# Oriental Insurance Co. Ltd v. Vashishtha Mauray

- **Citation:** (2021) 8 ILRA 33
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** F.A.F.O. No. 1037 of 2008
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-co-ltd-v-vashishtha-mauray-47185
- **Pages:** 7

## Headnote

Akhilesh
Kumar
Srivastava,
Prabhakar
Tiwari, R.K. Singh, Rajendra Pratap Singh

(A) Civil Law - The Motor Vehicles Act,
1988 - Section 170 - Impleading insurer in
certain cases , Section 173 - Appeals -
Indian Evidence Act, 1872 - Section 103 -
Burden of proof as to certain fact -
contributory
negligence
-
once
the
defendants
had
failed
to
raise
the
necessary pleadings and no issue was
framed and no evidence was produced on
the said question, then it was not open for
the defendants to make out a new
case.(Para -16)

Present appeal pertains to the factum of
contributory negligence on the part of the
claimant due to which he has suffered
injuries.Para - 6)

HELD:- There is no pleading on behalf of the
defendant-appellant (Insurance Company) with
regard to contributory negligence on the part of
the claimant and therefore rightly no issue with
regard to the said fact has been framed by the
Tribunal. Evidence on record has been clearly
considered by the Tribunal in a cogent and
reasonable manner and, therefore, also the
submissions
of
the
defendant-appellant
regarding
contributory
negligence
of
the
claimant
does
not
hold
any
good
ground.Claimant-respondent is granted liberty
to move appropriate application for withdrawal
of the outstanding awarded amount which shall
be paid upon such an application being made
with up to date interest.(Para - 17,21,23)

Appeal dismissed. (E-6)

List of Cases cited:-

## Text

8 All. Oriental Insurance Co. Ltd. Vs. Vashishtha Mauray
33
in the gazette. The said provision being a
part and parcel of the Motor Vehicles Act,
1988 therefore stood notified alongwith
notification of the Act itself in May, 1989.
The said ground by the Tribunal is clearly
against the provisions of statute.

21. Considering the aforesaid, it is
held that the offending vehicle being
covered by provisions of Section 66 (3)(i)
of the Motor Vehicles Act was not required
to have a special permit since its gross
vehicle weight in terms of Section 2(15)
was below 3000 kg. The liability fastened
by the Tribunal upon appellant as such was
incorrect and against the provisions of law.
In view of aforesaid, the appeal succeeds
and is allowed setting aside the judgment
and award dated 28.05.2012 passed by
Motor Accident Claims Tribunal/ District
Judge, Barabanki in Claim Petition No.231
of 2009, so far as it relates to issue no.6
pertaining to liability of appellant to satisfy
the award. As a consequence, it is held that
the Respondent No.5 i.e. the National
Insurance Company Ltd. is required to
satisfy the award. Parties shall bear their
own costs.
----------
(2021)08ILR A33
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.08.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

F.A.F.O. No. 1037 of 2008

Oriental Insurance Co. Ltd. ...Appellant
Versus
Vashishtha Mauray ...Respondent

Counsel for the Appellant:
B.C. Pandey

Counsel for the Respondent:
Akhilesh
Kumar
Srivastava,
Prabhakar
Tiwari, R.K. Singh, Rajendra Pratap Singh

(A) Civil Law - The Motor Vehicles Act,
1988 - Section 170 - Impleading insurer in
certain cases , Section 173 - Appeals -
Indian Evidence Act, 1872 - Section 103 -
Burden of proof as to certain fact -
contributory
negligence
-
once
the
defendants
had
failed
to
raise
the
necessary pleadings and no issue was
framed and no evidence was produced on
the said question, then it was not open for
the defendants to make out a new
case.(Para -16)

Present appeal pertains to the factum of
contributory negligence on the part of the
claimant due to which he has suffered
injuries.Para - 6)

HELD:- There is no pleading on behalf of the
defendant-appellant (Insurance Company) with
regard to contributory negligence on the part of
the claimant and therefore rightly no issue with
regard to the said fact has been framed by the
Tribunal. Evidence on record has been clearly
considered by the Tribunal in a cogent and
reasonable manner and, therefore, also the
submissions
of
the
defendant-appellant
regarding
contributory
negligence
of
the
claimant
does
not
hold
any
good
ground.Claimant-respondent is granted liberty
to move appropriate application for withdrawal
of the outstanding awarded amount which shall
be paid upon such an application being made
with up to date interest.(Para - 17,21,23)

Appeal dismissed. (E-6)

List of Cases cited:-

1. Bachhaj Nahar Vs Nilima M&al & anr. , Civil
Appeal No.5798-5799 of 2008

2. Ram Swarup Gupta (Dead) by LRs Vs Bishun
Narain Inter College & ors. , (1987) 2 SCC 555

3. Gopal Krishnaji Ketkar Vs Mohamed Haji Latif
& ors., AIR 1968 SC 1413
34 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
appellant, learned counsel for respondent
claimant
and
Mr.
Akhilesh
Kumar
Srivastava, learned counsel for respondents
2 and 3. No-one has appeared on behalf of
respondent no.4.

2. First Appeal from Order has been
filed under Section 173 of the Motor
Vehicles Act, 1988(hereinafter referred to
as the Act) against the judgment and award
dated 31.05.2008 passed in Claim Petition
No.138 of 2006 (Vasishtha Maurya v.
Chairman,
U.P.S.R.T.C.
and
others)
whereby the claim petition of the injured
claimant has been allowed awarding a
compensation of Rs.2,72,800/- along with
8% interest per annum with the appellant
insurance company liable to satisfy the
award.

3. Learned counsel for appellant
submits that the incident had occurred in
the night of 19/20th January, 2005. In the
Claim Petition, the claimant has averred
that he was travelling as a passenger on
the Roadways bus No. U.P. 42/T-2068.
When the bus was standing due to a
traffic jam near Ram Sanehi Ghat bridge,
the claimant had deboarded the bus in
order to relieve himself but had slipped
and fallen on endeavouring to board the
bus thereafter due to the fact that the bus
had
started
moving
again. Learned
counsel for appellant has submitted that
the present appeal is being pressed only
with regard to the factum of contributory
negligence on the part of the claimant and
while other grounds have also been taken
particularly with regard to challenge to
the quantum of compensation, the same
are not being pressed in the present
appeal.

4. It is submitted by learned counsel
for appellant that when the offending bus
was in the midst of its journey and had
stopped owing to a traffic jam, there was no
occasion
for
the
claimant
to
have
deboarded the bus without informing either
the driver or the conductor of the bus who
being
unaware
about
the
claimant
deboarding the bus were perfectly within
their right to restart the journey once the
traffic jam had cleared. It is thus submitted
that it is the claimant himself who is to
blame for the incident that had taken place
due to which he had suffered injuries and
as as such the Roadways is not at all liable
to make good the compensation. Since the
offending bus was insured with the
appellant, the appellant as such is also not
liable to satisfy the award. Learned counsel
has further submitted that the Tribunal
should have recorded a finding with regard
to contributory negligence of the claimant
regarding the incident that had occurred.

5. Learned counsel for the claimant
respondent
no.1
has
refuted
the
submissions advanced by learned counsel
for appellant with the submission that the
ground
pertaining
to
contributory
negligence has not been taken before the
Tribunal concerned and, therefore, the
appellant is prohibited from taking such a
ground for the first time in appeal. Learned
counsel has further submitted that the
evidence on record clearly indicated that
the claimant had deboarded the bus after
informing the driver and the conductor who
were well-aware of the said fact and even
after the claimant had fallen from the bus
on trying to re-board it, co-passengers of
the claimant had drawn attention of the bus
driver to the said fact who ignored the same
and drove the bus in a rash and negligent
fashion resulting in the incident in question
in which the claimant had suffered injuries
8 All. Oriental Insurance Co. Ltd. Vs. Vashishtha Mauray
35
to the tune of 70%. Learned counsel has
submitted that the judgment and award
under challenge has been passed after
considering the material evidence on record
and does not require to be interfered with.

6. Considering the material on record
and submissions advanced by learned counsel
for the parties, it is evident that the sole
question involved in the present appeal
pertains to contributory negligence on the
part of the claimant due to which he has
suffered injuries. The point of determination
therefore in the present appeal is as follows:-

7. Whether the judgment and award
impugned has occasioned an error of law
since the aspect of contributory negligence of
the claimant has not been considered?

8. The trial court in the impugned
judgment and award has framed five issues
with issues no. 1 and 2 pertaining to the
claimant being a passenger on the offending
bus at the time and place indicated in the
claim petition with issue no 2 pertaining to
whether the claimant had suffered injuries on
account of rash and negligent driving of the
offending bus.

9. The Tribunal has decided the issue
no.1 in favour of the claimant on the basis
of statement by the claimant as P.W. 1 and
a co-passenger, Birbal as P.W. 2. The
Tribunal has also recorded the fact that the
driver of the bus Prahlad Singh was
examined as O.P.W. 1 who did not deny
the incident as having taken place.

10. Regarding issue no.2, the Tribunal
has also decided in favour of the claimant
on the basis of statements recorded by the
plaintiff-witnesses indicated herein above.
A specific finding has been recorded by the
Tribunal on the basis of statement of P.W.
2 corroborating the evidence of P.W. 1 that
the claimant had de-boarded the bus after
informing the driver and conductor of the
bus. The Tribunal has thereafter held the
driver of the bus guilty of rash and
negligent driving on the basis of evidence
and the charge-sheet that was filed in
pursuance to the first information report
that had been filed.

11.

Since
the
quantum
of
compensation is not being pressed by the
appellant, there is no occasion for this
Court to record any finding thereupon.

12. So far as the question of
contributory negligence on the part of the
claimant is concerned, it is evident from the
record
and
particularly
the
written
statement filed by the insurance company
that the plea of contributory negligence on
the part of the claimant has not been taken
either in the written statement or even in
the application filed under Section 170 of
the Act. Naturally, since no such pleading
was on record on behalf of the insurance
company
pertaining
to
contributory
negligence on the part of the claimant, no
such issue was framed by the Tribunal.

13. Regarding the said question,
Hon'ble the Supreme Court in Bachhaj
Nahar v. Nilima Mandal and another
rendered in Civil Appeal No.5798-5799 of
2008 has held as follows:-

"8. The High Court, in this case,
in its obvious zeal to cut delay and
hardship that may ensue by relegating the
plaintiffs to one more round of litigation,
has rendered a judgment which violates
several
fundamental
rules
of
civil
procedure. The rules breached are:

(i) No amount of evidence can be
looked into, upon a plea which was never
36 INDIAN LAW REPORTS ALLAHABAD SERIES
put forward in the pleadings. A question
which did arise from the pleadings and
which was not the subject matter of an
issue, cannot be decided by the court.

(ii) A Court cannot make out a
case not pleaded. The court should confine
its decision to the question raised in
pleadings. Nor can it grant a relief which is
not claimed and which does not flow from
the facts and the cause of action alleged in
the plaint.

(iii) A factual issue cannot be
raised or considered for the first time in a
second appeal.

Civil Procedure Code is an
elaborate codification of the principles of
natural justice to be applied to civil
litigation. The provisions are so elaborate
that many a time, fulfillment of the
procedural requirements of the Code may
itself contribute to delay. But any anxiety to
cut the delay or further litigation, should
not be a ground to float the settled
fundamental rules of civil procedure. Be
that as it may. We will briefly set out the
reasons for the aforesaid conclusions."

14. In Para 11 of the said judgment, it
has been held as under:-

"11. The High Court has ignored
the aforesaid principles relating to the
object and necessity of pleadings. Even
though right of easement was not pleaded
or claimed by the plaintiffs, and even
though parties were at issue only in regard
to title and possession, it made out for the
first time in second appeal, a case of
easement and granted relief based on an
easementary right. For this purpose, it
relied upon the following observations of
this Court inNedunuri Kameswaramma v.
Sampati Subba Rao [1963]2SCR208 :

No doubt, no issue was framed,
and the one, which was framed, could have
been more elaborate, but since the parties
went to trial fully knowing the rival case
and led all the evidence not only in support
of their contentions but in refutation of
those of the other side, it cannot be said
that the absence of an issue was fatal to the
case, or that there was that mistrial which
vitiates proceedings. We are, therefore, of
opinion that the suit could not be dismissed
on this narrow ground, and also that there
is no need for a remit, as the evidence
which has been led in the case is sufficient
to reach the right conclusion.

But the said observations were
made in the context of absence of an issue,
and not absence of pleadings. The relevant
principle relating to circumstances in
which the deficiency in, or absence of,
pleadings could be ignored, was stated by a
Constitution
Bench
of
this
Court
inBhagwati
Prasad
v.
Shri
Chandramaul:[1966]2SCR286 :

If a plea is not specifically made
and yet it is covered by an issue by
implication, and the parties knew that the
said plea was involved in the trial,then the
mere fact that the plea was not expressly
taken
in
the
pleadings
would
not
necessarily disentitle a party from relying
upon if it is satisfactorily proved by
evidence. The general rule no doubt is that
the relief should be founded on pleadings
made by the parties. But where the
substantial matter relating to the title of
both parties to the suit was touched, tough
indirectly or even obscurely in the issues,
and evidence has been led about them then
the argument that a particular matter was
not expressly taken in the pleadings would
be purely formal and technical and cannot
succeed in every case. What the Court has
to consider in dealing with such an
objection is:did the parties know that the
matter in question was involved in the trial,
and did they lead evidence about it?If it
8 All. Oriental Insurance Co. Ltd. Vs. Vashishtha Mauray
37
appears that the parties did not know that
the matter was in issue at the trial and one
of them has had no opportunity to lead
evidence in respect of it, that undoubtedly
would be a different matter.To allow one
party to rely upon a matter in respect of
which the other party did not lead evidence
and has had no opportunity to lead
evidence, would introduce considerations
of prejudice, and in doing justice to one
party, the Court cannot do injustice to
another.

The principle was reiterated by
this Court inRam Sarup Gupta (dead) by
LRs. v. Bishun Narain Inter College
[1987]2SCR805"

15. Upon applicability of the
aforesaid judgment, it is apparent that the
trial court did not err in not framing an
issue
with
regard
to
contributory
negligence of the claimant in absence of
any such pleading.

16. Learned counsel for the claimantrespondent has also relied upon the
judgment rendered in Ram Swarup Gupta
(Dead) by LRs v. Bishun Narain Inter
College & others reported in (1987) 2 SCC
555 in which Hon'ble the Supreme Court
has held that once the defendants had failed
to raise the necessary pleadings and no
issue was framed and no evidence was
produced on the said question, then it was
not open for the defendants to make out a
new case. The relevant portion of the
judgment is as follows:-

"5.Shri S.N. Kacker, learned
counsel for the appellant contended that
the trial court as well as the High Court
both erred in holding that the licence was
irrevocable under Section 60(b) of the
Indian Easements Act. He urged that the
defendants had failed to raise necessary
pleadings on the question, no issue was
framed and no evidence was produced by
them. In the absence of requisite pleadings
and issues it was not open to the trial court
and the High Court to make out a new case
for the defendants, holding the licence
irrevocable. He urged that the defendants
had failed to produce any evidence to prove
the terms and conditions of the licence. In
order to hold the licence irrevocable, it was
necessary to plead and further to prove that
the defendants had made construction,
"acting upon the terms of the licence". Shri
Kacker further urged that Raja Ram Kumar
Bhargava being karta of joint family, could
not alienate the property permanently to
the detriment of the minor co-sharers. Shri
U.R. Lalit, appearing on behalf of the
defendant-respondents
supported
the
findings recorded by the trial court and the
High Court and urged that both the courts
have
recorded
findings of
facts
on
appreciation of evidence on record that the
licence granted by Raja Ram Kumar
Bhargava was irrevocable and that acting
upon the licence the school had made
construction for the purposes of running
the school and the licence was irrevocable.
He took us through the record to show that
necessary pleadings had been raised by the
defendants
and
there
was
sufficient
evidence in support of the pleadings.

6.The question which falls for
consideration is whether the respondents in
their written statement have raised the
necessary pleading that the licence was
irrevocable as contemplated by Section
60(b) of the Act and, if so, is there any
evidence on record to support that plea. It
is well settled that in the absence of
pleading, evidence, if any, produced by the
parties cannot be considered. It is also
equally settled that no party should be
permitted to travel beyond its pleading and
that all necessary and material facts should
38 INDIAN LAW REPORTS ALLAHABAD SERIES
be pleaded by the party in support of the
case set up by it. The object and purpose
of pleading is to enable the adversary
party to know the case it has to meet. In
order to have a fair trial it is imperative
that the party should settle the essential
material facts so that other party may not
be taken by surprise. The pleadings
however
should
receive
a
liberal
construction;
no
pedantic
approach
should be adopted to defeat justice on
hair-splitting technicalities. Some times,
pleadings are expressed in words which
may not expressly make out a case in
accordance with strict interpretation of
law. In such a case it is the duty of the
court to ascertain the substance of the
pleadings to determine the question. It is
not desirable to place undue emphasis on
form, instead the substance of the
pleadings
should
be
considered.
Whenever the question about lack of
pleading is raised the enquiry should not
be so much about the form of the
pleadings; instead the court must find out
whether in substance the parties knew the
case and the issues upon which they went
to trial. Once it is found that in spite of
deficiency in the pleadings parties knew
the case and they proceeded to trial on
those issues by producing evidence in
that event it would not be open to a party
to raise the question of absence of
pleadings
in
appeal.......................................................
............................................................."

17. In the present appeal, it is
apparent from a reading of the written
statement that there is no pleading on
behalf of the defendant-appellant with
regard to contributory negligence on the
part of the claimant and therefore rightly no
issue with regard to the said fact has been
framed by the Tribunal.

18. In view of the judgment rendered
by Hon'ble the Supreme Court in the case
of Ram Swarup Gupta(Supra) such a
fresh assertion cannot be entertained.

19. Although the present appeal can
be decided on the said issue but it is also a
relevant fact that submissions on behalf of
the appellant pertaining to same are also
not borne out from the record. The Tribunal
has clearly noticed the fact that the
claimant in his examination in chief and
cross-examination has made a specific
statement that he de-boarded the bus after
informing the driver and the conductor. The
statement of the bus driver Prahlad Singh is
on record where he has stated that he was
unaware of any passenger deboarding the
bus. He is also unaware as to whether the
bus conductor had thereafter made a headcount of the passengers prior to restarting
of the bus. Once the claimant had made a
specific assertion in his deposition, the
same having been denied by the defendantappellant, the burden of disproving the
claimant's narration lay upon the defendantappellant in terms of Section 103 of Indian
Evidence Act. As such, it was the duty of
the defendant-appellant to have required
the presence of the bus conductor to
disprove the story set up by the claimantrespondent. That having not been done, an
adverse inference is required to be drawn
against the defendant-appellant as has been
held by Hon'ble the Supreme Court in
Gopal Krishnaji Ketkar v. Mohamed
Haji Latif and others, reported in AIR
1968 SC 1413. The relevant portion of the
said decision is as follows:-

"5...........We are unable to accept
this argument as correct. Even if the
burden of proof does not lie on a party the
Court may draw an adverse inference if he
withholds important documents in his
8 All. Krishna Pyare Gupta & Ors. Vs. U.P. State Bridge Corporation Ltd. & Anr.
39
possession which can throw light on the
facts at issue. It is not, in our opinion, a
sound practice for those desiring to rely
upon a certain state of facts to withhold
from the Court the best evidence which is
in their possession which could throw light
upon the issues in controversy and to rely
upon the abstract doctrine of onus of
proof................."

20. It is also a material fact that the
statements
of
the
claimant
were
corroborated by the co-passenger Birbal
who appeared as P.W. 2. The deposition of
P.W. 2 is on record in which it has been
clearly stated that the bus driver had been
made aware by the deponent as well as
other co-passengers regarding the falling of
claimant off the bus, yet he ignored the
same and drove rashly and negligently
resulting in the incident and injuries.

21. The evidence on record has been
clearly considered by the Tribunal in a
cogent
and
reasonable
manner
and,
therefore, also the submissions of the
defendant-appellant regarding contributory
negligence of the claimant does not hold
any good ground.

22. In view of aforesaid, the appeal
fails and is dismissed. The parties to bear
their own costs.

23. The claimant-respondent is
granted
liberty
to
move
appropriate
application
for
withdrawal
of
the
outstanding awarded amount which shall be
paid upon such an application being made
with up to date interest.

24. The lower court record shall be
remitted to the Tribunal.
----------
(2021)08ILR A39
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

F.A.F.O. No. 2356 of 2004

Krishna Pyare Gupta & Ors. ...Appellants
Versus
U.P. State Bridge Corporation Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Deepak Jaiswal, Akansha Gaur, Sri
Ashok Kumar Gaur

Counsel for the Respondents:
Sri Mukesh Kumar Kushwaha, Sri K.S.
Chaudhry, Sri Krishna Shanker Chaudhary,
Sri V.A. Ansari

(A) Civil Law - The Motor Vehicles Act,
1988
-
Section
110A,110B
-
Fatal
Accidents Act, 1855 - The Income Tax Act,
1961 - Section194A (3) (ix) - multiplier -
principle of contributory negligence -
person who either contributes or author of
the accident would be liable for his
contribution to the accident having taken
place - principle of "res ipsa loquitur" -
"the
things
speak
for
itself"
-
composite/contributory negligence - The
deceased or the person concerned should
be shown to have contributed either to
the accident and the impact of accident
upon
the
victim
could
have
been
minimised if he had taken care .(Para -
8,11)

Appeal, at the behest of the claimants -
challenges judgment and award passed by
Motor Accident Claims Tribunal - awarding a
sum of Rs.8,88,608/- - interest at the rate of
6% as compensation - Tribunal deducted 30%
of the award - which is bad - deceased not the
author or the co-author of the accident having