JUDGMENT : 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 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. 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 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. 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. 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 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." 13. 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. 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 in Nedunuri Kameswaramma v. Sampati Subba Rao [1963] 2 SCR 208 : 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 in Bhagwati Prasad v. Shri Chandramaul : [1966] 2 SCR 286 : 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. 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 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 in Ram Sarup Gupta (dead) by LRs. v. Bishun Narain Inter College [1987] 2 SCR 805 " 14. 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. 15. Learned counsel for the claimant-respondent 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. 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 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 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 .................................................." 16. 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. 17. 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. 18. 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 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 head-count 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 defendant-appellant, the burden of disproving the claimant's narration lay upon the defendant-appellant 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 claimant-respondent. 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 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................." 19. 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. 20. 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. 20. 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. 20. In view of aforesaid, the appeal fails and is dismissed. The parties to bear their own costs. 21. 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. 22. The lower court record shall be remitted to the Tribunal.