Neutral Citation No. - 2025:AHC-LKO:39197 Court No. - 8 Case :- FIRST APPEAL FROM ORDER No. - 947 of 2012 Appellant :- United India Insurance Co. Ltd. Thru. Its Dy. Manager Respondent :- Banshi Lal And Anr. Counsel for Appellant :- Shishir Pradhan Counsel for Respondent :- Ramesh Chandra Mishra Hon'ble Jaspreet Singh,J. Heard learned counsel for the appellant whereas none appears for the respondents despite the name of Sri Ramesh Chandra Mishra has been shown as learned counsel for the respondents and is printed in the cause list. The instant appeal has been preferred under Section 133 of the Motor Vehicles Act, 1988 assailing the award dated 19.07.2012 passed by the MACT/ADJ, Court No. 15, Lucknow in Claim Petition No. 578 of 2009 whereby in a death case a sum of Rs. 2,56,500/- has been awarded in favour of the claimant respondent no. 1 along with 6% interest. The learned counsel for the appellant while assailing the said award has raised a two fold submissions:- (i) it is urged that it was a case of contributory negligence, however, this aspect has not been considered by the Tribunal and as such if the issue is decided in favour of the appellant then the amount of compensation as awarded would be reduced; (ii) It is also urged that the deceased Foolchand was a Bachelor and apart from the respondent no. 1, he has no other legal heirs, since the respondent no. 1 was his brother, hence, he at best could be treated as the legal heir and not the dependent and for the said purpose the compensation as granted is on much higher side and as no fault liability only a sum of Rs. 50, 000/- should have been awarded in favour of the respondent no. 1. In support of his submission, he has relied upon a decision of the Apex Court in the New Indian Insurance Company Ltd. V.s Anand Pal and others; in Civil Appeal No. 7805 of 2022 decided on 04th December, 2023. The Court has considered the aforesaid submissions and also perused the material on record. In so far as the issue of contributory negligence is concerned, the same does not hold water for more than one reasons. At the outset, it may be noticed that the respondent no. 2 who is the owner of the offending vehicle had raised the aforesaid plea in the written statement but no evidence was led on behalf of the respondent no. 2. Merely taking a plea does not partake the nature of proof and in absence of any proof, the plea of contributory negligence cannot be said to have been proved. Moreover, the issue regarding contributory negligence at best could be proved by examining the driver of the offending vehicle which was not done despite service on the respondent no. 2. In view of the aforesaid, the first ground raised by the learned counsel for the appellant lacks merit and is turned down. In so far as the second submission of learned counsel for the appellant is concerned, if noticed, would indicate that it is an undisputed fact that the respondent no. 1 is the brother of the deceased. The Court has considered the statement of the respondent no. 1 which was placed and deposed before the Tribunal wherein he had stated that he was the only brother of the deceased. The parents have already died. This indicates that the respondent no. 1 was only legal heir. There is nothing on record to indicate that the respondent no. 1 was not the dependent of the deceased. The Court has considered even the cross-examination of the respondent no. 1 but no question was put to the said witness either directly or indirectly regarding the fact as to whether the respondent no. 1 was the dependent of the deceased. For the aforesaid reasons, the decision cited by the learned counsel for the appellant in Anand Pal (supra) may not come to the aid of the appellant for different reasons and for the facts of the said case, however, this Court relies upon a decision of the Apex Court in National Insurance Company Ltd., vs Birender & Ors : (2020) 11 SCC 356 wherein it has been held that even if the person may not be a dependent yet in some circumstances, the compensation can be paid. In the instant case, it is clear that the deceased was the brother of the respondent no. 1. There is nothing on record to contradict that he was not a dependent. In absence of any such clear findings, the submissions raised by learned counsel for the appellant in appeal cannot be appreciated as there was no evidence led to the contrary. In the given facts and circumstances, this Court finds that the findings returned by the Tribunal do not suffer from any error to persuade this Court to intervene in the instant appeal, accordingly, the award dated 19.07.2012 passed in Claim Petition No. 578 of 2009 is affirmed. The appeal is devoid of merits and is accordingly dismissed. Any amount deposited before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants-respondents and any shortfall shall also be made good by the Insurance Company within a period of 60 days from today. The record of the Tribunal shall be returned forthwith. Order Date :- 7.7.2025 Asheesh/- Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench