ORIENTAL INSURANCE CO LTD Vs. RAMWATI

JUDGEMENT

(1.) WE have heard learned Counsel for the appellant.

(2.) THE contention of the appellant which is an Insurance Company is that the deceased Harish Babu Rawat was not injured in the accident and he died in some other manner.

(3.) THE next argument of the learned Counsel for the appellant is about the defence of contributory negligence. Learned Counsel has invited our attention to paragraphs 11(d) and 14 of the written statement. The only pleading in these two paragraphs is that the driver of the three -wheeler was also “negligence”. This is a mere conclusion or impression of the person filing the written statement. “Negligence” is a name/nomenclature of some sort of activities of a person in a single abbreviated and concluded form. The conclusion can be drawn only on the basis of full described activity of person attributed to be a negligent, such as, driving on the wrong side of the road, driving under intoxication, driving too fast under adverse traffic condition, etc. We find total lack of description of facts in the written statement which would go to indicate such negligence. Pleadings must contain facts and not merely the conclusion of the person submitting the pleading. It is only after pleading necessary facts which could lead to the inference of negligence, that those fact can be proved. The burden of proving contributory negligence is upon the person alleging the same. There can be no proof without pleading.