JUDGMENT :

Devashis Baruah, J.

1. Heard Mr. A.K. Gupta, the counsel appearing on behalf of the appellant as well as Mr. R. Goswami, counsel appearing on behalf of the Respondent No. 3 and Mr. S. Dutta, counsel appearing on behalf of the Respondent No. 5.

2. The instant appeal arises out of the award dated 11.06.2012, whereby, the Tribunal below had awarded 50% of the compensation of an amount of Rs. 13,21,150/- (Rupees thirteen lakhs twenty one thousand one hundred fifty) along with interest @ 6% per annum from the date of filing of the claim petition. Being aggrieved by the quantum of compensation and more particularly on the ground i.e. deduction of the compensation on account of contributory negligence by 50% and for not calculating the loss of future prospects in accordance with the principles laid down by the Constitution Bench of the Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi, (2017) 16 SCC 680, the appellant has preferred the instant appeal before this Court.

3. Vide the impugned award, the Respondent No. 3 was saddled with the liability of payment of 50% of the compensation of an amount of Rs. 13,21,150/- (Rupees thirteen lakh twenty one thousand one hundred fifty) along with interest @ 6% per annum from the date of the claim petition. The Insurance Company, however, have not challenged the adjudication of the compensation. Under such circumstances, this Court is called upon to decide as to whether the deduction by 50% of the compensation amount Rs. 13,21,150/- (Rupees thirteen lakh twenty one thousand one hundred fifty) on the ground of contributory negligence and whether the loss of future prospects have been correctly calculated are the questions, which needs to be adjudicated upon.

4. The plea of contributory negligence is not only required to be taken in its pleadings, but also it has to be proved. There cannot be a presumption of contributory negligence on the ground that two vehicles collided head-on, unless and until such plea is raised before the Tribunal and proved as is required under the provisions of law.

5. I have perused the written statement filed by the respondent No. 3 and surprisingly there is no shred of any pleadings as regards contributory negligence. Though, it is a trite principle of law that without pleadings, there cannot be any evidence led, then also upon perusal of the evidence on record, it is seen that there is no shred of evidence even adduced by the respondent No. 3 to prove contributory negligence. Under such circumstances, I am of the opinion, that the reduction of the compensation amount by 50% on the ground of contributory negligence in the impugned award is liable to be interfered with. In this regard, it may be relevant to refer to a very recent judgment of the Supreme Court dated 06.10.2021 passed in the case of K. Anusha and Others vs. Regional Manager, Shriram General Insurance Co. Ltd. wherein at paragraph 11, 12 and 13 the Supreme Court, while approving the judgment in the case of Astley vs. Austrust Ltd. of the High Court of Australia, held that where, by the negligence of one party another party in a situation of danger, compelling the other party to act quickly in order to extricate himself, it does not amount to contributory negligence. Paragraph 11, 12 and 13 of the said judgment is quoted herein-below:

“11. The first grievance of the appellants about the finding of contributory negligence is liable to be sustained for three reasons namely: (i) that even according to the Tribunal and the High Court, the spot where the lorry was parked, as indicated in Exhibits P-1 to P-6 (FIR, complaint, spot magazar etc) and Exhibit P-22 (spot, sketch), was not a parking place; (ii) that according to the High Court, the driver of the lorry ought to have parked the vehicle on the left side of the road by giving proper indication/signal, but it was not done and