Neutral Citation No. - 2025:AHC-LKO:37078 Court No. - 8 Case :- FIRST APPEAL FROM ORDER No. - 926 of 2015 Appellant :- The New India Assurance Company Ltd.Thru Officer Incharge Respondent :- Tripati Barnwal And Ors. Counsel for Appellant :- Zafar Aziz Counsel for Respondent :- Rajesh Kumar Shukla,Sheo Prakash Singh Hon'ble Jaspreet Singh,J. Heard learned counsel for the appellant. Sri Rajesh Kumar Shukla, learned counsel for the claimant-respondent nos. 1, 2 and 3. None has put in appearance on behalf of respondent no. 4. The record indicates that notices were issued to the respondent no. 4, however, despite sufficient service as noted in the order of the order of the Joint Registrar (Listing) dated 16.08.2022, the service on the respondent no. 4 was deemed sufficient but nevertheless none has put in appearance, accordingly, the Court has heard learned counsel for the parties. Sri Zafar Aziz, learned counsel for the appellant submits that the sole ground upon which the award dated 29.07.2015 is assailed is that a plea of contributory negligence was raised and a specific issue no. (vi) was framed in this regard but the same has not been appropriately decided, consequently, the findings of the Tribunal on issue no. (vi) is vitiated which impacts the quantum of the liability on the appellant. The learned counsel for the respondent nos. 1, 2 and 3 submits that the issue of contributory negligence could not be proved by the owner as he did not enter into the witness box nor he examined the driver who could have been the best person to lead the said evidence. In absence thereof the said plea of contributory negligence could not be proved and it is in view thereof that the issue no. (vi) has been decided and it cannot be said that there is any perversity in the same, accordingly, the appeal deserves to be dismissed. Having considered the aforesaid submissions of the learned counsel for the parties, it will be appropriate to examine the facts of the matter appropriately in order to ascertain whether the issue no. 6 has been properly decided or not. On the fateful day of 01.06.2009 when the deceased at around 04:00 AM was going to Kesarpur, near Balaji Aluminum Industries which falls under the Faridpur Police Station in District Bareilly he was crushed by a truck bearing No. HP-12- C-0712 and died on the spot. It is in this regard that the claim petition came to be filed which was registered as Claim Petition No. 9 of 2011. Upon the exchange of the pleadings, the Tribunal framed as many as 7 issues and the issue no. (vi) was specifically framed on account of contributory negligence. The Tribunal while deciding the issue no. (vi) categorically noted that the owner did not examine any witness, however, the Tribunal further considered a copy of the site plan and expressed a doubt that since the accident is said to have occurred and as per the site plan a case of contributory negligence does not appear to have been made out and for the said reason, it was held that the deceased was not responsible for the accident. The Tribunal further went on to consider the quantum and awarded a sum of Rs. 8,36,000/- along with 7% interest and since the vehicle in question i.e. the offending truck was duly insured, the liability was fastened on the Insurance Company vide award dated 29.07.2015. It is this award which is under challenge on the sole ground of contributory negligence. The Court has heard the learned counsel for the parties and also perused the material on record. Apparently, the plea raised by learned counsel for the Insurance Company appears to be misconceived for more than one reasons. At the outset, in case if a plea of contributory negligence was raised, then it was incumbent upon the owner as well as the driver to have examined himself to substantiate the same, though, the record indicates that the driver was not made a party, the fact remains that the owner was a party. The owner and the driver in law are termed as joint tortfeasors. It is also not disputed that the driver in question was the driver of the respondent no. 2 and if he wanted, he could have examined him, even though, he was not made a party yet he could have been produced as a witness. For the said reason, it does not impact the merits of the matter. The learned counsel for the appellant could not dispute the fact that neither the driver nor the owner entered into the witness box, accordingly, merely taking a plea does not partake the nature of proof and in absence of proof no such finding on contributory negligence could have been recorded by the Tribunal. It is now well settled that mere plea of contributory negligence cannot be substantiated merely on the basis of a site plan. In the instant case, as noticed above, since neither the driver nor the owner were examined and the plea raised by the owner/respondent remained un-substantiated and therefore the finding given by the Tribunal cannot be faulted. No other plea has been raised by the appellant to challenge the award and for the aforesaid reasons, the other findings remain intact. No perversity could be pointed out by learned counsel for the appellant to persuade this Court to interfere with the award, accordingly, the appeal is dismissed. The award dated 29.07.2015 is affirmed. The record of the Trial Court be returned forthwith. Any amount deposited before this Court shall be remitted to the Tribunal forthwith to be released in favour of the claimants- respondents as per the award. Order Date :- 1.7.2025 Asheesh/- Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench