Allahabad High Court
Ram Sagar vs Mohd. Arif Rizvi on 20 May, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:30355 Court No. - 5 Case :- FIRST APPEAL FROM ORDER No. - 347 of 2018 Appellant :- Ram Sagar Respondent :- Mohd. Arif Rizvi Counsel for Appellant :- Satendra Nath Rai Counsel for Respondent :- Amit Srivastava Hon'ble Abdul Moin,J.
1. Heard learned counsel for the appellant and Sri Amit Srivastava, learned counsel for the respondent.
2. Instant appeal has been filed aggrieved against the judgment and award dated 16.01.2018 passed by the learned Motor Accident Claims Tribunal, Lakhimpur Kheri in MACP Case No. 47 of 2016 Inre; Ram Sagar Vs. Mohd. Arif Rizvi whereby the claim application has been rejected.
3. The appeal is also accompanied by an application under Order 41 Rule 27 of the Code of Civil Procedure.
4. Contention of learned counsel for the appellant is that an accident is said to have taken place on 14.01.2015 when a Maruti 800 car being driven rashly and negligently hit the motorcycle of the claimant with the result that the claimant suffered serious injuries and was hospitalized.
5. After the claimant/appellant was discharged, he filed claim application before the learned tribunal praying for compensation. The claim application was filed on 06.10.2015. Whatever documents were available with the claimant in support of the claim application had been given to his Advocate Sri Ram Naresh Jaiswal. However, during pendency of the claim application, his counsel namely Sri Ram Naresh Jaiswal left for heavenly abode on 10.02.2017. The claimant claims to have never known about the death of his advocate. As his advocate did not appear before the learned tribunal, the learned tribunal vide its order dated 27.09.2017 closed the evidence and thereafter by means of the impugned judgment dated 16.01.2018 has dismissed the claim application.
6. Being aggrieved, the instant appeal has been filed.
7. Argument of the learned counsel for the appellant is that he had no knowledge of his advocate having died on 10.02.2017 and it is only when the claim application was dismissed that he came to know about the said order and has thereafter filed the appeal with delay which delay has been condoned by this Court vide order dated 13.12.2019.
8. By means of an application under Order 41 Rule 27 of the Code of Civil Procedure, additional evidence is also sought to be filed before this Court contending that all the evidence which was necessary for proving his case was in fact available with the claimant. A specific averment has been made in paragraph 9 of the application in support of the affidavit under Order 41 Rule 27 of the Code of Civil Procedure that on account of death of his advocate, copies of the receipts of the treatment bills & voucher could not be filed though they were available with him and the same have now been filed before this Court.
9. It is prayed that as the claimant is having all the evidence which was required to be considered by the learned tribunal consequently, the said evidence may be considered by this Court for the purpose of award amount of compensation to the claimant.
10. On the other hand, Sri Amit Srivastava, learned counsel for the respondents on the basis of objections which have been filed in the appeal has argued that the claimant did not have any evidence/documents in support of the claim application rather the relevant documents which ought to have been filed were never filed before the learned tribunal. This aspect of the matter has been considered by the learned tribunal while dismissing the claim application and consequently, it is now too late in the day to contend before this Court that the claimant may be permitted to file additional evidence.
11. However, there is no dispute pertaining to the advocate of the claimant having died on 10.02.2017 i.e during pendency of the claim application and the learned tribunal having closed the evidence of the parties on 27.09.2017 i.e subsequent to death of the claimant's advocate.
12. Heard the learned counsel appearing on behalf of the contesting parties and perused the records.
13. From the arguments as raised by the learned counsels appearing on behalf of the contesting parties it emerges that an accident is said to have occurred on 14.02.2015 which had left the appellant/claimant injured. Thereafter, the claimant/appellant filed a claim application before the learned tribunal on 06.10.2015. Certain documents as were available with the claimant had been given to his advocate Sri Ram Naresh Jaiswal. Unfortunately, Sri Jaiswal died during pendency of the claim application on 10.02.2017. The claimant did not come to know about the death of his advocate. The learned tribunal vide order dated 27.09.2017 closed the evidence and thereafter decided the matter on the basis of the evidence which was on record. The claim application was dismissed.
14. Being aggrieved, the instant appeal has been filed.
15. The ground as raised by the learned counsel appearing on behalf of the claimant while raising a challenge to the order of the learned tribunal is that although the claimant was having the complete evidence with himself but unfortunately the same could not be filed before the learned tribunal on account of the death of his advocate on 10.02.2017 and he could not even know about the death of his advocate with the result that the evidence was closed on 27.09.2017 and thereafter the claim application has itself been dismissed on the ground that the claimant has failed to prove his case.
16. Along with an affidavit, the additional evidence has also been filed under Order 41 Rule 27 of the Code of Civil Procedure in the instant appeal.
17. Perusal of Order 41 Rule 27 of the Code of Civil Procedure would indicate that additional evidence can be produced in appellate Court only if either the Court from whose decree the appeal is preferred has refused to admit evidence or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could be produced by him at the time when the decree was passed or the appellate Court may permit the same for any substantial cause.
18. In the instant case, although the claimant was having the evidence but the same could not be produced on account of death of his advocate which fact could not be known by the claimant and it is only when the claim application was dismissed by the learned tribunal it emerged that the claim application has been dismissed as the claimant could not prove the case before the learned tribunal.
19. The undisputed fact is the death of the counsel on 10.02.2017 and the evidence having been closed on 27.09.2017 by the learned tribunal i.e subsequent to the death of the counsel and the claimant having not known about the death of his counsel right till after pronouncement of the judgment by the learned trial Court on 16.07.2018.
20. In view of the above, there is ample ground whereby the additional evidence can be allowed to be produced by the claimant both on the ground of there being substantial cause and parties, despite due diligence, could not produce the evidence before the learned trial Court.
21. Keeping in view the aforesaid discussion, the appeal is allowed. The order dated 16.01.2018 passed by the learned tribunal is set aside. The matter is remitted to the learned tribunal to decide the claim application filed by the claimant a fresh after considering the evidence as led before this Court.
22. The claimant may file the evidence before the learned trial Court as has been filed before this Court by means of an appropriate application which would be permitted by the learned tribunal .
23. As the matter pertains to the year 2015 and a period of almost ten years have lapsed since then and the appeal itself has been pending since last seven years as such, it is provided that the learned tribunal shall proceed to decide the claim application in accordance with law and after hearing all the parties concerned expeditiously say within a period of six months from the date the certified copy of this order is placed on record.
Order Date :- 20.5.2025 Pachhere/-