Contributory negligence must be proven with acceptable evidence, and a plea is not equivalent to proof.

1. This appeal has been preferred by the dependants of deceased Jeyavelu, who lost his life in a road accident as against the Tribunal reducing their compensation amount.

2.The Tribunal holding that Jeyavelu was guilty of contributory negligence, apportioned negligence in the ratio of 50 : 50 as between the deceased and the driver of the second respondent and deducted 50% of that amount from the total compensation of Rs.6,44,000/- and awarded them only Rs.3,22,000/-.

3. The learned counsel for the appellants would contend that there was no evidence that the deceased was guilty of contributory negligence. In its judgment, the Tribunal recorded the finding that the accident was only due to the rash and negligent driving of the first respondent, however, subsequently, it had given a contrary finding that the deceased was also guilty of negligence. Further, it had made such a finding without any evidence. The learned counsel for the appellants cited UNITED INDIA INSURANCE CO. LTD. VS. VASANTHA AND OTHERS (2010 (2) TN MAC 278 (DB) and NATIONAL INSURANCE CO. LT. VS. ARJUNAMMAL AND OTHERS (2010 (1) TN MAC 506).

4. On the other hand, the learned counsel for the Insurance Company would submit that the Tribunal has gone deep into the evidence, it had referred to Ex.P.2 Rough sketch and Ex.P.3 Observation Magazor and also noted that the accident was at the centre of the road and thus, has fixed 50% negligence on the deceased. Further, it is a case of collision of two vehicles and it is a case of composite negligence. In the circumstances, the Tribunal has rightly apportioned the negligence equally between the driver of the Ambassador Car, namely, the deceased and the driver of the Mahindra Van/first respondent.

5. On 23.9.2005, at about 3.30 p.m, Jeyavelu was driving the Ambassador Car TN 33 F 4504 on the Bhavani - Mettur Main Road at Sekkanur Pallikadaipudhur, near Rathinasamy Thottam from South to North direction, at that time, a Mahendra Van TN 38 AC 0154, came driven by the first respondent from North to South. An accident took place. In this accident, car driver died on the spot.

6. The third respondent/Insurance Company in its counter pleaded that at the time of the accident, the deceased came driven the Ambassador car in a rash and negligent manner without minding road rules and regulations caused accident and if the deceased was cautious enough in driving the Ambassador car, the accident would not have occurred. Thus, it pleads contributory negligence on the part of the car driver. It is its plea. A plea is not equivalent to proof. It must be proved by acceptable evidence. Otherwise it will remain only a plea.

7. In VASANTHA (supra) and ARJUNAMMAL (supra), it was held that if contributory negligence is pleaded, there must be evidence from the side of the person who pleads, to the effect that the other party is also responsible for the accident.

8. As regards the question of negligence is concerned under point No.1, in paragraph No.7 in its judgment, the Tribunal after analysing the evidence on record held that "Tamil" Thus, the Tribunal recorded a categorical finding that the accident was due to the rash and negligent driving of the first respondent, namely the driver of the van. However, after holding so, under point No.2, the Tribunal recorded a contradictory finding. Now, the Tribunal says that " Tamil." and thus deducted 50% of the total compensation amount of Rs.6,44,000/- awarded only Rs.3,22,000/- to the appellants.

9. In this case, at the time of accident, the deceased Jeyavelu was driving the Ambassador Car. Then P.W.2 Devi travelled in the car. She lodged the complaint. Based on that, the F.I.R has been registered for offences under Sections 279, 304-A IPC. In the complaint, she had stated that the accident was due to the rash and negligent driving of the driver of the Mahindra Van/first respondent. The police after investigation filed Final Report Ex.P.5. that the Van driver was responsible for the accident.