1 FA No. 454 of 2011 hvn IN THE HIGH COURT OF JUDICAUTRE AT BOMBAY CIVIL APPELALTE JURISDICTION FIRST APPEAL NO. 454 OF 2011 Maharashtra State Road Transport Corporation ... Appellant Versus Smt. Subhashini Padmanabhan Iyer ... Respondent Mr. P. G. Lad for the appellant. Mr. T.J. Mendon for respondent no. 1. CORAM : SMT.R.P. SONDURBALDOTA, J. DATED : APRIL 05, 2011 P.C. 1. This First Appeal is preferred by the Maharashtra State Road Transport Corporation, Thane challenging the judgment and award dated 18th October, 2010 granting compensation to the respondent on account of death of her husband in the accident involving a bus belonging to the appellant. The impugned judgment and award grants compensation of Rs.16,62,000/- to the respondent with interest at the rate of 7.5% p.a. The admission of the appeal is strongly opposed by the respondent contending that there is no merit whatsoever therein and that there are no questions arising therein for the decision of this 2 FA No. 454 of 2011 court. The learned counsel submits that the appeal be dismissed at the stage of admission itself. 2. On 29th March, 2011 when the appeal was dismissed for default and restored to file it came to be adjourned to today to enable the appellant to file compilation of pleadings, the entire notes of evidence as also the documents produced by the parties in evidence before the tribunal for deciding the claim petition. Accordingly the compilation has been filed. Consequently, there is no need whatsoever to call for the records and proceedings. The same is dispensed with. 3. The brief facts of the case are that deceased Padmanabhan, husband of the respondent, on 2nd June, 2007 at about 10.00 p.m. was proceeding on his motor cycle by Shil Kalyan road from Dombivali to Panvel. When he was opposite Shubham Hotel, Diaghar, S..T. bus bearing registration No. MH-20/D-5627 came from opposite direction at high speed, overtook another vehicle and hit his motorcycle. As a result of impact, Padmanabhan was thrown off the motor cycle. He came under the rear driver side wheel of the bus and bus ran over him. He died on the spot. A complaint came to be filed in Mumbra Police Station vide C.R. No. 1-248-2006 against the driver of the bus for 3 FA No. 454 of 2011 causing the accident by rash and negligent driving. The respondent filed an application claiming compensation of Rs.25 lacs. on all counts for the death of Padnamabhan. According to respondent, Padmanabhan was 37 years old at the relevant time and serving with M/s. Patman and G Hospitality Pvt. Ltd. Mahim, Mumbai on the salary of Rs.14,800/- per month. He as the only earning member of the family. 4. In it's written statement, the appellant denied that there was any negligence on the part of it's driver. It alleged that the accident had taken place solely on account of negligence on the part of Padmanabhan in driving his motorcycle. In the alternative, the appellant contended that the Padnamabhan was guilty of contributory negligence and that the degree of negligence on his part was much higher than that on the part of it's driver. The written statement however, does not set out the facts of the accident as per the version of the appellant. 5. Without there being any pleadings whatsoever as regards the facts of the occurrence of the accident, the appellant examined its driver one Dattatraya Gaikawad in order to establish that the 4 FA No. 454 of 2011 accident had not taken place on account of his negligence and that taken place on account of the negligence of the deceased himself. The relevant part of his deposition reads as under : "I was driving the bus by my correct side of the road. When the bus reached near Kalyan Phata, a motor cyclist came from opposite direction. When he reached near the bus he applied brakes to his bike, therefore, his motorcycle skidded and it came under rear wheels of the bus. Width of the tar road at the place of the accident was 22 ft. There were strips kaccha road having width of 3 feet each on either side of the road. There was distance of 3 feet between S.T. Bus and motorcycle when it skidded. After the accident,I went to Diagahr Police Station. Accident took place due to the negligence of the motorcyclist." In his cross examination, however, he admitted that there is a departmental enquiry initiated against him after the accident and that he has also been chargesheeted for the accident. 6. The Tribunal rejected the above evidence of the driver of the 5 FA No. 454 of 2011 appellant and held that the accident took place on account of his negligence. Mr. Lad, the learned counsel for the appellant submits that the reasons given for rejecting the evidence of the driver are unsustainable being contrary to the record. The observation of the Tribunal pointed out by Mr. Lad at Para 10 of the impugned judgment reads as follows : "Version of the opponents witness Dattatraya Gaikawad is not consistent with the pleading of the opponent in the written statement Exh. 13. In the written statement the opponent as contended that the accident took place due to contributory negligence of the driver of the bus and deceased Padmanabhan but its witness Dattatray has deposed totally strange and new story. Therefore, the evidence of the witness Dattatray Gaikawad which is inconsistence with the pleadings of the opponent cannot be relied upon. Therefore, I do not rely o the evidence of Dattatraya Gaikawad." 7. It has been rightly pointed out by Mr. Lad that the main 6 FA No. 454 of 2011 contention raised in the written statement is that there was no negligence whatsoever on the part of the driver of the bus and that the entire negligence was on the part of the deceased himself. The contention as regards the contributory negligence had been taken only as an alternative plea which is perfectly permissible for the defence in the written statement. However, perusal of the impugned judgment shows that, that is not the only reason given by the tribunal to support the finding as regards the negligence. The tribunal has also looked into the contents of police papers, spot panchanama in particular, to arrive at the finding. Before adverting to the contents of the spot panchanama and observations of the tribunal thereon, it will be necessary to mention at this place that the evidence of the bus driver is required to be rejected for another reason and that is lack of necessary pleadings in the written statement. If the claimant sets out one version of the facts of the accident in the claim petition and if the opposite side desires to dispute the version, it is not sufficient for the other side to baldly deny the version. It must specifically set out its own version in the pleadings. In the absence of the pleadings, it was not open for the appellant to lead any evidence. This is not a technicality of the procedure but is a rule of fair play. Mr. Lad, however, argues that the pleadings at Para 8 and 9 of the written 7 FA No. 454 of 2011 statement that there was no negligence on the part of the driver of the bus and that the entire negligence was on the part of the deceased himself are sufficient pleadings. According to him, the details of the accident can be stated in the evidence. Denial of allegation of negligence is not a pleading of fact. It is an inference drawn by the appellant in favour of itself. Based upon this inference, alone the appellant could not have been allowed to given evidence of the unpleaded facts. In the circumstances, the tribunal, actually, ought not to have allowed the witness of the appellant to transgress the pleading by giving evidence of facts not pleaded. 8. The tribunal has noted from the police papers and particularly the spot panchanama that the only inference that can be drawn therefrom is of negligence on the part of the driver of the bus. The spot panchanama shows that the Dombivali Shil Road runs in East West direction. The width of the road at the place of occurrence was 22 ft with 3 ft. kaccha road on both sides. The deceased was proceedings towards Dombivali i.e. towards Eastern side while the S.T. bus was proceedings towards West side. With this Northern side of the road was correct side for Padmanabhan while Southern side of the road was correct side for the S.T. Bus. The spot 8 FA No. 454 of 2011 panchanama shows that the motor cyclist Padmanabhan was lying on Northern side of the road and his body was also lying near the North side of the road. This being correct side of the road for the deceased Padmanabhan, no negligence, can be attributed to him. In fact it was for the appellant to explain by the necessary pleadings and evidence, as to how could Padmanabhan came under rear wheel of it's bus since he was on the correct side of the bus. This explanation has nowhere come on record. 9. As regards contributory negligence, there are neither any pleadings nor any evidence. The deposition of the driver of S.T. bus does not set out as to how deceased Padmanabhan had contributed to the negligence. In these circumstances, there is no question arising for consideration of this court in the present appeal. Hence, the same is dismissed. Civil Application does not survive and the same is disposed off. (SMT. R.P. SONDURBALDOTA,J.)