( 1 ) THIS is an appeal under Section 110-D of the Motor Vehicles Act (Act IV of 1939) (hereinafter referred to as the said Act) and is directed against an award dated January 3, 1974, passed by the Motor Vehicles Accident Claims Tribunal, Burdwan, in Acci- (Sent Claim Case No. 72 of 1969. The appeal raises a short but an important point as to whether contributory negligence on the part of the deceased on whose death in the accident the claim is put forward would defeat the claim. The facts are not much in dispute and are shortly set out as hereunder.

( 2 ) ON October 28, 1969 one Taher Seikh son of late Isu Seikh boarded a bus run by the appellant on the route Burdwan to Nasigram via Khetia and Bhatar. He boarded at Khetia and was proceeding to Bhatar. Since the bus was overcrowded the deceased Taher Seikh along with other passengers got on to the roof of the bus as there was no accommodation available inside the bus. He took his seat on the right side. Unfortunately for him when the bus was nearing Bhatar it swerved on the right side of the road to overtake a cart on the road. The deceased Taher was struck by an overhanging branch of a tree and he fell down on t