1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 89 OF 2010 Tata Motors Limited. .. Appellant Versus 1] The new India Assurance Co. Ltd. 2] Smt. Lata Gopalrav Kshirsagar, Age 41 Years, Occ. Household. 3] Yogesh Gopalrav Kshirsagar Age 26 years. 4] Viresh Gopalrav Kshirsagar Age 24 years. All r/o. 184, Dhamdhere Niwas Nalegaon, Ahmednagar.. .. Respondent. --- Mr. S.V. Warad, Advocate for appellants Mr. D.R. Jaybhar, Advocate for respondent Nos. 2 to 4. CORAM : K.U. CHANDIWAL J. DATE : 9th April, 2010 ORAL JUDGMENT :- 1] Admit. Heard finally. 2] The judgment and award dated 6/12/2005, in MACP No. 1078/1995 is debated by the appellants on the ground that, in spite of there being pleadings pointing contributory negligence, as a stationary truck without any indication, proved hindrance and resultantly, it was dashed from the vehicle involved from back side. 2 3] On hearing both the counsel, the following points needs to be formulated :- "Whether non framing of issue by the learned member in Petition No. 1078/1995, concerning contributory negligence has resulted in miscarriage of justice, warranting either remand or reversal of the award. 4] On analysis and discussion, hereinafter, indicated, findings or non-framing of the issue would not change shade in the matter and hence no substance. First appeal dismissed. 5] It is matter of record, deceased Gopalrao, 34 years old was allowed the driver of the appellant on the chasis of the vehicle No.MH-12/0777 and in the process, the chasis driver had excessive speed dashed against the stationary truck and smashed precious life of Gopalrao. Though the appellant filed written statement before the learned Judge, to state that there was no preventive precautions taken by the truck driver of the truck bearing Registration NO. MNK 629, and consequently, the ssue relating to contributory negligence was imperative. However, I find that basically in the pleadings, there was no implead-ment of the truck driver or the truck owner/insurance company. The record in the form of spot panchanama, FIR, indicated that credit for entire accident is to the shoulder of driver of the chasis bearing NO. MH-12/O777. Since there was no implead-ment of truck driver nor any request was made at any point of time, there was no reason for 3 the learned Judge to have framed issue in relation to so called case of contributory negligence. 6] If it was a case of contributory negligence, there was no prohibition for the appellant to get on record through evidence of the driver and how and in which manner the accident has taken place. However, this exercise though was legally expected, has not taken place. Considering these avenues, it is more than clear that the non framing of issue of contributory negligence would not change the shade of the matter, to indicate any prejudice to the appellant. 7] The learned counsel for the appellant was fair enough in not controverting the age of the deceased, his monthly earnings, dependency of the claimants and the ultimate award. 8] Taking stock of the facts, I find, there is no merit in the appeal. It is dismissed. Stay vacated. [K.U. CHANDIWALJ.] Grt/-