# Reliance General Insurance Co. Ltd. NOIDA v. Smt. Pushpa Rani & Ors

- **Citation:** (2022) 12 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-10
- **Case number:** First Appeal From Order No. 1177 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reliance-general-insurance-co-ltd-noida-v-smt-pushpa-rani-ors-48004
- **Pages:** 7

## Headnote

Civil Law - Motor Accident - Motor
Vehicles Act, 1988 - Section 166 - Claim
petition - Contributory Negligence -
Pleadings & Proof - It is settled in law
that evidence cannot be read in absence
of pleading - Case of the claimants was
that deceased was standing on the road
when he was hit by the Tempo being
driven by its driver rashly and negligently
due
to
which
he
died
-
Insurance
Company filed written statement only
contending interalia that there was no
negligence of the driver of the offending
Tempo - Tribunal held that the deceased
abruptly came infront of the Tempo due to
which
the
accident
occurred
&
apportioned the negligence of the driver
of the Tempo to the extent of 60% and
that of deceased to the extent of 40% -
claimants challenged the award on the
ground that finding of the Tribunal that
there was contributory negligence of the
deceased in the accident is illegal - Held -
Neither the insurance company nor the
owner of the Tempo stated in the written
statement that the deceased had come
abruptly infront of the Tempo due to
which the accident had occurred - In the
absence of any case set up by the owner
or the insurance company that deceased
came infront of the Tempo abruptly which
caused the accident, it was not open to
the Tribunal to rely upon the testimony of
D.W.1/driver who stated that the accident
had occurred as the deceased suddenly
came infront of the Tempo - It is settled in
law that evidence cannot be read in
absence of pleading - Tribunal erred in law
in carving out a new case on its own and
return a finding that the deceased was
also negligent in the accident as he came
abruptly before the Tempo - Finding of the
Tribunal holding the negligence of the
deceased to the extent of 40% is perverse
and illegal and is not supported by any
evidence
on
record
-
said
finding
accordingly, set aside (24, 25, 27)

Allowed. (E-5)

List of Cases cited:

1 National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 (16) SCC 680.

## Text

12 All. Reliance General Insurance Co. Ltd. NOIDA Vs. Smt. Pushpa Rani & Ors.
223

10. This Court is thankful to both the
learned counsels for ably assisting this
Court.

11. Interim relief, if any, shall stand
vacated forthwith. The amount be disbursed
to the claimant forthwith.
----------
(2022) 12 ILRA 223
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 1177 of 2022
And
First Appeal From Order No. 3233 of 2019

Reliance
General
Insurance
Co.
Ltd.
NOIDA ...Appellant
Versus
Smt. Pushpa Rani & Ors. ...Respondents

Counsel for the Appellant:
Sri Saurabh Srivastava

Counsel for the Respondents:
Sri Dharmendra Kumar Gupta, Smt. Kiran
Gupta

Civil Law - Motor Accident - Motor
Vehicles Act, 1988 - Section 166 - Claim
petition - Contributory Negligence -
Pleadings & Proof - It is settled in law
that evidence cannot be read in absence
of pleading - Case of the claimants was
that deceased was standing on the road
when he was hit by the Tempo being
driven by its driver rashly and negligently
due
to
which
he
died
-
Insurance
Company filed written statement only
contending interalia that there was no
negligence of the driver of the offending
Tempo - Tribunal held that the deceased
abruptly came infront of the Tempo due to
which
the
accident
occurred
&
apportioned the negligence of the driver
of the Tempo to the extent of 60% and
that of deceased to the extent of 40% -
claimants challenged the award on the
ground that finding of the Tribunal that
there was contributory negligence of the
deceased in the accident is illegal - Held -
Neither the insurance company nor the
owner of the Tempo stated in the written
statement that the deceased had come
abruptly infront of the Tempo due to
which the accident had occurred - In the
absence of any case set up by the owner
or the insurance company that deceased
came infront of the Tempo abruptly which
caused the accident, it was not open to
the Tribunal to rely upon the testimony of
D.W.1/driver who stated that the accident
had occurred as the deceased suddenly
came infront of the Tempo - It is settled in
law that evidence cannot be read in
absence of pleading - Tribunal erred in law
in carving out a new case on its own and
return a finding that the deceased was
also negligent in the accident as he came
abruptly before the Tempo - Finding of the
Tribunal holding the negligence of the
deceased to the extent of 40% is perverse
and illegal and is not supported by any
evidence
on
record
-
said
finding
accordingly, set aside (24, 25, 27)

Allowed. (E-5)

List of Cases cited:

1 National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 (16) SCC 680.

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. 2009 (6) SCC 121

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
appellant-insurance company and learned
counsel for the claimants/respondents.

2. Since, these two appeals are arising
out of same accident and involve common
issues, therefore, both the appeals are being
224 INDIAN LAW REPORTS ALLAHABAD SERIES
decided
together
with
this
common
judgement.

3. For convenience, the facts are
being delineated from F.A.F.O. No.1177 of
2022.

4. The F.A.F.O. No.1177 of 2022 has
been preferred Reliance General Insurance
Company challenging the award dated
28.09.2013. F.A.F.O. No.3233 of 2019 has
been preferred by the claimants challenging
the award dated 28.09.2013 on the ground
that finding of the Tribunal that there was
contributory negligence of the deceased in
the accident is illegal and compensation
awarded by the Tribunal is not adequate.

5. The facts of the case are that one
Dr. Rajendra Singh on 07.07.2010 at about
10:00 P.M. was standing near his house
waiting for rickshaw when he was hit by
Tempo No.U.P.-15-W-9707 driven by its
driver rashly and negligently. In the said
accident, Dr. Rajendra Singh suffered
injuries and lateron died during treatment at
Subharti Hospital, Meerut. Further case of
the claimants in the claim petition is that
the deceased at the time of death was 56
years of age and was working as Senior
Consultant (Child Specialist)
in P.L.
Sharma Hospital, Meerut and was getting
salary of Rs.96,000/- per month.

6. The owner of the offending Tempo
filed written statement contending interalia
that Tempo was driven by one Praveen
Kumar, who was having a driving licence
to drive the Tempo. He further pleaded that
if any compensation is to be paid, the
liability of the same is of the insurance
company as the Tempo No.U.P.-15-W-9707
is duly insured with the Reliance General
Insurance Company Ltd.

7. The Reliance General Insurance
Company also filed written statement
contending interalia that there was no
negligence of the driver of the offending
Tempo in the alleged accident and further,
the liability of the insurance company is
subject to condition that all documents
relating to Tempo are in order. On the basis
of pleadings between the parties, the
Tribunal framed as many as four issues.

8. Challenge has been raised by the
insurance company as well as claimants in
their respective appeals with regard to
finding of Tribunal on issue no.1 in respect
of negligence and issue no.4 with regard to
quantification of compensation awarded by
the Tribunal.

9. On the issue no.1, the Tribunal
after considering the evidence on record
held that the accident had taken place by
the
Tempo
No.U.P.-15-W-9707.
The
Tribunal further held that the accident had
taken place due to rash and negligent
driving of driver of Tempo. However, the
Tribunal further proceeded to decide the
issue of contributory negligence of the
deceased in the accident and held that as
the deceased abruptly came infront of the
Tempo due to which the accident had
occurred, and if the deceased had been
careful, the accident would have been
avoided.
Accordingly,
the
Tribunal
apportioned the negligence of the driver of
the Tempo to the extent of 60% and that of
deceased to the extent of 40%.

10. On the issue of quantification of
compensation, the Tribunal on the basis of
salary certificate for the month of June, 2010
held the income of the deceased to be
Rs.96,701/- per month, and after deducting
the income tax from the salary of the
deceased held that compensation shall be
12 All. Reliance General Insurance Co. Ltd. NOIDA Vs. Smt. Pushpa Rani & Ors.
225
computed by taking the income of the
deceased to be Rs.9,45,591/- per annum. The
Tribunal, thereafter, deducted 1/3rd from the
income of the deceased towards the personal
expenses of the deceased and thereafter, by
applying the multiplier of 8 computed the
compensation. The Tribunal reduced the
compensation by 40% for the negligence of
the deceased in the accident.

11. Challenging the aforesaid award,
learned counsel for the appellant-insurance
company has contended that once it has come
on record that deceased came abruptly infront
of the Tempo, which was the cause of the
accident, therefore, it is established that the
accident was the result of sole negligence of
deceased, and therefore, Tribunal has erred in
law in holding the negligence of the driver of
the Tempo to the extent of 60%. It is
contended that as the claim petition has been
instituted under Section 166 of Motor
Vehicles Act and it is established on record
that the accident had taken place due to sole
negligence of the deceased, therefore, claim
petition was liable to be dismissed as
necessary elements of negligence of driver of
offending Tempo for maintainability of claim
petition under Section 166 of Motor Vehicles
Act is lacking in the instant case since the
accident was the result of sole negligence of
the deceased.

12. It is further submitted that the
compensation awarded by the Tribunal is
excessive. In support of the said contention,
learned counsel for the appellant-insurance
company has placed income tax return of
the deceased for the assessment year 200809 (financial year 2007-08), assessment
year 2009-10 (financial year 2008-09) and
Form-16 paper no.57Ga of the paper book
issued
by
the
Divisional
Additional
Director & Superintendent in Chief, P.L.
Sharma District Hospital, Meerut.

13. It is further submitted that income
of the deceased as shown in the income tax
return for the assessment year 2009-10 was
Rs.7,36,686/-, for the assessment year
2008-09 Rs.4,84,834/- and income tax
return are the best piece of evidence for the
purposes of determination of income of the
deceased, therefore, Tribunal should have
taken the the income shown in the income
tax return of the deceased for the purposes
of computation of compensation and thus,
Tribunal has erred in law in relying upon
the salary certificate paper no.25Ga dated
02.07.2010 issued by Divisional Additional
Director & Superintendent in Chief, P.L.
Sharma
District
Hospital,
Meerut
in
computing the income of the deceased. It is
further contended that the compensation
awarded by the Tribunal is excessive and is
liable to be reduced.

14. Per contra, learned counsel for the
claimants/respondents would contend that
in the instant case, Tribunal while deciding
the issue no.1 has recorded a categorical
finding that the accident had taken place
due to rash and negligent driving of driver
of Tempo, and once the said finding has
been recorded by the Tribunal, there was no
occasion for the Tribunal to carve out a
new case and hold the contributory
negligence of the deceased in the accident.
It is submitted that neither the insurance
company nor the owner of the Tempo has
stated in the written statement that the
deceased had come abruptly infront of the
Tempo due to which the the accident had
occurred. It is further submitted that once
there is no case of the insurance company
or the owner of the Tempo in the written
statement that the deceased abruptly came
infront of the Tempo, the Tribunal has erred
in law in carving out a new case on its own
and return a finding that the deceased was
also negligent in the accident as he came
226 INDIAN LAW REPORTS ALLAHABAD SERIES
abruptly before the Tempo. In such view of
the fact, it is submitted that the finding of
the Tribunal holding the negligence of the
deceased to the extent of 40% is perverse
and illegal and is not supported by any
evidence on record.

15. It is further contended that the
compensation awarded by the Tribunal is
inadequate inasmuch as the Tribunal has
rightly taken the income of the deceased
shown in the salary certificate of the
deceased dated 02.07.2010 issued by
Divisional
Additional
Director
&
Superintendent in Chief, P.L. Sharma
District Hospital, Meerut inasmuch as the
said salary certificate was proved by the
claimants by producing P.W-4. It is
contended that once the salary certificate is
proved by the claimants/respondents and no
evidence in rebuttal to the salary certificate
was filed by the insurance company or the
owner of the Tempo, the Tribunal has
rightly relied upon the income shown in the
salary certificate of the deceased for the
purposes of computation of compensation.
It is further submitted that in the instant
case, the income tax return filed on record
has been submitted on the basis of Form-16
issued by the department, but as the
deceased was Senior Consultant (Child
Specialist), there might have been increase
in the salary of the deceased and the actual
income could have come on record only
after deceased had received salary of the
entire financial year i.e. 01.04.2010 to
31.03.2011. It is submitted that Form-16
for the assessment year 2011-12 filed by
the appellant-insurance company does not
reflect as to what was the actual income of
the deceased in the financial year 2010-11.

16. Learned counsel for the claimants
further contended that as the deceased was a
government employee, therefore, the Tribunal
should have awarded 15% towards future
prospect in the view of the judgement of
Apex Court in the case of National
Insurance Company Limited Vs. Pranay
Sethi and Others 2017 (16) SCC 680. It is
further contended that the age of the deceased
was 56 years, therefore, the Tribunal should
have applied the multiplier of 9 in place 8 in
view of the judgement of Apex Court in the
case of Sarla Verma and others Vs. Delhi
Transport Corporation and others 2009 (6)
SCC 121, and further should have deducted
1/4th towards personal expenses of the
deceased instead of 1/3rd in view of the
judgement of Apex Court in the case of Sarla
Verma (supra) as there were four dependants
upon the deceased. It is further submitted that
the a very meagre amount of Rs.9500/- has
been awarded by the Tribunal towards funeral
expenses, loss of estate and loss of
consortium
respectively
whereas,
claimants/respondents
are
entitled
to
Rs.70,000/- towards the aforesaid heads in
view of the judgement of Apex Court in the
case of Pranay Sethi (supra). Accordingly, it
is submitted that the compensation awarded
by the Tribunal needs to be enhanced.

17. I have considered the rival
submissions of the parties and perused the
record.

18. The case of the claimants in the
claim petition was that deceased was
standing on the road as he was in search of
rickshaw and was hit by the Tempo being
driven by its driver rashly and negligently
due to which he suffered injuries and died.
In order to prove the accident and
negligence of the driver of the Tempo in the
accident, claimants produced two eye
witnesses i.e. P.W.2 and P.W.3.

19. P.W.2 in his testimony has
categorically stated that after closing his
12 All. Reliance General Insurance Co. Ltd. NOIDA Vs. Smt. Pushpa Rani & Ors.
227
mobile shop when he reached near
Maliyana over bridge, he saw a man
standing who was hit by Tempo No.U.P.-
15-W-9707 driven by its driver rashly and
negligently. In the cross examination, he
stated that he had informed about the
accident to the police at the checkpost. He
further stated that he heard loud noise and
then he saw that a man was lying on the
road, and passengers and driver of the
Tempo had fled away from the spot of the
accident.

20. Similarly, P.W.3 also stated that a man
was standing near the shop of Ganga Sharan
and when he reached near Disha Mobile Shop,
he saw that Tempo No.U.P.-15-W-9707 coming
from Baghpat being driven by its driver rashly
and negligently hit the man standing near the
shop of Ganga Sharan. He further stated that the
accident had taken place due to rash and
negligent driving of driver of Tempo. He further
stated that he had seen the accident.

21. At this stage, it is pertinent to note that
the driver of the Tempo had also appeared
before the Tribunal as D.W.1 and has admitted
the factum of the accident and further stated that
a man had come infront of his Tempo due to
which, the accident had occurred. He further
stated that he was driving the vehicle in control
and the accident was the result of sole
negligence of the deceased.

22. The Tribunal after appreciating the
testimony of P.W.2 and P.W.3 and the testimony
of D.W.1 held that the accident by Tempo
No.U.P.-15-W-9707 is proved by the claimants.
It further held that the accident had occurred
due to rash and negligent driving of driver of
Tempo.

23. At this point, it also pertinent to
note that in the written statement, neither
owner nor insurance company has pleaded
that the accident had occurred as the
deceased came before the Tempo abruptly.
The Tribunal after recording a finding of
the accident and negligence of the driver of
the Tempo, on its own proceeded to decide
the issue with respect to contributory
negligence of the deceased in the accident,
and in deciding the said issue, Tribunal
placed reliance upon the testimony of
D.W.1 and held that the accident occurred
because the deceased suddenly came
infront of the Tempo. It further found that if
the deceased had been careful and had not
come infront of the Tempo suddenly, the
accident would have been avoided. It
further found that the accident could also
have been avoided if driver of the Tempo
had control over the Tempo. The Tribunal,
accordingly, was of the view that the
manner in which the accident had taken
place also shows the negligence of the
deceased in the accident, and accordingly, it
held the negligence of the deceased to the
extent of 40%.

24. In the opinion of the Court, the
finding of the Tribunal with respect to
negligence of the deceased in the accident
is perverse inasmuch as in the absence of
any case set up by the owner or the
insurance company that deceased came
infront of the Tempo abruptly which caused
the accident, it was not open to the Tribunal
to rely upon the testimony of D.W.1 who
stated that the accident had occurred as the
deceased suddenly came infront of the
Tempo.

25. It is settled in law that evidence
cannot be read in absence of pleading.
Though, learned counsel for the insurance
company has placed paragraph 32 of the
written statement of the insurance company
to contend that insurance company has
denied the negligence of the driver of the
228 INDIAN LAW REPORTS ALLAHABAD SERIES
Tempo, and therefore, there was sufficient
pleading in support of the negligence of the
deceased in the accident, therefore, Tribunal
has rightly believed the testimony of D.W.1
in holding the negligence of the deceased in
the accident. But in the opinion of the Court,
the said contention is not sustainable. In this
respect, it would be apt to reproduce
paragraph 32 of the written statement of the
insurance company:-

"32. That without admitting the
alleged accident the O.P. No.2 takes up a
plea that the accident was not caused
because of negligence of the driver of Tempo
No.
U.P.-15-W-9707
but
because
of
negligence himself."

26. Perusal of paragraph 32 of the
written statement of the insurance company
does not show that any case has been set up
by the insurance company that deceased
came infront of the Tempo abruptly which
caused the accident, and therefore, there was
negligence of the deceased in the accident.
Pleading of paragraph 32 of the written
statement of the insurance company only
suggest that the insurance company has
denied the negligence of the driver of the
Tempo in the accident.

27. In such view of the fact, this Court
finds that the finding of the Tribunal holding
the negligence of the deceased to the extent
of 40% is illegal and not sustainable in law,
and is accordingly, set aside. Consequently,
this Court holds that the accident was the
outcome of the sole negligence of the driver
of the Tempo No.U.P.-15-W-9707.

28. Now, coming to the question of
quantification of compensation.

29. Though, the income tax return has
been filed by the claimants to establish the
income of the deceased, but claimants have
also filed salary certificate according to
which, the last salary drawn by the
deceased was Rs.95,901/-.

30. The argument of learned counsel
for the insurance company that Tribunal
ought to have taken the income tax return
of the deceased of the previous year is not
sustainable inasmuch as it is admitted on
record that deceased was a government
employee and returns of the deceased for
the assessment year 2009-10 had been filed
on the basis of Form-16 issued by
Divisional
Additional
Director
&
Superintendent in Chief, P.L. Sharma
District Hospital, Meerut.

31. The salary certificate indicating
the last drawn salary of the deceased has
also been issued by the same authority. The
income tax return has been filed by a
person for the income earned during the
entire financial year. In the instant case, the
financial year had begun on 01.04.2010
whereas deceased had died on 07.07.2010
just after four months from the date of
beginning of financial year.

32. Though, insurance company has
filed Form-16 issued by the department for
the assessment year 2011-12, but Form-16
does not give a clear picture as to the salary
which the deceased would have received
during the entire financial year if he had
been alive.

33. The perusal of Form-16 for the
assessment year 2011-12 reflects that tax of
Rs.8,000/- has been deducted from the
salary of the deceased in the months of
April, May, June and July, and thereafter,
Rs.56,967/- has been deducted from the
income of the deceased which had been
deposited on 31.07.2010, but it is not clear
12 All. Reliance General Insurance Co. Ltd. M.G. Road, Agra Vs. Smt. Kamla Devi & Ors.
229
from the same as to what was the actual
salary received by the deceased per month
whereas
claimants
had
filed
salary
certificate dated 02.07.2010 issued by
Divisional
Additional
Director
&
Superintendent in Chief, P.L. Sharma
District Hospital, Meerut showing the last
drawn salary of the deceased Rs.95,901/-
which was duly proved by the P.W.4 and no
evidence was filed in rebuttal to the same
by the insurance company, therefore, in the
opinion of the Court, the Tribunal has
rightly taken the income shown in the
salary certificate dated 02.07.2010 for the
purposes of computation of compensation.

34. Thus, this Court is of the view that
the submission of learned counsel for the
insurance company in the facts of the
present case that income tax return should
have been taken as the basis for computing
the compensation is misconceived and is
rejected.

35. Now, so far as the contention of
learned counsel for the claimants that
claimants are entitled to 15% towards
future prospect in view of the judgement of
Apex Court in the case of Pranay Sethi
(supra) and further Tribunal should have
applied the multiplier of 9 instead of 8 and
should have deducted 1/4th instead of 1/3rd
towards personal expenses of the deceased
has
substance.
Thus,
following
the
aforesaid judgement of Apex Court in the
case
of
Pranay
Sethi
(supra),
claimants/respondents are entitled to 15%
towards future prospect considering the age
of the deceased, and further non-pecuniary
damages awarded by the Tribunal is also
enhanced from Rs.9500/- to Rs.70,000/-.

38. The submission of learned counsel
for the claimants/respondents with regard
to wrong application of multiplier and
deduction of
1/4th
towards
personal
expenses of the deceased in place of 1/3rd
in view of the judgement of Apex Court in
the case of Sarla Verma (supra) has got
substance.
Thus,
it
is
provided
compensation should be computed by
applying the multiplier of 9 instead of 8
and further, 1/4th should be deducted
towards personal expenses of the deceased
instead of 1/3rd from the income of the
deceased for the purposes of computation
of compensation.

39. It is also provided that enhanced
amount of compensation shall carry 6%
simple interest from the date of institution
of claim petition till its payment.

38. Thus, for the reasons given above,
the F.A.F.O. No.1177 of 2022 preferred by
the Reliance General Insurance Company
lacks merit and is dismissed. The F.A.F.O.
No.3233 of 2019 preferred by the claimants
is partly allowed and the award of the
Tribunal is modified to the extent indicated
above. There shall be no order as to costs.
----------
(2022) 12 ILRA 229
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 2299 of 2015

Reliance General Insurance Co. Ltd. M.G.
Road, Agra ...Appellant
Versus
Smt. Kamla Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Mehrotra

Counsel for the Respondents: