JUDGMENT : 1. The cost amount has been deposited. We hereby direct that the cost amount may not be deducted from the salary of the officer concerned. Order dated 07.05.2018 is amended to that extent. 2. Arguments on appeal have been heard. 3. Appeal is dismissed. 4. Reasons to follow. 5. This appeal under Section 173 of Motor Vehicles Act, 1988 has been filed by the New India Assurance Company Ltd. against the judgment and award dated 04.02.2014, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Unnao in M.A.C. No. 212 of 2012 : Puran Lal & others Vs. Purshottam Narain Gupta & others). 6. Brief facts, relevant for disposal of this appeal are that on 18.05.2012, at about 6:30 P.M. deceased Arvind Kumar was coming from Bilhore by vehicle No. UP32 Z 9518. When the said vehicle reached near Village Dadhika, Truck No. UP 77 N 9331, which was being driven by its driver rashly and negligently, came from the side of Bangarmau and dashed the Mahindra Max No. UP 32 Z 9518, due to which deceased Arvind Kumar sustained grievous injuries and died on the spot. The driver of the truck ran away leaving the truck on the spot. 7. In the claim petition, it was stated that the deceased was a young and healthy person and was an employee in Baba Sahab Bhim Rao Ambedkar Medical College, Kannauj and he was earning Rs.12,593/- per month. 8. The claim petition was filed on behalf of the wife, father and mother of the deceased. Opposite party no.1, owner of the truck/offending vehicle, opposite party no.2/Insurance Company and Opposite Party no.3, driver of the truck filed their respective written statement. 9. On the basis of the pleadings of the parties, as many as 7 issues were framed by the Tribunal, wherein, amongst other issues, issue no.2 was framed in respect of contributory negligence of the drivers of both the vehicles. After considering all the material on record, the learned Tribunal allowed the claim petition and found that the claimants are entitled for a sum of Rs.16,52,000/-as compensation along with 7 % simple interest from the date of filing of the petition till the date of actual payment. 10. Aggrieved by the award, the Insurance Company filed this appeal. 11. We have heard learned counsel for the parties and perused the record. 12. 10. Aggrieved by the award, the Insurance Company filed this appeal. 11. We have heard learned counsel for the parties and perused the record. 12. Learned counsel for the appellant/Insurance Company has confined his argument only on the issue No. 2, as framed by the Tribunal, regarding the contributory negligence of both the vehicles at the time of accident. No other point has been pressed in this appeal. 13. It is contended by learned counsel for the appellant/Insurance Company that learned Tribunal has wrongly fastened the entire liability of payment of compensation upon the appellant/Insurance Company, though it was duly proved before the Tribunal that accident was caused due to the negligence of drivers of both the vehicles involved in the accident. It is further contended that as per settled law, liability to pay compensation lies upon the Insurance Company and the owner of the other vehicle, namely, Mahindra Max UP 32 Z 9518 and to be apportioned on the basis of assessment of extent of negligence of the drivers/owners of the vehicles involved in the accident. In support of his contention learned counsel for the appellant/Insurance Company has referred to Paragraphs 17 and 19 of the Written Statement, wherein it is stated that the accident was caused because of the fact that the Mahindra Max vehicle involved in the accident was carrying more passengers than the limit prescribed in law, due to which the driver of the vehicle lost control and accident took place. It is also pleaded that in the accident, there was a contributory negligence of the driver of the Mahindra Max as well. 14. It is submitted that on the basis of pleadings of the Written Statement filed by the appellant, issue no.2 was framed, but the learned Tribunal while deciding issue nos. 1 & 2, has wrongly held that no proper cross examination was conducted from the witnesses due to which it can be held that the said Mahindra vehicle would have contributed in the said accident. 15. In this regard learned counsel for the appellant has cited a case law 2006 (1) TAC 969 (SC) : Bijoy Kumar Dugar Vs. Bidhyadhar Dutta and others. In the said case, the Hon'ble Apex Court in para 12 held as under : "12 Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. Bidhyadhar Dutta and others. In the said case, the Hon'ble Apex Court in para 12 held as under : "12 Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of MACT recorded under Issue 2. It is the evidence of Rajesh Kumar Gupta PW 2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head-on collision. MACT has not accepted the evidence of PW 2 to prove that the driver of the offending bus was driving the vehicle at abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as PW 2 wanted the Court to believe, it was but natural, as a prudent man, for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus coming from the opposite direction from a long distance. It was head-on collision in which both the vehicles were damaged and, unfortunately, Raj Kumar Dugar died on the spot. MACT, in our view, has rightly observed that had the knocking been on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of MACT on this point. MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by MACT and, in our view, the discretion exercised by MACT cannot be said to be inadequate and inappropriate." (emphasised by us) 16. On the other hand, learned counsel for the respondents/claimants has contended that though appellant had taken plea of contributory negligence in his Written Statement but on their behalf no further efforts were made to produce any positive evidence to the effect that the driver of the Mahindra Max had in any way contributed to the said accident or he was also negligent in driving the said vehicle at the time of accident. It is further contended that since the very beginning it was the case of the claimants that accident was caused due to the rash and negligent driving of the driver of the truck involved in the accident. On behalf of respondents, it is also contended that in this case complainant Suraj Batham had lodged an F.I.R. wherein also it was stated that the accident was caused due to the rash and negligent driving of the driver of truck. It is also stated that on behalf of the claimants/respondents it was pleaded and proved that accident was caused due to the sole negligence of the driver of the truck and driver of the Mahindra Max had not contributed in any way to the said accident. 17. Learned counsel contends that in this case the appellant/Insurance Company has utterly failed in proving that the accident in question was a result of contributory negligence of the drivers of both the vehicles. In this regard, a case law reported in (2014) 2 ALJ 753 : Prabandhak, U.P. Rajya Sadak Parivahan Nigam Vs. Rabia Begum and others, has been cited. In the said case the division bench of this Court relying upon a judgment of Hon'ble Apex Court, (2013) 9 SCC 166 : Jiju Kuruvilla Vs. Kunjujamma Mohan has held in paragraph 9 as under :- "9. The observation made and finding recorded by the Tribunal, seems to be correct in view of recent judgment of Hon'ble Supreme Court, report in (2013) 9 SCC 166 : Jiju Kuruvilla v. Kunjujamma Mohan (supra). Kunjujamma Mohan has held in paragraph 9 as under :- "9. The observation made and finding recorded by the Tribunal, seems to be correct in view of recent judgment of Hon'ble Supreme Court, report in (2013) 9 SCC 166 : Jiju Kuruvilla v. Kunjujamma Mohan (supra). Their lordships of Hon'ble Supreme Court held that merely on the basis of post mortem report or scene mahazar (naksha nazari) inference may not be drawn with regard to the contributory negligence. Relevant paras 20.5 and 20.6 of the said judgment are reproduced as under: "20.5. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 20.6. Post Mortem report, Ext.A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.B2, ''Scene Mahazar' and the Ext.A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eyewitness, Ext.A1(FIR), Ext.A4 (chargesheet) and Ext.B1(F.I.statement) are on record." 18. This Court while concluding, has held that burden of proof with regard to the contributory negligence shall be at the party who pleads for it. The contributory negligence should be proved like other issues. This Court while concluding, has held that burden of proof with regard to the contributory negligence shall be at the party who pleads for it. The contributory negligence should be proved like other issues. No inference can be drawn solely from Naksha Najari or mere pleading on record. 19. While considering rival submissions, we are of the considered view that case law cited on behalf of the appellants, namely, Bijoy Kumar Dugar (supra) is not applicable in the present case as the facts of the said case are entirely different from the present case. In the cited case the car driver could see the bus being driven in zigzag manner from a distance yet he did not take any evasive action to avoid colliding with the bus. Such inaction resulted in head on collision. In such circumstances it has been held that even driver of the car contributed to the accident. This is apparent from the emphasised portion of the above extracted excerpt of the judgment in Bijoy Kumar Dugar (supra). 20. Though appellant has pleaded in his written statement that the accident was the result of contributory negligence of the drivers of both the vehicles but the appellant has failed to bring on record any positive evidence to the effect that the driver of the Mahindra Max was also negligent at the time of accident and he had in any way contributed to the accident. Per contra, the claimants had pleaded and by positive evidence proved before the Tribunal that the accident was caused due to the sole negligence of the driver of the truck involved in the accident. 21. So, to our view while deciding issue nos. 1 & 2, the learned Tribunal had rightly concluded that the accident was caused due to the sole negligence of the driver of the truck, which was insured with the appellant and has rightly fastened the liability upon the appellant for payment of compensation. 22. In such circumstances, to our view, the learned counsel for the appellant has failed to show any infirmity in the award of the Tribunal which could warrant this Court for interference in the judgment of the Tribunal. To our view, the findings recorded by the learned Tribunal cannot be disturbed in exercise of power under appellate jurisdiction. 23. Accordingly the appeal is hereby dismissed.