Accident--Pleadings--Without any foundation in the written statement, the Insurance Company cannot build a defence during the course of arguments before the Appellant Court.

Mr. M. Jeyapaul, J.: - The Insurance Company has preferred FAO No. 4533 of 2011 challenging the liability fixed on it and the quantum of compensation awarded by the Tribunal. FAO No. 5113 of 2011 was filed by the claimants who are the parents of the deceased seeking enhancement of compensation.

2. It is the case of the claimants that on 15.8.2010 Arvinder Singh since deceased proceeded to village Kotwala, along with Manmohan Singh on his motorcycle. A bus bearing registration No. PB-12-K-4944 driven by its driver came in a rash and negligent manner without blowing horn. As a result of which, the bus dashed against the motorcycle and Arvinder Singh sustained injuries and died due to the multiple injuries. As the driver did not stop the bus, one Manjit Singh @ Ladi son of Malkiat Singh chased the bus on his motorcycle. He having stopped the bus, noted down the number of the bus and name of the driver. The claimants have claimed compensation of Rs.25 lacs along with interest @ 12% per annum.

3. The respondents resisted the claim on the ground that the driver was falsely implicated in the motor accident. The Insurance Company submitted that it was not liable to pay any compensation. A false case was registered against the vehicle bearing registration No. PB-12-K-4944 in order to get the compensation, it is further submitted.

4. The Tribunal in the absence of any contrary evidence on the side of the Insurance Company held based on the First Information Report Ex. P3 and the statement of Manjit Singh under Section 161 of the Code of Criminal Procedure marked as Ex.P5 in the background of the evidence of PW3 Manjit Singh that the accident took place only on account of the rash and negligence of the driver of the vehicle bearing registration No. PB-12-K-4944.

5. The Tribunal fixed the monthly income of the deceased as Rs. 3500/- in the absence of any satisfactory evidence on the side of the claimants. The Tribunal deducted 1/3rd of the income towards the personal living expenses of the deceased.

6. The learned counsel appearing for the Insurance Company would submit that the First Information Report does not give any details of the offending vehicle. The First Information Report was registered only against an unknown vehicle. At least the Tribunal should have held that there was contributory negligence on the part of the driver of the motor cycle bearing registration No. PB-12-L- 2511. The claimant was a bachelor but unfortunately instead of 50%, 1/3rd of the income was deducted towards the personal expenses, she would further submit.

7. The learned counsel appearing for the claimants would submit that the negligence on the part of the driver of the bus bearing registration no. PB-12-K-4944 was established through the First Information Report Ex. P3 and the evidence of PW3 Manjit Singh. No contributory negligence was attributed in the written statement filed by the Insurance Company. No case also was registered against Manmohan Singh who drover the motor cycle bearing registration No. PB-12-L-2511. He would further submit that PW4 Surinder Kaur has cogently spoken to the fact that the deceased was a mason. In the absence of any other evidence to the contrary from the side of the Insurance Company the Tribunal should have at least fixed the monthly income of the deceased treating the deceased as a skilled labourer. It is his further submission that nothing was awarded towards the future prospects.

8. As rightly pointed out by the learned counsel appearing for the claimants there was no allegation of contributory negligence as against Manmohan Singh who drove the motorcycle bearing registration No. PB-12-L-2511. Without any foundation in the written statement, the Insurance Company cannot build a defense during the course of arguments before the Appellate Court.

9. It is true that the First Information Report Ex.P3 does not give any particulars about the vehicle. In other words a criminal case was launched as regards the accide