R. K. DESHPANDE, J.

( 1 ) THE notice in this appeal was issued on 17th June, 2009 making it clear that the matter is to be decided finally at the stage of admission. On 5th September, 2009, the matter was listed for admission, however none appeared for the respondent No. 4, the owner of the vehicle and hence the matter was again posted for final disposal on 9th September, 2009 to be heard at the end of admission board. The matter was thereafter listed for final disposal at the end of admission board on 14th September, 2009. Shri. S. G. Chapalgaonkar, the Advocate appeared for the appellant insurance company whereas, Miss. Swapna Bahalkar, the Advocate appeared for the respondent No. 3 claimant. None appeared for the respondent No. 4, the owner of the vehicle. Admit. Heard by the consent of parties, finally.

( 2 ) THIS is an Appeal preferred by the Insurance Company-original respondent No. 2 in M. A. C. P. No. 607/2005 challenging the judgment and Award dated 17. 11. 2008 passed by the learned Member, Motor Accident Claims Tribunal, Ahmednagar holding the appellant and the Respondent No. 4 herein, the owner of the truck bearing No. MH17k5292, jointly and severally liable to pay the Respondent Nos. 1 to 3 claimants, an amount of compensation of Rs. 5,23,000/ inclusive of no fault liability amount, together with interest at the rate of 9% p. a. from the date of petition till its realisation.

( 3 ) BY the impugned judgment and Award, the Tribunal has held that deceased Bhaskar pawar, the husband of the claimant No. 1 and father of the claimant Nos. 2 and 3, died in motor vehicle accident occurred on 7. 9. 2005 on Nagar Manmad High way near rahuri Krishi Vidyapeet Gate. It has been held that, the truck bearing No. MH17/ k5292 owned by the respondent No. 4, was being driven in rash and negligent manner resulting in dash to the Suzuki motorcycle bearing No. MH16/ 5843 driven by Bhaskar pawar, who died. The Tribunal has determined the age of the deceased as 50 years at the time of accident and his income as rs. 6,000/ per month, from the Tailoring business and agricultural operations. The tribunal has further held that after deducting the personal expenses the dependancy was of Rs. 4,000/ per month and Rs. 48,000/ per annum. The Tribunal calculated the amount of compensation payable at Rs. 4,88,000/ towards the loss of dependancy, Rs. 10,000/ towards funeral expenses and Rs. 25,000/ towards loss of love and affection and thus total amount of rs. 5,23,000/, was arrived at.

( 4 ) SHRI. Chapalgaonkar, the learned counsel appearing for the appellant challenged the findings of the Tribunal, firstly, on the ground that the driver of the offending vehicle i. e. Truck bearing No. MH17/ k5292 was not joined as party to the claim petition and in his absence the Tribunal could not have recorded the finding of negligence on the part of the said driver and the Claim petition was therefore liable to be dismissed on this sole ground. In support of his contentions, the learned Counsel for the appellant relied upon the para No. 9 of the decision of the Apex Court reported in A. I. R. 2007 s. C. 1609 (Oriental Insurance Co. Ltd. Vs. Meena Varial and ors.), 2008 DGLS (soft) 547 : (2008)13 S. C. C. 198 (Machindranath kernath Kasar Vs. D. S. Mylarappa and others ). He further urged that it was the deceased himself, who was negligent and responsible for accident and the negligence on the part of the driver of the alleged offending vehicle i. e. Truck has not been established. In support of this plea, he relied upon the decision of the Apex Court reported in 1977 DGLS (soft) 63 : A. I. R. 1977 s. C. 1248 (Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and another ). The learned Counsel further urged that at any rate, it was the case of the contributory negligence, more particularly, when the fact indicated that the collision was in the middle of the road and there was no case that the truck driver, was on wrong side. He relied upon the F. I. R. a

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