Hon'ble Vishnu Chandra Gupta,J.
1. This is an appeal under Section 173 of Motor Vehicles Act, preferred against the impugned award dated 28.4.2010, passed by the Motor Accidents Claims Tribunal, Lucknow (Special Judge), in Claim Petition Non.494/2006.
2. Deceased Mohd. Ismail for certain official work, along with his colleague, driving Ambassador Car No.U.P.-32-BS-4277, had gone to Haridwar on 31.8.2006. He was coming back from Haridwar and while driving said Ambassador car, at about 7:00 p.m., when he arrived at Marpili Mor, Police Station Shyampur District Haridwar, Uttaranchal, a Bus No.U.A.-07/M:8131 driven rashly and negligently, hit the Ambassador car of the deceased from reverse side. In consequence thereof, the Ambassador car over tuned and deceased Mohd. Ismail suffered serious injuries. He succumbed to injuries on next date of the accident. First Information Report was lodged at Police Station Shyampur District Hariwar. At the time of death, the deceased was aged about 50 years and he was working on the post of Driver. His monthly salary was Rs.8000/- in a Cooperative Establishment. At the time of death, the deceased was survived by his wife Smt. Naseema, his son Mohd. Rafiq and daughter Km. Sanno.
3. The claimant, dependents of the deceased filed claim petition. The Tribunal framed following issues for adjudication:
"1. Whether, on 31st August, 2006, at about 7:00 p.m., on Marpili Mor, Police Station Shyampur District Haridwar, Uttaranchal, the accident took place from the Ambassador Car of Mohd. Ismail bearing No.U.P.-32-BS-4277, by a Bus of Uttaranchal Roadways bearing No.U.A.-07/M:8131, in consequence of collision of two vehicles, the deceased suffered grievous injuries and later on, succumbed to it, it yes, then its effect?
2. Whether on 31st August, 2006, the said Bus of Uttaranchal Roadways bearing No.U.A.-07/M:8131, was insured by the respondent Insurance Company (Appellant) and the Bus was driven by following the terms and conditions of insurance policy?
3. Whether, the driver of the Bus No.U.P.-32-BS-4277 involved in the accident occurred on 31st August, 2006 with Ambassador Car No.U.P.-32-BS-4277, was having valid license, if yes, then its effect?
4. Whether, claimants are entitled to compensation, if yes, then what compensation they are entitled and from whom?
5. Other reliefs, the claimants are entitled?
4. On behalf of claimants, PW-1 Smt. Naseema, appeared as witness and PW-2 Ram Singh appeared as eyewitness of the accident. On behalf of the appellant, DW Mohd. Irfan was examined during the course of trial, the post mortem report, F.I.R., G.D., policy cover, salary certificate etc.
5. The Tribunal recorded the finding that accident occurred on the aforesaid date and time with the Bus of Uttaranchal Roadway which hit the Ambassador Car, coming from reverse side at the place in question.
6. It has further been held by the Tribunal that the deceased was aged about 50 years at the time of accident and was earning salary Rs.8000/- per month. Salary certificate was filed as the Annexure No.C-21 to claim petition. By applying multiplier of 13, keeping in view the age of deceased, the Tribunal awarded compensation of Rs.4,23,000/- along with interest at the rate of 6% per annum from the date of filing of application.
7. While assailing the impugned award, Sri U.P.S. Kushwaha, learned counsel for the appellant, raised two fold arguments. The vehicle of the Uttaranchal Roadway was not having permit on the date when the accident occurred. The permit contains the number of two other buses i.e., Bus No.U.P-07-5039 and Bus No.UP-07-2499. The claim petition was filed on the ground that the accident occurred at the time while taking turn the Bus coming from opposite side, hit the Ambassador Car, tried to save him and in consequence thereof, over turned on the road side.
8. With regard to first submission, it has been submitted by the learned counsel for the appellant that since the bus number has not been brought on record, no compensation can be fastened on the appellant Insurance Company. However, before the Tribunal it appears that the only objection raised by the appellant was that for the route in question, the bus does not possess any permit. However, the Tribunal while going through the evidence on record, noted that no evidence has been produced by the appellant Insurance Company that the place, where the accident occurred, does not fall in the route for which the permit is granted by the Government.
9. A perusal of the written statement filed by the appellant Insurance Company reveals that no defence was taken by the appellant to the effect that the permit does not contain the bus number from which the accident took place. There is no denial of the accident in question which has been appropriately dealt with by the Tribunal while recording the finding. Otherwise also, attention has been invited to the Apex Court judgment reported in [2011 (29) LCD 1648]: Uttar Pradesh State Road Transport Corporation. Vs. Kulsum and others. Their lordship has taken note of the U.P. Amendment Act 5 of 1993 contained in Motor Vehicles Act, adding Section (1A) in the Act according to which, it shall be lawful for a State Transport Undertaking to operate on any route as stage carriage, under any permit issued therefor to such undertaking under sub-section (1), of Section 103 of the Act. Hon'ble Supreme Court further considered the definition of owner incorporated by the amendment. For convenience, paras 13, 14 and 15 of the judgment of Kulsum (supra), are reproduced as under:
"13. However, before we proceed to decide the question formulated hereinabove, it is necessary to look into some of the provisions of the Act. Section 2 (30) of the Act defines the `owner':
"Owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement."
14. Section 103 of the Act deals with the provision of issue of permits to State Transport Undertakings. However, vide Uttar Pradesh Amendment Act 5 of 1993, following sub-Section (1A) was inserted after sub-section (1) thereof, w.e.f. 16.1.1993 reproduced hereinbelow:
"(1A) It shall be lawful for a State transport undertaking to operate on any route as stage carriage, under any permit issued therefor to such undertaking under sub-section (1), any vehicle placed at the disposal and under the control of such undertaking by the owner of such vehicle under any arrangement entered into between such owner and the undertaking for the use of the said vehicle by the undertaking."
15. By virtue of the aforesaid incorporated sub-section (1A) to Section 103 of the Act, the Corporation became entitled to hire any vehicle which could be plied on any route for which permit had been issued by the Transport Authority in its favour."
10. Sri U.P.S. Kushwaha learned counsel submits that amended Section (1A) relates to lease bus and not other buses plied not owned by the Corporation. The argument seems to be not correct. The amended provision does not differentiate between the bus owned by Transport Corporation or the bus running on undertaking.
11. Otherwise also, while filing the written statement no defence has been taken or pleaded by the appellant that the bus is of the Transport Corporation which caused the accident, and not a bus running under an undertaking. In case the appellant wants to set up defence other than Section (1A) that the bus was an undertaking bus and it was not owned bus of Uttaranchal Road Transport Corporation, then it was incumbent on the appellant to come forward specifically with due pleading. Since the written statement filed before the Tribunal does not contain such averment, we are not inclined to accept such submissions raised by the appellant's counsel at this stage. Otherwise also, in case the appellant wants to raise any new plea or adduce any evidence, then appropriate course was to move application under Order 41 Rule 27 of CPC. No application has been moved nor evidence has been adduced by the appellant before the Tribunal that the bus was owned by Transport Corporation and not an undertaking Bus, and Section (1A) of Section 103 of the Act, shall not be applicable. Such new argument raised by the appellant that too, without having recourse under Order 41 Rule 27 of CPC, is not sustainable. Accordingly, we reject the first set of argument of the appellant.
12. Now, coming to second limb of argument that by amendment the claimants had introduced new story with regard to accident in question. A perusal of record reveals that the amendment was allowed by the Court and it was duly incorporated during the course of trial by the claimants, and no objection was raised by the appellant then at later stage, it shall not be open for the defendant appellant to object such amendment made by the claimant during the course of trial before the Tribunal. Once the amendment is allowed and incorporated in the petition, then erstwhile pleading on record shall be deemed to have been deleted. The second argument of the appellant also fails. It is settled proposition of law that the suit and appeals are to be decided on the basis of record. The Court cannot travel beyond the pleading on record vide, CIT vs. Shakuntala, AIR 1966 SC 719; (2007) 10 SCC 712: Union of India Vs. Jai Prakash Singh; [(2008) 26 LCD 1691]: Dharampal Singh Chauhan and another. Vs. State of U.P. and others. (DB Lucknow).
13. No other point has been raised by the appellant's counsel while assailing the impugned award.
14. Accordingly, the appeal fails and is dismissed. Let entire compensation under award in case already not deposited, be deposited within two months before the Tribunal and the Tribunal shall release the amount of compensation to the claimants within two months. The amount deposited in this Court shall be remitted to the Tribunal forthwith.
No order as to costs.
[Justice Vishnu Chandra Gupta] [Justice Devi Prasad Singh] Order Date :- 1.8.2012 Rajneesh AR-PS)