1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.1169/2009. (Smt.Urmila w/o Walmik Nagargoje and Ors. Vs. Gaffar Baig and another) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.PN Kalyani, Advocate for appellants; Mr.BV Dhage, Adv. for Respondent no.1; Mr.SS Chapalgaonkar, Adv. for Respondent no.2. ___ CORAM : K.U.CHANDIWAL, J. DATE : 20 th January, 2010. ... 1) Heard the learned Counsel extensively. 2) The deceased, while plying a motor car, met with an accident on 4.6.2007. His family members/legal representatives initiated proceedings in terms of Section 166 of Motor Vehicles Act. The learned Member of the Motor Accident Claims Tribunal at Parbhani, by order dated 3rd February, 2009, accepted the nature of accident; the earning capacity of the deceased; dependency and reached to the conclusion of entitlement of the claimants to the extent of Rs. 2 7,43,900/-. 3) The learned Judge in paragraph 28 of the Judgment, however, felt that there was contributory negligence on the part of the deceased when he was driving the offending vehicle and there should be deduction of 20% from the compensation arrived, which he calculated and reduced the claim to that extent. 4) I find there is no issue to the effect that there was any contributory negligence. This could not be framed by the learned Judge as there was no pleading from any of the respondents. No evidence was adduced from any of the respondents to indicate, the deceased was himself responsible to face the consequence arising out of the accident. It is a matter of record, the driver of the truck is not examined. It is also a matter of record, the accident occurred when the deceased was driving the car having all safety measures and the deceased had a valid driving license. 3 5) Taking these aspects into consideration, the deductions carried by the learned Judge were uncalled for and warrant interference. Hence order. 6) The First Appeal allowed. The order of granting compensation at Rs.5,95,120/- is modified to Rs.7,43,900/-. The other details in the order shall remain unaltered. No costs. (K.U.CHANDIWAL) JUDGE bdv/fa1169.09