The burden of proving contributory negligence lies on the party alleging it.

( 1 ) DR. P. S. Bhargava in this appeal has assailedthe award passed by the Motor Accident Claim Tribunal, Delhi (hereinaftercalled the Tribunal) dated 31/07/1975. The award has been assailed interalia on the ground of inadequacy of compensation as well as on the findingof contributory negligence and for having not given interest from the date of the application.

( 2 ) IN brief, facts are that on 4/06/1968 at about 4. 00 p. m. Dr. Bhargava was going on a Scooter No. DLS-9792, from the library in frontof Sri Ram College, Delhi University, towards Model Town, when a busbearing No. DLP-3472, driven negligently, recklessly and at fast speed hitthe scooterist after coming on the wrong side. The bus driver was negligentin driving the bus and he was not keeping proper look out. As a result ofthis accident. Dr. Bhargava sustained compound fracture in his right legbeside other injuries. I Dr. Bhargava was about 60 years old at the time ofaccident and was working as Lecturer in English in P. G. D. A. V. College,chitre Gupt Road, Delhi, on a monthly salary of Rs. 1,100/". Driver, Devraj, was under the employment of Sh. P. C. Kohli of Kohli Transportservice and the said bus was insured with M/s. Northern India Generalinsurance Company Limited, now M/s. New India Assurance Company Ltd. On account of the compound fracture Dr. Bhargava claimed a compensationof Rs. 50. 000. 00. I The Tribunal held it was a case of contributory negligencein which driver of each vehicle was responsible fifty percent respectively. The Tribunal assessed the compensation to Rs. 11,800. 00 but awarded to theclaiment 50% i. e. a sum of Rs. 5. 900. 00 in all and 6% interest in case theamount is not paid within two months.

( 3 ) CHALLENGING the contributory negligence, the appellant has placedreliance on para 22 of his claim petition where he had pleaded that bus wasdriven negligently, recklessly and at a fast speed and that the bus had comeon the wrong side and hit the scooter. The scooter had already come outfrom the library gate and was going towards Model Town. These pleadingswere not refuted by the Driver of the bus. He had not filed the writtenstatement. Therefore, it should be presumed that he accepted the avermentsin the claim petition. The owner of the bus in its written statement in replyto para 22 denied that the accident was due to negligence of the driver. Owner of the bus had no personal knowledge, hence his denial of claimant sassertion regarding negligence is no denial in the eye of law. In the writtenstatement no plea of contributory negligence was raised nor alleged that theclaimant came on the wrong side and hit the bus, though two written statements were filed by the owner of the bus, one on 9-12-68 and other on11-2-69. In the written statement filed on 11-2-69, except mere denial ofthe averments made in para 22 of the claim petition no explanation or hisversion given regarding the accident. Mr. Goyal, Counsel for appellantrightly contended that no amount of evidence can be looked into which iscontrary to or which is beyond or in variance with the pleadings. I hedriver of the bus having not refuted the version of accident given by theclaimant could not step into the witness box and state that the claimant wasnegligent. No reliance can be placed on his testimony. If his testimony isignored then there is not an iota of evidence available on record to arriveat the conclusion that the claimant also contributed in any manner for thisaccident. In fact there had been a shifting stand of the respondents withregard to the cause of accident. Beside the claimant, the Driver of the buswas the other person to have known what was the cause of accident. Buthe choose not to file his defence nor refuted the version of accident given bythe claimant. He, however, appeared in the witness box and took a standwhich was not pleaded and thus took the appellant by surprise. Accordingto Baldev Raj, RW-1, he was driving the bus at the speed of about 15 milespe