Hon'ble Dr. Satish Chandra,J.
Heard Sri R.C. Sharma, learned counsel for the appellant and learned counsel for the respondents-claimants.
Instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 against the impugned award dated 20.03.2010 delivered by Motor Accident Claims Tribunal/Additional District Judge, Faizabad in Claim Petition No. 109/2009.
In brief, on 27.12.2008, the claimant Smt. Saroj Agarwal along with her husband Sri B.B. Agarwal while travelling in their vehicle No. U.P. 25 N 1748 and going from Ram Nagar to Station Road, Onla, a Tanga came from reverse direction on Station Road adjacent to the car. The deceased B.B. Agarwal tried to save the vehicle as well as occupant of Tanga. In consequence thereto, the vehicle ran down 20 feet below the road because of fog. Sri B.B. Agarwal suffered serious injuries and later on admitted to Ram Murti Medical Science and Research Centre, Bareilly. During the course of treatment, he succumbed on 31.12.2008. FIR was lodged at the police station Onla, Bareilly. Deceased B.B. Agarwal was a Senior Teacher in Chacha Nehru Inter College, Onla, District Bareilly.
Claimants preferred a claim petition before the Tribunal for payment of compensation under Section 166 of the Motor Vehicles Act.
Respondent No. 2, who is owner of the vehicle, filed written statement and admitted that he is the registered owner of the Vehicle No. U.P. 25 N 1748 in which the deceased along with his wife had travelled. It is alleged that respondent No. 2 is the son of the deceased Sri B.B. Agarwal.
The Tribunal framed issues with regard to accident, registration of the vehicle, insurance policy, driving licence and quantum of compensation.
During the course of hearing before the Tribunal, the claimant Smt. Saroj Agarwal appeared in person and stated that on 27.12.2008 she along with her husband late B.B. Agarwal was travelling in Vehicle No. U.P. 25 N 1748. The accident occurred on 6.30 p.m. because of sudden arrival of a Tanga. In consequence thereof, the vehicle fell almost 20 feet downward.
Sri Dinesh alias Chandrabhan Pandey appeared as PW-2, who stated that he was sitting back side of the same vehicle No. U.P. 25 N 1748 and travelling with the deceased B.B. Agarwal and the claimant No. 1 and because of fog and sudden arrival of a Tanga adjacent to the car, the accident occurred.
The Tribunal after the statement given by two eye-witnesses recorded a finding that the accident occurred in the same manner as pleaded by the claimant-respondents while moving the application. The factum with regard to the insurance of the vehicle with the appellant National Insurance Company has also been proved. It has also been proved that there was a valid driving licence with the driver. Salary certificate of the deceased for the month of December, 2008 was filed, according to which the salary of the deceased was Rs. 20,846/- per month and the annual income comes to Rs. 2,50,152/-. After deducting 1/3rd amount, the net income comes to Rs. 1,66,768/-. Keeping the age of 58 years of the deceased in view, multiplier of 8 has been used in terms of Second Schedule of the Motor Vehicles Act. According to the Tribunal, the total compensation comes to Rs. 13,61,960/- which seems to be incorrect calculation on the part of the Tribunal. It comes to Rs. 13,34,144/-. Rs. 7,000/- has been awarded with regard to funeral and loss of consortium. Hence, total compensation comes to Rs. 13,41,144/-. The Tribunal had incorrectly calculated the compensation of Rs. 13,61,960. Accordingly, to that extent, the impugned award requires modification. In view of above, the total compensation should be Rs. 13,41,144/-.
While assailing the impugned award, Sri R.C. Sharma, learned counsel for the appellant has raised two-fold argument. Firstly, in the medical certificate, the cause shown is falling down from the Tanga and second limb of argument is that there is no evidence on record which may indicate that the deceased suffered injuries on the fateful day i.e. 27.12.2008 since no post-mortem report was furnished. It has also been submitted that since owner of the vehicle was son of the deceased, it was obligatory on the part of the respondent No. 2 to disclose the relationship while filing the written statement before the Tribunal.
On the other hand, learned counsel for the respondent-claimants submits that the Tribunal had decided the dispute and awarded compensation in terms of pleading on record. Incorrect statement recorded in the medical report shall not invalidate the entire proceeding nor may be a ground to disbelieve the pleading on record. It has also been submitted by the respondents' counsel that the appellant itself, while filing written statement before the Tribunal, had admitted the accident with alternative plea that the deceased was gratuitous car passenger of the car in question. It has also been submitted by the respondents' counsel that in a case where the appellant itself relied upon the medical report, there is no justification on the part of the appellant to say that no injuries were caused on 27.12.2008.
We have perused the original record. From the plain reading of the application moved by the respondent-claimants, it appears that specific plea was taken that the deceased along with his wife was travelling in Car No. U.P. 25 N 1748 and accident occurred on 27.12.2008 when a Tanga came adjacent to the car and in consequence thereof, the vehicle fell down adjacent to the road at the depth of 20 feet. The case set up by the claimants while moving the application with regard to the accident was that there is no documentary evidence on record. However, alternative plea has been taken that the deceased was gratuitous passenger of the car and burden shall be on the claimant to establish that the vehicle was duly insured with the appellant National Insurance Company and driver was having a valid driving licence.
During the course of trial, the claimant-respondents had discharged its obligation and established that the vehicle was insured with the appellant Insurance Company and driver was having a valid driving licence. A categorical finding has been recorded by the Tribunal that the vehicle was insured with the appellant Insurance Company and driver was having a valid driving licence. Hence, plea with regard to gratuitous passenger has been rejected by the Tribunal.
The submission of the appellant's counsel that at the time of accident, the deceased was travelling on the Tanga and not on the vehicle seems to be misconceived. In the written statement filed by the appellant itself, no such plea has been taken that the deceased was travelling on the Tanga along with his wife. According to the appellant's counsel the suspicion arises because of the fact that the owner of the vehicle was the son of the deceased and he has not disclosed the relationship. From a bare reading of the written statement, filed by the respondent-claimant No. 2, it appears that specific plea has been taken that he is the registered owner of the vehicle. Even if relationship has not been indicated in the written statement filed by the respondent-claimant No. 2, it shall not belie the factum of accident. It has been categorically stated that the vehicle was insured with the appellant Insurance Company. Hence, burden shall be on the appellant to pay the compensation.
Law is very well settled that question raised should be decided on the basis of pleading on record and cannot be founded beyond the pleading. Decision must be based on pleading of the parties. The oral evidence beyond the pleading ordinarily may not take into account to decide the suit. In a case reported in 2011 (29) LCD 1793 - The National Textile Corporation Ltd. vs. Naresh Kumar Badri Kumar Jagad and others, wherein the Hon'ble Supreme Court had considered the importance on pleading and held that decision of a case cannot be based on grounds outside the pleading of the parties. Paras 7 to 13 of the aforesaid judgment are reproduced as under:-
"7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide: M/s. Trojan & Co. v. RM N.N. Nagappa Chettiar, AIR 1953 SC 235; State of Maharashtra v. M/s. Hindustan Construction Company Ltd., AIR 2010 SC 1299; and Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127).
8. In Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242, this Court held as under:
"...... in the absence of pleadings, evidence if any, produced by the parties cannot be considered...... no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it."
Similar view has been reiterated in Bachhaj Nahar v. Nilima Mandal & Ors., AIR 2009 SC 1103.
9. In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8 SCC 740, this Court held that "where the evidence is not in line of the pleadings and is at variance with it, the said evidence cannot be looked into or relied upon." Same remain the object for framing the issues under Order XIV CPC and the court should not decide a suit on a matter/point on which no issue has been framed. (Vide: Biswanath Agarwalla v. Sabitri Bera & Ors., (2009) 15 SCC 693; and Kalyan Singh Chouhan (supra).
10. In Syed and Company & Ors. v. State of Jammu & Kashmir & Ors., 1995 Supp (4) SCC 422, this Court held as under:
In the present case, admittedly, while filing written statement the appellant-defendant had not taken plea that the deceased was travelling in Tanga instead of vehicle in question. It has also part of the pleading that injuries by falling down by Tanga rather factum of accident seems to be admitted fact.
In view of above, we do not find any reason to interfere with the impugned award except to correct the error committed by the Tribunal with regard to total amount, assessed for compensation. The impugned award is modified to the extent that respondent-claimants are entitled for compensation of Rs. 13,41,144/-.
Subject to the modification given above, the appeal is dismissed.
Let the entire amount be paid in terms of award. Amount deposited in this Court shall be remitted to the Tribunal forthwith. The appellant shall deposit remaining amount, if any, before the Tribunal within a period of two months from today and the Tribunal shall release the amount in terms of the award to the claimant-respondents within two month thereafter.
Subject to above, the appeal is dismissed. No order as to costs.
Order Date :- 17.10.2011 Rakesh-ANK/-