1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 614 OF 1994 1. Yusufali s/o. Akbarali Musalman, R/o. Chappar Mohalla, Nasirabad, Tq. & Dist. Jalgaon. 2. Shahjanbi w/o. Yusufali Musalman, R/o. As above. ....Appellants. Versus 1. Damu s/o. Nathu Patil, R/o. Sakegaon, Tq. Bhusawal, Dist. Jalgaon. (Appeal abated vide order dt. 16.2.1999) 2. The New India Assurance Company Limited, having its office located at Khandesh Mills Shopping Complex, building No. 6, Room. No. 50/51, Jalgaon. ....Respondents. Shri. L.V. Sangeet h/f. Shri. V.J. Dixit, Advocate for the appellant. Shri. A.S. Usmanpurkar h/f. Shri. K.V. Kulkarni, Advocate for the respondent No. 2. Appeal is abated against respondent No. 1. CORAM : R.K. DESHPANDE, J. DATE : 6th August 2009 2 PER COURT : 1. Heard the learned counsel for the parties. 2. This appeal challenges the judgment and award dated 28th of September 1993, passed by the learned Member, Motor Accident Claims Tribunal, Jalgaon, partly allowing the Motor Accident Claim Petition No. 113 of 1987 filed by the appellant, seeking compensation of Rs. 1,00,000/- from the respondents, to the extent it rejected the claim of the appellant. 3. The claim of the appellant, in this case, is that there was no contributory negligence on the part of the auto-rickshaw driver. It was only due to the fault or negligence on the part of the truck driver that the accident occurred and appellant suffered damage. During the pendency of this appeal, the respondent No. 1, who was owner of the truck, died. As a result, the appeal abated against the respondent No. 1. In view of this, the cause of action in the present appeal does not survive as issue regarding contributory negligence, in the absence of respondent No. 1, who is the owner of the truck, cannot be adjudicated. In view of above, the appeal stands dismissed. There shall be no order as to costs. [ R.K. DESHPANDE, J. ] ssc/fa614.94