(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Civil Application No. 5638 of 2009 (In First Appeal No. 4192 of 2008) 1. Smt. Rukminibai Pandurang Jedhe, 2. Shri Subhash Pandurang Jedhe, 3. Ku. Bharat Pandurang Jedhe, 4. Smt. Dhrupadabai Appasaheb Jedhe, 5. Shri Appasaheb Dailaji Jedhe. .. Applicants. versus 1. Divisional Manager, United India Insurance Co. Ltd., Divisional Office, Mansingh Market, 2nd floor, Station Road, Jalgaon. 2. Shaikh Wahab Shaikh Usman. .. Non-applicants. .......................... Mr. Naseem R. Shaikh, Advocate, for the applicants. Mr. M.S. Deshmukh, Advocate, for non-applicant no.1. Mr. A.N. Nagargoje, Advocate, non-applicant no.2. .......................... CORAM : B.R. GAVAI & R.K. DESHPANDE, JJ. DATE : 20TH JULY 2009. (2) COURT'S ORDER : 1. This is an application for withdrawal of the amount which has been deposited by the appellant in this court. 2. The applicants are legal heirs of deceased Pandurang, who had met with a fatal accident. The applicants, as such, had filed a claim petition. An award was passed in the said Claim Petition for an amount of Rs. 12,80,000/-, including the amount towards no fault liability. Being aggrieved thereby, the non-applicant no.1 has filed the present appeal. 3. After filing of the appeal, the appellant has deposited the amount under award, in this court. The applicants have prayed for withdrawal of the same amount. 4. The application is vehemently opposed by the learned Counsel appearing for the non-applicant no.1 / appellant, on the ground that the the plea regarding contributory negligence has not been properly considered by the learned Member of the Motor Accident Claims Tribunal. He submits that, in the alternative, the plea of the appellant was, at the most, 40 % liability could be fastened upon the appellant. He, therefore, submits that if the amount is permitted to be withdrawn, it will cause great prejudice to the appellant. 5. We are of the considered view, that even prima facie accepting contention of the present appellant, regarding contributory negligence, still it cannot run away from liability of 50 % of the amount under award. As such, we find that 50 % of the amount under award can be permitted to be (3) withdrawn without furnishing security. In so far rest of the amount, interest of the appellant can be safeguarded by imposing certain conditions. 6. In the result, the application is allowed. (i) Fifty percent of the amount, deposited by the appellant, is permitted to be withdrawn by the applicants (respondent nos.1 to 5 in the First Appeal), without furnishing security. (ii) In so far as remaining fifty percent of the amount, deposited by the appellant, is concerned, the same is permitted to be withdrawn by the applicants (respondent nos.1 to 5 in the First Appeal) on furnishing solvent surety to the satisfaction of the Registrar [Judicial] of this court and further undertaking to this court, that in the event, the appellant succeeds, the applicants shall refund the said amount. ( R.K. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/ca5638