1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. First Appeal No.596 of 2009 [The New India Assurance Co. Ltd. Vs. Kishor G. Hantode & another] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. D.S. Dharaskar, Adv., for the appellant. ----- CORAM : A.H. JOSHI, J. DATE : 02nd July, 2009. 1. This First Appeal is preferred by Insurance Company, who had raised a defence that it was a case of contributory negligence and another offending vehicle was not made a party. 2. Heard learned Adv. Mr. D.S. Dharaskar for the appellant. 3. It is seen that though respondent no.2, i.e., Insurance Company, pleaded its defence to be of contributory negligence, it has failed to produce any evidence in this regard. The learned Member of the Tribunal has dealt with this issue in the judgment as follows:- 7. The F.I.R. at Exh.25 and spot panchanama at Exh.26 unequivocally transpire that having 2 inspected the spot and exact situation thereon the offence was registered against the driver of offending taxi. The respondent no. 2, even though submitted that the accident was caused due to contributory negligence of drivers of both the vehicles, it has failed to produce any evidence on the record to substantiate its averment. There is no document on record, which may drive this Tribunal to hold or even to presume that there was any composite or contributory negligence of the rider of motorcycle; sufficient to cause the accident. In the result, I conclude that the rashness and negligence on the part of driver of offending taxi was the sole cause of accident. As a sequel, the owner of motorcycle and the insurance company were absolutely not necessary parties. Petition, therefore, does not suffer from non-joinder of necessary parties. 4. Above referred explicit discussion on the point reveals that what was proved by the claimant was that the motorcycle owner and his insurer were not necessary parties. 5. Contributory negligence is a specific pleading. Having taken recourse to the said plea, it was an inescapable duty and burden of the Insurance Company to prove its plea. Having failed to do so, there is no ground, whatsoever, available to the Insurance Company to plead and contend that the accident was a consequence of contributory negligence. 3 6. In the circumstances, the judgment is not shown to suffer from defect, whatsoever. 7. The Insurance Company is aggrieved, and does not like the Judgment is no ground to challenge an Award. 8. Appeal has, thus, no merit, and is dismissed accordingly at the stage of admission- hearing. Judge |Hedau| 4