/appellant ought to have made application for adding them as party respondent but it failed. No issue is framed on this point of contributory negligence. 03. The learned Tribunal decided the claim of the petitioners, who are the legal heirs of deceased Ashok Jadhav independently on the basis of material before it as regards to income, age of the deceased and the police papers. The nature of the proceeding before the learned Tribunal is an inquiry and not a regular trial in a suit. Opportunity is given to all concerned to raise their claim or contention. In the present case, the deceased Ashok Jadhav's age was 35 years, his income was Rs. 5,500/- per month and he was maintaining his family. 04. Heard submissions of Shri S. V. Kulkarni, the learned counsel for the appellant/insurance company. Perused the impugned award. The learned Tribunal has rejected the claim of Rs. 4,00,000/- and allowed the claim of Rs. 2,75,800/- ( Rs. 2,68,000/- + Rs. 2,000/- funeral expenses + Rs. 5,000/- towards 4 loss of consortium) with interest at the rate of Rs. 7.5% per annum and partly allowed the same. In the light of above discussion it is found that, the case of contributory negligence and the defence of the appellant has not been considered by the learned Tribunal and it is rightly so because, it was not a party before the Tribunal. 05. Merely because two vehicles are involved, it could not be inferred that, it is a case of contributory negligence. It has to be specifically pleaded and proved on the basis of preponderance of probabilities. I have verified from record that, the income of the deceased was considered to Rs. 2,100/- per month only and for dependency it was reduced by 1/3rd to Rs. 1,400/- per month with multiplier of 16. It is not certainly in excess for payment as "just compensation" of Rs. 2,75,800/-. So, it call for no interference in appeal. There is no other point except the point of contributory negligence in this appeal. It is also held not valid. For the reasons given above no case of contributory negligence is made out. The amount of compensation in the impugned award of Rs. 2,75,800/- appears to be just and reasonable compensation and calls for no interference. The appeal stands dismissed on merits and appeal disposed of accordingly. [ N. D. DESHPANDE, J.] bsb/Nov.09