JUDGMENT : 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 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 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 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 2008-09 (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 accident had occurred. 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 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 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. 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 judgment 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 judgment 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 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. 19. P.W.2 in his testimony has categorically stated that after closing his 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 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. 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. 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 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 judgment 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 judgment 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/-. 36. 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 judgment of Apex Court in the case of Sarla Verma (supra) has got substance. 36. 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 judgment 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. 37. 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.